Agenda packet — Ontario City Council, July 18, 2023 (part 9 of 13)

1. The Human Resources Department shall review all requests from the receiving employee to determine eligibility for catastrophic leave prior to the receiving employee or their Department requesting donations.

2. Catastrophic injury or illness as used in this provision is defined as an unforeseen or sudden unexpected illness or injury requiring immediate attention.

3. The receiving employee shall be on an approved continuous leave of absence at least 40 hours due to the catastrophic injury or illness. A statement from the employee’s or family member’s treating physician is required.

4. The employee has exhausted all accrued leave time, andtime and is therefore facing financial hardship.

5. The receiving employee must participate in any City disability benefits for which the employee is eligible (e.g. short-term disability, long-term disability, or workers’ compensation).

6. The total number of hours that can be donated to the receiving employee from all contributing employees combined shall not exceed 520 hours within 26 consecutive pay periods.

7. The contributing employee must have at least 96 hours of annual leave remaining after such contribution. The leave application rate shall be based on the contributing employee’s dollar value, which shall be adjusted proportionally to the receiving employee’s rate.

8. The transfers must be in whole hour increments. Donations shall be transferred in accordance with the recipient's needs. Department Head Unit employees may not donate retained sick leave.

9. Once the leave has been transferred from the donating employee to the receiving employee, the transfer is irrevocable. Transfers shall be subject to all taxes required by law.

10. Requests and transfers shall be made on a form prescribed by the Human Resources Department.

Section 3.09Section 3.11 Jury Duty
A. In the event any full-time employee is duly summoned to any court during the employee’s scheduled working hours for the purpose of performing jury service or serving as a witness, except in cases where the employee is a plaintiff, petitioner, defendant, respondent, or appellant; the employee shall be released from the employee’s regular duties with pay. Any fees for the performance of such service, excepting mileage or subsistence allowances, shall be remitted to the City.

B. Any employee called for jury duty in Rancho Cucamonga must return to work if dismissed before 3:00 pm. If the employee is called to San Bernardino, he or she must return to work 1031
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if dismissed by 2:00 pm. Upon return from jury duty, the employee shall present a certificate of service to the employee’s Agency Head.

C. This section shall not apply when an employee is summoned or otherwise required to appear in court in the course of City business.

Article IV. BENEFITS
Section 4.01 Health Insurance Contribution
The City will contribute up to a maximum of $300 per month toward health insurance premiums for active and retired employees. This amount is inclusive of the minimum statutory employer contribution under CalPERS medical (PEMHCA) for active employees who choose to enroll in the City’s medical plan.

Section 4.02 Insurance
A. City Contributions to Cafeteria Plan Benefits
The City will maintain an IRS Code Section 125 qualifying Cafeteria Plan to allow employees to pay for pre-tax medical, dental and vision benefits.

Enrollment: An Eligible Employee must enroll in the City medical insurance plan unless the employee satisfies the conditions to be eligible for the opt-out provision below. The City’s lowest cost employee-only plan satisfies the Federal Poverty Line Safe Harbor under the Patient Protection and Affordable Care Act.

City Contribution: For eligible active employees, excluding those in the Deputy Police Chief and Chief Deputy classifications, who enroll in coverage, the City Contribution, inclusive of the Health Insurance Contribution set forth in Section 6.01(A), shall be tiered.

Employees who enroll in the City’s medical plan shall receive a Health Flex Contribution depending on the level of coverage selected by the employee as follows:

Single Coverage $765
Two-party Coverage $1,090
Family Coverage $1,380
Beginning January 1, 2018, for Eeligible active employees who enroll in coverage, the monthly City Contribution, inclusive of the Health Insurance Contribution set forth in Section 4.01(A), shall be based on the level of coverage selected by the employee, and equal to the corresponding Kaiser premium for the region in which the employee is enrolled and as reflected on the CalPERS monthly billing statement. Employees hired on or before December 31, 2017, selecting single party coverage shall receive a contribution of no less than $765 per month, or the applicable Kaiser premium for single party coverage, whichever is greater. Employees hired on or after January 1, 2018, selecting single party coverage shall receive a monthly contribution up to the Kaiser premium for single party coverage for the region in which the employee is enrolled.

For purposes of the Affordable Care Act’s employer mandate, the amount of the lowest cost plan offered to the Eligible Employees is considered a Health Flex Contribution. A Health Flex Contribution cannot be cashed out or applied to other benefits. 1032
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After enrolling in the selected coverage, an Eligible Employee may take the remainder of the City’s Contribution in cash. Effective, January 1, 2018, oOnly those Eligible Employees hired on or before December 31, 2017 enrolled in single level coverage may take the remainder of the City’s contribution in cash as taxable compensation.

For employees in the Deputy Police Chief classification, the health insurance contributions rate shall not be less than the contribution provided for Police Captains in the Ontario Police Management Group Memorandum of Understanding.

For employees in the Chief Deputy classification, the health insurance contributions rate shall not be less than the contribution provided for Deputy Fire Chiefs in the Ontario Fire Management Group Memorandum of Understanding.

Cash-in-Lieu Option: An Eligible Employee will be eligible to receive cash-in-lieu of instead of enrolling in a City offered medical insurance plan only if the following conditions are satisfied.

1. The employee signs a form attesting that the employee and the employee's Tax Family have the Alternative Required Coverage for the Opt-Out Period. a. Tax Family means all individuals for whom the employee intends to claim a personal exemption deduction for the taxable year or years that begin or end in or with the City's plan year to which the opt-out applies. b. Alternative Required Coverage means minimum essential coverage through another source (other than coverage in the individual market, whether or not obtained through Covered California).
c. Opt-Out Period means the plan year to which the opt-out arrangement applies.

2. An employee must provide the attestation every plan year at open enrollment or within 30 days after the start of the plan year for each plan year the employee would like to receive cash in lieu.

3. The cash in lieu payment cannot be made and the City will not in fact make payment if the City knows or has reason to know that the employee or a Tax Family member does not have such alternative coverage, or if the conditions in this Section are not otherwise satisfied.

4. If the above conditions are satisfied:
a. Eligible Employees who waive coverage on or after September 1, 2004 are eligible to receive $420 per month cash-in-lieu.
b. Eligible Employees who waived coverage on or before September 1, 2004 are eligible to receive $485 per month cash-in-lieu.

5. Dental Insurance: Employees who enroll in the City’s dental plan shall receive an employer contribution up to the DPO basic plan premium for employee and dependents (in addition to the City Contribution described in Section 4.02). 1033
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Employees who do not enroll in the City dental plan will not receive employer contribution for dental premiums.

For employees in the Deputy Police Chief classification, the dental insurance contributions rate shall not be less than the contribution provided for Police Captains in the Ontario Police Management Group Memorandum of Understanding.

For employees in the Chief Deputy classification, the dental insurance contributions rate shall not be less than the contribution provided for Deputy Fire Chiefs in the Ontario Fire Management Group Memorandum of Understanding.

6. Vision Insurance: Employees who enroll in the City’s vision plan shall receive an employer contribution up to the basic vision plan premium for employee and dependent coverage (in addition to the City Contribution described in this Section 4.02). Employees who do not enroll in the City vision plan will not receive employer contribution for dental premiums.

B. Eligible Employee Requirements

1. Employees must be full-time (i.e. scheduled for a minimum of 40 hours per week) and be in a paid status for a minimum of 15 hours per pay period to be eligible for the benefits of Section 4.02, unless the employee is receiving disability benefits. Paid status includes hours paid for: regular work time, annual leave, management leave, bereavement leave, retained sick leave, jury duty leave, personal leave, paid military leave, disciplinary leave and paid holidays.

2. The City Manager may authorize, at their sole discretion, continuation of benefits for employees that do not have 15 hours of pay for a limited period of time. As defined under the Family Medical Leave Act of 1993 (FMLA), the City may determine that some unit employees may fall under the criteria of a “key” employee. If not a key 1034
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employee, health benefits shall be continued as required by law for leave taken pursuant to FMLA.

3. Employees who have leave balances must use all leave accruals available each pay period up to 80 hours, or up to the amount needed to reach 80 hours when combined with disability and workers’ compensation payments.

C. Disability
Article I. The City assumes the full premium cost for the employee in the Citydesignated short and long-term disability programs The City shall pay the premium for the City's Disability Insurance Program.

D. Life and Accidental Death & Dismemberment Insurance
Except for employees in the Deputy Police Chief and Chief Deputy classifications, eEmployees shall be covered by the City’s group term life insurance and accidental death and dismemberment (AD & D) insurance plan. The City will pay the premiums for life insurance coverage amounts of $51,00075,000 for basic life and $54,75,000 for accidental death and dismemberment policies (AD & D). Effective January 1, 2018, the level of coverage for each Department Head employee will increase to $75,000 for basic life insurance and $75,000 for accidental death and dismemberment insurance (AD&D).

For employees in the Chief Deputy classification, the City will pay a monthly life and accidental death and dismemberment insurance premium providing $300,000 basic life insurance or $300,000 accidental death and dismemberment insurance and not less than that of the Deputy Fire Chiefs in the Ontario Fire Management Group Memorandum of Understanding.

E. Retiree Health, Medicare, and Dental Contributions
For employees in the Deputy Police Chief classification, the retiree health, Medicare and dental insurance contributions shall be no less than the same contribution provided for Police Captains in the Ontario Police Management Group Memorandum of Understanding.

For employees in the Chief Deputy classification, the health, Medicare and dental insurance contributions shall be no less than the contribution provided for Deputy Fire Chiefs in the Ontario Fire Management Group Memorandum of Understanding.

Section 4.03 Flexible Spending Accounts
The City will offer Flexible Spending Accounts (FSA) to all unit employees. An FSA allows an employee to make pre-tax deductions for qualifying medical, dental, vision expenses, and dependent care expenses. The plan is established and administered in accordance with Section 125 of the Internal Revenue Service code.

Section 4.04 Deferred Compensation
A. The City has established a Section 401(a) money purchase plan for employer deferred compensation contributions. Effective July 2, 2023, tThe City will 1035
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contribute $2253% of the employee’s base salary per month to the Section 401(a) plan up to the maximum amount established by the relevant sections of the tax codes.

B. . For employees in the Deputy Police Chief classification, the deferred compensation contribution shall not be less than the contribution provided for Police Captains in the Ontario Police Management Group Memorandum of Understanding.

A.C.For employees in the Chief Deputy classification, the deferred compensation contribution shall not be less than the contribution provided for Deputy Fire Chiefs in the Ontario Fire Management Group Memorandum of Understanding.

1. B.D.Employees are eligible to voluntarily participate in a Section 457(b) deferred compensation plan as provided for in State and Federal Tax codes. Employees may contribute additional deferred compensation to the plan in accordance with plan provisions and subject to plan maximums.

Section 4.05 Employee Assistance Program
The City offers an employee assistance program for all members of this group. Confidentiality regarding employee use of this program will be maintained in full compliance with State and Federal Regulations.

Section 4.06 Tuition Reimbursement
To provide encouragement for all unit employees to continue educational development, specified employees shall be eligible for reimbursement of tuition expenses. The City shall reimburse an eligible employee for the cost of tuition for academic and continuing education courses that are determined to be job-related and subject to the following conditions:

A. Full-time employees are eligible.

B. The determination that the course is job related shall be made by the employee’s Agency Head.

C. The course shall provide college-level or professional continuing education credit from an accredited educational institution.

D. The employee is not eligible for assistance from any other source.

E. Submission and approval of the request for reimbursement must be completed at least 30 calendar days prior to the start date of the course.

F. Tuition is the only expense that shall be reimbursable. No reimbursement shall be made for lab fees, books, travel costs, etc.

G. Classes shall not interfere with the employee’s normal work hours. Any exceptions must be approved by the employee’s Agency Head.

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within 60 calendar days after completion of the course.

I. The maximum reimbursement amount paid to an eligible employee shall not exceed $1,000 per calendar year.

Tuition reimbursement requests shall be submitted to the employee’s Agency Head for a determination that the course is job-related. After such determination is made, the Agency Head shall forward the request to the Human Resources Department for processing. The Human Resources Department shall be responsible for notifying the employee of the disposition of the request prior to the start date of the course. Proof of payment and proof of completion shall be submitted to the Human Resources Department. Reimbursement shall be made within 30 calendar days following the receipt of proof of payment amount and proof of completion.

Section 4.07 Auto Allowance
The City may assign a City-owned vehicle to an employee for use on City business or the City may provide a monthly allowance of up to a maximum $217 350 for an employee that is regularly required to use the employee’s private vehicle on City business. The City Manager may adjust such stipend in accordance with levels of activity and operational necessity.

If assigned, a City-owned vehicle may be used by employee for City business and for commuting to and from the employee’s residence. City shall incur all costs related to the provision of the vehicle, including maintenance and insurance. Employee shall be responsible for ensuring that City’s vehicle is appropriately secured when parked at the employee’s residence. Employee acknowledges that City is required to report the value of the provided vehicle as income as required by applicable Internal Revenue Service regulations and tax laws.

Section 4.08 Meal Reimbursement
An employee may request reimbursement for meals consumed after regular work hours when such employee is required by the Agency Head to attend City Council meetings and city commission meetings that are in addition to those regularly scheduled. The limit for reimbursement shall be $12 and only actual expenses will be reimbursed. Requests will be submitted on the City’s reimbursement form through established channels and must include receipts verifying the expense.

Section 4.09 Health and Wellness Reimbursement
Effective July 1, 2024, employees shall be reimbursed up to $1,000 each fiscal year for eligible health and wellness related expenses that are not otherwise covered by the City’s group plans incurred for themselves and their eligible dependents. Such expenses may include: health plan premiums; health plan deductibles; gym/fitness club membership fees; sports activities or fees; sports clothing (footwear, equipment, training and wearable fitness devices); outdoor/indoor equipment fees and rentals; subscriptions and fees for virtual/online home fitness classes or fitness / health related applications; medical testing (biometric testing, fitness, BMI assessment); holistic healing and acupuncture; massage therapy; lessons or personal training; state or national park passes; art supplies; musical instruments; hobby and craft supplies; learning tools (applications, software or online subscriptions), or any other health and wellness related expense as determined by the Executive Director Human Resources / Risk Management. Reimbursements shall be made at designated times twice each year pursuant to the program provisions.

Article V. RETIREMENT – END OF SERVICE
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Section 5.01 CalPERS Contribution
A. Classic Member

1. A classic member is defined as an employee who meets the definition of a “classic” member for purposes of retirement pension benefits in accordance with the Public Employees Pension Reform Act of 2013. Generally, this includes employees that were hired before January 1, 2013 in the California Public Employees Retirement System (CalPERS) or a reciprocal retirement system with no break in service longer than six months. CalPERS ultimately determines who is a classic member in compliance with the law.

2. Classic CalPERS members shall be eligible for the 2.5% @ 55 Full and Modified Formula for Local Miscellaneous Members including integration with Social Security. This also includes the optional benefit of Government Code Section 20042, Highest Single Year.

3. All Cclassic members, except those in the Deputy Police Chief and Chief Deputy classifications shall pay the employee’s contribution of eight (8%) percent as a pretax deduction to CalPERS. Employees in the Deputy Police Chief classification shall pay the same CalPERS contributions as employees in the Ontario Police Management Group. Employees in the Chief Deputy classification shall pay the same CalPERS contributions as employees in the Ontario Fire Management Group.

3.4. B. New Member

1. A new member is defined as an employee who meets the definition of a “new” member for purposes of retirement pension benefits pursuant to the Public Employees Pension Reform Act of 2013. Generally, this includes employees that were hired into a regular position on or after January 1, 2013 or former members who have more than a six-month break in service. CalPERS ultimately determines who is a new member in compliance with the law.

1. New Members shall be eligible for the 2% @ 62 Formula for Local Miscellaneous Members including integration with Social Security.

2. The employee contribution for new members shall be one-half the normal cost, as determined by CalPERS. As of July 2013, the required employee contribution for new members is 6.25%, except for those in the Deputy Police Chief and Chief Deputy classifications. This amount will be adjusted periodically by CalPERS.

Employees in the Deputy Police Chief classification shall pay the same CalPERS contributions as employees in the Ontario Police Management Group. Employees in the Chief Deputy classification shall pay the same CalPERS contributions as employees in the Ontario Fire Management Group.

2.3. C. Optional Benefits for Classic and New Members
The City’s contract with the Public Employees’ Retirement System includes the 1038
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following optional benefits for both classic and new members:

1. Section 20903 – Two Years Additional Service Credit

2. Section 20965 – Sick Leave Credit

3. Section 21024 – Military Service Credit

4. Section 21037 – Cancel Payment for Optional Service Credit upon Retirement for Disability

5. Section 21548 – Pre-Retirement Optional Settlement Death Benefit Section 5.02 Employee Severance Compensation
In recognition that employees serve at the will and pleasure of the City Manager, the City Manager may offer employment severance pay to terminating employees. The period of such severance compensation shall be determined by the City Manager and may be included in the terms of a contractual agreement between the employee and the City made at the time the individual is hired or promoted.

ARTICLE VI. GENERAL PROVISIONS
Section 5.03Section 6.01 Overpayments, Recovery and Underpayments In situations involving overpayment to an employee by the City, the employee shall be obliged to repay by payroll deduction the amount of overpayment. The repayment shall ideally occur within the same time frame the overpayment was received by the employee or sooner at the employee’s discretion. For overpayments in excess of $100.00, the minimum repayment amount shall be $50.00 per pay period.

Either Human Resources, or the Payroll Department shall provide written documentation showing the calculations of the overpayment to the employee. A meeting may be requested by the employee with the Payroll Department to review the documentation and to discuss the recovery schedule. The repayment schedule, biweekly repayment amount or alternative repayment method (including repayment from personal funds) will be documented in writing.

Extensions to the period for repayment of the overage or an alternative repayment method may be requested by the employee and are subject to the approval of the Executive Director of Finance Human Resources / Risk Management or their designee. Extensions will be approved only in the case of extreme hardship, and the extended period for repayment will not be longer than one and one-half times as long as the overpayment period.

If the employee leaves employment prior to repayment of overage, the City shall recover the amount owed from the employee’s final pay. If the amount owed is greater than the employee’s final pay, the City shall initiate a collections process against the employee.

In situations involving underpayment to an employee by the City, the employee shall receive the balance due within the next pay period for which the adjustment can be made, following timely submission of appropriate documentation and necessary approval of the compensation change.

Section 5.04Section 6.02 Direct Deposit and Electronic Pay Advice 1039
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A. Employees must make and maintain arrangements for direct deposit of their net paychecks into the financial institution of their choice via electronic fund transfer. Such arrangements shall be made within one month.

B. In an extraordinary circumstances/eventsextraordinary circumstances/event that an employee is unable to make arrangements for electronic fund transfer, the employee shall submit a request in writing to the Human Resources Agency to be considered for an exception. Human Resources shall review the request for the Direct Deposit Special Exemption and may request supporting documentation; and the employee will be notified of the determination.

C. Any Direct Deposit Special Exemption granted may be reviewed periodically for continuation, subject to the approval of Human Resources Agency.

D. The electronic pay advice will be available for employees to view, save and print in the City’s human resources information system on the employee’s pay day.

ARTICLE VII. FINAL SIGNATURE
All provisions set forth in this Profile are hereby effective the 1st day of July 20212023.

City of Ontario
Scott Ochoa
City Manager
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APPENDIX A -- SALARY RANGE TABLE
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APPENDIX A

DEPARTMENT HEAD COMPENSATION RANGE ASSIGNMENTS
EFFECTIVE: JULY 2, 2023

CLASSIFICATION RANGE
Assistant City Clerk / Records Management Director DH5
Assistant Finance Director DH5
Assistant General Manager - Administration and Customer Service DH6 Assistant General Manager - Utilities Engineering and Operations DH8 Assistant Human Resources Risk Management Director DH4
Assistant Information Technology Director DH5
Broadband General Manager DH6
Building Official DH5
Chief Investment Officer DH1
City Engineer DH8
Communications and Community Relations Director DH5
Community Development Assistant Director DH8
Community Improvement Director DH2
Departmental Administrator DH1
Deputy City Manager (DH) DH5
Economic Development Director DH6
Emergency Medical Services Director DH2
Fire Administrative Director DH2
Housing Services Director DH2
Innovation Performance and Audit IPA Director DH5
Integrated Waste Director DH6
IT Applications Director DH2
IT Operations Director DH2
IT Systems Director DH2
Library Director DH2
Management Services Director DH5
Municipal Services Director DH1
Museum, Arts and Culture Director DH1
Parks and Maintenance Director DH1
Planning Director DH6
Police Administrative Director DH2
Real Estate and Development Assistant Director DH2
Recreation/Community Services Director DH1
Utilities Customer Services Director DH1
Water Resources and Regulatory Affairs Director DH5
Deputy Police Chief PS3
Chief Deputy PS3
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APPENDIX A

RANGE MINIMUM MEDIAN MAXIMUM
DH1 $ 10,902.66 $ 12,704.54 $ 14,506.41
DH2 $ 11,447.79 $ 13,339.76 $ 15,231.73
DH3 $ 12,020.18 $ 14,006.75 $ 15,993.32
DH4 $ 12,621.19 $ 14,707.09 $ 16,792.98
DH5 $ 13,252.25 $ 15,442.44 $ 17,632.63
DH6 $ 13,914.86 $ 16,214.56 $ 18,514.26
DH7 $ 14,610.61 $ 17,025.29 $ 19,439.98
DH8 $ 15,341.14 $ 17,876.56 $ 20,411.98
DH9 $ 16,108.19 $ 18,770.38 $ 21,432.57
DH10 $ 16,913.60 $ 19,708.90 $ 22,504.20
DH11 $ 17,759.28 $ 20,694.35 $ 23,629.41
PS1 $ 19,326.20 $ 22,515.03 $ 25,703.85
PS2 $ 20,485.70 $ 23,865.84 $ 27,245.98
PS3 $ 21,162.19 $ 24,653.96 $ 28,145.72
PS4 $ 22,431.84 $ 26,133.10 $ 29,834.35

RANGE MINIMUM MEDIAN MAXIMUM
DH1 $ 11,938.41 $ 13,911.47 $ 15,884.52
DH2 $ 12,535.33 $ 14,607.04 $ 16,678.74
DH3 $ 13,162.10 $ 15,337.39 $ 17,512.68
DH4 $ 13,820.21 $ 16,104.26 $ 18,388.32
DH5 $ 14,511.22 $ 16,909.47 $ 19,307.73
DH6 $ 15,236.78 $ 17,754.95 $ 20,273.12
DH7 $ 15,998.61 $ 18,642.69 $ 21,286.77
DH8 $ 16,798.55 $ 19,574.83 $ 22,351.11
DH9 $ 17,638.47 $ 20,553.57 $ 23,468.67
DH10 $ 18,520.40 $ 21,581.25 $ 24,642.10
DH11 $ 19,446.42 $ 22,660.31 $ 25,874.21
PS1 $ 21,162.19 $ 24,653.95 $ 28,145.72
PS2 $ 22,431.84 $ 26,133.09 $ 29,834.35
PS3 $ 23,172.60 $ 26,996.08 $ 30,819.56
PS4 $ 24,562.87 $ 28,615.74 $ 32,668.61

DEPARTMENT HEAD COMPENSATION RANGES
EFFECTIVE JULY 2, 2023

DEPARTMENT HEAD COMPENSATION RANGES
EFFECTIVE JULY 14, 2024
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Memorandum of
Understanding
Between
Ontario Police Officers
Association
And
City of Ontario
January 1July 1, 20182023
Through
June 30, 20222027
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TABLE OF CONTENTS
Article I. Memorandum...............................................................................................................................5 Section 1.01 PARTIES TO MEMORANDUM OF UNDERSTANDING...............................................................5 Section 1.02 RECOGNITION..............................................................................................................................5 Section 1.03 AGENCY PERSONNEL RULES ...................................................................................................5 Section 1.04 MOU DISTRIBUTION ....................................................................................................................5 Section 1.05 EFFECT OF AGREEMENT ...........................................................................................................5 Article II. Definitions....................................................................................................................................6 Article III. Management Rights ....................................................................................................................6 Section 3.01 .............................................................................................................................................................6 Section 3.02 .............................................................................................................................................................6 Section 3.03 .............................................................................................................................................................7 Article IV. Employee Rights .........................................................................................................................7 Section 4.01 .............................................................................................................................................................7 Section 4.02 .............................................................................................................................................................7 Article V. Employment Status.....................................................................................................................8 Section 5.01 PROBATIONARY PERIOD ...........................................................................................................8 Section 5.02 TRANSFERS .................................................................................................................................8 Section 5.03 POLICE SERGEANT PROMOTIONAL STANDARD MODIFICATION.........................................8 Article VI. Personnel Files......................................................................................................................... 10 Section 6.01 .......................................................................................................................................................... 10 Section 6.02 .......................................................................................................................................................... 10 Section 6.03 .......................................................................................................................................................... 10 Section 6.04 .......................................................................................................................................................... 10 Article VII. Disciplinary Procedure ............................................................................................................ 10 Section 7.01 .......................................................................................................................................................... 10 Section 7.02 .......................................................................................................................................................... 11 Article VIII. Classifications .......................................................................................................................... 11 Section 8.01 NEW CLASSIFICATIONS .......................................................................................................... 11 Section 8.02 HIGHER CLASSIFICATION WORK........................................................................................... 11 Section 8.03 .......................................................................................................................................................... 11 Section 8.04 .......................................................................................................................................................... 12 Section 8.05 .......................................................................................................................................................... 12 Article IX. Hours Of Work .......................................................................................................................... 12 Section 9.01 OVERTIME ................................................................................................................................. 12 Section 9.02 WORK SCHEDULE CHANGES ................................................................................................. 13 Section 9.03 MANDATORY MEETINGS......................................................................................................... 14 Section 9.04 COMPENSATORY TIME-OFF ................................................................................................... 14 Article X. Compensation .......................................................................................................................... 15 Section 10.01 SALARY...................................................................................................................................... 15 Section 10.02 SKILL COMPENSATION............................................................................................................ 16 Section 10.03 MOTORCYCLE PAY .................................................................................................................. 16 Section 10.04 HELICOPTER OBSERVER PAY................................................................................................ 17 Section 10.05 PILOT PAY ................................................................................................................................. 17 Section 10.06 CANINE PAY .............................................................................................................................. 17 Section 10.07 AIRPORT OPERATIONS BUREAU ........................................................................................... 18 Section 10.08 POLICE DETECTIVE INVESTIGATION TEAM ASSIGNMENTS.............................................. 18 1045
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Section 10.09 COURT APPEARANCE AND STANDBY COMPENSATION .................................................... 18 Section 10.10 OUT-OF-CITY DUTY COMPENSATION ................................................................................... 19 Section 10.11 ON-CALL DUTY.......................................................................................................................... 19 Section 10.12 SHIFT DIFFERENTIAL............................................................................................................... 19 Article XI. Benefits ..................................................................................................................................... 20 Section 11.01 HEALTH INSURANCE CONTRIBUTION FOR EMPLOYEES................................................... 20 Section 11.02 CITY CONTRIBUTIONS TO CAFETERIA PLAN BENEFITS .................................................... 21 Section 11.03 ELIGIBILITY................................................................................................................................ 21 Section 11.04 RETIREE HEALTH INSURANCE FOR EMPLOYEES APPOINTED TO A REGULAR SWORN POSITION PRIOR TO JULY 1, 2012 (TIER 1)..................................................................................................... 22 Section 11.05 RETIREE HEALTH INSURANCE CONTRIBUTION FOR EMPLOYEES APPOINTED TO A REGULAR SWORN POSITION ON OR AFTER JULY 1, 2012 (TIER 2)............................................................ 23 Section 11.06 RETIREE DENTAL INSURANCE............................................................................................... 25 Section 11.07 INSURANCE COMMITTEE........................................................................................................ 25 Section 11.08 LIFE INSURANCE ...................................................................................................................... 25 Section 11.09 UNIFORM MAINTENANCE ALLOWANCE................................................................................ 25 Section 11.10 EDUCATIONAL INCENTIVE PROGRAM .................................................................................. 26 Section 11.11 ........................................................................................................................................................ 26 Section 11.12 RETIREMENT............................................................................................................................. 26 Section 11.13 LONGEVITY PAY ....................................................................................................................... 28 Section 11.14 DEFERRED COMPENSATION.................................................................................................. 28 Article XII. Association Membership and Activity ................................................................................... 28 Section 12.01 ASSOCIATION MEMBERSHIP.................................................................................................. 28 Section 12.02 DUES DEDUCTION.................................................................................................................... 29 Section 12.03 RELEASE TIME.......................................................................................................................... 29 Section 12.04 MANAGEMENT-EMPLOYEE RELATIONS PROGRAM............................................................ 30 Article XIII. Grievance Procedure ............................................................................................................... 31 Section 13.01 DEFINITIONS ............................................................................................................................. 31 Section 13.02 LEVEL I - INFORMAL GRIEVANCE........................................................................................... 32 Section 13.03 LEVEL II - FORMAL GRIEVANCE ............................................................................................. 32 Section 13.04 ........................................................................................................................................................ 32 Section 13.05 LEVEL III..................................................................................................................................... 32 Section 13.06 LEVEL IV .................................................................................................................................... 33 Section 13.07 LEVEL V - ARBITRATION.......................................................................................................... 33 Section 13.08 GENERAL PROVISIONS ........................................................................................................... 33 Section 13.09 AUTHORITY OF THIRD PARTY................................................................................................ 35 Article XIV. Layoff Procedure...................................................................................................................... 35 Section 14.01 ........................................................................................................................................................ 35 Section 14.02 ........................................................................................................................................................ 35 Section 14.03 ........................................................................................................................................................ 35 Section 14.04 ........................................................................................................................................................ 35 Section 14.05 ........................................................................................................................................................ 36 Article XV. Holidays .................................................................................................................................... 36 Section 15.01 PAID HOLIDAYS ........................................................................................................................ 36 Section 15.02 HOLIDAY WORK COMPENSATION.......................................................................................... 36 Section 15.03 VACATION/SICK LEAVE ON HOLIDAYS.................................................................................. 37 Section 15.04 HOLIDAY ASSIGNMENT FOR DETECTIVE BUREAU DETECTIVES ..................................... 37 Article XVI. Vacation Leave ......................................................................................................................... 37 Section 16.01 VACATION ACCRUALS............................................................................................................. 37 Section 16.02 MAXIMUM VACATION LEAVE ACCRUAL ................................................................................ 37 Section 16.03 LEAVE CONVERSIONS............................................................................................................. 38 1046
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Article XVII. Leaves Of Absence With Pay.................................................................................................. 40 Section 17.01 SICK LEAVE............................................................................................................................... 40 Section 17.02 BEREAVEMENT LEAVE............................................................................................................ 41 Section 17.03 PERSONAL LEAVE.................................................................................................................... 42 Section 17.04 COMPENSATORY TIME-OFF ................................................................................................... 43 Section 17.05 CATASTROPHIC LEAVE PROGRAM ....................................................................................... 43 Section 17.06 MATERNITY, PATERNITY AND FAMILY CARE LEAVE .......................................................... 44 Article XVIII. Safety Equipment..................................................................................................................... 44 Section 18.01 EQUIPMENT USED.................................................................................................................... 44 Section 18.02 EQUIPMENT PROVIDED........................................................................................................... 45 Section 18.03 CARE AND MAINTENANCE OF EQUIPMENT ......................................................................... 46 Section 18.04 USE OF EQUIPMENT ................................................................................................................ 47 Section 18.05 UNIFORM WEAR REPLACEMENT ........................................................................................... 47 Section 18.06 EQUIPMENT REPLACEMENT DUE TO DAMAGE, THEFT, LOSS OR DESTRUCTION........ 47 Section 18.07 DEFINITION OF TERMS............................................................................................................ 48 Section 18.08 PROCEDURE............................................................................................................................. 48 Section 18.09 DISPOSITION OF SERVICE WEAPON..................................................................................... 49 Article XIX. Peaceful Performance Of City Services................................................................................. 49 Section 19.01 ........................................................................................................................................................ 49 Section 19.02 ........................................................................................................................................................ 49 Section 19.03 ........................................................................................................................................................ 50 Article XX. Separability ............................................................................................................................... 50 Section 20.01 ........................................................................................................................................................ 50 Article XXI. Duration And Implementation................................................................................................. 50 Section 21.01 ........................................................................................................................................................ 50 Section 21.02 ........................................................................................................................................................ 50 Section 21.03 ........................................................................................................................................................ 50 Appendix A – Grievance Form
Appendix B – Salary Grade Table
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Article I. MEMORANDUM
Section 1.01 PARTIES TO MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding (hereinafter known as MOU or Agreement) is made and entered into by and between the City of Ontario (hereinafter known as the City) and the Ontario Police Officers Association (hereinafter known as the Association).

Section 1.02 RECOGNITION
The City hereby formally recognizes the Ontario Police Officers Association as the Representative for those employees employed by the City and defined in Rule I, Section 26 of the Personnel Rules and Regulations, in the following classifications:

Police Detective
Police Corporal
Police Officer
Police Recruit
Recognition is granted for the purpose of meeting and conferring on wages, hours, working conditions and general representation of employees defined within this section.

Section 1.03 AGENCY PERSONNEL RULES
It is understood and agreed that there exists within the City, in written or unwritten form, certain personnel rules, policies and practices generally contained in the "City of Ontario Personnel Rules and Regulations," "Resolution No. 6836, Employer-Employee Rules and Regulations," and the ”Employment Policies” in the City’s Online Policy Center which will continue in effect, except for those provisions modified by this Agreement, unless and until modified by mutual agreement of the parties and enacted by the City Council in accordance with state laws, orders, regulations, official instructions or policies.

Except as provided herein all wages, hours, and other terms and conditions of employment presently enjoyed by affected employees shall remain in full force and effect during the term of the Agreement, unless changed by mutual agreement. The City shall have the right to update and improve said personnel rules, policies, and practices that do not affect wages, hours and other terms and conditions of employment with the understanding that prior to such changes the City will meet and confer with authorized representatives of the Association.

Section 1.04 MOU DISTRIBUTION
The City agrees to provide all new employees, covered by this Agreement, a copy of the MOU. Both the City and the Association will equally share in the cost of printing the MOU.

Section 1.05 EFFECT OF AGREEMENT
A. The parties acknowledge that during the negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands with respect to any subject or matter not removed by law from the area of collective bargaining, and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement.

B. This Agreement supersedes all previous agreements, understandings, and prior practices related to matters included within this Agreement.
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Article II. DEFINITIONS
A. BARGAINING UNIT - The term "bargaining unit" as used in this Agreement refers to the bargaining unit of the employees defined in Article 1, Recognition.

B. CALENDAR YEAR - The term "calendar year" as used in this Agreement refers to the period of 12 consecutive months commencing on January 1st and ending on December 31st.

C. DAY - The term "day" as used in this Agreement refers to a calendar day unless otherwise stated in this Agreement.

D. EMERGENCY - The term "emergency" as used in this Agreement means a circumstance requiring immediate action; a sudden, unexpected happening; an unforeseen occurrence or condition.

E. EMPLOYEE - The term "employee" as used in this Agreement refers to a full-time:

1. Regular Status Employee - The term "regular status employee" as used in this Agreement refers to an employee who has completed the probationary period.

2. Probationary Employee - The term "probationary employee" as used in this Agreement refers to an employee who has not completed their probationary period.

F. IMMEDIATE FAMILY - The term “immediate family” as used in this Agreement refers to an employee’s spouse, a registered domestic partner, child (which means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in local parentis, and is applicable regardless of age or dependency status), parents (which means biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee spouse or registered domestic partner, or a person who stood in local parentis when the employee was a minor minor child), brother, sister, grandfather, grandmother, mother-in-law, father-in-law and grandchildrenchildren, parents, brother, sister, grandfather, grandmother, mother-in-law, father-in-law, step-father, step-mother, step-children and grandchildren.

G. WEEK - The term week as used in this Agreement refers to seven consecutive days beginning on Sunday and going through Saturday.

H. WORK PERIOD – The term work period refers to the 28 consecutive days between Sunday and Saturday incorporating two (2) bi-weekly pay periods in accordance with Section 7(k) of the Fair Labor Standards Act.

Article III. MANAGEMENT RIGHTS
Section 3.01
There are no provisions in the Memorandum of Understanding that shall be deemed to limit or curtail the City in any way in the exercise of the rights, powers, and authority which the City had prior to entering into this understanding unless and only to the extent that the provisions of this Memorandum of Understanding specifically curtail or limit such rights, powers and authority.

Section 3.02
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The rights of the City include, but are not limited to:

A. The exclusive right to determine the mission of its constituent departments, commissions, and boards.

B. Set standards of service.

C. Determine the procedure and standards of selection for employment and promotion.

D. Direct its employees.

E. Relieve its employees from duty because of lack of work, or for other legitimate reasons.

F. Maintain efficiency of government operations.

G. Determine the methods, means, and personnel by which government operations are to be conducted.

H. Determine the content of job classifications.

I. Take all necessary actions to carry out its mission in emergencies.

J. Exercise complete control and discretion over its organization and the technology of performing its work.

K. To discharge, suspend, demote, reprimand, withhold salary increases and benefits, or otherwise discipline employees for cause.

L. To establish reasonable employee performance standards, including, but not limited to, quality and quantity standards, and to require compliance herewith.

Section 3.03
Where required by law, the City agrees, prior to implementation, to meet and confer with the Association over the impact of the exercise of a City right upon wages, hours, and other terms and conditions of employment of its members unless the impact consequences of the exercise of a management right upon the Association members is provided for in this Memorandum of Understanding, Personnel Rules and Regulations or Departmental Rules and Regulations.

Article IV. EMPLOYEE RIGHTS
Section 4.01
The City shall afford regular employees the procedural due process safeguards set by statute and by the published decisions of the California courts.

Section 4.02
An employee shall have the right of Association representation when the employee reasonably anticipates that such a meeting is for the purpose of disciplining the employee, or is to obtain facts to support disciplinary action that is probable, or that is being seriously considered. No employee shall be 1050
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discriminated against because of the exercise of the employee’s rights to Association representation or because of the employee’s lawful activities as part of the Association.

Article V. EMPLOYMENT STATUS
Section 5.01 PROBATIONARY PERIOD
A. OBJECTIVE
The probationary period is to be regarded as an integral part of the testing procedures and shall be utilized for closely observing the employee's work and adjustment within the organization.

B. LENGTH
All original and promotional appointments shall be tentative and subject to a probationary period of 12 months.

If a probationary employee is on leave for more than 30 consecutive calendar days during the probationary period, that employee’s probationary period shall be extended by the duration of the employee’s consecutive leave. The department head may extend an employee’s probation by up to six months upon written notice delivered to the employee prior to the completion of the employee’s original probation period.

C. REJECTION
During the probationary period, the department head may terminate a probationary employee without cause and without right of appeal. Notification of rejection in writing shall be served on the probationary employee two weeks before the effective date of the rejection.

An employee who is rejected while serving probationary period after promotion shall be returned to the employee’s former classification.

Section 5.02 TRANSFERS
A transfer may be affected at any time by the City Manager upon the recommendations of the department heads concerned, or to meet the needs of the service. All transfers must be within comparable classes, and no person shall be transferred to a position for which the employee does not possess the minimum qualifications. A transfer shall not be used to circumvent the regulations surrounding promotion, demotion, advancement or reduction.

Section 5.03 POLICE SERGEANT PROMOTIONAL STANDARD MODIFICATION A. The City and the Association agree to modify the promotional standards for the classification of Police Sergeant as follows:

1. A Police Detective, regardless of probationary status, will be eligible to apply for promotion to the Police Sergeant classification.

2. A Police Corporal who meets the following minimum qualifications may apply for promotion to the Police Sergeant classification:
a. Must have a minimum of twelve (12) years of experience as a Peace Officer in the 1051
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state of California,
b. Must have been employed by the Ontario Police Department full time as a sworn employee for a minimum of six (6) years,
c. Must have held the classification of Police Corporal with the Ontario Police Department for a minimum of three (3) years.

2.a. A Police Corporal with a minimum of four (4) years of work experience in the classification of Police Corporal may apply for promotion to the Police Sergeant classification.

B. The following provisions will apply to selection off of the eligible list established for the classification of Police Sergeant:

1. A Police Detective, regardless of probationary status, may be promoted to the Police Sergeant classification.

2. If a Detective who is still on probation gets promoted to the classification of Sergeant, and fails to make Sergeant probation, the Detective will go back to the classification of Detective, at which time he/she will have to complete the Detective probationary time he/she had left prior to being promoted to the classification of Sergeant.

3. A Police Corporal who meets the minimum qualifications in Section A.2. may be promoted to the Police Sergeant classification.

4. If a Corporal gets promoted to the classification of Police Sergeant, and fails to make Sergeant probation, he/she will go back to the classification of Corporal.

1. A Police Detective may not be promoted to Police Sergeant prior to the successful completion of the probationary period as a Police Detective.

2. No employees in the Police Corporal classification may be promoted to Police Sergeant until there are two (2) or less employees in the Detective classification remaining on the eligibility list, regardless of placement on the list.

C. The following provisions will apply to the selection off the eligible list established for the classification of Police Sergeant to fill Police Sergeant vacancies in the Air Support Unit.

1. When a vacancy for Police Sergeant exists within the Air Support Unit, the Department will have the discretion to consider only the applicants on the eligibility list who meet the additional requirements identified for Air Support.

2. Police Corporals who meet the additional qualifications, regardless if currently assigned to the Air Support Unit, may be considered and selected for the Air Support Unit even if more than two Detectives remain on the eligibility list.

Section 5.04 POLICE DETECTIVE STAFFING
A. The City and the Association agree to modify the minimum number of employees with the classification of Police Detective:
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1. Beginning on March 9, 2023, the Ontario Police Department will have a minimum of 25 employees with the classification of Police Detective.

2. Beginning on March 9, 2023, the Ontario Police Department will have a minimum of 20 employees with the classification of Police Detective assigned full time to the Detective Bureau.

Article VI. PERSONNEL FILES
Section 6.01
Personnel files shall be maintained at both the Human Resources Department and at the Police Department. All performance evaluations and disciplinary actions shall be maintained in both files.

Section 6.02
Employees, during normal working hours with reasonable notice and with their supervisor's approval, have the right to have access to and copies of any document in their official personnel file. Employees may be charged for cost of excessive duplication of any materials in the personnel file for which they request copies.

Section 6.03
An employee will be provided with an initial copy of any document, which will be placed in the official personnel file. An employee shall have the right to respond in writing or personal interview to any information contained in the employee’s personnel file. Such a reply will remain in the personnel file so long as the referenced document is in the file.

Section 6.04
Documentation of a disciplinary action of 2 working day suspension or less shall be removed from an employee’s official personnel file(s) if 5-years has passed since the effective date of the action and there have been no further disciplinary actions of a similar nature during the 5 year period. The employee must request removal of such documentation, in writing, to the Chief of Police, who shall make the final determination as to whether there have been no further disciplinary actions of a similar nature.

Documentation of disciplinary actions in excess of a two working day suspension may be removed from an officer’s file after five years, at the sole discretion of the Chief of Police.

Article VII. DISCIPLINARY PROCEDURE
Section 7.01
The following disciplinary procedure must be used for all serious disciplinary actions involving regular/full time employees BEFORE the actions go into effect. Basically, the disciplinary procedure provides that:

A. The employee shall receive advance notice of the proposed disciplinary action. Normally, such advance notice will be ten calendar days.

B. The notice must contain the reasons and the charges upon which the proposed action is based. 1053
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C. The notice must also contain a statement of the events or circumstances upon which the action is based.

D. The employee must be given the materials, if any, upon which the action is based.

E. The employee must be given the right, either orally or in writing, to respond to the department head or the City Manager (in the case of a discharge) proposing the action. This procedure will be consistent with Provision 13.08(M) of the grievance procedure.

F. This disciplinary procedure should be used for all serious disciplinary actions which are normally considered (1) demotions, (2) discharges, (3) reductions in pay, and (4) suspensions.

Section 7.02
The above procedure may be deviated from in circumstances where there is a need for immediate action.

In such cases, an employee may be ordered off the job if the employee’s conduct imperils the safety or welfare of the public, other employees, or said employee.

Article VIII. CLASSIFICATIONS
Section 8.01 NEW CLASSIFICATIONS
The City agrees to meet and confer with the Association on any new classifications approved, which appropriately should be added to the unit covered by this Agreement.

Section 8.02 HIGHER CLASSIFICATION WORK
Any bargaining unit employee who is assigned to temporarily perform the preponderance of duties of a position in a higher classification for more than 40 consecutive hours shall receive the rate of pay equivalent to the higher classification worked while the employee continues to work in the higher classification, with three exceptions:

A. If substantial time has elapsed since the employee has last performed the work of the higher classification, the supervisor may require a performance test, not to exceed a normal day's work at the employee's normal rate of pay.

B. In the instances where new equipment or new operational procedures are involved, the supervisor may require a training period not to exceed 16 hours at the employee's normal rate of pay.

C. In those instances where training is not involved, and if, in the supervisor's opinion, an employee is proficient in the higher classification, management shall pay that employee at a higher classification pay rate.

Section 8.03
The higher salary rate payable shall commence on the 41st working hour following the temporary reassignment to the performance of duties of the higher classification. The higher rate of pay shall be defined as a 5% special salary adjustment or Step “1” of the classification, whichever is higher. 1054
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Section 8.04
This assignment will continue until the City no longer requires the incumbent to perform the duties of such assignment.

Section 8.05
At the end of such assignment the employee performing the temporary assignment shall be returned to the employee’s original position and salary range.

Article IX. HOURS OF WORK
Section 9.01 OVERTIME
A. The City reserves the right to schedule overtime work as required in a manner most advantageous to the City and consistent with the public interest and the requirement of municipal employment.

B. The City has an established a regularly recurring work period of twenty-eight (28) consecutive days for its law enforcement personnel, pursuant to 29 U.S.C. 207(k) of the Fair Labor Standards Act (FLSA). The FLSA overtime threshold for the 28-day 207(k) work period is 171 hours.

C. Each employee, covered by this Agreement, shall receive overtime compensation, at the rate of 1½ times the employee's regular rate of pay in cash or compensatory time off:

1. , Ffoor all time worked, or deemed to have been worked (including all paid leaves of absences), in excess of the employee's regularly scheduled daily shift, and ;

2. For employees in a 4/10 schedule, when the number of hours worked (including all paid leaves of absence) exceeds 40 hours per week, or

3. For Employees on a 3/12.5 hour shift schedule, when the number of hours worked (including all paid leaves of absences) exceeds 75 hours or 85 hours in the respective pay period as follows:
a. For employees assigned to the 3/12.5 hour shift schedule, the 28 day work period will be divided into two 14-calendar day pay periods; one pay period shall include 75 scheduled hours and the other 14-calendar day pay period shall include 85 scheduled hours. Overtime shall be paid to the employees assigned to the 3/12.5 hour shift schedule when the number of hours worked (including all paid leaves of absence) exceeds 75 hours or 85 hours in the respective pay period.

4. For Employees on a 3/13 hour shift schedule, when the number of hours worked (including all paid leaves of absences), exceeds 78 hours or 86 hours in the respective pay period, as follows:
a. For employees assigned to the 3/13 hour shift schedule, the employeewill be assigned 78 scheduled hours for three (3) consecutive 14-calendar day pay 1055
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periods and then one (1) 14-day calendar pay period which shall include 86 scheduled hours. Overtime shall be paid to the employees assigned to the 3/13 shift schedule when the numbers of hours worked, or deemed to have been worked (including all paid leaves of absences), exceeds 78 hours or 86 hours in the respective pay period.

B.5. or 40 hours per week for employees on a 4/10 shift schedule, or 160 hours in a 28 day work period for employees on a 3/12.5 hour shift schedule. For employees assigned to the 3/12.5 hour shift schedule, the 28 day work period will be divided into two 14- calendar day pay periods; one pay period shall include 75 scheduled hours and the other 14-calendar day pay period shall include 85 hours. Overtime shall be paid to the employees assigned to the 3/12.5 hour shift schedule when the number of hours worked (including all paid leaves of absences) exceeds 75 hours or 85 hours in the respective pay period. Overtime worked pursuant to grant funding must be compensated for in cash.

C.D. A
n employee may retain a balance of unused compensatory time not to exceed 480 hours at any given time. This includes all accumulated compensatory time off regardless of the reason the compensatory time off was earned.

D.E.Upon separation or retirement from the City, the employee will receive credit for any unused compensatory time that has been accrued. It will be paid out at the employee’s regular rate of pay.

E.F.Employees in this bargaining group may also convert accrued compensatory time to salary compensation at the employees’ regular rate of pay in accordance with the provisions in Section 16.03.

F.G.When a Unit employee has accumulated 480 hours of compensatory time, no further compensatory time shall be accumulated, and the employee shall only be eligible for overtime pay in accordance with this MOU.

Section 9.02 WORK SCHEDULE CHANGES
A. Whenever possible employees will be provided reasonable advance notice regarding changes or tentative changes in their work schedule which are not the result of emergency situations necessitating immediate action. As a general rule, 48 hours would be considered reasonable advance notice.

B. The parties have agreed to implement one or more of the following schedules a “blended schedule” for employees assigned to patrol, whereby some employees will work a 3/12.5 weekly work schedule, and other employees will work a 4/10 weekly work schedule, a 3/13 weekly worked schedule, or a combination thereof.

1. Employees in Patrol assigned to the 3/12.5 schedule will work 3 consecutive workdays of

12.5 consecutive hours each, inclusive of a paid 30-minute meal period and breaks. During a 28-day work period employees assigned to the 3/12.5 work schedule will also be scheduled to work one additional 10-hour work shift, inclusive of a paid 30-minute meal period and breaks. The 10-hour shift will generally be adjacent to an employee’s “Monday” or “Friday”, but exceptions may occur to accomplish department-wide training or other 1056
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special details. The employees assigned to the 3/12.5 schedule shall have regularly assigned work days of Friday, Saturday and Sunday. The parties will mutually develop rules to address the interaction between the 3/12.5 work schedule and extended training of 3 days or more, jury duty and other implementation issues that arise.

2. Employees in Patrol assigned to the 4/10 work schedule will work 4 consecutive work days of 10 consecutive hours each, inclusive a paid 30-minute meal period and breaks.

Employees assigned to the 4/10 schedule will have regularly assigned work days of Monday, Tuesday, Wednesday and Thursday.

3. Employees in Patrol assigned to the 3/13 schedule will work 3 consecutive workdays of 13 consecutive hours each for 3 consecutive 14-day pay periods, inclusive of a paid 30-minute meal period and breaks. During the 4th 14-day pay period, employees assigned to the 3/13 work schedule will also be scheduled to work one additional 8-hour work shift, inclusive of a paid 30-minute meal period and breaks. The 8-hour shift will generally be adjacent to an employee's "Monday" or "Friday", but exceptions may occur to accomplish departmentwide training or other special details. The parties will mutually develop rules to address the interaction between the 3/13 work schedule and extended training of 3 days or more, jury duty and other implementation issues that arise.

C. Effective April 1, 2008 the parties agree that employees required to don and doff uniforms and/or protective equipment will be provided 15 minutes paid time at the start of each work shift for donning and doffing of uniforms and equipment.

Section 9.03 MANDATORY MEETINGS
Whenever an off-duty employee is required by the Department to attend a meeting the employee shall be compensated one and one-half times the employee’s regular rate of pay, with a minimum of two hours.

Section 9.04 COMPENSATORY TIME-OFF
A. The process for granting or denying requests for compensatory time off set forth in the April 2006 negotiated policy shall be replaced by the process specified herein.

B. For the purpose of this Section, “minimum staffing” on all patrol shifts is fourteen (14) Officers/Corporals, with the exception of the 3/12.5 Mid Shift and the 3/12 Mid Shift where “minimum staffing” is eight (8) Officers/Corporals.

C. If a compensatory time off request is submitted five (5) or more days in advance of the requested day off and there are ten (10) or more Officers/Corporals listed as working (including those in their normal schedule and/or those assigned to overtime) on the requested day off at the time the request is submitted, then the request shall be approved, and it shall be the Police Department’s responsibility to find replacement Officer(s) according to the overtime protocol, so that there are a minimum of fourteen (14) Officers/Corporals working each shift (except 3/12.5 Mid Shift and 3/13 mid shift).

1. 3/12, 3/12.5, 3/13 and 4/10 Mid Shift
If a compensatory time off request is submitted five (5) or more days in advance of the requested day off and there are five (5) or more Officers/Corporals listed as working (including those in their normal schedule and/or those assigned to overtime) on the requested day off at the time the request is submitted, then the request shall be approved, and it shall be the Police Department’s responsibility to find replacement Officer(s) 1057
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according to the overtime protocol, so that there are a minimum of eight (8) Officers/Corporals working each shift.

D. In the event the compensatory time off request is submitted less than (5) days in advance of the requested day off (i.e., submitted Monday for Saturday), the supervisor receiving the request shall attempt to fill that vacancy according to the overtime protocol, and if not filled, the compensatory time off request will be denied, unless the employee can find a replacement for their shift.

E. The above process will be in effect for every calendar day of the year except for the following:

1. The provisions of Sections 9.04(C) and 9.04(C)(1) shall be modified on “Super Bowl Sunday,” Memorial Day, Labor Day, the Annual Dinner, Christmas Eve, Christmas Day, and New Year’s Eve (December 31st). Compensatory and holiday time off requests may be denied when there are ten hirteen (103) or less Officers/Corporals scheduled to work, or eight (8) or less on any of the shift deemed to be a the 3/12.5 Mid Shift, on the requested day off, and the supervisor receiving the request was unsuccessful in securing a replacement Officer according to the overtime protocol.

2. Independence Day (July 4th)
Patrol Officers/Corporals who are regularly scheduled to work on the Fourth of July and who wish to use compensatory or holiday time off for that day will be required to submit a request to a shift supervisor. The supervisor shall attempt to find a replacement Officer/Corporal according to the overtime protocol regardless of shift staffing minimums (i.e. if there are fifteen (15) Officers scheduled, fifteen (15) Officers will be the minimum for that day). If the supervisor receiving the request was unsuccessful in securing a replacement Officer according to the overtime protocol, the request will be denied.

3. If a supervisor is unsuccessful in securing a replacement Officer according to the overtime protocol in instances described in Sections 9.04(E)(1) and 9.04(E)(2), and it is 24-hours or less before the requested day off, the Officer/Corporal requesting the day off has the option of securing a replacement Officer (e.g. an Officer, Corporal, or Detective who is not on the overtime protocol list for that shift; or an Officer to “hold over” from the previous shift combined with another Officer to come “in early” from the following shift to each work a partial shift).

4. Because shifts overlap to maximize staffing during certain periods, “hold over” and “in early” replacement Officers shall be limited to no more than three (3) replacement Officers on a given shift.

Section 9.05 SPECIAL EVENTS
Employees assigned to work special events overtime will be provided 15 minutes paid time at the start of the shift for donning and doffing of uniforms and equipment, as well as be paid for reasonable travel time to and from the police station and the special event venue.

Article X. COMPENSATION
Section 10.01 SALARY
A. Effective January 7July 2, 202318, employees within the unit will receive a 135% increase in 1058
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base salary.

B. Effective January 6, 2019July 14, 2024, employees within the unit will receive a 53% increase in base salary.

C. Effective January 5,July 13, 20250, employees within the unit will receive the lesser of a a 35% increase in base salary. or the percentage increase in base salary required to maintain the leading total compensation position amongst comparable agencies. A total compensation survey as identified in Section 10.14 shall be used to determine the percentage of base salary increases for all classifications.

D. Effective January 3July 12, 20261, employees within the unit will receive the greater of a 5%a 4% increase in base salary or the percentage increase in base salary required to maintain the leading total compensation position amongst comparable agencies. A total compensation survey as identified in Section 10.14 shall be used to determine the percentage of base salary increases for all classifications.

D. .

E. Salary ranges for the various classifications shall be set forth in Appendix “B” attached to this MOU.

Section 10.02 SKILL COMPENSATION

BILINGUAL PAY
Employees, who are routinely and consistently assigned to positions requiring communication skills in languages other than English speak Spanish or any other language designated by the Police Chief to perform bilingual translation as part of their regular duties, shall receive bilingual pay. provided they pass Employees in such positions must be certified as competent in their translation skills by passing an examination administered by the Human Resources Department that tests their oral translation competency in job-related situations.

Eligible employees shall receive bBilingual pay at the rate of shall be 6% above the employee’s an officer’s base salary. In the event there are more than 50 employees who receive bilingual pay, the City may require the Association to meet and confer on a fair manner to limit the number of personnel who receive such premium compensation.

Section 10.03 MOTORCYCLE PAY
A. Employees assigned to motorcycle duty, will receive a stipend of 5% above base pay.

In addition to the compensation set forth above, an employee assigned to Motorcycle Duty shall receive compensated time of four hours per pay period for motorcycle cleaning and maintenance.

The City and the Association agree that four hours per pay period represents a reasonable estimate of the time spent by the employee maintaining and cleaning the motorcycle. Employees assigned full-time to motorcycle duty shall receive four hours of straight compensatory time each pay period. Employees shall not be eligible for such compensatory time if they are on an extended 1059
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illness or other leave of absence and not actually performing any cleaning or maintenance.

Employees may be scheduled to take 8 hours off each month at a time mutually agreed upon between the supervisor and the employee. It is not the intent of this provision to allow employees to accumulate the 4 hours each pay period without taking time off each month.

B. Eligible department employees may be assigned in a uniformed motorcycle officer capacity, operating out of the Ontario Mills Station on a part time basis not to exceed 25 hours per week.

For the duration of the assignment, employees in these assignments:

1. Shall receive Motorcycle Pay at the rate of 5% above base pay.

2. Shall participate in training as needed or required by the Traffic Division.

3. Shall work hours set, monitored and/or adjusted by Ontario Mills Station Supervision.

4. Shall be responsible for monthly maintenance of the assigned motorcycle. This maintenance shall be performed while on duty if scheduling permits. If the employee cannot perform the maintenance while on duty, the employee, with the approval of the supervisor, may perform the maintenance off duty and be compensated at the rate of two hours of straight compensatory time per pay period. The City and the Association agree that two hours per pay period represents a reasonable estimate of the time spent by the employee maintaining and cleaning the motorcycle for a part-time assignment.

5. Shall house the assigned motorcycle at the designated station.

6. Shall not take the motorcycle home.

7. Shall not use the motorcycle for any other purpose outside the assigned duties unless preauthorized in writing by the appropriate supervisor in suitable situations.

This assignment may be eliminated at any time without cause by the Police Chief or his/her designee.

Section 10.04 HELICOPTER OBSERVER PAY
Employees assigned to helicopter duty will receive a stipend of 5% above base pay.

Section 10.05 PILOT PAY
Employees assigned to perform pilot duties will receive assignment pay of 8% above base pay.

Section 10.06 CANINE PAY
The City and the Association agree that a reasonable estimate of the time spent in the off-duty care and maintenance of the dog is 45 minutes per day. Time spent commuting from a canine officer’s home to work at the beginning or end or a regularly assigned shift shall not be considered as time worked for purposes of compensation.

A. On regularly scheduled workdays, canine officers will be permitted to arrive to work 45 minutes late per day as compensation for off-duty time maintaining the dog. On those regularly assigned work days when a canine handler is absent or on paid leave (i.e., compensatory time off, 1060
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vacation day, etc.), the employee will be required to utilize nine hours and 15 minutes from the appropriate paid leave account.

B. In addition, on regularly scheduled days off, canine handlers shall be paid for 45 minutes at one and one-half times the officer’s regular rate of pay, as compensation for maintaining the dog. Therefore, each week, canine handlers shall receive two hours and 15 minutes of premium overtime in cash or compensatory time off, at the employee’s option.

C. In the event that the canine handler is required to spend an extraordinary amount of time in the care and maintenance of the employee’s animal, the handler shall obtain supervisor approval and shall be compensated for those additional maintenance activities above and beyond the normal care and maintenance of the animal.

D. Employees assigned as canine handlers shall receive assignment pay of 5% above base pay.

E. Whenever a canine is retired from active duty, the canine handler last having the dog shall have the option to purchase the dog for $1 pursuant to the applicable canine policy and purchasing agreement.

Section 10.07 AIRPORT OPERATIONS BUREAU
Employees who have completed required training and are regularly assigned to the Airport Operations Bureau (AOB) will receive assignment premium of 5.12% above base pay.

Section 10.08 POLICE DETECTIVE INVESTIGATION TEAM ASSIGNMENTS A. Police Detectives assigned to the Officer Involved Shooting (OIS) Investigation Team will receive assignment pay of 3% above base pay.

B. Police Detectives assigned to the Homicide Investigation Team will receive assignment pay of 3% above base pay.

C. Police Detectives assigned to both the Officer Involved Shooting and AND Homicide Investigation Teams will receive a total of 5% above base pay instead of the 3% for each assignment. are eligible to receive both pays in their entirety.

Section 10.09 COURT APPEARANCE AND STANDBY COMPENSATION A. An employee who makes a court appearance on their off-duty time shall be compensated for the actual time in court with a minimum of three hours of compensation at the time and one half rate for a morning appearance and three hours of compensation at the time and one half rate for an afternoon appearance.

B. An off-duty employee who is required to be on standby for court shall be compensated with four hours of pay at straight time rates or four hours of compensatory time off, at the employee’s option, for each morning court session and four hours of pay at straight time rates or four hours of compensatory time off, at the employee’s option, for each afternoon court session. In order for the employee to be eligible to receive standby compensation for the afternoon session, the employee may be required to provide the employee’s supervisor with the name of the deputy district attorney requiring the afternoon standby.
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C. If the employee who has been required to be on standby is subsequently required to appear in court, the employee shall be paid for the actual number of hours on standby (at straight time) and the actual time spent in court (at time and one half the employee’s regular rate of pay) or four hours at time and one half the employee’s regular rate of pay, whichever is greater.

D. Court appearance and standby compensation is intended only for staff who are off-duty. Such compensation will not be added to or replace compensation for work time. There will be no overlapping payment for court appearance or standby hours and work time or other paid time, regardless of the minimum hours for court appearance and court standby compensation.

E. An employee assigned to patrol duties who works a night shift and is required to make a morning court appearance on the same day shall receive overtime pay when the time between the end of the shift and the court appearance is less than two hours. Court appearance compensation shall begin when the officer leaves for court.

F. For any court appearance outside the City of Ontario where an officer is required to remain over the lunch hours, the employee shall be entitled to one meal not to exceed $5.00 in cost.

G. For any court appearance originating from the Police Department, outside a radius of ten miles, a City vehicle will be made available whenever possible and shall be utilized by the officer. If the officer must utilize a private vehicle, the officer will be reimbursed for the actual mileage according to the business standard mileage rate established and maintained by the Internal Revenue Service (IRS) for the use of private vehicles.

Section 10.10 OUT-OF-CITY DUTY COMPENSATION
When an officer is assigned out of the City on mutual aid the employee shall be entitled to a minimum of eight hours pay or up to a maximum of 12 hours pay for every 24 hours the employee is required to be absent from the City. The amount of time earned shall be dependent upon the actual amount of time the officer is on duty and not in a standby status. Such time shall be computed from the time the officer leaves Ontario Police Headquarters until the employee returns to Ontario Police Headquarters. All meals and lodging will be furnished.

When the officer returns, the officer in charge shall submit a detailed report of all activities and how the officer's time was allocated; i.e., travel, standby duty, or other status.

Section 10.11 ON-CALL DUTY
Employees who are assigned to be on-call by their supervisor for any period of time during a seven consecutive calendar day period shall receive 20 hours of compensation at straight time. For example, an employee who is on-call from Friday at 5 pm until the following Friday at 4:59 pm shall be paid 20 hours. Also, an employee who is on call for less than a full week (i.e., from Friday at 5 pm until Saturday at noon) shall similarly be entitled to 20 hours compensation.

Section 10.12 SHIFT DIFFERENTIAL
A. Shift differential shall be 3% above base pay.

B. Employees assigned to the 4/10 work schedule whose regular work shift begins prior to 5 a.m. or ends at 8 p.m. or later, shall receive shift differential compensation.

C. Employees assigned to the 3/12.5 work schedule whose work shift begins between noon and 5 a.m. shall receive shift differential compensation. Employees assigned to the 3/12 work 1062
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schedule at the Mills mall whose shifts end at 10 p.m. or later shall also be eligible for shift differential.

D. All employees on work assignments that require that their shift start and end times are subject to modification periodically by supervision shall likewise be entitled to shift differential. Shift differential shall not apply to employees assigned to Mills mall whose work shift times are temporarily modified for the duration of the December Holiday shopping period. Employees assigned to School Resource Officer (SRO) duties shall not be eligible for shift differential.

E. Shift differential shall not be paid for any hours worked as overtime by employees not assigned to these identified shifts/assignments.

Section 10.13 FIELD TRAINING OFFICER (FTO) PAY
Employees in the Police Officer classification who have a current POST Field Training Officer (FTO) certification may serve as an FTO. An FTO shall receive an additional five percent (5%) of their base pay for all shifts where a trainee is assigned to him/her. The Police Chief or their designee shall determine and specifically assign, in writing, an employee to perform FTO duties. An employee shall not be eligible for Higher Classification Work compensation when assigned as an FTO.

Section 10.14 TOTAL COMPENSATION SURVEY
The City is committed to providing a total compensation package that is number one in Ontario’s survey market going forward. The number one total compensation package shall be determined based on the results of the total compensation survey (hereinafter “survey”) conducted by the City.

For purposes for conducting future surveys, beginning in February of 2024, the City and the Association will meet and confer over the details of an updated survey for the benchmark classification of Police Officer, including, but not limited to: cities to be included in the survey, elements to be included in the calculation of total compensation, and mathematical formulas used to calculate each element. If the City and the Association are able to reach mutual agreement on details of an updated survey, said survey will be conducted no later than May of 2025. Representatives of both the City and Association shall jointly certify the results of the survey.

For the term of this contract, the percentage increase for the rank of Police Officer shall also be applied to Police Corporal and Police Detective.

Article XI. BENEFITS
Section 11.01 HEALTH INSURANCE CONTRIBUTION FOR EMPLOYEES The City agrees to make a Health Insurance Contribution of no more than the minimum statutory employer contribution under CalPERS medical (PEMHCA) for active employees who choose to enroll in the City’s medical plan. This shall be the same contribution provided to annuitants as described in Sections 11.04(D) and 11.05(C). Employees who opt out of enrollment in the City’s medical plan will not receive the City’s Health Insurance Contribution; and if an employee in this status subsequently elects to be covered by the City’s medical plan, the employee may enter the plan subject to enrollment criteria established by the City’s insurance administrator.
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Section 11.02 CITY CONTRIBUTIONS TO CAFETERIA PLAN BENEFITS A. The City will maintain an IRS Code Section 125 qualifying Cafeteria Plan which shall provide for the following menu of benefits:
• Medical insurance
• Dental insurance
• Vision insurance
• Cash
A benefit under the Cafeteria Plan is contingent upon an understanding that the benefit qualifies as a pre-tax benefit pursuant to State and Federal tax laws. If for any reason State or Federal law precludes one or more of the above listed benefits from the protection of a Section 125 Cafeteria Plan, the City may remove that benefit from the Plan without impacting the other benefits offered in order to maintain the City’s Cafeteria Plan as a Section 125 qualifying plan.

B. Employees must enroll in a City medical plan unless they provide proof of other group insurance coverage and meet any other requirements established by the City’s insurance administrator.

C. The City will contribute a flexible benefit allowance to all employees eligible to participate in the Cafeteria Plan. The flexible benefit allowance amounts described below shall be inclusive of the City’s Health Insurance Contribution that is provided towards the employee’s premiums for the City’s medical plan as stated in Section 11.01.

1. The employee shall receive $390 per month OR the combination of the components described below, whichever is greater, as follows:
a. Employees who enroll in the City’s medical plan shall receive a Cafeteria Plan Benefit equal to the plan and coverage level they choose but not to exceed the Southern California Kaiser plan rate for the level of coverage for the premium region that includes the employee’s home address (or the rate applicable to Ontario if the employee lives outside of the Southern California area); employees who waive participation in City medical coverage shall receive $390; AND
b. Employees who enroll in the City’s dental plan shall receive a Cafeteria Plan Benefit equal to the City’s basic dental plan premium for the coverage level they choose; AND c. Employees who enroll in the City’s vision plan shall receive a Cafeteria Plan Benefit equal to the City’s basic vision plan premium for the coverage level they choose.

Section 11.03 ELIGIBILITY
To be eligible in any particular pay period to receive the benefits of Sections 11.01 and 11.02, employees must code at least 15 hours of paid time in the pay period. Paid time includes regular time and all types of paid leave, including 4850 time, sick, vacation, compensatory time, holiday, bereavement, jury duty, personal, military, catastrophic and administrative leave. Paid time excludes disability payments (including Total Temporary Disability, Short-Term and Long-Term Disability) and periodic special pays such as uniform allowance. If employees are not eligible to receive the contributions pursuant to Sections 11.01 and 11.02, they may still maintain benefit coverages at their own expense. 1064
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Section 11.04 RETIREE HEALTH INSURANCE FOR EMPLOYEES APPOINTED TO A REGULAR SWORN POSITION PRIOR TO JULY 1, 2012 (TIER 1)
A. Definition of Retiree. All unit employees who retire from the City and qualify as an “annuitant” under Government Code Section 22760 shall be eligible for retiree health insurance under the terms and conditions set forth herein. The terms retiree and annuitant shall mean the same thing pursuant to this section.

B. Definition of Tier 1. Tier 1 is the Retiree Health Insurance provision for active and retired employees appointed to a regular sworn position prior to July 1, 2012. Employees originally hired prior to July 1, 2012 who then leave City employment and are subsequently re-hired are eligible for Tier 1 benefits provided their re-hire date is within 12 months of the date they separated from the City. Employees re-hired after the 12 month period will receive Tier 2 retiree health insurance benefits even if they are eligible to retain the CalPERS 3% @ 50 retirement formula. A “Tier 1 retiree or employee” is a retiree or employee who is eligible for Tier 1 benefits because they were appointed to a regular sworn position prior to July 1, 2012.

C. Vested Benefits for Tier 1. In exchange for the Association agreeing to changes in retiree medical and pension formulas for new employees hired on or after July 1, 2012, the City agrees that Tier 1 employees and retirees have a vested benefit to retiree medical contributions.

Specifically, the vested benefit as a Tier 1 retiree is the value of the actual premium cost up to the Kaiser premium rate applicable to the region including the City of Ontario for the coverage level selected and not to exceed the two-party Kaiser premium rate for the City-provided insurance applicable to active employees.

D. Retiree Health Insurance Contribution. The City agrees to make a Retiree Health Insurance Contribution of no more than the CalPERS medical minimum statutory employer contribution for eligible annuitants who choose to enroll in the City’s medical plan. Retirees who opt out of enrollment in the City medical plan will not receive the City’s Retiree Health Insurance Contribution.

E. Retiree Tier 1 Reimbursement. Tier 1 retirees who enroll in the City’s medical plan in retirement shall be eligible to receive an additional reimbursement from the City to off-set the cost of the medical premium consistent with the value of their vested benefit to retiree medical costs as described in Section 11.04(C). To the extent permitted by the IRS, the reimbursement shall be made on a pre-tax basis.

The reimbursement amount shall be for the plan and coverage level selected, not to exceed the following amounts:

Coverage Level
Maximum Amount of Reimbursement
(Minimum contribution from Section 11.04(D) to be deducted from rates below)
Single Kaiser single rate for premium region including City of Ontario Two-party or Family Kaiser two-party rate for premium region including City of Ontario F. Medicare Reimbursement.

1. A retiree who is eligible for Medicare coverage must enroll in Medicare Parts A and B and select a supplemental health benefits program to receive the City’s Retiree Health Insurance Contribution and Retiree Tier 1 Reimbursement. 1065
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2. For Tier 1 retirees who select a supplemental benefits program that costs less than the City’s Contribution plus Reimbursement, the City will pay to the retiree the monthly cost of the Standard Part B Premium, but not to include any penalties assessed for the retirees’ failure to timely enroll in Medicare, not to exceed the City’s savings as compared to the total of the maximum monthly Retiree Health Insurance Contribution in Section 11.04(D) and the Retiree Tier 1 Reimbursement in Section 11.04(E) combined.

3. The Medicare Reimbursement shall be paid to all retirees who are enrolled in Medicare effective January of that year.

4. Examples of how the Medicare Reimbursement is calculated are as follows:

Example A: Reimbursement amount is less than retiree Medicare Part B premium for a Tier 1 retiree.

Description Monthly Amount
Retiree Health Insurance Contribution $112
Retiree Tier 1 Reimbursement $819
Total City Contribution $931
Supplemental Plan $878
Difference $53
Standard Medicare Part B Premium $99.99
City’s Medicare Reimbursement to Retiree $53
The City will pay the full cost of the supplemental plan, plus reimburse to the retiree an annual payment of $636 ($53/mo x 12).

Example B: Reimbursement amount is same as retiree Medicare Part B premium for a Tier 1 retiree.

Description Monthly Amount
Retiree Health Insurance Contribution $112
Retiree Tier 1 Reimbursement $819
Total City Contribution $931
Supplemental Plan $800
Difference $131
Standard Medicare Part B Premium $99.99
City’s Medicare Reimbursement to Retiree $99.99
The City will pay the full cost of the supplemental plan, plus reimburse to the retiree an annual payment of $1,199.88 ($99.99/mo x 12).

Section 11.05 RETIREE HEALTH INSURANCE CONTRIBUTION FOR EMPLOYEES APPOINTED TO A REGULAR SWORN POSITION ON OR AFTER JULY 1, 2012 (TIER 2) A. Definition of Retiree. All unit employees who retire from the City and qualify as an “annuitant” under Government Code Section 22760 shall be eligible for retiree health insurance under the terms and conditions set forth herein. The terms retiree and annuitant shall mean the same thing pursuant to this section.

B. Definition of Tier 2. Tier 2 is the Retiree Health Insurance provisions for employees appointed 1066
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to a regular sworn position on or after July 1, 2012. A “Tier 2 retiree or employee” is a retiree or employee who is eligible for Tier 2 benefits because they were appointed to a regular sworn or Police Recruit position on or after July 1, 2012.

C. Retiree Health Insurance Contribution. The City agrees to make a Retiree Health Insurance Contribution of no more than the CalPERS medical minimum statutory employer contribution for eligible annuitants who choose to enroll in the City’s medical plan. Retirees who opt out of enrollment in the City medical plan will not receive the City’s Retiree Health Insurance Contribution.

D. Retiree Medical Trust.

1. For Tier 2 employees, the City shall contribute $750 per month to a retiree medical trust (hereinafter “Trust”) for the purpose of providing a savings plan for each employee to purchase medical insurance upon retirement.

2. The $750 monthly payment shall be made while the employee is in active status and will be paid over 24 pay periods (excluding “free” pay periods) per year. To be eligible to receive the payment in any particular pay period, the employee must code at least 15 hours of paid time in the pay period. Paid time includes regular time and all types of paid leave, including 4850 time, sick, vacation, compensatory time, holiday, bereavement, jury duty, personal, military, catastrophic and administrative leave. Paid time excludes disability payments (including Total Temporary Disability, Short-Term and Long-Term Disability) and periodic special pays such as uniform allowance.

3. The Trust will be administered by the Association. The Trust must meet Internal Revenue Service (IRS) requirements. The Association will be solely responsible for contracting with a trust program or administrator for the maintenance of the Trust. If any of the provisions of the Trust documents or contract between the Association and the Trust program or administrator are inconsistent with the terms of this MOU or any future MOU, the terms of the MOU will prevail.

4. The Association shall assume all responsibility and liability for the Trust for all active and retired Tier 2 employees of the City and their dependents, survivors, heirs, and beneficiaries. The Association shall defend, indemnify and hold the City harmless from any legal action or claims arising from any breach of this MOU or breach of the Trust by the Trustee, Trust Administrator or the Association, or failure by the Trustee, Trust Administrator or Association to fulfill its fiduciary responsibilities.

E. Medicare.

2. The City shall contribute the actual cost of the selected supplemental benefits program for the level of coverage selected up to the maximum of the City’s Retiree Health Insurance Contribution in Section 11.05(C).

3. The retiree may, if available and permitted under the terms of the Retiree Medical Trust, use contributions made to the Trust to cover any additional costs not covered by the Retiree Health Insurance Contribution.
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Section 11.06 RETIREE DENTAL INSURANCE
All unit employees who during the term of this MOU retiree from the City and qualify as an “annuitant” under Government Code Section 22760, shall be eligible to purchase dental insurance at their own expense.

Section 11.07 INSURANCE COMMITTEE
The City agrees to continue the Insurance Committee which will have a representative designated by the Association as one of its members. This Committee shall have the responsibility to review the changes in the insurance programs. Insurance programs include auxiliary benefits provided by the City, such as dental insurance, vision insurance, and life insurance.

Additional auxiliary insurance programs may be recommended by the Committee for review and shall be subject to approval by the Executive Director Human Resources/Risk Management.

The Insurance Committee may also assist in the ongoing review of the City’s workers’ compensation program which may include reviewing the performance of the City’s third-party administrator.

Recommendations provided by the Committee shall be reported to the Executive Director Human Resources/Risk Management for consideration.

The Committee shall be composed of one representative from each recognized employee unit and one representative appointed by the City ManagerExecutive Director Human Resources / Risk Management..

The Assistant City Manager or Deputy City Manager their designee shall be an ex-officio member of the Committee and entitled to attend all meetings.

Section 11.08 LIFE INSURANCE
The City shall contribute on behalf of all active employees, a monthly life insurance contribution amount equal to the cost of life insurance and accidental death and dismemberment insurance providing $200,000 in basic life insurance benefits and $200,000 in accidental death and dismemberment insurance benefits for each employee. Employees assigned to the Air Support Unit shall be provided an additional $100,000 in basic life insurance benefits and $100,000 in accidental death and dismemberment insurance benefits.

The cost of the additional insurance benefits shall be paid by the City.

Section 11.09 UNIFORM MAINTENANCE ALLOWANCE
Effective the first paycheck in November, each sworn employee represented by the Association will receive the sum of $950 per annum as an annual uniform maintenance allowance for maintenance, cleaning and normal repair of clothing worn by the employees in the course of their employment. 1068
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Section 11.10 EDUCATIONAL INCENTIVE PROGRAM
The following educational incentive compensation program will apply for unit employees in the Police Officer, Police Corporal and Police Detective classifications:

A. The following educational incentive compensation will be paid in addition to base pay:

Education Completed Additional Compensation
Intermediate POST 2%
Advanced POST 4%
AA Degree 3%
BA Degree 6%
AA Degree and Intermediate POST 5%
AA Degree and Advanced POST 7%
BA Degree and Intermediate POST 7%
BA Degree and Advanced POST 7%
Section 11.11
No employee shall be eligible for education incentive compensation in excess of 7% of base pay, except as indicated below.. Beginning July 14, 2024, the maximum education incentive compensation for the possession of both a POST certification and an advanced degree will increase as follows:

Effective Date Maximum Combined Educational Incentive Pay July 14, 2024 7.5% of base pay
July 13, 2025 8% of base pay
July 12, 2026 8.5% of base pay

Section 11.12 RETIREMENT
A. Classic Member

1. A classic member is defined as an employee who meets the definition of a “classic” member for purposes of retirement pension benefits in accordance with the Public Employees’ Pension Reform Act of 2013. Generally, this includes employees that were hired before January 1, 2013 in the California Public Employees Retirement System (CalPERS) or a reciprocal retirement system with no break in service longer than six months. CalPERS ultimately determines who is a classic member in compliance with the law.

2. Classic members entering membership for the first time in a Police safety classification with the City of Ontario before July 1, 2012 shall be eligible for the 3% at 50 retirement formula for Local Safety members. Classic members entering membership for the first time in a Police safety classification with the City of Ontario on or after July 1, 2012 shall be eligible for the 3% at 55 retirement formula for Local Safety members. Classic members in the classification of Police Recruit shall be eligible for the 2.5% at 55 retirement formula for Local Miscellaneous members and the optional retirement benefits provided by CalPERS 1069
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under the City’s contract for Local Miscellaneous members. Classic members are eligible for the optional benefit of Government Code Section 20042, Highest Single Year.

3. The City shall pay on behalf of the employee a portion of the employee’s required contribution as follows:

Effective Date
City’s Contribution
toward Employee’s Share*
Employee’s Contribution
toward Employee’s Share
July 10, 2016 3% 6%
January 7, 2018 2% 7%
January 6, 2019 1% 8%
January 5, 2020 0% 9%
*The required contribution for Police Recruit with a CalPERS classic status is 9%.

B. New Member

1. A new member is defined as an employee who meets the definition of a “new” member for purposes of retirement pension benefits pursuant to the Public Employees’ Pension Reform Act of 2013. Generally, this includes employees that were hired into a regular position on or after January 1, 2013 or former members who have more than a six-month break in service. CalPERS ultimately determines who is a new member in compliance with the law.

2. New members entering membership for the first time in a Police safety classification shall be eligible for the 2.7% at 57 retirement formula for Local Safety members. New members entering membership for the first time in the classification of Police Recruit shall be eligible for the 2% at 62 retirement formula for Local Miscellaneous members and the optional benefits provided by CalPERS under the City’s contract for Local Miscellaneous members.

3. The employee contribution for new members shall be one-half the normal cost, as determined by CalPERS. As of July 2013, the required employee contribution for new members is 12.75%. This amount will be adjusted periodically by CalPERS.

C. Optional Benefits for Classic and New Members
The City’s contract with CalPERS includes the following optional benefits for both classic and new Local Safety members:

1. 50% Post Retirement Survivor Allowance – Government Code Sections 21624 and 21626

2. Sick Leave Credit – Government Code Section 20965

3. Military Service Credit (Stats 76) – Government Code Section 21024

4. Retiree Death Benefit $500 – Government Code Section 21620

5. 2% Cost of Living Adjustment – Government Code Section 21329

6. Two Years Additional Service Credit (only within specified window period) – Government Code Section 20903

7. Cancellation of Election upon Industrial Disability Retirement/Special Death – Government Code Section 21037

8. Post Retirement Survivor Allowance Continuance – Government Code Section 21635 1070
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9. Pre-Retirement Option 2W – Government Code Section 21548

10. Death Benefit Continuance – Government Code Section 21551

11. Fourth level of the 1959 Survivor Benefits – Government Code Section 21574 Section 11.13 LONGEVITY PAY
Employees shall receive additional compensation for Longevity as follows:

Completed Years of Sworn
Service with Ontario Police
Department Base Salary Adjustment
8 4%
10 5%
12 6%
14 7%
16 8%
18 9%
20 10%
21 10.5%
22 11.0%
23 11.5%
24 12.0%
25 12.5%
26 13.0%
27 13.5%
28 14.0%
29 14.5%
Section 11.14 DEFERRED COMPENSATION
The City shall contribute $351 per month, $175.50 per pay period for 24 pay periods, to deferred compensation on behalf of each employee covered by this MOU.

Effective no later than the first paycheck in July 2018, the City’s contribution to the 457(b) plan will be made to the City’s 401(a) money purchase plan instead of the 457(b) plan. Employee may contribute voluntarily in the Section 457(b) plan.

Section 11.15 FLEXIBLE SPENDING ACCOUNT
Effective January 1, 2024, the City will offer to all unit employees the opportunity to participate in Flexible Spending Accounts (FSA). An FSA allows an employee to make pre-tax deductions for qualifying medical, dental and vision expenses, and dependent care expenses. The plan is established and administered in accordance with Section 125 of the Internal Revenue Service code.

Article XII. ASSOCIATION MEMBERSHIP AND ACTIVITY
Section 12.01 ASSOCIATION MEMBERSHIP
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All bargaining unit employees who are currently members of the Association or become members during the life of this Agreement shall remain as members in good standing of said Association for the duration of this Agreement except as provided for in section 12.02.

Section 12.02 DUES DEDUCTION
A. The City agrees to deduct from the pay of each employee who signs an authorized payroll deduction card a monthly sum certified to the employee by the Secretary of the Association as the regular monthly dues of the Association. The City will not deduct any pay for initiation fees, fines or other special assessments. Dues deduction shall be a specified uniform amount for each employee in the Association. The dues deduction may be terminated at any time by the employee by written notice to the Secretary of the Association. Any change in the amount of the dues deducted shall be by written authorization of each member of the Association. The request for a change shall be submitted at least 30 days prior to the effective date of the change.

B. The employee's earnings must be regularly sufficient, after other legal and required deductions are made, to cover the amount of the dues check-off authorized. When a member in good standing of the Association is in a non-pay status for an entire pay period, no dues withholding will be made to cover that period from future earnings, nor will the member deposit the amount with the City which would have been withheld if the member had been in a pay status during that period. In the case of an employee who is in a non-pay status during only a part of the pay period and the salary is not sufficient to cover the full withholding, no deduction shall be made.

In this connection, all other legal and required deductions have priority over employee organization dues.

C. Dues withheld by the City shall be transmitted to the officer designated by the Executive Board of the Association in writing, at the address specified in the letter of authorization.

D. The Association shall indemnify, defend, and hold the City of Ontario harmless against any claims made, and against any suit instituted against the City of Ontario on account of checkoff of employee organization dues. In addition, the Association shall refund to the City of Ontario any amounts paid to it in error, upon presentation of supporting evidence.

Section 12.03 RELEASE TIME
A. Association board members shall be entitled to devote a reasonable amount of time to Association business without loss of compensation or benefits. Prior to participating in such business the board member(s) or designee(s) shall obtain authorization from their immediate supervisor. Denial of such request shall not be arbitrary, capricious or otherwise contrary to the spirit and intent of this Agreement. If the request is denied, the immediate supervisor shall establish an alternative time convenient to the parties when the representative can be released from his work assignment.

B. Association Vacation Leave

1. The City agrees to provide release time in addition to Section 12.03(A) for Association members for the purpose of conducting authorized Association business through leave deductions of employees. The amount of Association Vacation Leave shall be 2 hours per 1072
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year times the number of contributing employees.

2. To fund this program, the Vacation Leave accruals for each employee shall be reduced each year by 2 hours the first full pay period in February. The City will notify the Association regarding how many hours were deducted. If an employee does not have Vacation Leave to deduct, the Association will not receive credit for those hours.. . If the Association Vacation Leave balance at the beginning of the first full pay period in February is 750500 hours or greater, then the vacation leave accruals will not be reduced for any employee for that year.

3. Employees authorized to utilize hours of Association Vacation Leave are members of the Executive Board to perform Association business. Employees using Association Vacation Leave are subject to the departmental leave procedures. This time shall be used in a manner that does not disrupt the operations of the Department as determined by the Police Chief or designee.

4. Association Vacation Leave shall not be used for any actions in conflict with Article XIX, Peaceful Performance of City Services.

5. Any time used shall be documented and tracked using procedures determined by the City.

6. The Association will provide the names of the Association’s Board members to the Human Resources Department in writing any time there is a change in the Board members.

Section 12.04 MANAGEMENT-EMPLOYEE RELATIONS PROGRAM
A. The City and the Association agree to continue the program including meetings which shall not be unreasonably denied to strengthen and otherwise improve the working relationships between management and supervisory personnel and the employees. The objectives of the program shall include, but are not limited to, the clarification to rules, regulations, and policies of the City; to improve communication between representatives and officers of the Association and management and supervisory personnel; to curb, if not eliminate, rumors and pressures which are detrimental to employee morale and the employee-employer relationship to encourage joint solutions to problems of mutual concern; and to strengthen and improve the use of existing and agreed upon procedures which serve to protect the interest of the employee and the employer.

B. The City and the Association agree that monthly meetings will be initiated between the Police Chief and the Association President for the purpose of establishing a schedule for the President that will allow the Association President to engage in Association business while on duty. If this method of authorization and scheduling of release time for Association President does not meet the needs of the Association or the Department, the City and Association agree to meet and confer in an effort to reach agreement on a method whereby the Association President will be provided with reasonable release time for Association business. 1073
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Article XIII. GRIEVANCE PROCEDURE
Section 13.01 DEFINITIONS
A. Informal Grievance - The term "informal grievance" as used in this Article shall refer to a concern of an employee which arises from the application of a term of this Agreement, existing City Rule(s), Regulation(s) or policies.

B. Formal Grievance - The term "formal grievance" as used in this Article refers to a written allegation by an employee that there has been a violation, misapplication, or misinterpretation of a specific term(s) of this Agreement, existing City Rule, Regulation or policy.

C. Grievant - The term "grievant" as used in this Article refers to a:

1. regular employee(s);

2. probationary employee(s);
who allege(s) in a grievance that the employee has been directly wronged by a violation of a specific term(s) of this Agreement, existing City Rule, Regulation or written policy.

The term "grievant" as used in this Article may refer to the Association when a grievable issue affects or could affect a number of unit members then the Association President may file said grievance on behalf of the Association. All such grievances filed by the Association shall be filed directly in writing with the Human Resources Director. The Human Resources Director shall respond within 30 calendar days after receipt of the grievance from the Association. If the response from the Human Resources Director is not accepted or if no response is received from the Human Resources Director, then the Association may file a Level IV grievance for review by the City Manager. The Association’s Level IV grievance shall be filed within 14 calendar days after receipt of the response from the Human Resources Director or expiration of the 30 calendar day response period. The procedures for Level IV and Level V grievance reviews shall apply to grievances filed by the Association.

D. Immediate Supervisor - The term "immediate supervisor" as used in this Article refers to the appropriate non-bargaining unit supervisory or management person to whom the employee is accountable.

E. Representative - The term "representative" as used in this Article shall be an employee or representative of the Association who at the grievant's request may be present at Levels I through IV.

F. Respond and File - The terms "respond" and "file" as used in this Agreement refer to personal delivery or deposit in the U.S. mail, postage prepaid. If mail delivery is used, it shall be by certified, return receipt requested mail and the certified receipt date shall establish the date of response or filing. If personal delivery is used, the calendar date of delivery shall establish the date of response or filing.
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Section 13.02 LEVEL I - INFORMAL GRIEVANCE
A. An employee shall have the right to present an informal grievance and to have the informal grievance considered with the immediate supervisor no later than 15 working days after the event giving rise to the complaint, or no later than 15 working days after the employee knew or reasonably should have known of the event giving rise to the informal grievance.

B. The employee, whenever possible, shall attempt to resolve the informal grievance informally with the immediate supervisor.

C. The immediate supervisor shall provide an answer to the employee no later than 14 working days after the Level I meeting.

D. A resolution of the informal grievance at the informal level shall not be precedent setting.

Section 13.03 LEVEL II - FORMAL GRIEVANCE
If the informal grievance is not resolved through Level I informal discussions, the employee may file a Level II grievance form with the appropriate Bureau Commander no later than 10 working days after the response of the immediate supervisor at Level I. The grievant may utilize the grievance form provided in Appendix A of this MOU or may submit another document. In either case, the written grievance shall include a clear and concise description of the following:

A. which specific term(s) of the Agreement, City Rule, Regulation or policy have been violated; B. the action grieved, including names, dates, places and times and how it violated a specific term(s) of this Agreement, City Rule, Regulation or policy; C. the remedy sought;
D. the name and classification of the grievant and their signature or that of their representative; E. the name of the representative, if any; and
F. the date of submission.

Section 13.04
The Bureau Commander shall hold a meeting with the grievant at a mutually acceptable time and location no later than 14 working days after the receipt of the grievance. The Bureau Commander shall respond in writing to the grievant within ten working days of the Level II meeting.

Section 13.05 LEVEL III
In the event the grievance is not settled at Level II, the grievant may appeal the grievance for Level III review with the Police Chief no later than 10 working days after receipt of the Level II response. The grievant shall include in the Level III grievance review request, a written statement indicating the reason that the proposed settlement at Level II was unsatisfactory. The Police Chief shall hold a meeting with the grievant at a mutually acceptable time and location within 10 working days after the receipt of the Level III grievance. The Police Chief shall respond to the grievant no later than 10 working days after meeting with the grievant.
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A. The grievant shall present at Level III all issues and written evidence known or which could have been reasonably known.

B. Amendments and/or modifications to the grievance shall not be made by the grievant after the Level III filing date, except by mutual agreement.

Section 13.06 LEVEL IV
A. In the event the formal grievance is not settled at Level III, the grievant may file a Level IV grievance form with the City Manager no later than 10 working days after the receipt of the Level III response.

B. The City Manager may meet with the grievant at a mutually acceptable time and location within 10 working days of receipt of the written grievance. The City Manager shall respond to the grievant no later than 10 working days after the meeting.

Section 13.07 LEVEL V - ARBITRATION
A. Unless the specific language of the Agreement is in conflict, the arbitration procedure shall be conducted in accordance with the rules of the American Arbitration Association.

B. The arbitrator shall be selected by mutual agreement of both parties.

C. The cost of the arbitrator’s services and reporting services shall be divided equally between the parties. Costs for transcripts of the proceedings, any cancellation fees, or postponement costs shall be the responsibility of the requesting party. Expenses for witnesses, other than City employees, however, shall be the responsibility of the party who calls them. Each party shall be responsible for their own cost of representation.

D. Failure on the part of the City representative or grievant to appear in any case before an arbitrator, without good cause, shall result in the forfeiture of the case and responsibility for payment of all costs of arbitration.

E. A final decision of award of the arbitrator shall be made within 30 calendar days after the close of the hearing. Such decision or award shall be subject to the approval of the City Council.

F. The standard of review for the arbitrator is whether the City violated a specific term(s) of this Agreement, City Rule, Regulation or policy.

G. If an arbitrability question exists, the arbitrator shall determine the arbitrability question prior to hearing the formal presentations of the parties on the merits of the grievance.

Section 13.08 GENERAL PROVISIONS
A. Failure of the grievant to comply with the time limitations of this Article shall render the grievance null and void. Failure by the City Representative to timely respond under this Article shall permit the grievance to be filed at the next level. 1076
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B. Time limits set forth in this Article may be extended by mutual agreement.

C. The processing of grievances filed and unresolved prior to the effective date of this Agreement may continue under the grievance procedure in effect at the time of the initial filing.

D. No punitive action will be assessed against an employee for utilizing the grievance procedure.

E. The preparation of grievances shall be on the employee's personal time and not during working hours.

F. The City may consolidate at any level grievances on similar issues.

G. Grievance records shall be filed separately from an employee's personnel file and shall be considered confidential.

H. A grievant may withdraw a grievance at any time. The grievant shall not file any subsequent grievance on the same alleged incident.

I. A decision by the Association to submit a grievance to arbitration shall automatically be a waiver of all other remedies except as provided otherwise by statute.

J. No individual City Council member may be approached regarding the grievance at any time the grievance is being processed.

K. In the event a grievant elects to represent them self or is represented by other than may be provided by the Association, the Association shall be notified of the nature and resolution of the grievance provided, however, the names of employees and confidential information shall not be disclosed. Notification of the employee's Association shall be made within a reasonable time following the resolution of the grievance.

L. Organizational channels shall be utilized at all times and participation in the grievance and the discussion of information related thereto shall be limited to the parties to the grievance except when such other persons are identified and/or called as witnesses.

M. In the event of a disciplinary action involving a suspension, reduction-in-pay or demotion or termination where a pre-disciplinary hearing has already been held, levels I through III of the grievance procedure will be eliminated and Levels IV and above will be utilized..

N. The City agrees to permit an employee and the immediate Association Steward to consult concerning a potential grievance subject to obtaining approval from the employee’s first line supervisor. The Association agrees that this privilege shall not be utilized to prepare formal grievances during working hours, but to simply consult with an employee and/or supervisor in order to avoid the necessity of processing a formal grievance; or to set an appointment between the Association Steward and the employee after working hours for the preparation of a legitimate grievance. The City agrees to encourage cooperation with the Association Representative and employees in this regard, provided that the City will not permit the effective and/or efficient operation of the City to be interfered with. The City retains the right to revoke this privilege at any time, provided that prior to taking any such action, the City agrees to consult with the Association in order to avoid the necessity of exercising this right. 1077
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O. A group of employees may file one grievance rather than individual grievances as long as the following conditions are met:

1. Each employee in the "group" grievance is individually named.

2. The grievable matter is exactly the same for each employee cited in the grievance.

3. The City is not obligated to conduct grievance hearings or provide grievance responses to each individual, but only to one of the employees involved who represents the group filing the grievance.

Section 13.09 AUTHORITY OF THIRD PARTY
Each issue decided by a third party neutral will stand on its own merits and will not be used as a precedent by any other third party neutral in deciding any issue before them.

Article XIV. LAYOFF PROCEDURE
Section 14.01
The City Manager may layoff regular and probationary workers at any time for lack of work or other changes that have taken place. The employee and the employee's organization are to be given two weeks notice before such a layoff is to take place. The City shall meet and consult with the concerned employee organization on such matters as the timing of the layoff and the number and identity of the employee affected by the layoff during the two week period prior to the proper layoff action.

Section 14.02
A demotion or transfer to another department may be made to prevent a layoff provided the employee is qualified by education and/or experience and is capable of performing the duties of the classification.

Section 14.03
In the event of a layoff, those employees with the least service in the classification affected shall be laid off first; if a recall begins, the most senior employees laid off in the classifications required shall be recalled first. Strict application of seniority shall prevail unless exceptional circumstances occur of which the concerned employee organization shall be fully apprised in advance. The order of layoff shall be:

A. Temporary employees in the affected classification shall be removed first.

B. Probationary employees in the affected classification shall be removed next.

C. Exceptional circumstances may include the desirability of maintaining a balanced department or work unit and maintaining employees in the classification, department, or section who have the ability to perform the work available.

Section 14.04
The employee scheduled to be laid off shall be entitled to displace to a position in a classification occupied by an incumbent with less overall City (displacement seniority) seniority provided it is in a position in which the employee formerly held a regular appointment, or is qualified by education and/or experience, and is capable of performing the duties of the classification. The employee with the least displacement seniority 1078
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shall be displaced by the person scheduled for layoff. The employee displaced shall be considered as laid off for the same reason as the person who displaced the employee, and shall in the same manner, be eligible to displace to a position in a classification in which the employee formerly held a regular appointment or is qualified by education and/or experience, and is capable of performing the duties of the classification.

Section 14.05
Failure to return to work from layoff within 15 calendar days after notice to return by certified or registered mail to the employee at his last known address on file with the City Human Resources Department or by personal delivery shall constitute the employee's waiver to return to work and eliminates any future reemployment responsibilities placed on the City.

Article XV. HOLIDAYS
Section 15.01 PAID HOLIDAYS
The following paid holidays shall be observed on the day specified.

New Year's Day January 1st
Martin Luther King's Birthday 3rd Monday in January
Lincoln's Birthday February 12th
Washington's Birthday 3rd Monday in February
Memorial Day Last Monday in May
Independence Day July 4th
Labor Day 1st Monday in September
Admission Day September 9th
Columbus Day 2nd Monday in October
Veteran's Day November 11th
Thanksgiving Day 4th Thursday in November
Day After Thanksgiving Day 4th Friday in November
Christmas Eve (½ day) December 24th
Christmas Day December 25th
New Year's Eve (½ day) December 31st
Section 15.02 HOLIDAY WORK COMPENSATION

1. An employee who must work on a recognized City holiday shall receive holiday pay equal to the number of hours the employee is regularly scheduled to work on said holiday. In addition, the employee shall be paid for the actual hours the employee works, at the rate of time and one half the employee’s regular rate of pay or receive compensatory time off.

2. Regardless of work schedule, an employee shall receive compensatory time off based on the number of hours in the employee’s normal work day up to a maximum of 10 thirteen (13) hours when a holiday falls on the employee’s regularly scheduled day off.

3. In no event can an employee accrue in excess of 480 hours of compensatory time off. All hours in excess of 480 shall be paid to the employee at the employee’s regular rate of pay. 1079
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Section 15.03 VACATION/SICK LEAVE ON HOLIDAYS
Whenever an employee who is scheduled to work on a holiday as part of the employee’s normal duty schedule becomes sick on a holiday, the officer shall be charged with using sick leave and shall be credited with compensatory time, equal to the employee’s regularly assigned hours on that day.

Section 15.04 HOLIDAY ASSIGNMENT FOR DETECTIVE BUREAU DETECTIVES With the exception of Independence Day (July 4th) and New Year’s Eve (December 31st), aA minimum of five slots or a maximum of 25% of the Bureau Detectives will be available in the Detective Bureau for Bureau Detectives to work each recognized holiday. Employees will be selected on a rotational basis from a seniority list. Seniority for this purpose is defined as time served in the Detective classification. Such opportunity will be available until the five slots are filled for that particular holiday, or no volunteers remain, whichever comes first. Should an employee decline the opportunity to work a holiday when the employee’s name is selected, the employee's name will go to the bottom of the list until such time when all employees have been given the opportunity to work. On Independence Day (July 4th) and New Year’s Eve (December 31st), there shall be no maximum number of available spots.

The Police Chief or their designee may increase the number of available slots for Bureau Detectives to work on any recognized holiday based on forecasted operational needs.

Article XVI. VACATION LEAVE
Section 16.01 VACATION ACCRUALS
Employees shall accrue vacation as follows:

Year of Service Vacation Earned
1-5 96 hours
6 104 hours
7 112 hours
8 120 hours
9 128 hours
10 136 hours
11 144 hours
12 152 hours
13 160 hours
14 168 hours
15 176 hours
16+ 184 hours
Section 16.02 MAXIMUM VACATION LEAVE ACCRUAL
The maximum Vacation Leave accrual balance shall be the number of hours that is two-times the employee’s annual accrual rate. The determination and application of the maximum Vacation Leave accrual amount shall be made at the completion of the pay period ending closest to December 31st. 1080
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Section 16.03 LEAVE CONVERSIONS
A. Employees in this unit may convert up to a total of 200 300 hours of accrued Vacation Leave and/or Compensatory Time to salary compensation each calendar year. Employees shall have two conversion opportunities each calendar year as specified in Section 16.03(B). The total number of hours converted per calendar year shall not exceed 200300. Such conversion shall be at the employee’s base regular rate of pay that is in effect at the time of such conversion.

B. The deadlines for conversion requests are as follows:

Request Due Date Payment
2nd Friday in May 1st Payday in June
2nd Friday in November 1st Payday in December
C. In addition, unit employees may convert once per calendar year up to 60 hours of sick leave to vacation leave. Employees must have a minimum of 250 hours of sick leave remaining after such conversion. Conversion requests shall be due the second Friday in May and leave will be converted no later than the first payday in June.

D. ANNUAL REVIEW OF VACATION LEAVE
On an annual basis, at a date established by the Department, each unit employee that has reached the maximum accrual of Vacation Leave shall request to schedule Vacation Leave usage equal to or greater than their annual Vacation Leave accrual rate. If the Department is unable to allow Vacation Leave usage requests based on operational needs of the Department, the Department shall attempt to schedule alternate Vacation Leave of an equal number of hours. Such alternate schedule shall consider the operational needs of the Department and the employee’s needs for vacation usage. If the Department and the employee are unable to agree on an alternative vacation schedule and the Police Chief certifies and the City Manager approves such certification, that the employee was denied the ability to use Vacation Leave that was accumulated over the employee’s maximum accrual amount, the excess Vacation Leave shall be converted to salary compensation at the employee’s normal pay rate.

D. In accordance with 26 CFR 1.451-2 effective January 1, 2025, and continuing thereafter, unit employees must submit an irrevocable election form, by no later than December 15th of the proceeding calendar year to convert the following hours to cash:

1. Vacation - An amount which may not exceed the number of vacation hours the individual employee may accrue in the following calendar year.

2. Compensatory Time – An amount which may not exceed the projected number of compensatory time hours the individual employee may receive in the following calendar year.

The cash-out election is for hours to be accrued or received in the calendar year following submission of the irrevocable election form.

E. The total combined number of vacation and compensatory time hours converted per calendar year shall not exceed 300 hours.

F. The payment shall be made via payroll and employees may elect to receive the cash out in the 1081
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first payday in June and/or the first payday in December, but the request must be submitted by December 15th of the year prior.

G. Employees who do not submit an irrevocable election form by December 15th will be deemed as foregoing participation in the optional vacation and/or compensatory time conversion salary program for the following calendar year.

H. In the event an employee has less hours in their vacation and compensatory time bank at the time the cash-out is to be paid than they had previously elected to cash-out, the employee shall only be paid for up to the amount remaining in their vacation leave and compensatory time bank at the time of the actual cash-out.

I. If an employee makes an irrevocable election to cash-out vacation and/or compensatory time in the following calendar year and uses such in that subsequent calendar year, the vacation and compensatory time used will come from the vacation or compensatory time the employee had earned (if any) prior to January 1st of the calendar year the employee has elected to cashout. The employee’s use of earned, but unused vacation and/or compensatory time accumulated from previous calendar years shall not result in a reduction in the amount of vacation and/or compensatory time hours the employee is eligible to cash-out.

Section 16.04 VACATION TIME OFF
A. For the purpose of this Section, "minimum staffing" on all patrol shifts is fourteen (14) Officers/Corporals, with the exception of the 3/12.5 Mid Shift and the 3/13 Mid Shift where "minimum staffing" is eight (8) Officers/Corporals.

B. If a vacation time off request is submitted ten (10) or more days in advance of the requested day off and there are ten (10) or more Officers/Corporals listed as working (including those in their normal schedule and/or those assigned to overtime) on the requested day off at the time the request is submitted, then the request shall be approved, and it shall be the Police Department's responsibility to find replacement Officer(s) according to the overtime protocol, so that there are a minimum of fourteen (14) Officers/Corporals working each shift (except 3/12.5 Mid Shift and 3/13 Mid Shift).

1. 3/12, 3/12.5, 3/13, 4/10 Mid Shift
If a vacation time off request is submitted ten (10) or more days in advance of the requested day off and there are five (5) or more Officers/Corporals listed as working (including those in their normal schedule and/or those assigned to overtime) on the requested day off at the time the request is submitted, then the request shall be approved, and it shall be the Police Department's responsibility to find replacement Officers(s) according to the overtime protocol, so that there are a minimum of eight (8) Officers/Corporals working each shift.

C. In the event the vacation time off request is submitted less than ten (10) days in advance of the requested day off, the supervisor receiving the request shall attempt to fill that vacancy according to the overtime protocol, and if not filled, the vacation time off request will be denied unless the employee can find a replacement for their shift.

D. The above process will be in effect for every calendar day of the year except for the following:
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1. The provisions of Sections 16.04(8) and 16.04(8)(1) shall be modified on "Super Bowl Sunday," Memorial Day, Labor Day, the Annual Dinner, Christmas Eve, Christmas Day, and New Year's Eve (December 31st).

2. Vacation and holiday time off requests may be denied when there are ten (10) or less Officers/Corporals scheduled to work, or eight (8) or less on any of the shifts deemed to be a Mid Shift, on the requested day off. and the supervisor receiving the request was unsuccessful in securing a replacement Officer according to theovertimethe overtime protocol.

3. Independence Day (July 4th)
Patrol Officers/Corporals who are regularly scheduled to work on the Forth of July and who wish to use vacation or holiday time off for that day will be required to submit a request to a shift supervisor. The supervisor shall attempt to find a replacement Officer/Corporal according to the overtime protocol regardless of shift staffing minimums (i.e. if there are fifteen (15) Officers scheduled, fifteen (15) Officers will be the minimum for that day). If the supervisor receiving the request was unsuccessful in securing a replacement Officer according to the ove1time protocol, the request will be denied.

4. If a supervisor is unsuccessful in securing a replacement Officer according to the overtime protocol in instances described in Sections 16.04(D)(l) and 16.04(D)(2). and it is 24-hours or less before the requested day off. the Officer/Corporal requesting the day off has the option of securing a replacement Officer (e.g. an Officer, Corporal, or Detective to "hold over" from the previous shift combined with another Officer to come "in early" from the following shift to each work a partial shift).

5. Because shifts overlap to maximize staffing during certain periods, "hold over" and "in early" replacement Officers shall be limited to no more than three (3) sets of replacement Officers on a given shift.

Article XVII. LEAVES OF ABSENCE WITH PAY
Section 17.01 SICK LEAVE
A. City employees are entitled to sick leave for:

1. Any bona fide illness or injury.

2. Quarantine due to exposure to contagious disease.

3. Any treatment or examination including, but not limited to, medical, dental, ocular.

4. Death in the immediate family.

5. Resolution of issues related to the employee being a victim of domestic violence, sexual assault, or stalking.

6. Sickness of immediate family as provided for in Section 17.01(B) B. Employees may use up to 48 hours of sick leave per calendar year for sickness within the 1083
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employee’s immediate family in accordance with California Labor Code Section 233 (KinCare).

Immediate family for this provision shall be consisted with the definition of “family member” in California labor code section 245.5 (4)(c). This definition includes the following relationships relative to the employee: child, including biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis; biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child; spouse; registered domestic partner; grandparent; grandchild; sibling.

If applicable, leave taken pursuant to this provision will be counted concurrently with other family leaves.

Employees must inform their supervisor when requesting the leave that the leave is being taken pursuant to this provision (“KinCare” leave).

This provision may be changed if any changes are made to Labor Code Section 233.

C. A City employee is not entitled to sick leave for illness or injury arising out of employment, other than employment for the City, for monetary gain or other compensations, or by reason of engaging in business or activity for monetary gain or other compensation.

D. Employees accrue sick leave in the amount of 96 hours per calendar year. The annual sick leave will be accrued evenly over 26 pay periods.

E. During the first six months of service, sick leave and vacation time may be used for bona fide personal injury or illness.

F. There shall be no limit on the amount of sick leave that may be accrued by a regular employee.

G. Employees may convert up to 60 hours of sick leave to vacation leave once per calendar year in accordance with Section 16.03, Leave Conversions.

H. When an employee has been on sick leave, the City reserves the right to make any investigation of the illness it deems necessary, including requiring a doctor's certificate if the employee is off for 40 or more consecutive hours. On the first day of illness, the employee must notify the department a minimum of 30 minutes prior to the shift start time if the employee is to receive sick leave credit.

I. All determinations of sick leave shall be made by the department head concerned subject to the approval of the Director of Human Resources.

Section 17.02 BEREAVEMENT LEAVE
A. In the event of a death in the employee's immediate family, the employee shall be granted 3 working days of paid bereavement leave. Such bereavement leave shall not be charged against the employee's sick leave, vacation nor accrued compensatory time. Employee shall be granted an additional two (2) working days of unpaid bereavement leave if there is a death of the employee’s immediate family member. The employee may elected to use accrued time off including sick leave, vacation or accrued compensatory time to cover all or a portion of the two day of unpaid bereavement leave.
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B. A total of five (5) working days of paid bereavement leave shall be granted if there is a death in the immediate family outside the State boundaries or if the deceased family member’s residence is a driving distance greater than 200 miles from the employee’s home. . Such bereavement leave shall not be charged against the employee’s sick leave, vacation or accrued compensatory time.

C. The employee shall be granted one working day of paid personal leave to attend the funeral of a close relative not in the employee's immediate family.

D. City employees may be excused by department heads to attend the funeral of deceased City employees without loss of pay.

E. The employee may be required to furnish evidence satisfactory to the City of the family member's death and the employee's relationship to the deceased family member.

F. F. As used in this section, a “working day” shall equal the number of hours an employee is scheduled to work on the day in which bereavement leave is used.

G. Bereavement leave shall be completed withing three (3) months of the date of the death of the immediate family member. The days of bereavement leave need not be consecutive.

H. The term “immediate family” is defined in Article II of this agreement.

Section 17.03 PERSONAL LEAVE
A. As an employee may use any compensatory time they have accrued, but no more than three days of sick leave per calendar year, as paid personal leave, provided an emergency or other urgent and justifiable cause is presented at the time the request is made for:

1. sickness within the employee's immediate family,

2. bereavement leave for other than members of the employee's immediate family,

3. court appearances when required to be present,

4. observance of one recognized annual religious service, and

5. any other personal need requiring a leave during working hours when approved by the City Manager upon the recommendation of the department head or his authorized representative.

B. Court appearances, observances of a recognized annual religious service, and other personal needs requiring an appointment during working hours are purposes for which the employee must provide no less than two days written notice. Failure to provide such notice shall result in such leave to be taken without pay. The supervisor shall waive the two day notice required provided the employee can demonstrate an urgent and justifiable reason for not providing the required notice.

C. Personal leave shall be used in accordance with the rules set forth in the Personnel Rules and Regulations Manual and shall be charged at the employee's discretion against any unused sick 1085
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leave, vacation, or compensatory time the employee has accumulated provided there is no conflict with the conditions outlined above. Additional leave may be authorized by the City Manager from any leave accrued, or without pay.

Section 17.04 COMPENSATORY TIME-OFF
After the vacation list is established for the calendar year, subsequent vacation requests will be granted on a "first-come-first-served" basis. This provision does not preclude the cancellation of such scheduled time-off should an emergency occur (i.e. employee illnesses or family emergencies) which creates a situation of low staffing levels.

Section 17.05 CATASTROPHIC LEAVE PROGRAM
A. The City agrees to permit employees within the bargaining unit to contribute a portion of their accrued leave credit to another employee when such employee is on an approved leave of absence due to a verifiable illness or injury caused by a physical or mental impairment.

Catastrophic as used in this provision refers to an unforeseen or sudden unexpected illness or injury requiring immediate attention.

B. The City also agrees to permit employees to contribute a portion of their accrued vacation and/or compensatory time to another employee when such employee is on an approved leave of absence due to the verifiable illness or injury of the employee’s spouse, domestic partner, parent or child. Sick leave may not be donated when the catastrophic leave fall under this provision (17.05 B).

For such transfer to take place the following conditions shall apply:

1. The Human Resources Department shall review all requests from the receiving employee to determine eligibility for catastrophic leave prior to the receiving employee or the employee’s Department requesting donations.

2. Such illness or injury is defined as an unforeseen or sudden, unexpected illness or injury requiring immediate attention. Pregnancy is excluded from this provision; however, injuries or illnesses resulting from a pregnancy may be covered under this provision with a statement from the employees treating physician as the final authority.

3. The receiving employee has exhausted all accrued leave and is therefore facing financial hardship.

4. Pregnancy is excluded from this provision; however, injuries or illnesses resulting from a pregnancy may be covered under this provision with a statement from the employee’s treating physician.

5. The receiving employee must be on an approved continuous leave of absence for over 40 hours due to the illness or injury. A statement from the employee’s or family members treating physician is required.

6. Contributing employee must have at least 96 hours remaining after such contribution and the leave application rate will be based on the contributing employee’s dollar value which will be adjusted proportionally to the receiving employee’s rate. 1086
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7. The transfer must be in whole hour increments. The amount of the donations credited each pay period shall be in accordance to the receiving employee’s needs.

8. The transfers are irrevocable, and will be indistinguishable from other leave credits belonging to the receiving employee. Transfers will be subject to all taxes required by law.

9. Donations shall be made on a form prescribed by the Human Resources Department.

10. Eligibility to be a receiving employee in this program is not subject to the Grievance Procedure of this Agreement.

Section 17.06 MATERNITY, PATERNITY AND FAMILY CARE LEAVE Family Leave shall be granted in accordance with the California Family Rights Act of 1991 and the Family and Medical Leave Act of 1993 and interpreted regulations for those respective statutes.

Article XVIII. SAFETY EQUIPMENT
Section 18.01 EQUIPMENT USED
The parties to this Agreement recognize that under Sections of the California Labor Code, there are mutual obligations, direct and implied to assure that the spirit and intent of the Code is observed and otherwise complied with, to wit:

A. The City recognizes that it has an obligation to provide, among other things, a safe place of employment for all employees, including a duty to provide and use safety devices and safeguards which are reasonably necessary and adequate to render the place of employment and the employment itself reasonably safe.

A. Each employee shall be granted a paid parental leave of absence not to exceed forty (40) hours per year upon the birth or adoption of an employee’s child or children. Any such leave must be taken within six (6) weeks before or after the estimated birth or adoption date and is subject to the department’s established time off or leave of absence approval procedures. Such paid parental leave shall not be charged against the employee's sick leave, vacation, or accrued compensatory time.

B. The employee may be required to furnish evidence satisfactory to the City of the birth or adoption of the employee’s child or children and/or the employee's relationship to the child or children. The employee shall apply for CFRA/FMLA for each potentially qualifying event.

C. Unpaid Family Leave shall be granted in accordance with the California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA) and interpreted regulations for those respective statutes. Paid Parental Leave will be considered as qualifying leave under CFRA/FMLA and shall run concurrently with any entitled unpaid Family Leave (provided that the employee is deemed eligible for CFRA and/or FMLA.

D. Individuals will still be required to complete a 12-month active, full duty, on the job observation period. 1087
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B. The Association recognizes that in order to fulfill such obligations the City has the right as well as the obligation to establish and enforce such reasonable rules concerning the place of employment, safety devices and safeguards as may be necessary to render the place of employment and the employment itself reasonably safe.

C. The Association further recognizes that it is the obligation and duty of each employee to observe and otherwise comply with all such reasonable rules and regulations established by the City to render the place of employment and the employment itself reasonably safe.

Section 18.02 EQUIPMENT PROVIDED
The following items are currently provided by the City to each of the affected unit employees in the amount or number set forth below, and shall continue to be so provided.

A. Rain Gear, one set of coat & pants and one pair boots B. One helmet and face shield
C. One set of body armor, which shall be a Level II or Level IIIA, at the sole discretion of the officer, Any Level IIIA body armor provided shall meet or exceed the following standards:
• Areal Density 1.04 lbs/ft2
• New V50 - .357 Sig 1858 ft/s
• New V50 - .44 Mag 1720 ft/s
• Backface Average - .357 Sig 27.44 mm
• Backface Average - .44 Mag 36.35 mm
Any Level II body armor provided shall meet or exceed the following standards:
• Areal Density .78 lbs/ft2
• New V50 - .9 mm 1868 ft/s
• New V50 - .357 Mag 1847 ft/s
• Backface Average - .9 mm 31.7 mm
• Backface Average - .357 Mag 36.35 mm
D. Service ammunition, in the amounts and at the times prescribed pursuant to current departmental regulations.

E. Leather Gear (Basket Weave): belt, holsters, handcuff case, ammunition carrier, rings and keepers, mace holder - one set each
F. Two sets of handcuffs, pursuant to departmental specifications G. One wooden baton and holder
H. One department designated service weapon, revolver or automatic, at the employee’s option.

I. One heavy duty flashlight
J. One car-coat jacket
K. Two sets of uniform pants and shirts
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L. New employees may, as an option, choose to receive the equivalent value of the wooden baton and holder towards the purchase of another authorized form of baton and holder.

Section 18.03 CARE AND MAINTENANCE OF EQUIPMENT
A. All items set forth in Section 18.02 shall conform to current departmental specifications unless provided otherwise by this Agreement.

B. All items of safety equipment described in this Article and provided to the affected employees shall be the property of the City and shall be so identified. Such equipment shall not be modified, altered or otherwise maintained other than in its original condition unless written authorization for any such modification or alteration, is obtained from the Chief of Police or his authorized representative.

C. Upon receipt of any such equipment by an affected employee, such employee shall be provided with and shall execute a receipt specifying those items of safety equipment issued to the employee. Such receipt shall specify whether the equipment is new or used and shall describe the condition of the equipment provided to the employee.

D. It shall be the responsibility of the employee receiving such equipment to maintain such equipment in good order and/or working condition subject to the provisions set forth below.

E. The City shall be responsible for and shall bear the full expense of all repairs or replacement of such safety equipment, provided that such repairs or replacements are not necessitated as a result of negligence on the part of the employee to whom such equipment is issued.

F. In the event that repairs to, or replacement of, any item of safety equipment are necessitated by negligence on the part of the employee to whom such equipment was issued, said employee shall be responsible for the expense, if any, involved in the repair or replacement of the item of equipment in question.

G. The parties recognize the City is legally required to maintain all such safety equipment in reasonable safe working order and condition. The parties further recognize that the City may legally delegate the duty to perform such routine maintenance of such safety equipment to its employees in order to maintain such safety equipment in reasonably safe working order and condition.

H. The Association understands and agrees that the City will require such affected employee to perform normal preventive maintenance and to exercise reasonable care in the use of such safety equipment described herein and provided to the affected employees.

I. All items of safety equipment described herein and provided to the affected employees shall be repaired or replaced by the City whenever such repair or replacement is necessary to maintain such equipment. The Chief of Police, or his authorized representative, shall determine whether repair or replacement is necessary.

J. Body armor (safety vest) will be reviewed at least every five years after its issue to determine if replacement is required.

K. The decision whether any instance of repair or replacement of any safety equipment described herein and provided to any affected employee has been necessitated by 1089
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negligence on the part of such affected employee shall be made by the Chief of Police or his authorized representative. Disputes regarding any such decision shall be resolved pursuant to the grievance procedures applicable to other employer-employee disputes within the Police Department.

Section 18.04 USE OF EQUIPMENT
A. All safety equipment described herein and provided to any affected employee shall be used by such employee in the performance of the employee’s duty for the City or as may be provided in the Rules and Regulations of the Police Department of the City, or as otherwise authorized and/or required by the Chief of Police or his authorized representative. Any such action to the contrary must have the express written authorization from the Chief of Police.

B. Any affected employee may elect to provide their own equipment in lieu of the safety equipment described herein. However, any such individually provided safety equipment must be approved as to make, model and/or condition and authorized for use in writing by the Chief of Police or his authorized representative prior to actual use of such equipment. Any employee electing to provide their own safety equipment shall return to the Police Department the comparable item of safety equipment previously issued by the City.

C. Any affected employee electing to provide their own equipment in lieu of the safety equipment described herein shall be solely responsible for the loss, damage, care and maintenance of any such equipment except as may otherwise be provided by current Police Department rules and policies.

Section 18.05 UNIFORM WEAR REPLACEMENT
The City will provide for a uniform pants and shirt replacement policy to be established based on the normal use of the uniforms. Replacement will be determined on an "as-needed" basis and will depend upon Command staff recommendation for the City Manager's approval.

Section 18.06 EQUIPMENT REPLACEMENT DUE TO DAMAGE, THEFT, LOSS OR

DESTRUCTION
A. As part of establishing an equitable reimbursement standard relative to the damage, theft, loss or destruction of uniforms/clothing/accessories of officers performing in the line of duty and without fault of their own, the City agrees to pay all reasonable costs for repairing or replacing uniforms, clothing, and accessories not otherwise issued by the City, but required by the Police Department to be worn, carried or available to the officer in the course of the officer’s duties.

B. To comply with the foregoing, the officer concerned must be acting in good faith and without fault.

C. When applying for reimbursement, consideration shall be given to repairing the item as opposed to having it replaced. In this regard, the extent of the damage, age and depreciation shall be considered. If repair is not practicable, replacement shall be based on reasonable depreciation scale.

D. Once reimbursement has been made, it is implied that the officer relinquishes any subrogative rights to the City for collection purposes.
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Section 18.07 DEFINITION OF TERMS
A. Police Officers: Full-time or part-time Police Officers employed by the City of Ontario, including the Ontario Police Reserves.

B. Uniforms: Any uniform considered to be the uniform of the day as provided for in departmental manuals.

C. Clothing: Any clothing normally called for or referred to as "plainclothes" as the required attire while on duty or in performance of off-duty services.

D. Accessories: Property normally available, carried, or worn by a Police Officer to satisfactorily perform their duties, including but not limited to wrist watches, eye glasses and prostheses.

E. Reimbursement: The reasonable repair cost of an item that is repairable, or the total value of a non-repairable item on a depreciation basis.

Section 18.08 PROCEDURE
A. Fill out one copy of the claim demand form as soon as possible after the occurrence. Under items, include description, actual purchase price, estimate for repair or replacement, and any other information that will substantiate the claim.

B. Attach to the claim demand form any and all reports pertaining to the incident.

C. Forward the claim demand form and accompanying reports to your immediate supervisor.

D. As soon as practicable, the immediate supervisor of the claimant shall perform a complete investigation of the incident and verify the information submitted by the claimant. Any changes or additions shall be made in report form with the concurrence of the claimant. If there are no changes or additions, the immediate supervisor shall date and initial the claim demand form and, in turn, forward the form and all accompanying reports to the Bureau Commander.

E. The Bureau Commander shall review the submitted form and reports, and if satisfied, shall date and initial the claim demand form. If the Bureau Commander is not satisfied, he shall arrange for further investigation, and in any event, there shall be a concurrence between the claimant and the Bureau Commander prior to submitting the claim demand form and reports to the Police Chief.

F. The Police Chief shall review the claim demand form and accompanying reports, and if satisfied, shall date and initial the claim demand form, prior to forwarding same to the office of the City Manager for appropriate City Council action. In the event the Chief of Police is not satisfied with the results, he shall return the claim demand form and accompanying reports to the Bureau Commander for further follow-up.

G. It shall be the responsibility of the City Attorney to initiate any action concerning subrogative rights against any person, City, County, State, board, corporation or otherwise for the incurred damage, destruction, loss or theft of the reimbursed item. 1091
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Section 18.09 DISPOSITION OF SERVICE WEAPON
A. Upon retirement (whether for disability or service) or honorable resignation after ten years of service, each sworn employee shall be given the option to purchase the service weapon described herein and previously issued to the employee by the City.

B. The purchase price to such employee shall be the following percentage or the original cost of the weapon based upon the successful completion of the following number of years of service to the City.

Years of Service
Percentage of
Original Cost
10 50%
11 45%
12 40%
13 35%
14 30%
15 25%
16 20%
17 15%
18 10%
19 5%
20 or more $1.00
C. Purchasing the service weapon at the time of retirement is subject to the approval of the Police Chief and could be denied for legitimate reasons; i.e. psychological or stress related disability retirement, etc.

Article XIX. PEACEFUL PERFORMANCE OF CITY SERVICES
Section 19.01
During the term of this Agreement, the Association, its officers, agents, representatives and/or members agree they will not cause, condone or participate in any strike, walk-out, work stoppage, job action, slow down, speed up, sick-out, refusal or failure to faithfully perform assigned duties and responsibilities, withholding of services or other interference with City operations, including compliance with the request of other labor organizations within the City to engage in any or all of the preceding activities.

Section 19.02
In the event of such activities, the Association shall immediately instruct any persons engaging in such conduct that they are violating this Agreement, and that they are engaging in unlawful conduct, and that they should immediately cease engaging in such conduct and resume full and faithful performance of their job duties.
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Section 19.03
In addition to any other lawful remedies for the disciplinary action available to the City, the City may, in addition to the above, invoke any and all remedies available to it under its Employer-Employee Relations Section of the Personnel Rules and Regulations.

Article XX. SEPARABILITY
Section 20.01
If any article or section of this Agreement shall be found to be in conflict with any statute or regulation of the United States or the State of California by a court of competent jurisdiction, such article or section shall be deemed null and void and of no further effect. However, such articles and sections shall be severable from the remainder of this Agreement, and all other provisions hereof shall continue in full force and effect.

Article XXI. DURATION AND IMPLEMENTATION
Section 21.01
This Agreement shall, upon ratification by both parties, cover the period from January July 1, 20138 to and including June 30, 20272.

Section 21.02
On or before January 31, 2025, the Association has the option to opt out of the final 2 years of the contract (July 1, 2025, through June 30, 2027). Notification of the Association’s desire to exercise this opt-out clause must be in writing. Should the opt out clause be exercised, the City and the Association agree to begin collective bargaining negotiations in February 2025 for a successor MOU.

Section 21.02Section 21.03
Each party shall exercise its right to present bargaining proposals for a successor Agreement no earlier than 120 days prior to the expiration of this Agreement and no later than 90 days prior to the expiration of this Agreement.

Section 21.03Section 21.04.................................................................................................................................

In anticipation of the end of this agreement on June 30, 2027, the parties agree to meet and confer in the Fall of 2026 to discuss the sole subject of potential salary increases for January of 2027. During the term of this MOU, the parties agree to reopen negotiations limited only to salary increases for January 2022.

Parties shall begin meeting between 120 and 90 days prior to January 1, 2022.

Article XXII. OVERPAYMENTS, RECOVERY AND UNDERPAYMENTS
Section 22.01 OVERPAYMENTS
In situations involving overpayment to an employee by the City, the employee shall be obliged to repay the amount of overpayment. Either Human Resources, or the Payroll Department shall provide written documentation showing the calculations of the overpayment to the employee. A meeting may be requested by the employee with the Payroll Department to review the 1093
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documentation and to discuss recovery schedule. The total repayment amount, repayment schedule, biweekly payment amount or other method of repayment will be documented in writing.

Section 22.02 RECOVERY
If the amount due is $100 or less, the City will make notification to the employee. Following notification, the City will deduct the entire amount in the next pay period.

If the amount due is over $100, the employee will have the right to select one of the three following options for repayment of the funds:
a) Lump sum payment with the date mutually established by the employee and the department, or
b) Biweekly installment payments through payroll deduction and repayment must be completed within the same time frame the overpayment was received by the employee or within 26 pay periods (whichever is greater). The minimum bi-weekly deduction will be $50. Or
c) Any other repayment arrangement mutually agreed upon between the City and employee.

If the employee leaves employment prior to repayment of overage, the City may recover the amount owed from the employee's final pay. If the amount owed is greater than the employee's final pay, the City may initiate a collections process against the employee.

Section 22.03 Underpayments
In situations involving underpayment to an employee by the City, the employee shall receive the balance due within the next pay period for which the adjustment can be made, following timely submission of appropriate documentation and necessary approval of the compensation change. 1094
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All terms and conditions set forth in this Agreement are hereby ratified by the unit members and approved by the City Council on the 20th day of February, 2022.July 2023.

Scott Ochoa
City Manager
Date William Maxson
OPOA President
Date
Darlene Sanchez
Assistant City Manager
Date Eric Quinones
OPOA Vice President
Date
Angela Lopez
Executive Director Human
Resources / Risk Management
Date
1095

APPENDIX A
Classification Step Hourly Rate Monthly Rate Hourly Rate Monthly Rate Police Recruit 1 $40.92 $7,092.80 $42.15 $7,306.00
2 $42.97 $7,448.13 $44.26 $7,671.73
3 $45.13 $7,822.53 $46.49 $8,058.27
4 $47.40 $8,216.00 $48.83 $8,463.87
5 $49.75 $8,623.33 $51.25 $8,883.33
Police Officer 1 $45.20 $7,834.67 $46.56 $8,070.40
2 $47.48 $8,229.87 $48.91 $8,477.73
3 $49.85 $8,640.67 $51.35 $8,900.67
4 $52.32 $9,068.80 $53.89 $9,340.93
5 $54.96 $9,526.40 $56.61 $9,812.40
Police Corporal 1 $49.95 $8,658.00 $51.45 $8,918.00
2 $52.45 $9,091.33 $54.03 $9,365.20
3 $55.07 $9,545.47 $56.73 $9,833.20
4 $57.83 $10,023.87 $59.57 $10,325.47
5 $60.72 $10,524.80 $62.55 $10,842.00
Police Detective 1 $55.19 $9,566.27 $56.85 $9,854.00
2 $57.96 $10,046.40 $59.70 $10,348.00
3 $60.84 $10,545.60 $62.67 $10,862.80
4 $63.88 $11,072.53 $65.80 $11,405.33
5 $67.07 $11,625.47 $69.09 $11,975.60
July 3, 2023 July 14, 2024
Approximate Salaries*
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Memorandum
Of
Understanding
Between
Ontario
Fire Management
Group
And
City of Ontario
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January 1
st
, 20182023
through
June 30th, 20222027
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Table of Contents
Appendix A: Salary Grade Table...........................................................................................53 Article 1: Administration of Memorandum of Understanding...................................64 Section 1.01 - Parties to Memorandum of Understanding .....................................................64 Section 1.02 - Recognition ....................................................................................................64 Section 1.03 - Agency Personnel Rules ................................................................................64 Section 1.04 - Effect of MOU.................................................................................................64 Article 2: Definitions ....................................................................................................64 Article 3: Management Rights.....................................................................................75 Article 4: Employee Rights..........................................................................................85 Article 5: Employment Status......................................................................................86 Section 5.01 - Probationary Period........................................................................................86 Section 5.02 - At-Will Status..................................................................................................86 Section 5.03 - Transfer Request............................................................................................97 Article 6: Personnel Files ..........................................................................................108 Article 7: Disciplinary Procedure ..............................................................................119 Article 8: Classifications............................................................................................119 Section 8.01 - New Classifications ......................................................................................119 Section 8.02 - Fire Chief/Fire Management Group Cooperative Team ................................119 Article 9: Hours of Work ..........................................................................................1210 Section 9.01 - Work Schedules .........................................................................................1210 Section 9.02 - 24-Hour Shift Personnel .............................................................................1210 Section 9.03 - Management Incentive Pay ........................................................................1210 Article 10: Compensation..........................................................................................1210 Section 10.01 - Salary.......................................................................................................1210 Section 10.02 - Professional Development Incentive.........................................................1311 Section 10.03 - Longevity Pay...........................................................................................1412 Section 10.04 - Promotion to Deputy Fire Chief ................................................................1512 Article 11: Benefits.....................................................................................................1612 Section 11.01 - Active Employee Health Benefits..............................................................1612 1099
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Section 11.02 - Eligibility ...................................................................................................1713 Section 11.03 - Retiree Medical Benefit for Employees Appointed to a Regular Sworn Position prior to July 1, 2012 (Tier 1).................................................................................1713 Section 11.04 - Retiree Medical Employee Benefit for Employees Appointed to a Regular Sworn Position On or After July 1, 2012 (Tier 2)................................................................1915 Section 11.05 - Insurance Committee ...............................................................................2117 Section 11.06 - Life Insurance...........................................................................................2117 Section 11.07 - Deferred Compensation ...........................................................................2117 Section 11.08 - Uniform Allowance....................................................................................2217 Section 11.09 - Vehicles....................................................................................................2218 Section 11.10 - Retirement................................................................................................2218 Section 11.11 - Employee Assistance Program.................................................................2419 Section 11.12 - Long-Term Disability.................................................................................2419 Article 12: Group Membership and Activity .............................................................2420 Section 12.01 - Release Time ...........................................................................................2420 Section 12.02 - Dues Deduction........................................................................................2420 Article 13: Grievance Procedure ...............................................................................2520 Section 13.01 - Definitions ................................................................................................2520 Section 13.02 - Level I – Informal Review .........................................................................2621 Section 13.03 - Level II – Formal.......................................................................................2621 Section 13.04 - Level III.....................................................................................................2722 Section 13.05 - Level IV ....................................................................................................2722 Section 13.06 - Level V – Arbitration .................................................................................2723 Section 13.07 - General Provisions ...................................................................................2823 Article 14: Layoff Procedure......................................................................................2924 Article 15: Holidays....................................................................................................3025 Section 15.01 - Paid Holidays ...........................................................................................3025 Section 15.02 - Holiday Work Compensation (Holiday Pay) – Shift Employees.................3126 Section 15.03 - For Non-Shift Employees..........................................................................3226 1100
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Article 16: Annual Leave............................................................................................3227 Section 16.01 - Annual Leave Program.............................................................................3227 Article 17: Other Leaves of Absence With Pay ........................................................3628 Section 17.01 - Retained Sick Leave.................................................................................3628 Section 17.02 - Bereavement Leave .................................................................................3628 Section 17.03 - Paternity Leave ........................................................................................3729 Section 17.04 - Family Medical Care Leave ......................................................................3829 Section 17.05 - Catastrophic Leave...................................................................................3829 Article 18: Separability...............................................................................................3931 Article 19: Duration and Implementation..................................................................4031 Appendix A: Salary Grade Table
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Article I. Administration of Memorandum of Understanding Section 1.01 Parties to Memorandum of Understanding
This Memorandum of Understanding (hereinafter known as MOU) is made and entered into by and between the City of Ontario (hereinafter known as City) and the Ontario Fire Management Group (hereinafter known as the Group).

Section 1.02 Recognition
The City hereby formally recognizes the Group as the Representative for those employees employed by the City and defined in Rule I, Section 9 of the Personnel Rules and Regulations, in the following classifications:

Deputy Fire Chief
Fire Battalion Chief
Senior Deputy Fire Chief
Recognition is granted for the purpose of meeting and conferring on wages, hours, working conditions, and general representation of employees defined within this section.

Section 1.03 Agency Personnel Rules
It is understood and agreed that there exists within the City, in written or unwritten form, certain personnel rules, policies, practices, and benefits generally contained in the “City of Ontario Personnel Rules and Regulations,” and the “Employment Policies” in the City’s Online Policy Center which shall continue in effect, except for those provisions modified by this MOU, unless and until modified in accordance with State laws, orders, regulations, official instructions, or policies. This section shall conform within the scope of MMBA.

Section 1.04 Effect of MOU
A. The parties acknowledge that during the negotiations which resulted in this MOU, each had the unlimited right and opportunity to make demands with respect to any subject or matter not removed by law from the area of collective bargaining, and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this MOU.

B. This MOU supersedes all previous MOUs, understandings, agreements, and prior practices related to matters included within this MOU.

C. The adoption of this MOU shall not affect rights established under Labor Code Sections 1960 – 1963, and Government Code Sections 3500 – 3510 (MMBA).

Article II. Definitions
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A. Bargaining Unit - The bargaining unit of the employees defined in Article 1, Section 1.02 - Recognition.

B. Calendar Year - The period of 12 consecutive months commencing on January 1st and ending on December 31st.

C. Day - A calendar day, unless otherwise stated in this MOU.

D. Emergency – A circumstance requiring immediate action; a sudden, unexpected happening; an unforeseen occurrence or condition.

E. Employee – A full- time:

1. Regular Status Employee – An employee in a full-time regular position who has completed the probationary period.

2. Probationary Employee – An employee in a full-time regular position who has not completed his/her probationary period.

3. At-Will Employee – An employee who is appointed in an At-Will status and serves at the will and pleasure of the City Manager.

F. Week – Seven consecutive days beginning on Sunday and going through the following Saturday.

G. Working Day - A daily work period an employee is regularly scheduled to work each day.

For example, an employee on a 4/10 work schedule would have a ten-hour working day.

G.H. Regular Rate of Pay - The regular rate used to calculate the Fair Labor Standards Act ("FLSA") premiums pay reported to CalPERS, inclusive of an employee's base hourly rate, eligible items of special compensation that an employee receives at the time FLSA is calculated (Longevity Pay, Educational Incentive, and all compensation items under Section 10.03), and all other items of compensation that are included in the FLSA calculation.

Article III. Management Rights
A. There are no provisions in the MOU that shall be deemed to limit or curtail the City in any way in the exercise of the rights, powers, and authority which the City had prior to entering into this MOU, as defined in the Employer-Employee Relations rules, unless and only to the extent that the provisions of this MOU specifically curtail or limit such rights, powers, and authority.

B. Where required by law, the City agrees, prior to implementation, to meet and confer with the Group over the impact of the exercise of a City right upon wages, hours, and other terms and conditions of employment of its members unless the impact consequences of the exercise of a management right upon the Group members is provided for in this MOU, Personnel Rules and Regulations, or Departmental Rules and Regulations. 1103
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Article IV. Employee Rights
A. The City shall afford regular employees the procedural due process safeguards as set out in the published decisions of the California courts.

B. An employee shall have the right of representation by a designated Group representative when the employee reasonably anticipates that such a meeting is for the purpose of disciplining the employee, or is to obtain facts to support disciplinary action that is probable, or that is being seriously considered.

Article V. Employment Status
Section 5.01 Probationary Period
A. Objective – The probationary period is to be regarded as an integral part of the testing process and shall be utilized for closely observing the employee’s work and the employee’s adjustment within the organization.

B. Length

1. All original and promotional appointments shall be subject to a probationary period of actual service for not less than 12 months.

2. If a probationary employee is on leave for more than 30 consecutive calendar days during the probationary period, that employee’s probationary period shall be extended by the duration of the employee’s consecutive leave.

3. The Fire Chief may extend an employee’s probation by up to six months upon written notice delivered to the employee prior to the completion of his/her original probationary period.

C. Rejection

1. An employee may be terminated by the Fire Chief without cause and without right of appeal during the employee’s initial probationary period.

Notification of probationary rejection shall be in writing to the employee and may be given without advance notice with two-weeks’ severance pay.

2. An employee who is rejected while serving a probationary period after promotion shall be returned to his/her previous classification provided the employee had regular status in that classification.

Section 5.02 At-Will Status
A. Employees appointed to the classification of Deputy Fire Chief or Senior Deputy Fire Chief shall be in an “At-Will” employment status.

B. Employees appointed to the classification of Deputy Fire Chief or Senior Deputy Fire Chief from a prior classification within the City, without a break in service, will have the right, at 1104
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their option, to revert to that classification should they be removed from the Deputy Fire Chief or Senior Deputy Fire Chief classifications for any reason other than “for cause.” Such reversion will follow the procedures established in Article 14, Layoff Procedures.

Employees who are appointed to these classifications from outside City employment do not have reversionary rights.

C. “At-Will” employees serve at the will and pleasure of the City Manager.

Section 5.03 Transfer Request
A. Purpose: To provide a fair and equitable means for employees to voluntarily change their work locations, and to establish the policy within which administrative transfers shall be accomplished.

B. Policy:

1. Transfers will be considered with the employee’s and the Department’s best interests in mind.

2. The Fire Chief maintains the authority to assign personnel in the best interest of the Fire Department.

3. Chief Officer seniority will be the major criteria considered.

4. All transfer requests shall be maintained by the Department’s Fire Administration Office in the Master File Book, unless no qualified personnel have submitted a transfer for the vacancy.

5. Regular, full-time employees who are temporarily transferred in order to facilitate probationary or administrative transfers shall have the opportunity to return to their previous assignment when the affected employee is transferred again, or within one year.

C. Procedure:

1. Employees who wish to request a transfer shall complete an Employee Transfer Form. The employee will retain a copy and submit one copy of the form to the Department’s Fire Administration Office.

2. Upon receipt and filing of the transfer request in the Master File Book, the Department’s Fire Administration Office shall return a copy of the request to the employee, indicating that the request is on file.

3. Employees wishing to cancel a previous transfer request shall do so by memorandum, through channels, to the Department’s Fire Administration Office.

4. The memorandum shall be applied to the appropriate Transfer Request Form in the Master File Book.

5. When a vacancy occurs, a notice shall be sent to all management personnel, announcing the opening and declaring the vacancy either open for bid or closed, 1105
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including cause if closed. Such notice shall be for a period of 30 days, after which time the bidding will close and the most senior qualified member, subject to the stated administrative requirements, will be selected for transfer.

6. The notice of transfer of this member shall be sent to all management personnel within no less than 15 days nor more than 30 days, and the transfer of the member shall take place during this period. This notice of transfer of a member may include a position for bid or announce the closing of the position and the cause of the closing.

7. If notice of an opening has been sent to all management personnel for 30 days and no member has filed a request for transfer to the position, the first request received, thereafter, may be honored. Or, the position may be filled administratively without further notice other than the routing of the transfer notice.

8. In the event it becomes necessary to bypass the most senior person requesting any vacancy, that person shall be provided a written explanation for the decision.

9. Employees may submit a transfer request for any authorized position.

10. If more than one request is filed by an employee, it shall be the responsibility of that employee to prioritize his/her choices in the space provided on the transfer request form for each request filed.

11. Transfer requests will be honored only after the employee has served at least one year since his/her last bid award or transfer. This requirement shall not apply to those who have been transferred by administrative direction rather than as a result of a transfer request.

12. All transfer requests for non-currently posted positions will expire December 31st of each year and will be purged from the Master File book the first working day in January. Transfer requests on file for currently posted positions will remain in the Master File Book into the New Year and will not be purged until the posting(s) have closed and the positions have been awarded.

Article VI. Personnel Files
A. The official personnel files shall be located in the Human Resources Department.

Personnel actions (e.g. discipline, promotions) will be based on documentation within such file.

B. Employees have the right to have access to and copies of any document in their official personnel file. Employees may be charged for cost of duplication of any materials in the personnel file for which they request copies.

C. An employee will be provided with an initial copy of any document which will be placed in the official personnel file. An employee shall have the right to respond in writing or personal interview to any information contained in his/her personnel file. Such a reply will remain in the personnel file so long as the referenced document is in the file. 1106
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Article VII. Disciplinary Procedure
A. The following disciplinary procedure must be used for all serious disciplinary actions involving regular full-time employees BEFORE the actions go into effect. The disciplinary procedure provides that:

1. The employee shall receive advance notice of the proposed disciplinary action.

Normally, one week for a one to three day suspension, and two weeks for all other disciplinary actions will be considered the minimum time necessary to give notice.

2. The notice must contain the reasons and the charges upon which the proposed action is based.

3. The notice must also contain a statement of the events or circumstances upon which the action is based.

4. The employee must be given the materials, if any, upon which the action is based.

5. The employee must be given the right, either orally or in writing, to respond to the department head or the City Manager (in the case of discharge) proposing the action.

This procedure will be consistent with Sections 13.04 through 13.07 of the grievance procedure.

6. This disciplinary procedure shall be used for all serious disciplinary actions which are normally considered (1) demotions, (2) discharges, (3) reductions in pay, and (4) suspensions.

B. The above procedure may be deviated from in circumstances where there is a need for immediate disciplinary action. In such cases, an employee may be ordered off the job without pay if his/her conduct imperils the safety or welfare of the public, other employees, or said employee (e.g., drunkenness, violence, gross insubordination).

C. Article 13, Section 13.07(L), describes the appeals procedure available for all serious disciplinary actions.

Article VIII. Classifications
Section 8.01 New Classifications
The City agrees to meet and confer with the Group representatives on any new classifications approved, which appropriately should be added to the unit covered by this MOU.

Section 8.02 Fire Chief/Fire Management Group Cooperative Team The Fire Chief and the Human Resources Department agree to consult with Fire Management Group to develop and review the testing procedures for the position of Battalion Chief prior to the recruitment process.

The Fire Chief will inform the Fire Management Group of the recruitment process for Deputy Chief and Senior Deputy Chief classifications.
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Article IX. Hours of Work
Section 9.01 Work Schedules
Both parties agree that work will be scheduled as required in a manner most advantageous to the City and consistent with the public interest and the requirements of municipal government. It is understood that as members of management, employees within the unit may be called upon to provide services beyond prescribed hours and compensation.

Section 9.02 24-Hour Shift Personnel
A. The compensation formula used to calculate rate of pay for Battalion Chiefs assigned to a 24-hour work shift schedule shall be that which is used for the majority of Fire Department 24-hour shift safety employees. This shall apply to regular scheduled hours and hours worked in excess of the regular scheduled hours. This provision will apply only to those employees who are assigned and work a 24-hour shift schedule.

B. The average work period for shift employees is 53 56 hours per week for the purpose of calculating compensation (without loss of current compensation). Unit employees assigned to work the 24-hour work shift schedule shall begin at 0700 hours and terminate work at 0700 hours the following day. The City shall maintain the 56-hour shift schedule as it relates to days on/days off.

Section 9.03 Management Incentive Pay
Group employees assigned to non-shift administrative positions shall receive Management Incentive Pay at the rate of (7.42) hours per pay period, for a total of one hundred and ninetythree hours (193) each calendar year. Such time shall be paid at the employee’ regular rate of pay. Upon implementation, eligible unit employees shall receive a prorated amount of Management Incentive pay for the period of January 1, 2023, up to the effective date of implementation. receive 193 hours of management incentive credit each calendar year. Such credit shall not be available for use as time off and shall be paid as salary compensation at the employee’s regular rate of pay in the second paycheck in November of each year. Group employees appointed or promoted to a Group non-shift assignment during the year shall receive a pro-rated amount of management incentive hours based on the portion of the calendar year that the employee serves in that non-shift assignment.

Article X. Compensation
Section 10.01 Salary
A. Effective January 7, 2018July 2, 2023, employees within the unit in the Battalion Chief classification will receive a 59% increase in base salary.

A.B.Effective July 2, 2023, employees within the unit in the Deputy Chief and Senior Deputy Chief classifications will receive a 5% increase in base salary. 1108
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C. Effective January 6, 2019July 14, 2024, employees within the unit will receive a 53% increase in base salary.

B.D.Effective July 13, 2025, employees within the unit shall receive the lesser of a 3% increase in base salary or the percentage increase in base salary required to maintain the leading total compensation position amongst comparable agencies.

C. Effective July 12, 2026, employees within the unit will receive a shall receive the greater of a 5% increase in base salary or the percentage increase in base salary required to maintain the leading total compensation position amongst comparable agencies. Effective January 5, 2020, employees within the unit will receive a 5% increase in base salary.

D. Effective January 3, 2021, employees within the unit will receive a 4% increase in base salary.

E. The salary range for the Deputy Chief and Senior Deputy Chief classifications shall be increased by 10% effective January 7, 2018. The increase shall be calculated prior to the increase referenced in 10.01A.

F.E.Salaries for the classifications covered in this MOU shall be set forth in Appendix A.

0.1. The City agrees to continue to maintain the relationship between the Fire Battalion Chief and Fire Captain at top step receiving paramedic skill compensation, plus any additional skill compensations or incentives, for the purpose of maintaining current base pay relationship between positions. The salary differential between classifications within the unit shall be maintained within the structure as of January 2018July, 2023. In January 20222025, a review will be conducted to determine the relationship. The review will not obligate the City to any adjustment.

Section 10.02 Professional Development Incentive
A. Emergency Medical Technician Pay – Battalion Chiefs may qualify for additional compensation to recognize their professional development under subsection 10.02A(1) below.

1. Battalion Chiefs who have in their possession or who obtain in the future an EMT-1 Certification will receive $450 per month in addition to their base pay.

A.B.Educational Incentive – All Group employees may qualify for additional compensation to recognize their professional development under one of the subsections 10.02BA(1) or

10.02A02B(2) below.

1. Group employees who continue their professional development and successfully complete an acceptable number of courses from the National Fire Academy and/or the California Fire Service Academy, and/or the California Specialized Training Institute and/or the California State Fire Marshall shall receive $425 per month in addition to their base pay.

2. Group employees who have in their possession or who later obtain the following an advanced BA/BS Degree degrees (from an accredited college or university) shall 1109
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receive $425 per month in addition to their base pay; or,monthly compensation in addition to their base pay as follows:

Degree Incentive Amount
Bachelor of Arts or Bachelor of Science (BA/BS) $500/month Master of Arts or Master of Science (MA/MS) $750/month
Employees will be eligible for the incentive amount consistent with the highest degree obtained (i.e., no “stacking” degree incentive). The allowance will be effective the later of the first full pay period in July 2023, or the first full pay period following the date on which the required documentation has been submitted. Application for the educational incentive for employees newly eligible or those who become eligible for a higher level of educational incentive must be accompanied by an official transcript issued by a college or university accredited by the Council for Higher Education Accreditation, International Association of Universities, or National Association of Credential Evaluation Services.

1. Group employees who continue their professional development and successfully complete an acceptable number of courses from the National Fire Academy and/or the California Fire Service Academy, and/or the California Specialized Training Institute shall receive $425 per month in addition to their base pay.

B.C.Professional Development Incentive - Deputy Fire Chief or Senior Deputy Fire Chief may also qualify for additional compensation to recognize their professional development under subsections 10.02CB(1) and/or 10.02CB(2) below.

1.A Deputy Fire Chief or Senior Deputy Fire Chief Group employees who has have obtained the California State Fire Marshal Chief Officer/Chief Fire Officer certification shall receive $250 per month in addition to their base pay.

2.A Deputy Fire Chief or Senior Deputy Fire Chief who has obtained a California State Fire Marshal Executive Chief Fire Officer certification shall receive $250 per month in addition to their base pay.

D. No employee shall be eligible for education incentive compensation in excess of $925 per month.

E. No Employee shall be eligible for education incentive compensation in excess of the Deputy Chief or $1,250 per month.

C.F.Educational Incentive reported to CalPERS is calculated using an employee's base pay plus holiday worked compensation as defined in Sections 15.02 and Management Incentive Pay as defined in Section 9.03.

Section 10.03 Longevity Pay
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A. Employees who begin the designated year of service, as a professional firefighter shall receive the corresponding longevity pay percentage calculated on their base pay.

Effective Date Years of Service Longevity Pay
Percentage
January 2006
20 7.5%
25 15%
Both parties agree that this benefit is not considered a vested right by current or future employees.

Section 10.04 Promotion to Deputy Fire Chief
Base salary compensation for employees promoting to Deputy Fire Chief shall be established at the applicable salary step that will result in a one-step increase of approximately 5% or the first step of the salary range, whichever is greater. The step placement will consider the employee’s previous base rate of pay, including the FPI of 6 hour per pay period (3 hour per week) and the FLSA Premium (valued at 6.25 hours per month) and excluding any and all other additional salary compensations prior to the promotional appointment.

Section 10.05 Employer of Choice
The City of Ontario desires to identify, attract, develop, and retain the most talented individuals to field an expert and resourceful workforce, capable of delivering Exceptional Customer Service to the Premier Community of the Inland Empire. The City’s commitment as an Employer of Choice is to provide:
-High-quality facilities and equipment;
-Comprehensive training and professional development opportunities; and -A total compensation package that is #1 in our survey market.

Committing to being the top-compensated agency, in addition to demanding the highest level of service and professionalism from employees, requires both financial sustainability and defensibility of the unique policy choice. Thus, although Ontario will strive to be #1 in the market, it is essential that we adhere to that market. The #1 total compensation package shall be determined each contract term and the rank differentials from Battalion Chief to Fire Chief will also a consideration in creating an appropriate differential between the ranks.

On or before November 2024, the City and FMG agree to meet and discuss the details of an 1111
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updated survey to include, but not limited to: comparable survey agencies to be included in the survey, elements to be included in the survey, considerations for the survey, and timelines for compiling and reviewing the results.

Article XI. Benefits
Section 11.01 Active Employee Health Benefits
A. For active employees, the City agrees to continue its Cafeteria Plan for medical, dental and vision insurance. The contribution rates are as follows:

1. Up to a maximum of 100% of the CalPERS medical average premium toward medical insurance premiums; and

2. Up to a maximum of 100% of the employee and eligible dependent coverage for basic dental insurance premiums; and

3. Up to a maximum of 100% of the employee and eligible dependent coverage for basic vision insurance premiums.

B. The contribution rate is contingent upon the category of employee/dependent coverage.

The rates will be adjusted the first paycheck in January of each year.

C. The City agrees that at no time will the contribution, toward the medical premium rates in Section 11.01(A)(1) (“Employee Medical Benefit”), drop below the contribution that was in effect January 1, 2012. That contribution was $544.69 for employee, $1,079.24 for twoparty, and $1,398.68 for family coverage.

D. The City shall increase or decrease the maximum monthly Employee Medical Benefit amounts for active employees to the average of the monthly premium amounts for the CalPERS (PEMHCA) Health Plans for the region that includes the City of Ontario. The current Employee Medical Benefit is as follows:

Medical Coverage 20232018
Employee $766.14$626.04
Two-party $1528.94$1,258.63
Family $1989.29$1,633.31
The above amounts are the maximum monthly Employee Medical Benefit amounts toward medical insurance premiums for active employees for each coverage level. 1112
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Active employees that select medical insurance plans for which the actual premium amounts are less than the maximum contributions shall not receive any remaining contribution amounts. Active employees who select medical insurance plans for which the actual monthly premium amount exceeds the maximum monthly employee medical benefit shall be required to contribute, through payroll deductions, the remaining premium amount due.

E. The CalPERS (PEMHCA) minimum employer contribution is designated toward the medical premium portion of the Cafeteria Plan and shall be equal for active and retired employees. The maximum monthly Employee Medical Benefit Contribution includes the CalPERS (PEMHCA) minimum employer contribution.

F. Employees must enroll in a City medical plan unless they provide proof of other group insurance coverage and meet any other requirements established by the insurance plan.

Effective the first paycheck in January 2014, employees who waive medical coverage shall receive $390 per month contributed to the Cafeteria Plan. The $390 per month may be taken in cash and/or used to purchase other benefits in the Cafeteria Plan, including the “buy-up” plans for dental or vision insurance.

Section 11.02 Eligibility
To be eligible in any particular pay period to receive the benefits of Section 11.01, employees must code at least 15 hours of paid time in the pay period. Paid time includes regular time and all types of paid leave, including 4850 time, sick, annual leave, compensatory time, holiday, bereavement, jury duty, personal, military, catastrophic and administrative leave. Paid time excludes disability payments (including Total Temporary Disability, Short-Term and Long-Term Disability) and periodic special pays such as uniform allowance. If employees are not eligible to receive the contributions pursuant to Section 11.01, they may still maintain benefit coverages at their own expense.

Section 11.03 Retiree Medical Benefit for Employees Appointed to a Regular Sworn Position prior to July 1, 2012 (Tier 1)
A. Definition of Retiree. All unit employees who retire from the City and qualify as an “annuitant” under Government Code Section 22760 shall be eligible for retiree medical benefits under the terms and conditions set forth herein. The terms retiree and annuitant shall mean the same thing pursuant to this section.

B. Definition of Tier 1. Tier 1 is the Retiree Medical Benefit for active and retired employees appointed to a regular sworn position prior to July 1, 2012. Employees originally hired prior to July 1, 2012 who then leave City employment and are subsequently re-hired are eligible for Tier 1 benefits provided their re-hire date is within 12 months of the date they separated from the City. Employees re-hired after the 12 month period will receive Tier 2 retiree medical benefits even if they are eligible to retain the CalPERS 3% at 50 retirement formula.

C. Vested Benefits for Tier 1. The City agrees that Tier 1 employees and retirees have a vested benefit to retiree medical contributions. These Retiree Medical Benefits herein set forth are permanently and irrevocably vested for Tier 1 employees. Specifically, the vested benefit is the value of the actual premium cost for the plan and coverage level selected, up to a maximum of 100% of the medical average premium rates for the CalPERS (PEMHCA) 1113
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Health Plans for the region that includes the City of Ontario. The current Retiree Medical Benefit for Tier 1 employees is listed in Section 11.01.

D. Tier 1 Retiree Medical Benefits

1. Tier 1 retirees who enroll in the CalPERS (PEMHCA) Health Plans shall be eligible to receive the CalPERS (PEMHCA) minimum employer contribution toward their medical plan. Retirees who opt out of enrollment will not receive the CalPERS (PEMHCA) minimum employer contribution.

2. For Tier 1 retirees who enroll in the CalPERS (PEMHCA) Health Plans, the City will also contribute directly to the retiree the balance of the cost of the Retiree Medical Benefit consistent with the value of the vested benefit for Tier 1 employees. The vested benefit is the value of the actual premium cost for the plan and coverage level selected, up to a maximum of 100% of the medical average premium rates for the CalPERS (PEMHCA) Health Plans for the region that includes the City of Ontario.

The maximum monthly Retiree Medical Benefit Contribution includes the CalPERS (PEMHCA) minimum employer contribution. To the extent permitted by the IRS, this contribution shall be made on a pre-tax basis.

E. Medicare Reimbursement

1. A retiree who is eligible for Medicare coverage must enroll in Medicare Parts A and B and select a supplemental health benefits program to receive the Tier 1 Retiree Medical Benefits.

2. The Tier 1 Retiree Medical Benefit shall equal the actual cost of the selected supplemental benefits program (for the retiree plus dependents) up to the maximum of the Tier 1 Retiree Medical Benefit in Section 11.03. For retirees who select a supplemental benefits program that costs less than the maximum monthly Tier 1 Retiree Medical Benefit, the City will pay to the retiree the monthly cost of enrolling in Medicare Parts A and B, not to exceed the maximum monthly Tier 1 Retiree Medical Benefit.

3. The Medicare Reimbursement shall be paid to all retirees who are enrolled in Medicare effective January of that year. To the extent permitted by the IRS, the contribution shall be made on a pre-tax basis.

4. Examples of how the Medicare Reimbursement is calculated are as follows:

Example A: Reimbursement amount is less than retiree Medicare premiums for a Tier 1 retiree.

Description Monthly Amount
CalPERS (PEMHCA) minimum employer contribution $112
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The City will pay the full cost of the supplemental plan, plus reimburse to the retiree an annual payment of $900 ($75/mo x 12) to be applied to the Medicare premiums.

Example B: Reimbursement amount is same as retiree Medicare premiums for a Tier 1 retiree.

Description Monthly Amount
CalPERS (PEMHCA) minimum employer contribution $112
Balance of the Tier 1 Retiree Medical Benefit $1286
Total Tier 1 Retiree Medical Benefit $1398
Supplemental Plan $1210
Difference $188
Medicare Premiums $99.99
City’s Medicare Reimbursement to Retiree $99.99
The City will pay the full cost of the supplemental plan, plus reimburse to the retiree an annual payment of $1,199.88 ($99.99/mo x 12) to be applied to the Medicare Premiums.

Section 11.04 Retiree Medical Employee Benefit for Employees Balance of the Tier 1 Retiree Medical Benefit $1286
Total Tier 1 Retiree Medical Benefit $1398
Supplemental Plan $1323
Difference $75
Medicare Premiums $99.99
City’s Medicare Reimbursement to Retiree $75
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Appointed to a Regular Sworn Position On or After July 1, 2012 (Tier 2) A. Definition of Retiree. All unit employees who retire from the City and qualify as an “annuitant” under Government Code Section 22760 shall be eligible for retiree health insurance under the terms and conditions set forth herein. The terms retiree and annuitant shall mean the same thing pursuant to this section.

B. Definition of Tier 2. Tier 2 is the Retiree Medical Benefit provision for employees appointed to a regular sworn position on or after July 1, 2012.

C. Tier 2 Retiree Medical Benefits. Tier 2 retirees who enroll in the CalPERS (PEMHCA) Health Plans shall be eligible to receive the CalPERS (PEMHCA) minimum employer contribution toward their medical premium. Retirees who opt out of enrollment in the CalPERS (PEMHCA) Health Plans will not receive the CalPERS (PEMHCA) minimum employer contribution.

D. Tier 2 Retiree Medical Savings Plan

1. For Tier 2 employees, the City shall contribute $750 per month (pre-tax) to a Retiree Medical Savings Plan (specifics to be determined at a later date) for the purpose of providing a savings plan for each employee to purchase medical insurance upon retirement. The City agrees that at no time will the contribution, toward the Retiree Medical Savings Plan for Tier 2 employees, drop below the contribution that was in effect July 1, 2012.

2. The $750 monthly payment shall be made while the employee is in active status and will be paid over 24 pay periods (excluding “free” pay periods) per year. To be eligible to receive the payment in any particular pay period, the employee must code at least 15 hours of paid time in the pay period. Paid time includes regular time and all types of paid leave, including 4850 time, sick, annual leave, compensatory time, holiday, bereavement, jury duty, personal, military, catastrophic and administrative leave. Paid time excludes disability payments (including Total Temporary Disability, Short-Term and Long-Term Disability) and periodic special pays such as uniform allowance.

3. The administration of the Retiree Medical Savings Plan will be decided upon and agreed to in a separate agreement. If the Association administers the Retiree Medical Savings Plan, the Association and its employees shall enter into an agreement with the City that releases the City from liability and indemnifies the City from any claims resulting from the administration of the Retiree Medical Savings Plan. 1116
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E. Medicare

1. A retiree who is eligible for Medicare coverage must enroll in Medicare Parts A and B and select a supplemental health benefits program to receive the CalPERS (PEMHCA) minimum employer contribution.

2. The City shall contribute the actual cost of the selected supplemental benefits program for the level of coverage selected up to the maximum of the CalPERS (PEMHCA) minimum employer contribution.

F. Transition

1. The parties acknowledge that it will take some administrative actions to implement the retiree medical provisions agreed to in this Article.

2. If the Retiree Medical Savings Plan is not established by the date a Tier 2 employee is hired, the contributions owed to the employee will be held for the employee. When the Retiree Medical Savings Plan is established, all contributions owed will be deposited into the account on a pre-tax basis to the extent permitted by the IRS. If the employee separates employment prior to the Retiree Medical Savings Plan being established, any accumulated contributions shall be paid to the employee in taxable cash.

3. If for some reason all necessary actions have not been completed prior to the date a Tier 2 employee retires, which could result in the employee receiving the Tier 1 retiree medical amount instead of the CalPERS (PEMHCA) minimum employer contribution, the necessary actions will be completed as soon as possible and the employee will then begin receiving the CalPERS (PEMHCA) minimum employer contribution.

Section 11.05 Insurance Committee
The City agrees to continue the Insurance Committee which will have a representative designated by the Group as one of its members. This Committee shall have the responsibility to review the Dental and Vision insurance programs and to represent an employee who has a question to the company. The Committee shall be composed of one representative from each of the recognized employee units and one representative appointed by the City Manager. The Assistant and/or Deputy City Manager shall be an ex-officio member of this committee and entitled to attend all meetings. The Committee or any of its members may invite other individuals to participate as resource people whenever the need arises and prior notification is provided to the committee chair.

Section 11.06 Life Insurance
The City will provide life and accidental death and dismemberment insurance providing $135,000 for Fire Battalion Chiefs and $140,000 for Deputy Fire Chiefs and Senior Deputy Fire Chiefs.

Employees currently certified as a Bomb Technician and assigned to the Bomb Squad shall be provided an additional $50,000 in accidental death and dismemberment insurance benefits. The cost of the additional insurance benefits shall be paid by the City.

Section 11.07 Deferred Compensation
A. The City has established a Section 401(a) money purchase plan for employer deferred 1117
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compensation contributions. The City shall contribute the following amounts to each employee’s Section 401(a) plan account: $350 per month for employees in Senior Deputy Fire Chief & Deputy Fire Chief classifications, and $325 per month for employees in the Fire Battalion Chief classification The contribution will be paid in equal bi-weekly installments during the first and second pay periods of the month.

Employees are eligible to participate in a 457(b) deferred compensation plan as provided for in State and Federal Tax codes. Employees may voluntarily contribute to the plan in accordance with plan provisions and subject to plan maximums.

Section 11.08 Uniform Allowance
A. The annual uniform allowance amount for employees assigned to the 24-hour shift schedule shall be $1,200 payable at a rate of $46.16 per pay period for 26 pay periodsthe second paycheck in July.

B. The annual uniform allowance amount for employees assigned to non-shift assignments shall be $2,600 payable at a rate of $100.00 per pay period for 26 pay periods.the second paycheck in July.

Section 11.09 Vehicles
It is mutually agreed that upon the approval of the Fire Chief, vehicles assigned to the non-shift employees may be garaged at their residence.

Section 11.10 Retirement
A. Classic Member

2. Classic members entering membership for the first time in a Fire safety classification with the City of Ontario before July 1, 2012 shall be eligible for the 3% at 50 retirement formula for Local Safety members. Classic members entering membership for the first time in a Fire safety classification with the City of Ontario on or after July 1, 2012 shall be eligible for the 3% at 55 retirement formula for Local Safety members.

3. Classic members are eligible for the optional benefit of Government Code Section 20042, Highest Single Year.

4. The City shall pay on behalf of the employee a portion of the employee’s required pension contribution as follows:
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Effective Date
City’s Contribution
toward Employee’s
Share
Employee’s Contribution
toward Employee’s
Share
Current 3% 6%
January 7, 2018 2% 7%
January 6, 2019 1% 8%
January 5, 2020 0% 9%

5. To the extent permitted by the IRS, pension contributions shall be made on a pre-tax basis.

B. New Member

2. New members entering membership for the first time in a Fire safety classification shall be eligible for the 2.7% at 57 retirement formula for Local Safety members.

3. The employee contribution for new members shall be one-half the normal cost, as determined by CalPERS. As of July 2013, the required employee contribution for new members is 11.25%. This amount will be adjusted periodically by CalPERS

4. To the extent permitted by the IRS, pension contributions shall be made on a pre-tax basis.

C. Optional Benefits for Classic and New Members
The City’s contract with CalPERS includes the following optional benefits for both classic and new Local Safety members:

1. 50% Post Retirement Survivor Allowance – Government Code Sections 21624 and 21626

2. Sick Leave Credit – Government Code Section 20965

3. Military Service Credit (Stats 74) – Government Code Section 21024 1119
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4. Retiree Death Benefit $500 – Government Code Section 21620

5. 2% Cost of Living Adjustment – Government Code Section 21329

6. 2 Years Additional Service Credit (only within specified window period) – Government Code Section 20903

7. Cancellation of Election upon Industrial Disability Retirement/Special Death – Government Code Section 21037

8. Post Retirement Survivor Allowance Continuance – Government Code Section 21635

9. 1959 Survivor Benefits Level 4 – Government Code Section 21574

10. Pre-Retirement Option 2w – Government Code Section 21548

11. Death Benefit Continuance – Government Code Section 21551 Section 11.11 Employee Assistance Program
A. The City agrees to continue the employee assistance program (EAP), for all employees within this bargaining unit.

B. The parties agree that the EAP cannot be successful without absolute confidentiality regarding employee/family utilization of the program. Confidentiality will be maintained in full compliance with State and Federal Regulations.

Section 11.12 Long-Term Disability
The City shall reimburse to each unit employee $24.50 per month for long-term disability insurance obtained from and maintained through the Group. The Group will provide at least annually and upon request by the City a list of employees enrolled in the plan.

Article XII. Group Membership and Activity
Section 12.01 Release Time
A designated member of the Group may receive reasonable release time to represent another unit member in matters relative to potential discipline or grievances. Such release time shall be accommodated only after operational needs of the releasing department are met.

Section 12.02 Dues Deduction
A. The City agrees to deduct from the pay of each employee who signs an authorized payroll deduction card a monthly sum certified to him by the Secretary of the Group as the regular monthly dues of the Group. The City will not deduct any pay for initiation fee fines or other special assessments. Dues deduction shall be a specified uniform amount for each 1120
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employee in the Group. The dues deduction may be terminated at any time by the employee by written notice to the City Manager and the Secretary of the Group. Any change in the amount of the dues deducted shall be by written authorization of each member of the Group. The request for a change shall be submitted at least 30 days prior to the effective date of the change.

B. The employee’s earnings must be regularly sufficient, after other legal and required deductions are made, to cover the amount of the dues check off authorized. When a member in good standing of the Group is in a non-pay status for an entire pay period, no dues withholding will be made to cover that period from future earnings, nor will the member deposit the amount with the City which would have been withheld if the member had been in a pay status during that period. In the case of an employee who is in a non-pay status during only a part of the pay period and the salary is not sufficient to cover the full withholding, no deduction shall be made. In this connection, all other legal and required deductions have priority over employee organization dues.

C. Dues withheld by the City shall be transmitted to the officer designated by the Group in writing, at the address specified in the letter of authorization.

D. The Group shall indemnify, defend, and hold the City of Ontario harmless against any claims made, and against any suit instituted against the City of Ontario on account of check off of employee Group. In addition, the Group shall refund to the City of Ontario any amounts paid to it in error, upon presentation of supporting evidence.

Article XIII. Grievance Procedure
Section 13.01 Definitions
A. Complaint – A concern of an employee, which arises from the application of this MOU, existing City Rule(s), Regulation(s) or written policy (policies).

B. Grievance – A written allegation by an employee that there has been a violation, misapplication, or misinterpretation of a specific term(s) of this MOU, existing City Rule, Regulation or written policy.

C. Grievant –
A(n):

1. Regular employee(s);

2. Probationary employee(s); or

3. At-Will employee(s);
who allege(s) in a grievance that he/she has been directly wronged by a violation of 1121
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a specific term(s) of this MOU, existing City Rule, Regulation or written policy. The term “grievant” as used in this Article may refer to the Group when alleging a violation of Article 12, as provided for in this MOU.

D. Immediate Supervisor – The appropriate non-bargaining unit supervisory or management person to whom the employee is accountable.

E. Representative – An employee or representative of the Group who at the grievant’s request may be present at Levels I through IV. Representation of the employee at Level V shall be by a Group-designated representative.

F. Respond and File – Personal delivery or deposit in the U.S. mail, postage prepaid. If mail delivery is used, it shall be by certified, return receipt requested mail and the certified receipt date shall establish the date of response or filing. If personal delivery is used, the calendar date of delivery shall establish the date of response or filing.

Section 13.02 Level I – Informal Review
A. An employee shall have the right to present a complaint and to have the complaint considered with the immediate supervisor no later than seven working days after the event giving rise to the complaint, or no later than seven working days after the employee knew or reasonably should have known of the event giving rise to the complaint.

B. The employee, whenever possible, shall attempt to resolve the complaint informally with the immediate supervisor.

C. The immediate supervisor shall provide an answer to the employee no later than seven working days after the Level I meeting.

D. A resolution of the complaint at the informal level shall not be precedent setting.

Section 13.03 Level II – Formal
A. If the complaint is not resolved through Level I informal discussions, the employee may file a Level II grievance with a Deputy Fire Chief no later than seven working days after the response of the immediate supervisor at Level I. The grievant shall state clearly and concisely on a grievance form provided by the City:

1. The specific term(s) of the MOU, City Rule, Regulation or written policy which have been violated;

2. The action grieved, including names, dates, places and times and how it violated a specific term(s) of this MOU, City Rule, Regulation or written policy;

3. The remedy sought;

4. The name and classification of the grievant and his/her signature; 1122
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5. The name of the representative, if any; and

6. The date of submission.

B. A Deputy Fire Chief shall hold a meeting with the grievant at a mutually acceptable time and location no later than seven working days after the receipt of the grievance. The Deputy Fire Chief shall then respond in writing to the grievant within seven working days of the Level II meeting.

Section 13.04 Level III
A. In the event the grievance is not settled at Level II, the grievant may file the Level III grievance with the Fire Chief no later than five working days after the Level II response.

The grievant shall include in the grievance a written statement indicating the reason that the proposed settlement at Level II was unsatisfactory. The Fire Chief may hold a meeting with the grievant at a mutually acceptable time and location. The Fire Chief shall respond to the grievant no later than five working days after the receipt of the Level III grievance.

Should additional time be required for investigation purposes, the response time may be extended to meet this need.

B. The grievant shall present at Level III all issues and written evidence known or which could have been reasonably known.

C. Amendments and/or modifications to the grievance shall not be made by the grievant after the Level III filing date, except by mutual agreement.

Section 13.05 Level IV
A. In the event the grievance is not settled at Level III, the grievant may file a level IV grievance with the City Manager or designee no later than ten working days after the receipt of the Level III response.

B. The grievant or the City Manager or designee may request to meet with the other party at a mutually acceptable time and location within ten working days of receipt of the written grievance. The City Manager or designee shall respond to the grievant no later than ten working days after the meeting or 20 working days after receipt of the grievance at Level IV.

C. If the grievance has not been settled at Level IV, then within 21 days after receipt of the Level IV written decision or the expiration of the time limits for making such decision, upon the request of the grievant, the Group may request arbitration by giving notice to that effect, by giving notice to that effect, by certified mail, return receipt requested, directed to the Human Resources Director. If the Group wishes to proceed to binding arbitration, it shall so state in this request. Such request will be submitted to the City Council for determination.

The City Council may, if it so desires, order the grievance submitted to binding arbitration.

Section 13.06 Level V – Arbitration
A. Unless the specific language of the MOU is in conflict, the arbitration procedure shall be 1123
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conducted in accordance with the rules of the American Arbitration Group.

B. The arbitrator shall be selected by mutual agreement in both parties.

C. The cost of any arbitration proceeding shall be divided equally between the City and the employee or the employee organization to which the employee may belong.

D. Failure on the part of the City representative or grievant to appear in any case before the arbitrator, without good cause, shall result in the forfeiture of the case and responsibility for payment of all costs of arbitration.

E. A final decision of award of the arbitrator shall be made within 30 calendar days after the close of the hearing. Such decision or award shall be subject to the approval of the City Council.

F. The cost of the arbitration, including advocate, court reporter, unilateral withdrawal, postponement, or cancellation fees, shall be borne equally by the parties. Expenses for witnesses, other than City employees, however, shall be borne by the party who calls them.

G. If an arbitrability question exists, the arbitrator shall determine the arbitrability question prior to hearing the formal presentations of the parties on the merits of the grievance.

Section 13.07 General Provisions
A. Failure of the grievant to comply with the time limitations of this Article shall render the grievance null and void. Failure by the City Representative to timely respond under this Article shall permit the grievance to be filed at the next level.

B. Time limits set forth in this Article may be extended by mutual agreement.

C. The processing of grievances filed and unresolved prior to the effective date of this Agreement may continue under the grievance procedure in effect at the time of the initial filing.

D. No punitive action will be assessed against an employee for utilizing the grievance procedure.

E. The preparation of grievances shall not interfere with the operation of the department.

F. The City may consolidate at any level grievances on similar issues.

G. Grievance records shall be filed separately from an employee’s personnel file and shall be considered confidential.

H. A grievant may withdraw a grievance at any time. The grievant shall not file any subsequent grievance on the same alleged incident.

I. No individual City Council member may be approached regarding the grievance at any time the grievance is being processed.

J. In the event a grievant elects to represent themselves or is represented by someone other than who may be provided by the Group, the Group shall be notified of the nature and resolution of the grievance; provided, however, that the names of employees and 1124
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confidential information shall not be disclosed. Notification of the employee’s Group shall be made within a reasonable time following the resolution of the grievance.

K. Organizational channels shall be utilized at all times and participation in the grievance and the discussion of information related thereto shall be limited to the parties to the grievance except when such other persons are identified and/or called as witnesses.

L. In the event of a disciplinary action involving a suspension, reduction in pay, demotion, or termination where a pre-disciplinary hearing has already been held, Levels I through III of the grievance procedure will be eliminated and Levels IV and above will be utilized.

M. The City agrees to permit an employee and the immediate Group Representative to consult during work hours concerning a potential grievance subject to obtaining approval from his/her first line supervisor. The Group agrees that this privilege shall not be utilized to prepare formal grievances during working hours, but to simply consult with an employee and/or supervisor in order to avoid the necessity of processing a formal grievance; or to set an appointment between the Group Representative and the employee after working hours for the preparation of a legitimate grievance. The City agrees to encourage cooperation with the Group Representative and employees in this regard, provided that the City will not permit the effective and/or efficient operation of the City to be interfered with. The City retains the right to revoke this privilege at any time, provided that prior to taking any such action, the City agrees to meet and confer with the Group in order to avoid the necessity of exercising this right.

N. A group of employees may file one grievance rather than individual grievances as long as the following conditions are met:

1. Each employee in the “group” grievance is individually named.

2. The grievable matter is exactly the same for each employee cited in the grievance.

3. The City is not obligated to conduct grievance hearings or provide grievance responses to each individual, but only to one of the employees involved who represents the group filing the grievance.

Article XIV. Layoff Procedure
A. The City Manager may layoff regular and probationary workers at any time for lack of work or other changes that have taken place. The City will provide the employees’ Group with a 14-day notice to begin employee impact discussion. The employee will be given two weeks’ notice before such a layoff is to take place. The City shall meet and consult with the concerned employee organization on such matters as the timing of the layoff and the number and identity of the employees affected by the layoff during the two-week period prior to the layoff action.

B. A demotion or transfer to another department with the City Manager’s approval may be made to prevent a layoff provided the employee is qualified by education and/or experience and is capable of performing the duties of the classification.

C. In the event of a layoff, those employees with the least service in the classification affected shall be laid off first and be placed on a “Recall List” and shall be eligible for recall for one 1125
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year from the date of placement on the list; if a recall begins, the most senior employees laid off in the classifications required shall be recalled first. Strict application of seniority shall prevail unless exceptional circumstances occur of which the concerned employee organization shall be fully apprised in advance. The order of layoff shall be:

1. Temporary employees in the affected classification shall be removed first.

2. Probationary employees in the affected classification shall be removed next.

3. Exceptional circumstances may include the desirability of maintaining a balanced department or work unit and maintaining employees in the classification, department, or section who have the ability to perform the work available.

D. The employee scheduled to be laid off shall be entitled to displace to a position in a classification occupied by an incumbent with less overall City seniority (displacement seniority) provided it is in a position in which the employee formerly held a regular appointment, and is qualified by education and experience, and is capable of performing the duties of the classification. The employee with the least displacement seniority shall be displaced by the person scheduled for layoff. The employee displaced shall be considered as laid off for the same reason as the person who displaced them, and shall in the same manner, be eligible to displace to a position in a classification in which they formerly held a regular appointment and is qualified by education and experience, and is capable of performing the duties of the classification.

E. Failure to return to work from layoff within 14 calendar days, after notice to return by certified or registered mail to the employee at their last known address on file with the City Human Resources Department or by personal delivery shall constitute the employee’s waiver to return to work and eliminates any future re-employment responsibilities placed on the City.

The employee must notify the City regarding their intent to return within seven calendar days from notice to return.

Article XV. Holidays
Section 15.01 Paid Holidays
The following paid holidays, except as provided in Section 15.02 below, shall be observed on the day specified.

New Year’s Day January 1st
Martin Luther King’s Birthday 3
rd Monday in January
Lincoln’s Birthday February 12th
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Washington’s Birthday 3
rd Monday in February
Memorial Day Last Monday in May
Independence Day July 4th
Labor Day 1
st Monday in September
Admission Day September 9th
Columbus Day 2
nd Monday in October
All Statewide Election Days
Veteran’s Day November 11th
Thanksgiving Day 4
th Thursday in November
Day After Thanksgiving The day after the 4th Thursday in November Christmas Eve December 24th
Christmas Day December 25th
New Year’s Eve December 31st
Every day designated by the President of the United States or by the Governor of the State of California. Any special holiday called by the President or Governor of the State of California. Any special holiday or Designated day called by the President or Governor shall be paid on a one-time only basis.

Section 15.02 Holiday Work Compensation (Holiday Pay) – Shift Employees
A. ACCRUAL OF HOLIDAY HOURS CREDIT - Group employees assigned to shifts will receive 12 hours credit for each of the above holidays regardless of whether the employee is on or off duty when the holiday occurs.

B. ADJUSTMENTS TO HOLIDAY HOURS CREDIT BASED ON ACTUAL SHIFTS - Holiday hours credit shall be adjusted according to each employee’s actual shifts during the year.

C. The City agrees to pay for holiday credit in the first “full” pay period in November for that calendar year. This check will be subject to the regular deductions. Any employee whose employment terminates between when the holiday credit payment is issued and December 1127
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31 of that year shall have any overpayments deducted from the employee’s final paycheck.

Section 15.03 For Non-Shift Employees
Employees in the classification of Deputy Fire Chief or Sr. Deputy Fire Chief shall be paid as salary compensation for working holidays in accordance with the holiday schedule regardless of whether the employee is on or off duty when the holiday occurs. Regardless of work schedule, an employee shall receive credit for each holiday at a rate of 10-hour per holiday, at regular rate of pay for a maximum of 150 hours of holiday credit each calendar year. Employees shall be compensated for this holiday credit at the rate of (5.77) hours per pay period, for a total of one hundred and fifty (150) hours holiday pay per annum. (5.77 is calculated at 26 pay periods).

For non-shift employees, all Statewide Election Days, every day designated by the President of the United States or by the Governor of the State of California, any special holiday called by the President or Governor of the State of California, any special holiday or Designated day called by the President or Governor shall receive 10 hours credit for each designated holiday regardless of whether the employee is on or off duty when the holiday occurs. The City agrees to pay special holiday in the pay period in which the holiday falls.

For Group employees assigned to a non-shift position, any holiday listed in Section 15.01 which falls on Sunday will be observed on the following Monday. Any holiday occurring on Saturday or on the employee’s regular day off will be added to the employee’s Annual Leave accrual.

If a non-shift employee is required to work on any of the days listed in Section 15.01, that employee will receive holiday credit in the form of additional Annual Leave accrual.

Article XVI. Annual Leave
Section 16.01 Annual Leave Program
A. Group employees shall accrue Annual Leave at the following rates:

Shift Employees
Year of Service Annual Leave Hours Earned
1-4 312
5-9 360
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10-14 408
15-19 432
20-24 456
25-29 480
30+ 504
Non-Shift Employees
Year of Service Annual Leave Hours Earned
1-3 250
4 258
5-9 266
10-14 306
15-19 314
20-24 322
25-29 330
30+ 338
B. Shift Group employees may convert up to 120 hours of annual leave each year. Employees must designate the number of hours to be converted by the second Friday in November for payment by the first paycheck in December. Additional notification of this conversion opportunity will be provided in October.

C. Non-shift Group employees may convert up to 240 hours of Annual Leave to salary compensation each calendar year as follows:
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Request Due Date Payment Date
2 nd Friday in May 1st Payday in June
2 nd Friday in November 1st Payday in December
Non-shift employees may convert up to 240 hours at each opportunity, but the total number of hours converted per calendar year shall not exceed 240 total hours.

D. Employees’ retained Sick Leave balances shall be converted to salary at the rate of 300 hours per year until all of an employee’s retained Sick Leave balances are exhausted.

Converted Sick Leave shall be paid by the first paycheck in December, along with any optional Annual Leave conversions.

E. Subject to the limitations of the City’s Deferred Compensation Plan and tax laws, Annual Leave or Sick Leave balances converted to salary compensation may be directed to the Deferred Compensation Plan.

F. Employees promoted into the Group shall accrue Annual Leave as described in Section

16.01(A), and will not earn Vacation, Sick, or Administrative Leave. Upon promotion, all Vacation Leave accruals shall be converted to Annual Leave. In addition, employees will have the option of converting up to 500 hours of Sick Leave to Annual Leave. Employees cannot exceed the maximum Annual Leave accrual limits specified in Section 16.01(H) as a result of the optional Sick Leave conversion. Any remaining Sick Leave balances will be retained. Retained Sick Leave is subject to the same conversion and use restrictions as specified in Sections 16.01(D), 16.01(G), and 17.01.

G. Any unused Annual Leave balances and any retained Sick Leave balances shall be converted to salary compensation at separation. Employees may not use Annual Leave or retained Sick Leave to extend their retirement or separation dates.

H. The maximum amount of Annual Leave that can be “carried over” from year to year shall be 800 hours for Deputy Chief and Senior Deputy Chief and 1,500 hours for Battalion Chiefs. This maximum limit can be extended for a specified period upon recommendation of the Fire Chief and/or the approval of the City Manager if an employee is unable to take Annual Leave due to operational needs.

I. The City will review and discuss the following with the group to determine compliance of implementation and said agreement may be reach after a tentative agreement is reached to one of the following:

1.Employee’s annual leave accumulated in excess of eight hundred (800) hours for nonshift employees and fifteen hundred (1500) hours for shift employees shall be converted to compensation on the first pay period following each accumulation 1130
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providing that such conversion complies with IRS Constructive Receipt requirements; or if method is not compliant; and if not compliant.

2. The City will allow an additional 60 hours annually, for a total of 300 hours to be converted annually. This will also require an update in this section changing the allowable converted annual amount from 240 to 300.

H. The maximum Annual Leave accrual limit is 800 hours for non-shift employees and 1,500 hours for shift employees. When the maximum limit is reached, the employee receives no further accruals. Exceptions will be provided if the Department denies Annual Leave use due to operational needs.

J. In accordance with 26 CFR 1.451-2 effective January 1, 2025, and continuing thereafter, unit employees must submit an irrevocable election form, by no later than December 15th of the proceeding calendar year to convert the following hours to cash:

1. Annual Leave - An amount which may not exceed the number of annual leave hours the individual employee may accrue in the following calendar year.

2. Compensatory Time – An amount which may not exceed the projected number of compensatory time hours the individual employee may receive in the following calendar year.

K. The cash-out election is for hours to be accrued or received in the calendar year following submission of the irrevocable election form.

L. The total combined number of annual leave and compensatory time hours converted per calendar year shall not exceed 240 hours.

M. The payment shall be made via payroll and employees may elect to receive the cash out in the first payday in June and/or the first payday in December, but the request must be submitted by December 15th of the year prior.

N. Employees who do not submit an irrevocable election form by December 15th will be deemed as foregoing participation in the optional vacation and/or compensatory time conversion salary program for the following calendar year.

O. In the event an employee has less hours in their vacation and compensatory time bank at the time the cash-out is to be paid than they had previously elected to cash-out, the employee shall only be paid for up to the amount remaining in their vacation leave and compensatory time bank at the time of the actual cash-out.

P. If an employee makes an irrevocable election to cash-out annual leave and/or compensatory time in the following calendar year and uses such in that subsequent calendar year, the vacation and compensatory time used will come from the annual leave or compensatory time the employee had earned (if any) prior to January 1st of the calendar year the employee has elected to cash-out. The employee’s use of earned, but unused annual leave and/or compensatory time accumulated from previous calendar years shall not result in a reduction in the amount of annual leave and/or compensatory time hours the employee is eligible to cash-out.

Q. Any conversion of annual leave hours to cash shall not cause the employee’s total amount of accrued annual leave in their annual leave bank to fall below a forty (40) hour minimum 1131
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balance. Cash-out of accumulated time shall be at the employee’s option. Requests for cash-out are to be submitted in a manner prescribed by the City.

R. An employee who experiences an unforeseen emergency may be permitted to make a new irrevocable election and/or to increase the amount of a previous election, subject to the same value that was permitted at the time the annual irrevocable election forms were due.

S. For these purposes, an “unforeseen emergency” means a financial hardship to the employee resulting from any of the following:

1. Accident, illness, injury or death of the employee or an immediate family member.

For this purpose, an “immediate family member” is restricted to a spouse, registered domestic partner, child/legal dependent, or parent; or

2. Loss or extensive damage to the employee’s property due to casualty; or

3. Other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the employee.

T. Whether an occurrence is an unforeseeable emergency shall be solely determined by the Executive Director Human Resources / Risk Management or designee.

Article XVII. Other Leaves of Absence With Pay
Section 17.01 Retained Sick Leave
A. Retained Sick Leave balances shall only be used as follows: paid leave during prolonged illnesses or disabilities due to injury; conversion to CalPERS Service Credit, absences from work to resolve issues related to the employee being a victim of domestic violence, sexual assault, or stalking; or for Family Medical Care Leave as outlined in Section 17.04.

B. The City reserves the right to make any investigation of such prolonged illness or disability it deems necessary.

Section 17.02 Bereavement Leave
A. Immediate family for purposes of Section 17.02 is defined as spouse, domestic partner, children, parents, brother, sister, grandfather, grandmother, grandchild, and the employee’s mother-in-law, father-in-law, stepfather, stepmother and stepchildren or any person who the employee has been assigned legal custody, or others required by Family Code Section 297 or successor legislation.

B. In the event of a death in the employee’s immediate family, non-shift employees shall be granted three (3) working days paid bereavement leave. Shift employees will be granted two (2) shifts paid bereavement leave. Such bereavement leave shall not be charged against the employee’s Annual Leave. Shift and non-shift employees shall be granted additional working days of unpaid bereavement leave in the event of a death in the employee's immediate family member, not to exceed a total of five (5) working days of paid or unpaid bereavement leave. The employee may elect to use accrued annual leave time 1132
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or retained sick leave to cover all or a portion of the unpaid portion of their bereavement leave.

C. A maximum of five (5) working days paid bereavement leave shall be granted to non-shift employees if there is a death in the immediate family outside the State boundaries. Shift employees will be granted two (2) shifts paid bereavement leave with a maximum of three (3) shifts if the death in the immediate family is outside the State boundaries. Such leave will not be charged against Annual Leave. Shift employees shall be granted additional working days of unpaid bereavement leave in the event of a death in the employee's immediate family member, not to exceed a total of five (5) working days of paid or unpaid bereavement leave. The employee may elect to use accrued annual leave time or retained sick leave to cover all or a portion of the unpaid portion of their bereavement leave.

D. Bereavement leave shall be completed within three (3) months of the date of death of the immediate family member. The days of bereavement leave need not be consecutive.

E. Employees may be excused by the Department Head to attend the funeral of deceased City employees without loss of pay.

F. Employees may be required to furnish evidence satisfactory to the City of the family member’s death and the employee’s relationship to the deceased family member.

A. Immediate family for purposes of Section 17.02 is defined as spouse, children, parents, brother, sister, grandfather, grandmother, grandchild, and the employee’s mother-in-law, father-in-law, stepfather, stepmother and stepchildren or any person who the employee has been assigned legal custody, or others required by Family Code Section 297 or successor legislation.

B. In the event of a death in the employee’s immediate family, non-shift employees shall be granted three working days paid bereavement leave. Shift employees will be granted two shifts paid bereavement leave. Such bereavement leave shall not be charged against the employee’s Annual Leave.

C. A maximum of five working days paid bereavement leave shall be granted to nonshift employees if there is a death in the immediate family outside the State boundaries. Shift employees will be granted two shifts paid bereavement leave with a maximum of three shifts if the death in the immediate family is outside the State boundaries. Such leave will not be charged against Annual Leave.

D. Employees may be excused by the Department Head to attend the funeral of deceased City employees without loss of pay.

E. Employees may be required to furnish evidence satisfactory to the City of the family member’s death and the employee’s relationship to the deceased family member.

Section 17.03 Paternity LeavePaid Parental Leave
A. Each employee shall be granted a paid parental leave of absence upon the birth or adoption of the employee’s child or children. Any such leave may be taken within six (6) weeks before or after the estimated birth or adoption date at the employee’s discretion. Employees assigned to a 40-hour shift will be entitled to 40 hours of paid parental leave. Employees assigned to a 24-hour shift will be entitled to three (3) 24-hour shifts. Such paid parental 1133
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leave shall not be charged against the employee's annual leave. Each employee will be entitled to two days paternity leave if working a 40-hour shift and 2-24 hour shifts if working a 24 hour shift in the event the employee’s wife/partner gives birth to the employee’s child.

Such leave may be taken at the employee’s discretion within 6 weeks before or after the estimated due date. These days will be taken without charge to the employee’s Annual Leave.

B. Notice of such leave must be provided by the employee in advance so that the operational needs of the department are met.

C. The employee may be required to furnish evidence satisfactory to the City of the birth or adoption of the employee’s child or children and/or the employee's relationship to the child or children.

The employee may be required to furnish evidence satisfactory to the City of the birth.

B.D.Paid Parental Leave will be considered as qualifying leave under the California Family Rights Act (CFRA) and the Family Medical Leave Act (FMLA) and shall run concurrently with an entitled unpaid Family Leave (provided that the employee is deemed eligible for CFRA and/or FMLA). Unpaid Family Leave shall be granted in accordance with CFRA and FMLA and the interpreted regulations for those respective statues.

Section 17.04 Family Medical Care Leave
A. Family Leave shall be granted in accordance with the California Family Rights Act (CFRA) of 1991 and the Family and Medical Leave Act (FMLA) of 1993, and any modified provisions and interpreted regulations for those respective statutes. For information concerning FMLA or CFRA, contact the Human Resources Department.

B. Maternity, Paternity, and Family Medical Care Leave of up to 12 weeks shall be granted in accordance with FMLA and CFRA statutes.

C. The employee may utilize up to six weeks of retained sick leave for leaves of absence that fall under the provisions of the FMLA and CFRA. This sick leave shall be used prior to the unpaid leave provisions of FMLA and CFRA.

Section 17.05 Catastrophic Leave
A. The City agrees to permit employees to contribute a portion of their accrued leave credit to another employee when such employee is on an approved leave of absence due to a verifiable illness or injury caused by either physical or mental impairment or other unforeseen catastrophic event as determined by the Fire Chief and approved by the City Manager.

B. The City also agrees to permit employees to contribute a portion of their accrued annual leave to another employee when such employee is on an approved leave of absence due to the verifiable illness or injury of the employee’s spouse, domestic partner, parent or child.

Sick leave or retained sick leave may not be donated.

C. For such transfer to take place, the following conditions shall apply:
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Ontario Fire Management Group 071/01/2018 2023 – 06/30/20222027 - 39 -

2. Such illness or injury is defined as an unforeseen or sudden, unexpected illness or injury requiring immediate attention. A statement from the employee’s or employee family member’s treating physician is required.

3. The receiving employee has been absent from work due to injury or prolonged illness as defined above and has exhausted all accrued leave and is therefore facing financial hardship.

4. Pregnancy is excluded from this provision. Injuries or illness resulting from a pregnancy may be covered under this provision with a statement from the employee’s treating physician as the final authority.

5. The employee will be on a medical leave of absence for over 40 hours for non-shift personnel and two shifts for shift personnel due to the illness or injury.

6. Contributing employee must have at least 96 hours annual leave remaining after such contribution and the leave application rate will be based on the contributing employee’s dollar value, which will be adjusted proportionally to the receiving employee’s rate.

7. The transfers must be in whole hour increments. The amount or the donation will be made in accordance with the recipient’s need by the Human Resources Department.

8. The transfers are irrevocable, and will be indistinguishable from other leave credits belonging to the receiving employee. Transfers will be subject to all taxes required by law.

9. Transfers shall be made on a form prescribed by the Human Resources Department.

10. The types of accrual time which may be donated shall be as follows:
a. Retained Sick Leave to employees in all bargaining units for verifiable illness or injury caused by either physical or mental impairment.
b. Annual Leave to employees in all bargaining units and for instances as defined in Section 17.05 as, “…other unforeseen catastrophic event as determined by the Fire Chief and approved by the City Manager” As well as for the is on an approved leave of absence due to the verifiable illness or injury of the employee’s spouse, domestic partner, parent or child.

Article XVIII. Separability
If any article or section of this MOU shall be found to be in conflict with any statute or regulation of the United States or the State of California by a court of competent jurisdiction, such article or section shall be deemed null and void and of no further effect. However, such articles and sections shall be severable from the remainder of this MOU, and all other provisions hereof shall continue 1135
Ontario Fire Management Group 071/01/2018 2023 – 06/30/20222027 - 40 -
in full force and effect.

Article XIX. Overpayment, Recovery, Underpayment
A. OVERPAYMENTS
In situations involving overpayment to an employee by the City, the employee shall be obliged to repay the amount of overpayment. Either Human Resources, or the Payroll Department shall provide written documentation showing the calculations of the overpayment to the employee. A meeting may be requested by the employee with the Payroll Department to review the documentation and to discuss recovery schedule. The total repayment amount, repayment schedule, biweekly payment amount or other method of repayment will be documented in writing.

B. RECOVERY
If the amount due is $100 or less, the City will make notification to the employee. Following notification, the City will deduct the entire amount in the next pay period.

C. Underpayments
In situations involving underpayment to an employee by the City, the employee shall receive the balance due within the next pay period for which the adjustment can be made, following timely submission of appropriate documentation and necessary approval of the compensation change.

Article XIX.Article XX. Duration and Implementation
A. This MOU shall upon ratification by both parties, become effective January 1July 1, 20138 and remain in full force and effect up to and including June 30, 20272.

B. Each party shall exercise its right to present bargaining proposals for a successor MOU no earlier than 120 days prior to the expiration of this MOU and no later than 90 days prior to the expiration of this MOU.
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Ontario Fire Management Group 071/01/2018 2023 – 06/30/20222027 - 41 -
All terms and conditions set forth in this MOU are hereby ratified by the unit members and approved by the City Council on the 3
rd 18th day of January 2018July 2023.

City of Ontario Ontario Fire Management Association
Scott Ochoa
City Manager
Date
Mike GerkenRyan Lewis
President
Date
Darlene Sanchez
Assistant City Manager
Angela C. Lopez
Director of Human Resources
Date
Ryan LewisPaul Ehrman
Vice President
Date
1137

APPENDIX A
Classification
Hourly
Minimum Step Hourly Rate Monthly Rate Hourly Rate Monthly Rate Fire Battalion Chief - 56 hr FMG 1 $ 60.72 $ 13,945.36 $62.55 $14,365.65 2 $ 63.76 $ 14,643.55 $65.68 $15,084.51
3 $ 66.94 $ 15,373.89 $68.95 $15,835.52
4 $ 70.29 $ 16,143.27 $72.40 $16,627.87
5 $ 73.80 $ 16,949.40 $76.02 $17,459.26
Deputy Fire Chief - 40 hr FMG 1 $ 94.18 $ 16,324.53 $97.01 $16,815.07 2 $ 98.89 $ 17,140.93 $101.86 $17,655.73
3 $ 103.82 $ 17,995.47 $106.94 $18,536.27
4 $ 109.01 $ 18,895.07 $112.29 $19,463.60
5 $ 114.45 $ 19,838.00 $117.89 $20,434.27
Senior Deputy Fire Chief FMG 1 $ 98.98 $ 17,156.53 $101.95 $17,671.33 2 $ 103.94 $ 18,016.27 $107.06 $18,557.07
3 $ 109.13 $ 18,915.87 $112.41 $19,484.40
4 $ 114.58 $ 19,860.53 $118.02 $20,456.80
5 $ 120.30 $ 20,852.00 $123.91 $21,477.73
July 3, 2023 July 14, 2024
Approximate Salaries*
1138
Department: Engineering
Prepared By: Jeffrey Tang
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Reviewed By: Raymond Lee, Khoi Do
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 13
SUBJECT: A RESOLUTION OF INTENT TO VACATE TWO EASEMENTS FOR STORM DRAIN AND

PUBLIC UTILITY PURPOSES

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council adopt a Resolution declaring the intent to vacate two easements for storm drain and public utility purposes located at the northeast corner of Mill Creek Avenue and Chino Avenue and on Mill Creek Avenue approximately 330 feet south of Chino Avenue and to set the date, time and place for a public hearing to consider the matter.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: There is not a direct fiscal impact associated with this action. The City did not pay to acquire the subject easements. The Developer has paid the applicable processing fees to defray any City cost to process this request.

BACKGROUND & ANALYSIS: The applicant, BrookCal Ontario, LLC, has requested that the City vacate two existing easements for storm drain and public utility purposes, as shown on Exhibit A, to facilitate the development of the area. The northerly easement is currently used for a storm drain pump but will not be needed in the future with installation of the public storm drain system. The southerly easement is presently not needed for storm drain or public utility purposes. With the elimination of the storm drain pump, the easements are determined to be excess. Since these easements have been in use for more than five consecutive years immediately preceding the proposed vacation, California Streets and Highways Code requires the City Council to hold a public hearing prior to taking action on the proposed vacation.

If approved by the City Council, the date and time for a public hearing shall be fixed as Tuesday, August 15, 2023, at 6:30 p.m. in the City Council Chambers, to consider this request. 1139
A.P.N. 0218-016-11
A.P.N. 0218-161-09

CHINO AVENUE
A.P.N. 0218-921-22 MILL CREEK AVENUE
A.P.N. 0218-171-10
A.P.N. 0218-161-14 PUBLIC EASEMENT INST. NO. 2012-0441318, O.R.

PUBLIC EASEMENT
INST. NO. 2012-0441316, O.R.

Q:\R310721.02 \CADD\MAPPING\DWG\EX\31072102JEX21.DWG

SCALE IN FEET
SCALE: 1" = 200'
0 100 200 400

VICINITY MAP

NOT TO SCALE HAVEN AVENUE
(OLD)

EUCALYPTUS
EDISON

ONTARIO RANCH

ROAD HAMNER AVENUE

CHINO AVE AVENUE MILL CREEK
2603 Main Street, Suite 400
Irvine, California 92614
949.988.5815
www.huitt-zollars.com
SHEET 1 OF 1
SCALE:

DRAWN BY: DM
1"=200'
REVIEWED BY: AL
JOB NUMBER: R310721.02

EXHIBIT A'

PUBLIC EASEMENT

VACATION

CITY OF ONTARIO PUBLIC EASEMENT

FOR STORM DRAIN PURPOSES

DESCRIBED IN A DOCUMENT
RECORDED OCTOBER 24, 2012, AS
INST. NO. 2012-0441316, O.R.,

TO BE VACATED

CITY OF ONTARIO PUBLIC EASEMENT

FOR STORM DRAIN PURPOSES

DESCRIBED IN A DOCUMENT
RECORDED OCTOBER 24, 2012, AS
INST. NO. 2012-0441318, O.R.,

TO BE VACATED
1140
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, PERTAINING TO THE VACATION OF TWO EASEMENTS

FOR STORM DRAIN AND PUBLIC UTILITY PURPOSES LOCATED AT

THE NORTHEAST CORNER OF MILL CREEK AVENUE AND CHINO
AVENUE AND ON MILL CREEK AVENUE APPROXIMATELY 330 FEET

SOUTH OF CHINO AVENUE AND TO SET THE DATE, TIME AND PLACE FOR A PUBLIC HEARING.

WHEREAS, the City Council of the City of Ontario, California, declares its intention to vacate two easements for storm drain and public utility purposes; and WHEREAS, an easement for storm drain and public utility purposes located at the northeast corner of Mill Creek Avenue and Chino Avenue, as shown on Document No. 2012-0441316, in the City of Ontario, County of San Bernardino, State of California, is not needed for any present or future public utility or other municipal purposes and is determined to be excess; and
WHEREAS, an easement for storm drain and public utility purposes located on Mill Creek Avenue approximately 330 feet south of Chino Avenue, as shown on Document No. 2012-0441318, in the City of Ontario, County of San Bernardino, State of California, is not needed for any present or future public utility or other municipal purposes and is determined to be excess; and
WHEREAS, the vacation herein proposed shall be carried through pursuant to the “Public Streets, Highways and Service Easements Vacation Law,” being Part 3 of Division 9 of the Streets and Highways Code of the State of California; and WHEREAS, notice is hereby given that on Tuesday, the 15th day of August, 2023, at the hour of 6:30 p.m., in the City Council Chambers of the City Hall of the City of Ontario, California, is the time and place fixed for hearing all persons interested in, or objecting to, the proposed vacation; and
WHEREAS, the City Engineer of said City of Ontario shall cause to be conspicuously posted, along the lines of the proposed vacations, notices of the passage of this Resolution of Intention, in the time, form and manner provided by said Code; and WHEREAS, the City Clerk shall certify to the passage of this Resolution of Intention, and shall cause the same to be published after its adoption for at least two successive weeks in a newspaper of general circulation, published and circulated in said City of Ontario.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
1141
PASSED, APPROVED, AND ADOPTED this 18th day of July 2023. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
1142

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2023- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held July 18, 2023 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2023- duly passed and adopted by the Ontario City Council at their regular meeting held July 18, 2023. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
1143
Department: Parks & Maintenance
Prepared By: Alfredo Banuelos
Staff Member Presenting:

Tito Haes, Executive Director Public Works
Reviewed By: Bonnie Tam, Gina Gomez
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 14
SUBJECT: A GOODS AND EQUIPMENT PURCHASE AGREEMENTS WITH ALL AMERICAN ASPHALT AND VULCAN MATERIALS CO. FOR THE PROCUREMENT OF ASPHALT

MATERIALS

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve and authorize the procurement of asphalt materials by the City Manager or his designee, for a one-year period at the set pricing per Bid No.1625 with All American Asphalt of Corona, California, for a not-to-exceed contract amount of $965,970 and Vulcan Materials Co., of Irwindale, California, for a not-to-exceed amount of $55,000, for a total not-to-exceed contract amount of $1,020,970 for Fiscal Year 2023-24.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT: The total not-to-exceed contract amount for All American Asphalt is $965,970. The total not-to-exceed contract amount for Vulcan Materials Co., is $55,000, with the Parks and Maintenance Department utilizing $35,000 and the Utilities Department utilizing $20,000. The Fiscal Year 2023-24 Adopted Budget includes appropriations in the Gas Tax Fund and Water Administration Fund for the procurement of asphalt materials for street overlay and maintenance work.

BACKGROUND & ANALYSIS: The City routinely purchases asphalt and other materials from suppliers on an as-needed basis for on-going maintenance and repairs. The suppliers will be compensated for materials based on the fee structures and material billing rate set forth in the respective one-year purchasing Agreements.

On April 11, 2023, the City solicited bids for the purchase of asphalt materials. On April 27, 2023, two bids were received ranging from $697.60 and $1,008.09 per ton. The unit cost includes the additional costs of sales tax and delivery. After reviewing the bids, and based on credentials, pricing, favorable product availability and service, it was determined that All American Asphalt was the lowest responsible bidder.
1144
Bid results are listed below:

Vendor Location Price Per Ton
All American Asphalt Corona, California $697.60
Vulcan Materials Co. Irwindale, California $1,008.09
Purchasing from multiple suppliers is recommended in order to give the City the flexibility required to ensure the quality and timeliness of materials. Therefore, Staff will order from All American Asphalt for the residential overlay program and Vulcan Materials Co. for pothole and other materials. The selected suppliers possess the knowledge, qualifications, and experience needed to meet all Federal and State requirements.
1145
Department: Engineering
Prepared By: Jeffrey Tang
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Reviewed By: Raymond Lee, Khoi Do
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 15
SUBJECT: A LANDSCAPE MAINTENANCE SERVICES AGREEMENT WITH NATURES IMAGE FOR

THE MILL CREEK WETLANDS FACILITY

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve and authorize the City Manager or his designee to execute a one-year Maintenance Services Agreement (on file with the Records Management Department) with Natures Image, of Lake Forest, California, to provide landscape maintenance services for the Mill Creek Wetlands facility for a contract cost of $363,300 plus a 10% contingency of $36,330 for an authorized expenditure of $399,630; and authorize the City Manager or his designee to extend the Agreement for up to four additional one year periods with any required future amendments consistent with City Council approved budgets.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT: The Fiscal Year 2023-24 Adopted Operating Budget includes appropriations of $572,000 for maintenance services for the Mill Creek Wetlands facility. The total recommended expenditure authorization of $399,630 includes the contract amount of $363,300 plus a 10% contingency of $36,330. At the discretion of the City, the contract may be extended for up to four additional one-year periods with any increase to billing rates to be negotiated for each year, consistent with the City Council approved budget.

BACKGROUND & ANALYSIS: The Mill Creek Wetlands facility project was partially funded by a State Proposition 40 grant. The Operations and Maintenance Program for the wetlands was developed based on the grant requirements and was approved by the State Water Resources Control Board.

This program includes specific landscape maintenance requirements to achieve adequate water quality performance objectives.

A request for proposal for landscape maintenance services for the Mill Creek Wetlands was issued 1146
in June 2023. The City received five proposals from the following companies and has evaluated them based on their qualifications, resources, past experiences with similar projects, staff qualifications and references.

Company Location
BrightView Upland, CA
Orozco Landscape Pomona, CA
Mariposa Landscape, Inc Irwindale, CA
Natures Image Lake Forest, CA
Nova Landscape Group Fontana, CA
Staff recommends the approval of a Maintenance Service Agreement with Natures Image as the most qualified company for the specified scope of work. 1147
Department: Information Technology
Prepared By: Samantha Robles
Staff Member Presenting:

Colin Fernandes, Executive Director Information
Technology
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 16
SUBJECT: A RENEWAL AGREEMENT WITH CENTRALSQUARE TECHNOLOGIES, LLC., FOR 911

DISPATCH SYSTEM

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorizes the City Manager or his designee to execute a Solutions Agreement (on file with the Records Management Department) with CentralSquare Technologies, LLC., of Lake Mary, Florida, for the use of Computer-Aided Dispatch (CAD) and Records Management Systems (RMS), used by the Police and Fire Department in the amount notto-exceed $642,065.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
FISCAL IMPACT: The Fiscal Year 2023-24 Adopted Budget includes appropriations from the Information Technology Fund for annual licensing and support for CentralSquare Technologies, Inc.

The proposed Solutions Agreement term will be for one (1) year, with an optional renewal period for one (1) year. The annual licensing and support cost will be $313,202 for year one. The cost of year two increases by $15,661 for a total not-to-exceed $328,863. This brings the total not-toexceed contract amount to $642,065. The fixed billing rates specified in the current Agreement will determine the amount charged for services and reflect the actual services provided. If approved, appropriations will be added to the future years' budgets consistent with the annual budget adoption process.

BACKGROUND & ANALYSIS:

The Computer-Aided Dispatch (CAD) from CentralSquare has been in use by the City’s Police and Fire Departments to receive 911 calls and coordinate responses since 2004. This system provides the software tools for the City’s dispatchers and the software used in the City’s Police vehicles. The Police Department also uses CentralSquare’s Records Management System (RMS) to capture law enforcement reports, manage cases, and report crime statistics to state and federal authorities.

Staff requests City Council approval for a one-year Agreement with an optional one additional year extension for a not-to-exceed amount of $642,065.
1148
Department: Municipal Services
Prepared By: Manuel Rebolledo
Staff Member Presenting:

Tito Haes, Executive Director Public Works
Reviewed By: Bonnie Tam, Andrea Ampig
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 17
SUBJECT: A CHANGE ORDER TO THE CONSTRUCTION CONTRACT WITH BCM GROUP, INC.

FOR THE POLICE DEPARTMENT FLEET SHOP

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council take the following actions:

A. Authorize the City Manager or his designee to execute Change Order No. 4 to the Construction Contract (on file in the Records Management Department) with BCM Group, Inc., of Rancho Cucamonga, California, in the amount of $128,196 plus a contingency of $77,820 for a total amount not-to-exceed $206,016 for the Police Department Fleet Shop; and B. Authorize the City Manager or his designee to execute said contract and authorize the filing of the notice of completion at the conclusion of all construction activities related to the project.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The original contract amount with BCM Group, Inc. for the Police Department Fleet Shop was $649,999 plus a 10% contingency of $64,999 for a total amount of $714,998. Previously, Change Orders No. 1, No. 2, and No. 3 were approved for $10,809, $19,306, and $27,483, respectively. The proposed Change Order No. 4 in the amount of $128,196 plus a contingency of $77,820 will increase the current not-to-exceed authorization for the Construction Contract to an amount of $921,014. If approved, the remaining balance of $198,615 will be requested at a future quarterly budget update to the Facilities and Parks Maintenance Fund as needed.

BACKGROUND & ANALYSIS: The Police Department Fleet Shop will allow the Fleet Department Staff to repair and service Police Department Vehicles in a more timely and efficient manner.

On April 19, 2022, the City Council awarded a Construction Contract to BCM Group, Inc. for the construction of the Police Department Fleet Shop in the amount of $649,999 plus a 10% contingency of $64,999 for a total amount of $714,998. As the work progressed, several unforeseen conditions arose and three Change Orders were approved to address the issues. Change Order No. 1149
1 was issued to add an air dryer to the compressed air system and purchase equipment for fluid containment and dispensing. Change Order No. 2 was issued to temporarily cut and cap the fire sprinkler lines in order to install the Glulam beam, install a new conduit for data cable routing, and jet existing sewer lines to prepare for demolition. Change Order No. 3 was issued to remove and replace the Glulam beam, demolish drywall to frame new exhaust fans, and test concrete samples.

Staff is proposing to execute Change Order No. 4 to complete additional work including drywall repairs caused by water damage and roof maintenance to mitigate further water damage. The relocation of floor drains, gas lines and water lines, and framing for light installation are also included in this Change Order. The proposed Change Order No. 4 will exceed the previously approved contingency amount by $198,615 and will allow the funding needed to complete the construction of the Police Department Fleet Shop. The estimated completion date for this project is August 2023, following the completion of the tasks in Change Order No. 4. 1150
Department: Engineering
Prepared By: Trevor Rivero
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Reviewed By: Raymond Lee, Khoi Do
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 18
SUBJECT: A RESOLUTION ORDERING THE SUMMARY VACATION OF AN EASEMENT FOR

RAILROAD PURPOSES

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council adopt a Resolution ordering the summary vacation of an easement for railroad purposes located south of Francis Street and west of Baker Avenue.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: There is not a direct fiscal impact associated with this action. The City did not pay to acquire the subject easement. The Developer has paid the applicable processing fees to defray any City cost to process this request.

BACKGROUND & ANALYSIS: The applicant, EPD Solutions, has requested that the City vacate an existing easement for railroad purposes, as shown on Exhibit 1, to facilitate the development of the area. The easement is not needed for any present or future public railroad purposes. There is currently no existing railroad improvements within the easement and the easement is determined to be excess.

Section 8333(c) of the California Streets and Highways Code authorizes the City to summarily vacate (by Resolution with no public hearing) a public service easement that has been superseded by relocation or determined to be excess, and there are no public facilities located within the easement.

This summary vacation meets the California Government Code, Streets and Highways Code, Ontario Municipal Code, and has been reviewed and approved by the City Engineer. 1151
1 OF 1 CITY OF ONTARIO

COUNTY OF SAN BERNARDINO

STATE OF CALIFORNIA
TAIT & ASSOCIATES INC.
701 N. PARKCENTER DR., SANTA ANA, CALIFORNIA 92705
TEL. (714) 560-8200
Engineering Surveying Environmental
1600 EAST FRANCIS STREET
LEGEND:

RIGHT OF WAY

PARCEL LINE

LOT LINE

STREET CENTERLINE

CITY OF ONTARIO EASEMENT FOR RAILROAD

AND INCIDENTAL PURPOSES AS DESCRIBED IN
THE DOCUMENTS RECORDED JULY 20, 1959 IN
BOOK 4879, PAGE 426 AND 427 AND RECORDED
AUGUST 24, 1959 IN BOOK 4910, PAGE 455 AND
456, ALL OF OFFICIAL RECORDS TO BE VACATED.

VICINITY MAP

NOT TO SCALE
SITE
EXHIBIT 1

RAILROAD EASEMENT VACATION
60 FREEWAY

FRANCIS STREET BAKER AVENUE WALKER AVENUE
N

STORM DRAIN

CHANNEL
1 inch = ft.
0' 75' 150'
150
1152
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, ORDERING THE SUMMARY VACATION OF AN

EASEMENT FOR RAILROAD PURPOSES LOCATED SOUTH OF
FRANCIS STREET AND WEST OF BAKER AVENUE.

WHEREAS, the City Council of the City of Ontario, California, pursuant to Division 9, Part 3, Chapter 4, of the Streets and Highways Code, may summarily vacate an easement under certain conditions specified therein; and WHEREAS, an easement for Railroad purposes located approximately 570 feet south of East Francis Street. and approximately 565 feet west of South Baker Avenue, described in the documents recorded on July 20,1959 as book 4879, page 426; July 20 1959 as book 4879, page 427; August 24, 1959 as book 4910, page 455; August 24,1959 as book 4910, page 456; all of official records, in the City of Ontario, County of San Bernadino, is not needed for any present or future railroad purpose purposes and is determined to be excess; and
WHEREAS, Section 8333(c) of the California Streets and Highways Code authorizes the City to summarily vacate (by Resolution with no public hearing) a public service easement that has been superseded by relocation or determined to be excess and there are no other public utilities located within the easement; NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Ontario, California:

1. That the above recitals are true and correct.

2. That title to the above-described said properties, more specifically described in Exhibit “A” and depicted on Exhibit “B” attached hereto, shall be vacated.

3. That the City Clerk of the City of Ontario, California, shall cause a copy of this Resolution to be recorded in the office of the County Recorder of San Bernardino County, California.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 18th day of July 2023. _____________________________________
PAUL S. LEON, MAYOR
1153
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
1154

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
1155
1156
1157
1158
Department: Engineering
Prepared By: Craig Cruz
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 19
SUBJECT: A DESIGN SERVICES AGREEMENT WITH MARK THOMAS & COMPANY, INC. FOR

THE CAMPUS AVENUE AT-GRADE RAILWAY CROSSING SAFETY IMPROVEMENTS

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve a Design Services Agreement (on file in the Records Management Department) with Mark Thomas & Company, Inc., of Irvine, California, to provide engineering design services for the Campus Avenue At-Grade Railway Crossing Safety Improvements in the amount of $449,734; and authorize the City Manager, or his designee, to execute said Agreement and future amendments within the authorization limits.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The Fiscal Year 2023-2024 Adopted Budget included $500,000 in Grant Funds for the design phase of the project (GR2319). The total recommended expenditure authorization for Mark Thomas & Company, Inc. consists of $449,734 plus a ten percent (10%) contingency of $44,974, for a total of $494,708. The City will be reimbursed 100% of the design costs up to the grant allocation of $500,000 from the Federal Highway Administration.

BACKGROUND & ANALYSIS: The California Public Utilities Commission (CPUC) identified Campus Avenue at the Union Pacific Railroad (UPRR) at-grade crossing a candidate location for Section 130 funding via a data driven methodology which includes, but is not limited to, train and vehicle volumes, geometric factors, pedestrians, buses and hazmat vehicles, and incident history. The City has been awarded Section 130 grant funding for a safety improvement project at Campus Avenue and the UPPR at-grade crossing. The Section 130 program is a federally funded program, administered by the State, for the elimination of hazards at highway rail at-grade crossings. The Agreement will provide for engineering design services for preparation of plans, specifications, estimates (PS&E), permit and utility coordination, and design support during construction for the at-grade railway crossing safety improvements.
1159
In April 2023, the City solicited proposals for the project. The following is a list of consultants that submitted a proposal:

COMPANY LOCATION
JMD, Inc. City of Industry, CA
Mark Thomas & Company, Inc. Irvine, CA
Moffatt & Nichol Ontario, CA
Proactive Engineering Consultants, Inc. Corona, CA
TKDA San Bernardino, CA
The City accepted Mark Thomas & Company, Inc.'s proposal based upon the quality of their proposal, past performance on similar projects, and favorable references. Mark Thomas & Company, Inc. agreed to a base fee of $449,734, which is deemed a fair and reasonable fee for the specified scope of work.
1160
Department: Parks & Maintenance
Prepared By: Alfredo Banuelos
Staff Member Presenting:

Tito Haes, Executive Director Public Works
Reviewed By: Bonnie Tam, Gina Gomez
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 20
SUBJECT: A CONSTRUCTION CONTRACT WITH CT&T CONCRETE PAVING, INC. FOR

AMERICANS WITH DISABILITIES ACT (ADA) CONCRETE RAMP CONSTRUCTION

SERVICES

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council take the following actions:

A. Reject KNC Construction, Inc.'s bid protest against CT&T Concrete Paving, Inc. for ADA Concrete Ramp Construction Services;
B. Authorize the City Manager or his designee to execute a one-year Construction Contract with CT&T Concrete Paving, Inc., of Diamond Bar, California, for ADA Concrete Ramp Construction Services for a total not-to-exceed contract amount of $175,000; and C. Authorize the City Manager or his designee to execute all documents required for the completion of the project including, but not limited to, contracts, agreements, assessments, reductions of retention accounts, and filing a notice of completion at the conclusion of all construction related activities.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The Fiscal Year 2023-24 Adopted Budget includes appropriations of $175,000 in the Community Development Block Grant (CDBG) Fund for ADA Concrete Ramp Construction Services.

BACKGROUND & ANALYSIS: The Public Works Agency is responsible for the maintenance and installation of ADA ramps citywide. On average, every year, 35 new ADA ramps are installed throughout the City using a construction contract vendor. On June 1, 2023, the City solicited bids for ADA Concrete Ramps Construction Services. Three bids were received and CT&T Concrete Paving, Inc., located in Diamond Bar, California, was the apparent low bidder. On June 15, 2023, the Public Works Agency received an email from KNC Construction, Inc. stating that it is protesting the decision for this bid. The City 's bid instruction requires bidders to submit a protest to the City 1161
Clerk's Office, in writing or in person, and identify all relevant supporting documentation with the protest. KNC Construction, Inc. submitted only an email to the Public Works Agency, not the City Clerk's Office. Since the bid protest was not submitted pursuant to the proper procedures outlined in the bid instructions, the City may disregard and reject the protest without further review. CT&T Concrete Paving, Inc. remains the lowest responsive bidder. A summary of the bid results are as follows:

Vendor Location
Bid Unit Price (Per
Ramp)
Total Bid Unit Price
CT&T Concrete Paving,
Inc.

Diamond Bar, California $5,705 $13,885
High Point Concrete
Construction
Victorville, California $6,000 $14,501
KNC Construction, Inc. Apple Valley, California $9,600 $147,000 CT&T Concrete Paving, Inc., of Diamond Bar, California, submitted the lowest responsible bid that met all the local and federal required specifications for a unit price of $5,705 per ramp and a total unit price of $13,885.10 per ramp with different types of additional services. Additional services would be charged per ramp only when rock curb, Portland Cement Concrete (PCC) curb, or drive approach is removed and replaced. A one-time mobilization cost of $7,500 will be charged for the establishment of construction sites. Based on their credentials, pricing, and favorable reference checks, Staff recommends awarding the Construction Contract to CT&T Concrete Paving, Inc. 1162
Department: Utilities
Prepared By: Andy Marquez
Staff Member Presenting:

Scott Burton, Utilities General Manager
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 21
SUBJECT: PURCHASE OF WATER METERS AND REPAIR PARTS FROM HYDROPRO

SOLUTIONS

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve and authorize the sole source purchase of new water meters and repair parts for a total not-to-exceed amount of $2,900,000 from HydroPro Solutions of Ontario, California, and authorize the City Manager or designee to execute a Goods and Equipment Agreement.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT: The actual cost of meters to be purchased will be determined based on unit pricing for the various sizes of meters and actual meter repair, replacement, and new installation needs. The Fiscal Year 2023-24 Water Operating and Capital Improvement Program Budgets include $2,900,000 for the purchase of new and replacement meters and repair parts.

Development projects pay for new meter installations, while the cost of the meter testing, repair and replacement is included in the City's water rates. There is no impact to the General Fund.

BACKGROUND & ANALYSIS: There are over 44,000 water meters Citywide, which serve residential, industrial and commercial businesses as well as a landscape areas; this includes recycled water connections. The accuracy of meters has a direct relationship to accounting and billing for water service. To maintain accuracy and functionality, meters need to be replaced approximately every twelve years, and they are repaired as needed. In Fiscal Year 2022-23, approximately 2,700 residential meters were replaced, and 700 new meters were installed.

The meters are set-up for Automated Meter Infrastructure (AMI). This allows for Customer Service Staff to connect remotely and have access to meter data in real time without drive-by meter reading. This real time data retrieval process will assist OMUC in the effort to maintain up to date meter data, identify water waste, and aid in the early detection process of potential leaks or breaks in consumers on-site lines.
1163
The Master Meter Radio Read Meter was selected as the City standard specification for all new and replacement meter installations as a result of a public bid process and product evaluation that took place in 2001, when six different vendors and product lines were evaluated.

To maintain consistency with our standardized meters that are already in place throughout the City, the purchase of these new meters can only be made directly through the manufacturer. Section 2-

6.11 (b) (2) of the Ontario Municipal Code states that sole source purchases are authorized if there is only one procurement source. HydroPro Solutions is the exclusive distributor in California for Master Meter Radio Read Meters and generally has uniform pricing for water utilizing its products, and Staff has reviewed pricing and recommends this sole-source award to HydroPro Solutions upon the completion of a negotiated Agreement.
1164
Department: Utilities
Prepared By: Dennice Raygoza
Staff Member Presenting:

Scott Burton, Utilities General Manager
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 22
SUBJECT: AN AMENDMENT TO A MAINTENANCE SERVICE AGREEMENT WITH BAY ALARM

COMPANY FOR THE ONTARIO MUNICIPAL SERVICES CENTER FIRE ALARM SYSTEM

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve and authorize the City Manager, or designee, to execute Amendment No. 6 to the Maintenance Service Agreement (on file in the Records Management Department) with Bay Alarm Company, of Concord, California, for a total not-toexceed amount of $96,590, for the fire alarm system upgrade, and a term to June 30, 2025.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The proposed Amendment No. 6 to Bay Alarm Company increases the existing agreement by $96,590, for a total revised agreement amount of $1,010,347. The Fiscal Year 2023-24 Adopted Capital Improvement Program includes appropriations from the Water and Sewer Capital Fund to cover the cost of these services. There is no impact to the General Fund.

BACKGROUND & ANALYSIS: The Ontario Municipal Services Center (OMSC) building located at 1425 S. Bon View Avenue houses the Ontario Municipal Utilities Company (OMUC) and the Public Works Agency.

The current fire alarm system in the building is due for an upgrade based on its age, range of coverage, and communication portals. An upgrade to the current system will provide an updated fire sprinkler system including upgraded and added water flows (piping), new strobes and lighting, updated alarm system, automatic smoke/heat detection system, and full notification and manual pull stations.

On April 7, 2020, City Council approved a pre-authorized list of vendors to provide services and parts for City facilities and structures. Bay Alarm Company (formerly known as Mijac Alarm) was authorized as the City’s Sole Source Vendor for burglar alarms, fire alarms and access controls. 1165
Department: Financial Services
Prepared By: Cruz Torres
Staff Member Presenting:

Armen Harkalyan, Executive Director of Finance
Reviewed By: Cecilia House
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 23
SUBJECT: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA,

LEVYING SPECIAL TAXES WITHIN CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 61 (MERRILL COMMERCE CENTER)

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council consider and adopt an Ordinance authorizing the levy of special taxes within City of Ontario Community Facilities District No. 61 (Merrill Commerce Center).

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT: The use of Mello-Roos financing in the Merrill Commerce Center Services development is projected to generate approximately $986,000 to fund Administrative Fees and Municipal Services. The use of Mello-Roos financing to fund City services is critical in achieving the City Council’s goal to “Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch”. The use of Mello-Roos financing for the Merrill Commerce Center will not generate funds for facilities, and bonds will not be issued for this formation. The General Fund will be reimbursed approximately $940,000 for Municipal Services after the administrative expenses are deducted. City Council approval will be required to process annual special tax levies in future years.

BACKGROUND & ANALYSIS: The Mello-Roos Community Facilities Act of 1982 (the Act) provides local government, with the consent from a majority of the property owners, the authority to establish community facilities districts for the purpose of levying special taxes to fund governmental services.

At a public hearing conducted by the City Council on June 20, 2023, the City Council adopted a Resolution that established Community Facilities District 61 (Merrill Commerce Center); authorized the levy of a special tax within the Community Facilities District and called an election within the 1166
Community Facilities District authorizing levying a special tax within the Community Facilities District. On that date, an election was held in which the qualified electors of the Community Facilities District approved said proposition by more than the two-thirds vote required by the Act.

Adoption of the proposed ordinance to authorize the levy of special taxes within the Community Facilities District will conclude the formation process for City of Ontario Community Facilities District No. 61 (Merrill Commerce Center).

The Merrill Commerce Center project addresses the development of approximately 385.61 gross acres located generally west of Carpenter Avenue, east of Grove Avenue, south of Eucalyptus Avenue, and north of Merrill Avenue. At build-out, the project is expected to include 7,341,068 square feet of business park/industrial space.
1167
ORDINANCE NO. _____

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, LEVYING A SPECIAL TAX WITHIN THE CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 61 (MERRILL COMMERCE
CENTER SERVICES).

WHEREAS, on May 16, 2023, the City Council (the “City Council”) of the City of Ontario (the “City”), pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”), adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, of Intention to Establish a Community Facilities District Proposed to be Named City of Ontario Community Facilities District No. 61 (Merrill Commerce Center Services) and to Authorize the Levy of a Special Tax” stating its intention to establish City of Ontario Community Facilities District No. 61 (Merrill Commerce Center Services) (the “Community Facilities District”), to authorize the levy of a special tax (the “Special Tax”) within the Community Facilities District and to finance certain services (the “Services”); and
WHEREAS, on June 20, 2023, the City Council held a noticed public hearing on the establishment of the Community Facilities District, as required by the Act; and WHEREAS, subsequent to the close of said hearing, the City Council adopted resolutions entitled “A Resolution of the City Council of the City of Ontario, California, of Formation of the City of Ontario Community Facilities District No. 61 (Merrill Commerce Center Services), Authorizing the Levy of a Special Tax within the Community Facilities District and Establishing an Appropriations Limit for the Community Facilities District” (the “Resolution of Formation”) and “A Resolution of the City Council of the City of Ontario, California, Calling Special Election for City of Ontario Community Facilities District No. 61 (Merrill Commerce Center Services),” which resolutions established the Community Facilities District, authorized the levy of the Special Tax within the Community Facilities District and called an election within the Community Facilities District on the proposition of levying the Special Tax within the Community Facilities District and establishing an appropriations limit of the Community Facilities District, respectively; and WHEREAS, on June 20, 2023, an election was held in which the qualified electors of the Community Facilities District approved said proposition by more than the two-thirds vote required by the Act.

THE CITY COUNCIL OF THE CITY OF ONTARIO DOES ORDAIN AS FOLLOWS:

SECTION 1. The City Council hereby authorizes and levies the Special Tax within the Community Facilities District pursuant to Sections 53328 and 53340 of the Act, at the rate and in accordance with the method of apportionment set forth in Exhibit B to the Resolution of Formation (the “Rate and Method of Apportionment”). The Special Tax is hereby levied commencing in fiscal year 2023-24 and in each fiscal year thereafter until the last fiscal year in which such Special Tax is authorized to be levied pursuant to the Rate and Method of Apportionment.
1168
SECTION 2. The City Council may, in accordance with subdivision (b) of Section 53340 of the Act, provide, by resolution, for the levy of the Special Tax in future tax years at the same rate or at a lower rate than the rate provided by this Ordinance. In no event shall the Special Tax be levied on any parcel within the Community Facilities District in excess of the maximum tax specified therefor in the Rate and Method of Apportionment.

SECTION 3. The Special Tax shall be levied on all of the parcels in the Community Facilities District, unless exempted by law or by the Rate and Method of Apportionment.

SECTION 4. The proceeds of the Special Tax shall only be used to pay, in whole or in part, the cost of providing the Services and incidental expenses pursuant to the Act.

SECTION 5. The Special Tax shall be collected in the same manner as ordinary ad valorem property taxes are collected and shall be subject to the same penalties and the same procedure, sale and lien priority in the case of delinquency as is provided for ad valorem taxes, unless another procedure is adopted by the City Council.

SECTION 6. If for any reason any portion of this Ordinance is found to be invalid, or if the Special Tax is found inapplicable to any particular parcel within the Community Facilities District, by a court of competent jurisdiction, the balance of this Ordinance and the application of the Special Tax to the remaining parcels within the Community Facilities District shall not be affected.

SECTION 7. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within fifteen (15) days of the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this 18th day of July 2023. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
1169
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
1170

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. 3252 was duly introduced at a regular meeting of the City Council of the City of Ontario held June 20, 2023 and adopted at the regular meeting held July 18, 2023 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
I hereby certify that the foregoing is the original of Ordinance No. 3252 duly passed and adopted by the Ontario City Council at their regular meeting held July 18, 2023 and that Summaries of the Ordinance were published on June 27, 2023 and July 25, 2023, in the Inland Valley Daily Bulletin newspaper.
__________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
1171
Department: Development Administration
Prepared By: Derrick E Womble
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 24
SUBJECT: AN ORDINANCE MODIFYING THE PROCESSING AND ADMINISTRATION FEE FOR

THE DEVELOPMENT IMPACT FEE (DIF) DEFERRAL PROGRAM

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council consider and adopt an Ordinance modifying the processing and administration fee for the Development Impact Fee (DIF) Deferral Program.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The Development Impact Fee (DIF) Deferral Program requires a processing and administration fee of $7,500 for deferral agreements. A review of the cost to process and administer the individual deferral agreements between the City of Ontario and the participating developers has occurred and concluded that a reduction in the fee to $4,000 is appropriate. The reduced fee will continue to cover the City's costs for initiating and administering the deferral agreements. The DIF Deferral Program will continue to address the City Council' s long-standing direction that new development generates enough revenue to fund required City infrastructure without reliance on financial resources of the City's General Fund.

BACKGROUND & ANALYSIS: On June 20, 2023, the City Council held a public hearing to introduce and waive further reading of an Ordinance modifying the processing and administration fee for the Development Impact Fee (DIF) Deferral Program.

On February 18, 2020, the City Council adopted Ordinance No. 3156, establishing a permanent DIF Deferral Program city-wide for residential and non-residential development, allowing developers the option to defer certain DIF from building permit issuance to final inspection. Ordinance No. 3156 set a processing and administration fee of $7,500 (estimated fee).

With a number of deferral agreements having been completed, Staff has conducted a review of the actual time and cost associated with individual agreements and concluded that a reduction in the 1172
processing and administration fee to $4,000 is appropriate. The revised fee will continue to cover the City's costs for administering the fee deferral agreements.

The proposed Ordinance shall not modify or change any other terms or provisions previously established by Ordinance No. 3156, which shall remain in full force and effect. Any subsequent changes to the processing and administration fee shall be modified as part of the Citywide Fee Schedule update, approved by resolution of the City Council. 1173
ORDINANCE NO. 3253

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, MODIFYING THE PROCESSING AND ADMINISTRATION FEE FOR THE DEVELOPMENT IMPACT FEE ("DIF") DEFERRAL
PROGRAM.

WHEREAS, on June 23, 2003, the City Council of the City of Ontario (the "City Council") adopted Resolution No. 2003-039 to establish policies for the implementation of the new and modified Development Impact Fees ("DIF"). Resolution No. 2003-039 requires the payment of DIF no more than five (5) days prior to the issuance of building permits; and
WHEREAS, on July 1, 2003, the City Council adopted Ordinance Nos. 2779 and 2780 to implement new and modified DIF in recognition of the need to finance adequate infrastructure and other public improvements and facilities made necessary by new development in the City of Ontario (the "City"); and
WHEREAS, on February 18, 2020, the City Council adopted Ordinance No. 3156, establishing a permanent DIF Deferral Program city-wide for residential and nonresidential development, allowing developers the option to defer certain DIF; and WHEREAS, Ordinance No. 3156 established an Administrative Processing Fee of seven thousand five hundred dollars ($7,500); and
WHEREAS, a review of the estimated costs to process and administer the individual agreements between the City and the participating developers has occurred and concluded a modification to the Administrative Processing Fee is necessary; and WHEREAS, the City Council, as the City's governing body, has the authority to establish and modify policies and fees for the implementation of the City's DIF Deferral Program; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on June 20, 2023, the City Council of the City of Ontario conducted a hearing and concluded said hearing on that date; and
WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND ORDAINED by the City Council of the City of Ontario, as follows:
1174
SECTION 1: Section 7 of Ordinance No. 3156 is hereby amended to read as follows:

Processing and Administration Fee. A processing and administration fee is hereby authorized to be collected at the time the agreement is executed. The amount of the fee shall be specified in the City Fee Schedule, which may only be revised by a duly adopted resolution of the City Council. The fee is based upon the City’s estimated costs to process and administer the individual agreements between the City and the participating developer and the costs of tracking and eventual collection of the deferred fees.

SECTION 2. The adoption of this Ordinance shall not modify or change any other terms or provisions previously established by Ordinance No. 3156, which shall remain in full force and effect.

SECTION 3. Effective Date. This Ordinance shall become effective 30 days following its adoption.

SECTION 4. Publication and Posting. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within 15 days following the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this 18th day of July 2023. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
1175

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. 3253 was duly introduced at a regular meeting of the City Council of the City of Ontario held June 20, 2023 and adopted at the regular meeting held July 18, 2023 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
I hereby certify that the foregoing is the original of Ordinance No. 3253 duly passed and adopted by the Ontario City Council at their regular meeting held July 18, 2023 and that Summaries of the Ordinance were published on June 27, 2023 and July 25, 2023, in the Inland Valley Daily Bulletin newspaper.
__________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
1176
Department: Development Administration
Prepared By: Derrick E Womble
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 25
SUBJECT: AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT (FILE NO. PDA21- 006) BETWEEN THE CITY OF ONTARIO AND EUCLID LAND VENTURE 2 LLC

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council consider and adopt an Ordinance approving a Development Agreement (File No. PDA21-006) between the City of Ontario and Euclid Land Venture 2 LLC, to establish the terms and conditions associated with Tentative Parcel Map No. 20517 (File No. PMTT22-005), an 80-acre property bordered by Eucalyptus, Campus, Merrill, and Sultana Avenues, within the Business Park and Industrial General land use district of the Ontario Ranch Business Park Specific Plan.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT: The proposed Development Agreement (File No. PDA21-006) will not have a direct impact on the City's General Fund. The Development Agreement will provide funding from the formation of a Community Facilities District (CFD) for City services and facilities required to support the Ontario Ranch Business Park Specific Plan (Specific Plan) development, thereby mitigating the increased costs associated with such services. In addition, the City will receive public service funding fees plus development impact, compliance processing, licensing, and permitting fees. No General Fund revenue will be used to support the Ontario Ranch development.

BACKGROUND & ANALYSIS: On June 20, 2023, the City Council held a public hearing to introduce and waive further reading of an Ordinance approving the Development Agreement (File No. PDA21- 006).

The Ontario Ranch financial commitments required for construction of properties within a specific plan are substantial. Therefore, in order to adequately forecast these costs and gain assurance that 1177
the project may proceed under the existing policies, rules, and regulations, Euclid Land Venture 2 LLC (Owner), has requested that the City enter into negotiations to create a Development Agreement (Agreement).

The Agreement is proposed outside of the NMC Builders’ Construction Agreement development area and was established in coordination between the City Attorney and the Owner’s legal counsel.

The provisions of the Agreement are consistent with the commitments to assure adequate public infrastructure improvements are constructed or funded by the Owner.

The Agreement proposes to include 80 acres of land within the Industrial and Business Park land use districts of the Specific Plan, as shown on the attached Exhibit A. The Agreement grants the Owner a vested right to develop Tentative Parcel Map 20517 (the Map), provided the Owner complies with the terms and conditions of the Specific Plan and related Environmental Impact Report (EIR).

The Map (see attached Exhibit B) is bordered by Eucalyptus, Campus, Merrill, and Sultana Avenues, and proposes to subdivide 80 acres of land into six (6) parcels, for the potential development of six (6) industrial buildings totaling 1,559,204 square feet for business park and industrial uses.

The term of the Agreement is for 10 years, with a 5-year option to renew. The main points of the Agreement address funding for all new City expenses created by the project, which includes:

Development Impact Fees (DIF) for construction of public improvements (i.e. streets and bridges, sewer, water, storm drain and fiber); Public Service Funding to ensure adequate provisions of public services (police, fire and other public services); and the creation of a Community Facilities District (CFD) for the maintenance of public facilities. Additionally, the Owner shall pay in lieu-fees to the City for the future construction and completion of Ontario Ranch Regional Water and Storm Drain improvements.

In considering the Agreement at their meeting on May 23, 2023, the Planning Commission found the Agreement to be consistent with State law, The Ontario Plan, and the City's Development Agreement policies. As a result, the Planning Commission adopted Resolution No. PC23-037 with a 4 to 0 vote, recommending City Council approval of the Agreement.

ENVIRONMENTAL REVIEW: The environmental impacts of this project were previously reviewed in conjunction with the Ontario Ranch Business Park Specific Plan Amendment (File No. PSPA21-002), for which a Final Subsequent Environmental Impact Report (State Clearinghouse No. 2019050018) was certified by the City Council on October 18, 2022. This application introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of Project approval and are incorporated herein by this reference. 1178
Exhibit A— ONTARIO RANCH BUSINESS PARK SPECIFIC PLAN LAND USE MAP 1179
Exhibit B— TENTATIVE PARCEL MAP 20517
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ORDINANCE NO. _______

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PDA21-006, A DEVELOPMENT

AGREEMENT BETWEEN THE CITY OF ONTARIO AND EUCLID LAND
VENTURE 2 LLC, TO ESTABLISH THE TERMS AND CONDITIONS
ASSOCIATED WITH TENTATIVE PARCEL MAP NO. 20517 (FILE NO.

PMTT22-005), AN 80 ACRE PROPERTY BORDERED BY EUCALYPTUS,

CAMPUS, MERRILL, AND SULTANA AVENUES, LOCATED WITHIN THE

BUSINESS PARK AND INDUSTRIAL GENERAL LAND USE DISTRICTS

OF THE ONTARIO RANCH BUSINESS PARK SPECIFIC PLAN AND
MAKING FINDINGS IN SUPPORT THEREOF—APNS: 1054-041-01,
1054-041-02, 1054-031-01, 1054-031-02, 1054-261-01, 1054-261-02, 1054-291-01, AND 1054-291-02.

WHEREAS, Euclid Land Venture 2 LLC ("Applicant") has filed an Application for the approval of a Development Agreement, File No. PDA21-006, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and WHEREAS, the Application applies to 80 acres of land generally bordered by Eucalyptus, Campus, Merrill, and Sultana Avenues, located within the Business Park and Industrial General land use districts of the Ontario Ranch Business Park Specific Plan; and
WHEREAS, the Applicant has submitted a Tentative Parcel Map 20517 (File No.

PMTT22-005) to subdivide 80 acres of land into six (6) parcels, to facilitate the potential development of 1,559,204 square feet of business park and industrial uses; and WHEREAS, the environmental impacts of this project were previously reviewed in conjunction with the Ontario Ranch Business Park Specific Plan Amendment (File No.

PSPA21-002), for which an Environmental Impact Report — State Clearinghouse No. 2019050018 — (hereinafter referred to as "Certified EIR") was adopted by the City Council on October 18, 2022, and this Application introduces no new significant environmental impacts; and
WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and act on the subject Application; and
WHEREAS, the Project is located within the Airport Influence Area of Ontario International Airport ("ONT"), which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and is subject to, and must be consistent with, the policies and criteria set forth in the Ontario International Airport Land Use Compatibility Plan (ALUCP), which applies only to jurisdictions within San Bernardino County, and addresses the noise, safety, airspace protection, and overflight impacts of current and future airport activity; and
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WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, the Project has been reviewed for consistency with the Housing Element of the Policy Plan component of The Ontario Plan, as State Housing Element law (as prescribed in Government Code Sections 65580 through 65589.8) requires that development projects must be consistent with the Housing Element, if upon consideration of all its aspects, it is found to further the purposes, principals, goals, and policies of the Housing Element; and
WHEREAS, on May 23, 2023, the Planning Commission of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date, voting to issue Resolution No. PC23-037 recommending the City Council approve the Application; and
WHEREAS, on June 20, 2023, the City Council of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date; and WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND ORDAINED by the City Council of the City of Ontario, as follows:

SECTION 1. Environmental Determination and Findings. As the decision-making body for the Project, the City Council has reviewed and considered the information contained in the administrative record for the Project. Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the City Council, the City Council finds as follows:
(1) The environmental impacts of this project were previously reviewed in conjunction with the Ontario Ranch Business Park Specific Plan Amendment (File No.

PSPA21-002), for which a Certified EIR was adopted by the City Council on October 18, 2022; and
(2) The previous Certified EIR contains a complete and accurate reporting of the environmental impacts associated with the Project; and (3) The previous Certified EIR was completed in compliance with CEQA and the Guidelines promulgated thereunder; and
(4) The previous Certified EIR reflects the independent judgment of the Planning Commission; and
(5) The proposed project will introduce no new significant environmental impacts beyond those previously analyzed in the previous Certified EIR, and all mitigation measures previously adopted with the Certified EIR, are incorporated herein by this reference.
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SECTION 2. Subsequent or Supplemental Environmental Review Not Required. Based on the information presented to the City Council and the specific findings set forth in Section 1, above, the City Council finds that the preparation of a subsequent or supplemental Certified EIR is not required for the Project, as the Project:
(1) Does not constitute substantial changes to the Certified EIR that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and
(2) Does not constitute substantial changes with respect to the circumstances under which the Certified EIR was prepared, that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and (3) Does not contain new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the Certified EIR was certified/adopted, that shows any of the following:
(a) The project will have one or more significant effects not discussed in the Certified EIR; or
(b) Significant effects previously examined will be substantially more severe than shown in the Certified EIR; or
(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the City declined to adopt such measures; or (d) Mitigation measures or alternatives considerably different from those analyzed in the Certified EIR would substantially reduce one or more significant effects on the environment, but which the City declined to adopt.

SECTION 3. Housing Element Compliance. Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as the decision making body for the Project, the City Council finds that based on the facts and information contained in the Application and supporting documentation, at the time of Project implementation, the project is consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan, as the project site is not one of the properties in the Housing Element Sites Inventory contained in Tables B-1 and B-2 of the Housing Element Technical Report.

SECTION 4. Airport Land Use Compatibility Plan ("ALUCP") Compliance.

SECTION 5. Concluding Facts and Reasons. Based upon the substantial evidence presented to the City Council during the above-referenced hearing, and upon the specific findings set forth in Section 1 through 4, above, the City Council hereby concludes as follows:
(1) The Development Agreement applies to approximately 80 acres of land bordered by Eucalyptus, Campus, Merrill, and Sultana Avenues, located within the Business Park and Industrial General land use districts of the Ontario Ranch Business Park Specific Plan Amendment (File No. PSPA21-002); and (2) The Development Agreement establishes parameters for the development of land within the Ontario Ranch Business Park Specific Plan. The Development Agreement also grants the Applicant, the right to develop, the ability to quantify the fees; 1184
and establish the terms and conditions that apply to those projects. These terms and conditions are consistent with The Ontario Plan Policy Plan (General Plan), design guidelines and development standards for the Ontario Ranch Business Park Specific Plan; and
(3) The Development Agreement grants the Owner a vested right to develop Tentative Parcel Map 20517 (File No. PMTT22-005) as long as the Owner complies with the terms and conditions of the Ontario Ranch Business Park Specific Plan and EIR.

Tentative Parcel Map 20517 is bordered by Eucalyptus, Campus, Merrill, and Sultana Avenues, and proposes to subdivide 80 acres of land into six (6) parcels, to facilitate the potential development of 1,559,204 square feet of business park and industrial uses; and (4) The Development Agreement has been prepared in conformance with the goals and policies of The Ontario Plan Policy Plan (General Plan); and (5) The Development Agreement does not conflict with the Land Use Policies of The Ontario Plan Policy Plan (General Plan) and will provide for development, within the district, in a manner consistent with the Policy Plan and with related development; and
(6) This Development Agreement will promote the goals and objectives of the Land Use Element of the Policy Plan; and
(7) This Development Agreement will not be materially injurious or detrimental to the adjacent properties and will not have a significant impact on the environment or the surrounding properties. The environmental impacts of this project were previously reviewed in conjunction with the Ontario Ranch Business Park Specific Plan Amendment (File No. PSPA21-002), for which a Final Subsequent Environmental Impact Report (State Clearinghouse No. 2019050018) was certified by City Council on October 18, 2022; and
(8) This Application introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of project approval and are incorporated herein by this reference.

SECTION 7. Indemnification. The Applicant shall agree to defend, indemnify and hold harmless, the City of Ontario or its agents, officers, and employees from any claim, action or proceeding against the City of Ontario or its agents, officers or employees to attack, set aside, void, or annul this approval. The City of Ontario shall promptly notify the applicant of any such claim, action, or proceeding, and the City of Ontario shall cooperate fully in the defense.
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SECTION 8. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings have been based are located at the City of Ontario City Hall, 303 East "B" Street, Ontario, California 91764. The custodian for these records is the City Clerk of the City of Ontario.

SECTION 9. Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The People of the City of Ontario hereby declare that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

SECTION 10. Effective Date. This Ordinance shall become effective 30 days following its adoption.

SECTION 11. Publication and Posting. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within 15 days following the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this 18th day of July 2023. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
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STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. 3254 was duly introduced at a regular meeting of the City Council of the City of Ontario held June 20, 2023 and adopted at the regular meeting held July 18, 2023 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
I hereby certify that the foregoing is the original of Ordinance No. 3254 duly passed and adopted by the Ontario City Council at their regular meeting held July 18, 2023 and that Summaries of the Ordinance were published on June 27, 2023 and July 25, 2023, in the Inland Valley Daily Bulletin newspaper.
__________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
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ATTACHMENT A:

File No. PDA21-006

DEVELOPMENT AGREEMENT
By and Between

CITY OF ONTARIO
a California municipal corporation
and
EUCLID LAND VENTURE 2 LLC
a Delaware limited liability company
(Development Agreement to follow this page)
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1 RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:

CITY OF ONTARIO

CITY CLERK / RECORDS MANAGEMENT
303 EAST "B" STREET
ONTARIO, CA 91764-4196
______________________________________________________________________ Space above this line for Recorder's Use Only Exempt from Fees Per Gov. Code § 6103 File No. PDA21-006

DEVELOPMENT AGREEMENT
By and Between

CITY OF ONTARIO
a California municipal corporation
and
EUCLID LAND VENTURE 2, LLC
a Delaware limited liability company
______________, 2023
San Bernardino County, California
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46700.10300\33554440.1
2 DEVELOPMENT AGREEMENT NO. PDA21-006
This Development Agreement (hereinafter "Agreement") is dated for reference purposes only as of the ____ day of ____________, 2023 by and among the City of Ontario, a California municipal corporation (hereinafter "CITY"), and Euclid Land Venture 2, LLC, a Delaware limited liability company (hereinafter "OWNER"):

4.01.015 of the Ontario Development Code; and
WHEREAS, OWNER has requested CITY to enter into a development agreement and proceedings have been taken in accordance with the rules and regulations of CITY; and
WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and
WHEREAS, the terms and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and
WHEREAS, the best interests of the citizens of the CITY and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, all of the procedures of the California Environmental Quality Act, Pub.

Res. Code § 21000, et seq. (“CEQA”) have been met with respect to the Project and the Agreement in that certain Ontario Ranch Business Park Specific Plan Amendment Subsequent Environmental Impact Report (State Clearinghouse No. 2019050018) (the "FEIR"); and
WHEREAS, on October 18, 2022, the City Council found and determined that the FEIR was prepared in accordance with the requirements of CEQA and adequately describes the impacts of the Project described in the FEIR, which included consideration of this Agreement; and
WHEREAS, this Agreement and the Project are consistent with the CITY's Comprehensive General Plan and the Ontario Ranch Business Park Specific Plan; and WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and 1190
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3 WHEREAS, development of the Project Site, as more particularly described and depicted in Exhibits A and B, respectively (the "Property") in accordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under Section 65864 et seq. of the Government Code are intended; and
WHEREAS, OWNER has incurred and will in the future incur substantial costs in order to assure development of the Property in accordance with this Agreement; and WHEREAS, OWNER has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Property in accordance with this Agreement.

COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. DEFINITIONS AND EXHIBITS.

1.1 Definitions. The following terms when used in this Agreement shall be defined as follows:

1.1.1 "Agreement" means this Development Agreement.

1.1.2 "CITY" means the City of Ontario, California, a California municipal corporation.

1.1.3 "Development" means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of public infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping. "Development" does not include the maintenance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.

1.1.4 "Development Approvals" means all permits and other entitlements for use subject to approval or issuance by CITY in connection with development of the Property including, but not limited to:
(a) general plans and general plan amendments; and specific plans and specific plan amendments;
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4 (b) tentative and final subdivision and parcel maps;
(c) development plan review.

1.1.5 "Development Exaction" means any requirement of CITY in connection with or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests.

1.1.6 "Development Impact Fee" means a monetary exaction, other than a tax or special assessment, whether characterized as a fee or a tax and whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, and, for purposes of this Agreement only, includes fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4. For purposes of this Agreement only, "Development Impact Fee" shall not include processing fees and charges imposed by CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued, including, without limitation, fees for zoning variances; zoning changes; use permits; building inspections; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000, Division 3 (commencing with Section 56000) of Title 5 of the Government Code; the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Government Code, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public Utilities Code, as such codes may be amended or superseded, including by amendment or replacement.

1.1.7 "Development Plan" means the Existing Development Approvals and the Existing Land Use Regulations applicable to development of the Property.

1.1.8 "Effective Date" means the date that the ordinance approving this Agreement goes into effect.

1.1.9 "Existing Development Approvals" means all Development Approvals approved or issued on or prior to the Effective Date. Existing Development Approvals includes the Approvals incorporated herein as Exhibit "C" and all other Approvals which are a matter of public record on the Effective Date.
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5 1.1.10 "Existing Land Use Regulations" means all Land Use Regulations in effect on the date of the first reading of the ordinance adopting and approving this Agreement.

Existing Land Use Regulations includes the Regulations incorporated herein as Exhibit "D" and all other Land Use Regulations that are in effect and a matter of public record on such date.

1.1.11 "General Plan" means The Ontario Plan adopted on August 16, 2022, as amended up to the date of the first reading of the ordinance adopting and approving this Agreement.

1.1.12 "Improvement" or "Improvements" means those public improvements required to support the development of the Project as described in the Parcel Map conditions for Parcel Map No. 20517 ("Parcel Map") as further described in Exhibit "E" and depicted in Exhibit “F”(together, the "Infrastructure Improvements Exhibit").

1.1.13 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. "Land Use Regulations" does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of similar rights and interests that provide for the use of or the entry upon public property; (e) the exercise of the power of eminent domain.

1.1.14 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns.

1.1.15 "OWNER" means the persons and entities listed as owner on page 1 of this Agreement and their permitted successors in interest to all or any part of the Property.

1.1.16 "Owner Affiliate" shall mean, (i) any entity that directly or indirectly controls, is controlled by, or is under common control with OWNER, or (ii) an entity at least a majority of whose economic interest is owned by OWNER. For purposes of this definition, the term “control” means the power to direct the management of such entity through voting rights, ownership or contractual obligations.
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6 1.1.17 “Phase” means the development area described in the Infrastructure Improvements Exhibit to this Agreement.

1.1.18 “Phase 2 Water Participation Fee” means the fee paid to the CITY for the Project, to fund the Property’s respective share of the project costs of the design and construction of the Phase 2 Water Improvements by the CITY. The Phase 2 Water Participation Fee shall be the calculated amount of the Regional Water DIF for the Project based upon the number of square feet, acreage, and land use category for non-residential square footage of the Project.

1.1.19 "Project" means the development of the Property contemplated by the Development Plan, as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement.

1.1.20 "Property" means the real property described on Exhibit "A" and shown on Exhibit "B" to this Agreement.

1.1.21 "Reservations of Authority" means the rights and authority excepted from the assurances and rights provided to OWNER under this Agreement and reserved to CITY under Section 3.4 of this Agreement.

1.1.22 "Specific Plan" means that certain specific plan adopted by the City Council, and entitled, "Ontario Ranch Business Park Specific Plan”.

1.1.23 "Subsequent Development Approvals" means all discretionary Development Approvals required subsequent to the Effective Date in connection with development of the Property. Subsequent Development Approvals shall be deemed to be subject to the provisions of this Agreement, without any further action needed on the part of either the CITY or OWNER.

1.1.24 "Subsequent Land Use Regulations" means any discretionary Land Use Regulations adopted and effective after the Effective Date of this Agreement.

1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:

Exhibit "A" — Legal Description of the Property.

Exhibit "B" — Map showing Property and its location.

Exhibit "C" — Existing Development Approvals.

Exhibit "D" — Existing Land Use Regulations.

Exhibit "E" — Description of Required Infrastructure Improvements Exhibit "F" — Depiction of Infrastructure Improvements Exhibits 1194
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7 Exhibit "G" – Form of Certificate of DIF Credit to be issued by CITY

2. GENERAL PROVISIONS.

2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out only in accordance with the terms of this Agreement.

2.2 Ownership of Property. OWNER represents and covenants that it is the owner of fee simple title or the lessee or an optionee of the Property or a portion(s) thereof. To the extent applicable, OWNER has obtained written consent from the current fee owner of the Property agreeing to the terms of this Agreement and the recordation thereof.

2.3 Term. The term of this Agreement shall commence on the Effective Date and shall continue for an initial term of ten (10) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement. Upon approval by the City Manager, without the need for City Council approval, the term of this Agreement may be extended for an additional five (5) years following expiration of the initial ten (10) year term, provided the following have occurred:
(a) OWNER provides at least 180 days written notice to CITY prior to expiration of the initial term; and
(b) OWNER is not then in uncured default of this Agreement.

2.4 Assignment.

2.4.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410, et seq.), to any person, partnership, limited liability company, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement with respect to the portion of the Property sold and be made in strict compliance with the following:
(a) Except as expressly provided for herein, no sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property. (b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, OWNER shall notify CITY's City Manager, in writing, of such sale, transfer or assignment and shall provide CITY with: (1) an executed agreement, in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Agreement with respect to the portion of the Property so sold, transferred or assigned. 1195
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8 (c) Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by OWNER under this Agreement.

Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection 2.4.1, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed. The City Manager shall have the authority to review, consider and either approve, conditionally approve, or deny any proposed sale, transfer or assignment that is not made in compliance with this section 2.4. (d) Notwithstanding the foregoing, OWNER shall have the right to assign this Agreement to an Owner Affiliate subject to the notice requirements to CITY as described in Paragraph (b) of this Section 2.4.1, above.

2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement unless such transferring owner is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring owner of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the portion of the Property sold, transferred or assigned.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed an agreement as required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER (if any) to secure performance of its obligations hereunder which are to be performed upon portion of the Property sold, transferred or assigned.

2.4.3 Effect of Assignment and Release of Obligations. In the event of a sale, transfer or assignment pursuant to the provisions of Section 2.4.1 and notwithstanding the release provisions of Section 2.4.2 above:
(a) The assignee shall be liable for the performance of all obligations of OWNER with respect to transferred property, but shall have no obligations with respect to the portions of the Property, if any, not transferred (the "Retained Property"). (b) The owner of the Retained Property shall be liable for the performance of all obligations of OWNER with respect to Retained Property, but shall have no further obligations with respect to the transferred property.
(c) The assignee's exercise, use and enjoyment of the Property or portion thereof shall be subject to the terms of this Agreement to the same extent as if the assignee were the OWNER.
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9 2.4.4 Subsequent Assignment. Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section 2.4.

2.4.5 Termination of Agreement With Respect to Individual Lots Upon Sale to Public and Completion of Construction. The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one (1) year) of any parcel which has been finally subdivided and is individually (and not in "bulk") sold or leased to a member of the public or other ultimate user of the parcel. Notwithstanding any other provisions of this Agreement, this Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
(a) The lot has been finally subdivided and individually (and not in "bulk") sold or leased (for a period longer than one (1) year) to a member of the public or other ultimate user; and,
(b) A certificate of occupancy has been issued for a building on the parcel, and the fees set forth under Section 4 of this Agreement have been paid.

2.4.6 Partial Assignment and Assumption. CITY and OWNER agree OWNER may partially assign its obligations and rights under this Agreement, and all amendments hereto, to a purchaser, transferee or assignee of a lot, which has been subdivided subject to provisions of a partial assignment and assumption agreement in a form approved by CITY. Any such complete and executed partial assignment and assumption of this Agreement shall be submitted to CITY for approval pursuant to Section 2.4.1 of this Agreement. Within thirty (30) days following such complete submittal, CITY shall review, and if the above conditions are satisfied, may approve the partial assignment and release and notify the purchasor, transferee or assignee in writing thereof. No such release approved pursuant to this Subsection 2.4.6 shall cause, or otherwise affect, a release of OWNER from the duties and obligations under this Agreement that are retained by OWNER and excluded from the transfer or assignment.

2.5 Amendment or Cancellation of Agreement. This Agreement may be amended or cancelled in whole or in part only in the manner provided for in Government Code Section 65868.1. Any amendment of this Agreement, which amendment has been requested by OWNER, shall be considered by the CITY only upon the payment of the applicable processing charge. This provision shall not limit any remedy of CITY or OWNER as provided by this Agreement. Either party or successor in interest, may propose an amendment to or cancellation, in whole or in part, of this Agreement. Any amendment or cancellation shall be by mutual consent of the parties or their successors in interest except as provided otherwise in this Agreement or in Government Code Section 65865.1. For purposes of this section, the term "successor in interest" shall mean any person having a legal or equitable interest in the whole of the Property, or any portion thereof as to which such person wishes to amend or cancel this Agreement. The procedure for proposing and adopting an amendment to, or cancellation of, in whole or in part, this Agreement shall be the same as the procedure for adopting and entering into this Agreement in the 1197
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10 first instance. Notwithstanding the foregoing sentence, if the CITY initiates the proposed amendment to, or cancellation of, in whole or in part, this Agreement, CITY shall first give notice to the OWNER of its intention to initiate such proceedings at least sixty (60) days in advance of the giving the public notice of intention to consider the amendment or cancellation.

2.6 Minor Modification. Upon the written application of OWNER, minor modifications and changes to the Development Plan including modifications to building design or footprint (not affecting minimum setbacks), parking layout and design, and landscape area design may be approved by the Director of the Planning Department without the need to amend this Development Agreement. Other changes in the Development Plan shall be processed pursuant to the City Zoning Ordinance. It is also contemplated by CITY and OWNER that OWNER may, from time to time, seek amendments to one or more of the Development Approvals. Any such amendments are contemplated by CITY and OWNER as being within the scope of this Agreement as long as they are consistent with the Land Use Regulations and shall, upon approval by CITY, continue to constitute the Development Approvals as referenced herein. The parties agree that any such modifications or amendments shall not constitute an amendment to this Agreement nor require an amendment to this Agreement.

2.7 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
(a) Expiration of the stated term of this Agreement as set forth in Section 2.3. (b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement.
(d) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications.

Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Agreement. Upon such termination, any public facilities and service mitigation fees paid pursuant to Section 4.2 of this Agreement by OWNER to CITY on which construction has not yet begun shall be refunded to OWNER by CITY within ten (10) business days.

2.8 Notices.
1198
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11 (a) As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. (b) All notices shall be in writing and shall be considered given either: (i) when delivered in person, including, without limitation, by courier, to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below. All notices shall be addressed as follows:

If to CITY:

Scott Ochoa, City Manager
City of Ontario
303 East "B" Street
Ontario, CA 91764
If to OWNER:

Jeff Johnston
Euclid Land Venture 2, LLC
c/o Real Estate Development Associates
4450 MacArthur Blvd., Suite 100
Newport Beach, CA 92660
[email protected]
With a copy to:

Ruben Duran, City Attorney
Best Best & Krieger, LLP
2855 E Guasti Road
Ontario, CA 91761
With a copy to:

Matt Fogt, Esq.

Allen Matkins Leck Gamble Mallory&
Natsis, LLP
2010 Main Street, 8th Floor
Irvine, CA 92614
Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.

3. DEVELOPMENT OF THE PROPERTY.

3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservations of Authority in Section 3.4, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the Development Plan. The Project shall remain subject to all Subsequent Development Approvals required to complete the Project as contemplated by the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Development Plan.

3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservations of Authority in Section 3.4, 1199
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12 the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, CITY shall exercise discretion in accordance with the same manner as it exercises its discretion under its police powers, including the Reservations of Authority set forth herein; provided however, that such discretion shall not prevent development of the Property for the uses and to the density or intensity of development set forth in this Agreement.

3.3 Timing of Development. The parties acknowledge that OWNER cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of OWNER, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v.

City of Camarillo (1984) 37 Cal. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that OWNER shall have the right to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment.

3.3.1 Infrastructure Improvement Exhibit. Attached hereto as Exhibits “E” and "F" are a description and depiction, respectively, of the Improvements needed for the development of the Property. In the event of any discrepancy between Exhibit E and Exhibit F, Exhibit F shall control.

3.4 Reservations of Authority.

3.4.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the CITY shall not be prevented from applying new rules, regulations and policies upon the OWNER, nor shall a development agreement prevent the CITY from denying or conditionally approving any subsequent development project application on the basis of such new rules, regulations and policies where the new rules, regulations and policies consist of the following:
(a) Processing fees by CITY to cover costs of processing applications for development approvals or for monitoring compliance with any development approvals; (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records and any other matter of procedure; (c) Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including all uniform codes adopted by the CITY and any local amendments to those codes adopted by the CITY; provided however that, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the standards and specifications that 1200
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13 are expressly identified in the Specific Plan and the building codes in effect as of the Effective Date;
(d) Regulations that may conflict with this Agreement and the Development Plan but that are reasonably necessary to protect the occupants of the Project and/or of the immediate community from a condition perilous to their health or safety; (e) Regulations that do not conflict with those rules, regulations and policies set forth in this Agreement or the Development Plan and which do not impose additional obligations, costs, and expenses on OWNER or the Project; (f) Regulations that may conflict with this Agreement but to which the OWNER consents.

3.4.2 Subsequent Development Approvals. This Agreement shall not prevent CITY, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations that do not conflict with the Development Plan and/or the Existing Development Approvals, nor shall this Agreement prevent CITY from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan and/or the Existing Development Approvals.

3.4.3 Modification or Suspension by State or Federal Law. In the event that State or Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. In the event OWNER alleges that such State or Federal laws or regulations preclude or prevent compliance with one or more provisions of this Agreement, and the CITY does not agree, the OWNER may, at its sole cost and expense, seek declaratory relief (or other similar non-monetary remedies); provided however, that nothing contained in this Section 3.4.3 shall impose on CITY any monetary liability for contesting such declaratory relief (or other similar non-monetary relief).

3.4.4 Intent. The parties acknowledge and agree that CITY is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to CITY all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority which cannot be restricted by contract.

3.5 Public Works; Utilities. If OWNER is required by this Agreement or a condition of Project approval to construct any public works facilities which will be dedicated to CITY or any other public agency upon completion, and if required by applicable laws to do so, 1201
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14 OWNER shall perform such work in the same manner and subject to the same standards as would be applicable to CITY or such other public agency should it have undertaken such construction. As a condition of development approval, OWNER shall connect the Project to all utilities necessary to provide adequate water, recycled water, sewer, gas, electric, and other utility services necessary for the Project, as further described and depicted in the Infrastructure Improvements Exhibit. As a further condition of development approval, OWNER shall to the extent possible contract with the CITY for CITY-owned or operated utilities for this purpose, for such price and on such terms as may be available to similarly situated customers in the CITY. As a further condition of development approval, to the extent OWNER does not own the Property in fee simple, OWNER will provide to CITY the written consent from the current fee owner of the Property agreeing to the terms of this Agreement and the recordation thereof, pursuant to Section 2.2.

3.5.1 OWNER agrees that development of the Project shall require the construction of storm drain Improvements from the Property described in Exhibit E and depicted in Exhibit F. OWNER shall be responsible for payment of a fee in-lieu (the “Euclid Avenue Storm Drain In-Lieu Fee) of actual construction of the ultimate Euclid Avenue storm drain Improvements, south of Merrill Avenue, depicted in Exhibit F.

OWNER shall pay the CITY, prior to the request for occupancy of any building on the Property, Two Million Eight Hundred Eighty Thousand Four Hundred Fifty Dollars ($2,880,450). Upon OWNER’S complete payment of the Euclid Avenue Storm Drain InLieu Fee, the CITY shall issue a Certificate of DIF Credit in the Regional Storm Drain category equal to the amount paid to the CITY. Such Regional Storm Drain DIF Certificate shall be issued by CITY within thirty (30) business days of the receipt of such required payment. OWNER and CITY agree that CITY may issue grading, building and other required permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY, and OWNER agrees that OWNER shall not request and CITY shall not issue a final occupancy permit for any buildings prior to payment of the Euclid Avenue Storm Drain In-Lieu Fee and construction of the storm drain Improvements described in Exhibit E and depicted in Exhibit F. CITY and OWNER mutually acknowledge and agree, that upon OWNER’s complete payment of the Euclid Avenue Storm Drain In-Lieu Fee, such obligation shall be deemed satisfied and CITY shall not hold up a request for final occupancy permit for any buildings on the Property, based on the actual construction and completion of the ultimate Euclid Avenue storm drain Improvements. CITY agrees that OWNER may request that CITY issue temporary certificates of occupancy on a building-by-building basis prior to completion of the storm drain improvements.

3.5.2 OWNER agrees that development of the Project shall require the construction of street Improvements as described in Exhibit E and depicted in Exhibit F.

OWNER and CITY agree that CITY may issue grading, building and other required permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY, and OWNER agrees that OWNER shall not request, and CITY shall not issue a final occupancy permit for any buildings on the Property prior to Substantial Completion of the street Improvements as described in Exhibit E and depicted in Exhibit F. For purposes of the foregoing, street Improvements shall be deemed 1202
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15 "Substantially Complete" even if the final lift of pavement has not been completed (i.e., OWNER may install the final lift after completion of all other construction). CITY agrees that OWNER may request that CITY issue temporary certificates of occupancy on a building-by-building basis prior to completion and subject to final acceptance by CITY of the street Improvements. OWNER agrees that the street improvements shall be completed and subject to final acceptance by CITY prior to the release of any security for the construction of the street improvements. OWNER and CITY agree that a portion of the street Improvements described in Exhibit E and depicted in Exhibit F may be constructed by others, or pursuant to a cooperative agreement with others. If such street Improvements are constructed by others, or in cooperation with others, and are completed and accepted by CITY prior to OWNER's request to CITY of the required grading, building or other required permits for OWNER to initiate construction of structures for the Property, then OWNER shall not be required to construct those street Improvements constructed and completed by others and accepted by CITY.

3.5.3 OWNER agrees that development of the Property shall require the construction of water utility Improvements as described in Exhibit E and depicted in Exhibit F consisting generally of the construction of the potable water Improvements to serve the Property as described in Exhibit E and depicted in Exhibit F. OWNER and CITY agree that CITY may issue grading, building and other required permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY upon completion of sufficient water improvements to serve the Property from at least one point of connection. OWNER and CITY agree that OWNER may, in-lieu of utilizing recycled water during grading and construction, utilize water from existing agricultural wells on the Property subject to the terms of a separate Well Use Agreement between the CITY and OWNER. OWNER agrees that OWNER shall not request and CITY shall not issue a final occupancy permit for any buildings on the Property until the completion of the potable water improvements described in Exhibit E and depicted in Exhibit F. City agrees that OWNER may request that CITY issue temporary certificates of occupancy on a building-by-building basis prior to completion of the water improvements if there is available permanent water service from a minimum of two (2) points of connection and sufficient water is available for fire protection purposes for any buildings while under construction. OWNER and CITY agree that a portion of the water Improvements described in Exhibit E and depicted in Exhibit F may be constructed by others, or pursuant to a cooperative agreement with others. If such water Improvements are constructed by others, or in cooperation with others, and are completed and accepted by CITY prior to OWNER's request to CITY of the required grading, building or other required permits for OWNER to initiate construction of structures for the Property, then OWNER shall not be required to construct those water Improvements constructed and completed by others and accepted by CITY.

3.5.4 OWNER agrees that development of the Property shall require the construction of sewer Improvements as described in Exhibit E and depicted in Exhibit F.

OWNER and CITY agree that CITY may issue grading, building and other required permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY, and OWNER agrees that OWNER shall not request and CITY shall not issue a final occupancy permit for any buildings prior to completion of the sewer 1203
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16 improvements described in Exhibit E and depicted in Exhibit F. CITY agrees that OWNER may request that CITY issue temporary certificates of occupancy on a buildingby-building basis prior to the completion of the sewer improvements described in Exhibit E and depicted in Exhibit F. OWNER and CITY agree that a portion of the sewer Improvements described in Exhibit E and depicted in Exhibit F may be constructed by others, or pursuant to a cooperative agreement with others. If such sewer Improvements are constructed by others, or in cooperation with others, and are completed and accepted by CITY prior to OWNER's request to CITY of the required grading, building or other required permits for OWNER to initiate construction of structures for the Property, then OWNER shall not be required to construct those sewer Improvements constructed and completed by others and accepted by CITY.

3.5.5 OWNER agrees that development of the Property shall require the construction of recycled water utility improvements to serve the Property, consisting generally of the construction of recycled water utility Improvements as described in Exhibit E and depicted in Exhibit F. OWNER and CITY agree that the CITY may issue grading, building and other required permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY upon completion of sufficient water and recycled water improvements to serve the Property from at least one point of connection and OWNER agrees that OWNER shall not request and CITY shall not issue any occupancy permit for any buildings on the Property until the completion of the water improvements described in Exhibit E and depicted in Exhibit F. CITY agrees that OWNER may request a temporary occupancy permit for a building and, if OWNER requests that a temporary certificate of occupancy be issued for a building prior to the completion of the extension of permanent master planned recycled water utility Improvements to serve the Property that CITY may consider such request and may issue temporary certificates of occupancy on a building-by-building basis prior to completion of recycled water improvements if there is available permanent recycled water service connection and sufficient recycled water is available. OWNER and CITY agree that all, or a portion of, the permanent master planned recycled water utility Improvements described in Exhibit E and depicted in Exhibit F may be constructed by others. If such recycled water utility Improvements are constructed by others and completed and accepted by CITY prior to OWNER'S request to CITY of the required grading, building, or other required permits for OWNER to initiate construction of structures for the Property, then OWNER shall not be required to construct those permanent master planned recycled water utility Improvements.

3.5.6 OWNER agrees that development of the Property shall require the construction of fiber optic communications infrastructure, at OWNER's sole cost and expense, as described in the attached Exhibit E and depicted in Exhibit F consisting generally of the construction of fiber optic communications infrastructure to serve the Property. OWNER and CITY agree that CITY may issue grading, building and other required permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY and OWNER agrees that OWNER shall not request and CITY shall not issue a final occupancy permit for any buildings prior to completion of the fiber optic communications infrastructure, as described in Exhibit E and depicted in Exhibit F. CITY agrees that OWNER may request that CITY issue temporary certificates 1204
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17 of occupancy on a building-by-building basis prior to the completion of the fiber optic communications infrastructure, as described in Exhibit E and depicted in Exhibit F.

3.6 Acquisition of Offsite Provision of Real Property Interests. In any instance where OWNER is required by any Development Approval or Land Use Regulation to construct any public improvement on land not owned by OWNER ("Offsite Improvements"), the CITY and OWNER shall cooperate in acquiring the necessary legal interest ("Offsite Property") as described below in Section 3.7. This Section 3.6 is not intended by the parties to impose upon the OWNER an enforceable duty to acquire land or construct any public improvements on land not owned by OWNER, except to the extent that the OWNER elects to proceed with the development of the Project, and then only in accordance with valid conditions imposed by the CITY upon the development of the Project under the Subdivision Map Act or other legal authority.

3.7 Real Property Interests.

3.7.1 CITY Acquisition of Offsite Property. In the event OWNER is required to construct any public improvements on land not owned by OWNER, Sections 3.7.1 and

3.7.2 shall control the acquisition of the Offsite Property. If the OWNER is unable to acquire such Offsite Property, and following the written request from the OWNER to CITY, CITY agrees to use reasonable and diligent good faith efforts to acquire the Offsite Property from the owner or owners of record by negotiation to the extent permitted by law and consistent with this Agreement. If CITY is unable to acquire the Offsite Property by negotiation within thirty (30) days after OWNER'S written request, CITY may, initiate proceedings utilizing its power of eminent domain to acquire the Offsite Property at a public hearing noticed and conducted in accordance with California Code of Civil Procedure Section 1245.235 for the purpose of considering the adoption of a resolution of necessity concerning the Offsite Property, subject to the conditions set forth in this Section 3.7.1 The CITY and OWNER acknowledge that the timelines set forth in this Section 3.7.1 represent the maximum time periods which CITY and OWNER reasonably believe will be necessary to complete the acquisition of any Offsite Property. CITY agrees to use reasonable good faith efforts to complete the actions described within lesser time periods, to the extent that it is reasonably able to do so, consistent with the legal constraints imposed upon CITY.

3.7.2 Owner's Option to Terminate Proceedings. CITY shall provide written notice to OWNER no later than fifteen (15) days prior to making an offer to the owner of the Offsite Property. At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease all acquisition proceedings with respect to that Offsite Property, whereupon CITY shall cease such proceedings. CITY may provide written notice to OWNER no later than fifteen (15) days prior to the date of the hearing on CITY's intent to consider the adoption of a resolution of necessity as to any Offsite Property. At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease condemnation proceedings, whereupon CITY shall cease such proceedings. If OWNER does not notify CITY to cease condemnation proceedings within said fifteen (15) day period, then the CITY may proceed to consider and act upon the Offsite Property resolution of necessity. If CITY adopts such resolution 1205
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18 of necessity, then CITY may institute condemnation proceedings and file a complaint in condemnation and seek an order of immediate possession with respect to the Offsite Property.

3.8 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies. CITY agrees to cooperate fully, at no cost to CITY, with OWNER in obtaining any required permits or compliance with the regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations or policies of the CITY.

3.9 Tentative Parcel Maps. With respect to applications by OWNER for tentative parcel maps for portions of the Property, CITY agrees that OWNER may file and process tentative maps in accordance with Chapter 4.5 (commencing with Section 66498.1) of Division 2 of Title 7 of the California Government Code and the applicable provisions of CITY's subdivision ordinance, as the same may be amended from time to time. In accordance with the provisions of Section 66452.6 of the Government Code, each tentative subdivision map or tentative parcel map, heretofore or hereafter approved in connection with development of the Property, shall be deemed to have been granted an extension of time to and until the expiration, cancellation, or termination of this Agreement.

3.10 Specific Plan Charge. Pursuant to Government Code section 65456, the City Council may consider adopting a specific plan charge upon persons seeking CITY approvals that are required to be consistent with the Specific Plan. Any such charges shall, in the aggregate, defray, but not exceed, the estimated cost of preparation, adoption, and administration of the Specific Plan, including costs incurred pursuant to the California Environmental Quality Act (Pub. Resources Code, §§ 21000 et seq.). As nearly as can be estimated, the charges shall be a prorated amount in accordance with the applicant’s relative benefit derived from the Specific Plan. If such charges are adopted, the CITY shall use such charges to reimburse the OWNER who originally paid the cost of preparing the Specific Plan, including costs incurred pursuant to the California Environmental Quality Act (Pub. Resources Code, §§ 21000 et seq.) to the extent the OWNER paid more than its relative benefit from the Specific Plan. Such charges, if adopted, shall be imposed on persons seeking CITY approvals that are required to be consistent with the Specific Plan, to the extent such person(s) has/have not entered into a reimbursement agreement with, and satisfactory to, the person(s) originally responsible for the cost of preparing the Specific Plan, including costs incurred pursuant to CEQA.

4. PUBLIC BENEFITS.

4.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public needs that will not be fully met by the Development Plan and further acknowledge and agree that this Agreement confers substantial private benefits on OWNER that should be balanced by commensurate public benefits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits 1206
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19 conferred on OWNER by providing more fully for the satisfaction of the public needs resulting from the Project.

4.2 Development Impact Fees.

4.2.1 Amount of Development Impact Fee. Development Impact Fees (DIF) shall be paid by OWNER. The Development Impact Fee amounts to be paid by OWNER shall be the amounts that are in effect at the time such amounts are due. Nothing contained in this Agreement shall affect the ability of the CITY to impose new Development Impact Fees or amend the amounts of existing Development Impact Fees. Additionally, nothing contained in this Agreement shall affect the ability of other public agencies that are not controlled by CITY to impose and amend, from time to time, Development Impact Fees established or imposed by such other public agencies, even though such Development Impact Fees may be collected by CITY.

4.2.2 Time of Payment. The Development Impact Fees required pursuant to Section 4.2.1 shall be paid to CITY prior to the issuance of building permit for each applicable building (subject to the application/use of available fee deferrals or credits), except for the Species, Habitat Conservation, and Open Space Mitigation Development Impact Fee, which shall be paid by OWNER to CITY prior to the issuance of a grading permit.

4.3 Responsibility for Construction of Public Improvements.

4.3.1 Timely Construction of Public Infrastructure. The phasing of the area wide infrastructure construction within the vicinity of the Project shall be as approved by the CITY. OWNER shall be responsible for the timely construction and completion of all public infrastructure required for the Project as described and depicted in the Infrastructure Improvements Exhibit and any and all parcel map conditions. Unless otherwise specified in the Parcel Map conditions, and subject to the provisions of Section

3.5 and 3.6, all other required Improvements for the parcel map, shall be substantially completed and operational prior to, and as a condition precedent to, OWNER requesting and CITY's granting of a final occupancy permit for any buildings to be constructed on the Property within the applicable parcel map. All Infrastructure and Improvements shall be completed as required by the Subdivision Agreement/Parcel Map conditions for Parcel Map No. 20517.

4.3.3 Construction of Public Infrastructure by Third Parties. CITY and OWNER acknowledge that a portion of the Improvements described in Exhibit E and depicted in Exhibit F are necessary for the development of surrounding properties within the Ontario Ranch and the other property owners are also obligated to construct the Improvements or portions thereof. As such, CITY agrees that OWNER's obligation to construct the Improvements may be satisfied by third party owners pursuant to separate written agreements between OWNER and said third party undertaking the construction of the Improvements. Nothing in this Agreement shall be construed to prohibit the coordination of the construction of the Improvements between private parties, including the allocation of costs for the construction of the Improvements. Notwithstanding anything to the 1207
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20 contrary herein, any applicable DIF Credits may be transferred and assigned from one (1) party to another with respect to the construction of the Improvements and such transfer or assignment shall not require the conveyance of any real property.

4.3.4 Availability and Use of Recycled Water. OWNER agrees that recycled water shall be available and utilized by OWNER for all construction-related water uses including prior to, and during, any grading of the Property. OWNER and CITY agree that OWNER may, in-lieu of utilizing recycled water during grading and construction, utilize water from existing agricultural wells on the Property subject to the terms of a separate Well Use Agreement between the CITY and OWNER.

4.3.5 Construction of DIF Program Infrastructure. To the extent OWNER is required to construct and completes construction of public improvements that are included in CITY's Development Impact Fee Program, CITY agrees that CITY shall issue DIF Credit in accordance with the provisions of a separate Fee Credit Agreement between CITY and OWNER. Limitations on the use of DIF Credit issued to OWNER to offset OWNER's DIF payment obligations shall also be subject to the provisions of a separate Fee Credit Agreement. OWNER may be eligible to receive DIF Credit from OWNER's construction of DIF Program Infrastructure. Any such DIF Credit shall be subject to a Fee Credit Agreement between CITY and OWNER. CITY and OWNER agree that the Fee Credit Agreement between CITY and OWNER shall comply with CITY's adopted policies applicable to such agreements.

4.4 Public Services Funding Fee.

4.4.1 Requirement for Payment of Public Services Funding Fee. In order to ensure that the adequate provision of public services, including without limitation, police, fire and other public safety services, are available to each Project in a timely manner, OWNER shall pay to CITY a "Public Services Funding Fee." The Public Services Funding Fee shall apply to residential and non-residential uses as set forth below.

4.4.2 Public Services Funding Fee Amount. OWNER shall pay a Public Services Funding fee in a single installment payment in the amount of Seventy-Five Cents ($.75) per square foot of each non-residential building. The single installment for nonresidential uses shall be due and payable on a building-by-building basis prior to the issuance of the building permit for a non-residential building. The amount of the Single Installment for non-residential uses shall automatically increase by percentage increase (but no decrease) in the Consumer Price Index (Riverside – San Bernardino – Ontario, CA), (December 2017=100) over the preceding year on January 1st of each year, beginning on January 1, 2024. OWNER may exercise the option to pay any single installment amounts for the remainder of the non-residential square footage within the Project on or before December 31st, before the Single Installment amount is automatically increased.

4.5 Water Availability.
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21 4.5.1 Water Availability. The Property requires the completion of the Phase 2 Water Improvements (Phase 2A and 2B) for permanent water system capacity and supply. Until the Phase 2 Water Improvements are fully constructed and completed, OWNER acknowledges that the Project shall have sufficient water capacity and supply on an interim basis made available through the construction of the Potable Water Improvements (as described in Exhibit E), the Phase 2A Water Improvements, and the Interim Chino Avenue Loop depicted in Exhibit F. OWNER acknowledges and agrees that the CITY shall not issue final certificates of occupancy for the Project until the completion of the Potable Water Improvements (as described in Exhibit E), the Phase 2A Water Improvements and the Interim Chino Avenue Loop, as depicted in Exhibit F. OWNER further acknowledges and agrees the Property requires the Phase 2 Water Improvements as depicted in Exhibit F.

4.5.2 Phase 2 Water Construction Fee. Prior to CITY’s issuance of a grading permit for any parcel of the Property (each, a “Grading Permit”), OWNER shall pay to CITY the applicable Phase 2 Water Construction Fee. The Phase 2 Water Construction Fee shall be calculated based on the following formula: (a) the regional water development impact fee, based on the square footage of developable property and the approved land use category for each Phase of the Project (the “Base Regional Water DIF”), PLUS (b) OWNER’s pro rata share of the difference between the total projected cost of construction of the Phase 2 Water Improvements (the “Pro Rata Share”) and the Base Regional Water DIF. To determine the Pro Rata Share, which may fluctuate over time, CITY shall, at the time OWNER applies for a Grading Permit, calculate the total projected cost of construction of the Phase 2 Water Improvements and subtract from that amount (y) all Phase 2 Water Construction Fees previously collected and (z) the aggregate Base Regional Water DIF to be paid by OWNER and all developers then at that time obligated to pay a Base Regional Water DIF specifically for use of the Phase 2 Water Improvements (together, the “Phase 2 Water Developers”). If the difference is zero or a number less than zero, then there is no Pro Rata Share and the Phase 2 Water Construction Fee shall equal the sum of all Base Regional Water DIF to be paid by all Phase 2 Water Developers. If the difference results in a positive number, the funding gap (the “Funding Gap”) shall be divided by the total acreage of land to be developed by the Phase 2 Water Developers to obtain a Funding Gap “per acre” amount (the “Funding Gap Per Acre Amount”). Each Phase 2 Water Developer’s respective total acreage to be developed shall then be multiplied by the Funding Gap Per Acre Amount to obtain each Phase 2 Water Developer’s Pro Rata Share, which will then be added to each Phase 2 Water Developer’s Base Regional Water DIF to obtain the Phase 2 Water Construction Fee due and payable at the time of issuance of the applicable Grading Permit.

4.5.3 DIF Credit for Phase 2 Water Construction Fees. Within thirty (30) days of OWNER's payment of each Phase 2 Water Construction Fee, CITY shall issue a certificate of DIF Credit which may be used to offset OWNER's DIF obligations in the Regional Water DIF Category. The form of the Certificate of DIF Credit shall be as described in Exhibit G, attached hereto and incorporated herein. OWNER acknowledges that any Regional Water DIF Credit issued to OWNER shall not be used to satisfy Phase 2 Water Construction Fees and may only be used to offset OWNER’s DIF obligations in the Regional Water DIF Category.
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22 4.5.4 Additional Contributions for Phase 2 Water Improvements. OWNER acknowledges and agrees that, as of the Effective Date of this Agreement, the CITY does not have sufficient funding to construct and complete the Phase 2 Water Improvements.

OWNER agrees to provide the CITY with additional contributions for the Phase 2 Water Improvements prior to the issuance of a Grading Permit for any Phase within the Project, pursuant to the Pro Rata Share calculation as set forth in Section 4.5.2 above. OWNER acknowledges and agrees that the CITY has the right to conduct subsequent reviews of the available funding for the construction of, or continuation of the construction of, the Phase 2 Water Improvements. If at any time outside of OWNER’s submission of a request for a Grading Permit the CITY determines that there is not sufficient funding for the construction of, or continuation of the construction of, the Phase 2 Water Improvements necessary to support current and anticipated future development within the Ontario Ranch area served by the Phase 2 Water Improvements, OWNER agrees to pay such subsequent additional contribution payment necessary from the OWNER (on a pro rata basis with other Phase 2 Water Developers then existing at the time) to the CITY to initiate construction of, or continue construction of, the Phase 2 Water Improvements. The CITY shall determine OWNER’s additional contribution amount (above and beyond OWNER’s Pro Rata Share) and such amount shall be due and payable to the CITY within thirty (30) days of written notice from the CITY to OWNER.

4.5.5 Future Reimbursement of Pro Rata Share of Phase 2 Water Construction Fees. OWNER agrees that the CITY will be responsible for the construction and completion of the Phase 2 Water Improvements, as depicted in Exhibit F. Subject to the successful completion of the Phase 2 Water Improvements, CITY and OWNER shall meet periodically and/or as needed from the date of completion of the Phase 2 Water Improvements, to jointly develop a plan and mutually enter into an agreement for the reimbursement of OWNER’s Pro Rata Share of Phase 2 Water Construction Fees that may be reimbursed from future development in the 925 Zone as depicted in the City’s Domestic Water Master Plan, following any reallocation of each Phase 2 Water Developer’s Pro Rata Share, CITY’s collection of additional Regional Water DIF in connection with construction of the Phase 2 Water Improvements, and after the completion of the Phase 2 Water Improvements. Such agreement shall be approved at the sole discretion of the Ontario City Council.

4.6 Compliance with Public Benefits Requirements.

4.6.1 Failure to Provide Public Benefits. In the event OWNER fails or refuses to comply with any condition referenced in Section 4.1 through 4.5, or challenges (whether administratively or through legal proceedings) the imposition of such conditions, OWNER shall be deemed in default of this Agreement, thereby entitling CITY to any and all remedies available to it, including, without limitation, the right of CITY to withhold OWNER's Project-related building permits, certificates of occupancy, or discretionary approvals, without liability. Nothing herein shall waive OWNER's right to assert a default (or failure to perform) by CITY has excused OWNER's performance under this Agreement.
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23 5. FINANCING OF PUBLIC IMPROVEMENTS.

5.1 Financing Mechanism(s). OWNER agrees that, prior to the recordation of any Parcel Map, the property subject to such Parcel Map shall be included in a CFD to finance CITY services through annual special taxes that will initially be Twenty-Seven Cents ($.27) per square foot for non-residential buildings. These amounts shall be subject to an automatic increase at a rate not to exceed four (4%) percent per year. Depending on the fiscal year that the CFD is formed and the CFD tax is levied, the annual special taxes may be higher. CITY shall be the sole and exclusive lead agency in the formation of any CFD, assessment district or other public financing mechanism within the Property; provided however, that the proceeds of any such CFD, assessment district, or financing mechanism may be used, subject to restrictions that may be imposed by applicable law, for the purposes of acquiring, constructing or maintaining public facilities to be owned or operated by other public agencies, including, without limitation those facilities owned or operated by a school district. In addition to the rights of the CITY pursuant to section 5.1 hereof, CITY shall have the right, but not the obligation, to condition the formation of any CFD, assessment district or other public financing mechanism within the Property on the OWNER mitigating all Project-related impacts to the applicable school district(s) as required by such school district(s). Written evidence by such school district(s) may be required by the CITY as the condition to the formation of any CFD, assessment district or other public financing mechanism within the Property, or any steps preliminary thereto, including, without limitation, the adoption of any resolution of intention to form such CFD, assessment district or other public financing mechanism within the Property. It is not the intent of the parties hereto, by this provision, to prohibit or otherwise limit CITY’s ability to take any and all necessary steps requisite to the formation of the CFD to finance CITY services through annual special taxes as set forth in this Section 5.1. Formation of any CFD, assessment district or other public financing mechanism within the Property, shall be subject to CITY's ability to make all findings required by applicable law and complying with all applicable legal procedures and requirements including, without limitation, CITY's public financing district policies as such policies may be amended from time to time.

Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as requiring CITY or the City Council to form any such district.

6. [OMITTED]

7. REVIEW FOR COMPLIANCE.

7.1 Periodic and Special Reviews.

7.1.1 Time for and Initiation of Periodic Review. The CITY shall review this Agreement every twelve (12) months from the Effective Date in order to ascertain the good faith compliance by the OWNER with the terms of this Agreement. The OWNER shall submit an Annual Monitoring Report to CITY, in a form acceptable to the City Manager, along with any applicable processing charge within ten (10) days after each anniversary date of the Effective Date of this Agreement. Within fifteen (15) days after the receipt of the Annual Monitoring Report, CITY shall review the Annual Monitoring 1211
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24 Report. Prior to the expiration of the fifteen (15) day review period, CITY shall either issue a notice of continuing compliance or a notice of non-compliance and a notice of CITY's intent to conduct a Special Review pursuant to Sections 7.1.2 through 7.1.6. Issuance of a notice of continuing compliance may be issued by the City Manager or his designee.

7.1.2 Initiation of Special Review. A special review may be called either by agreement between the parties or by initiation in one or more of the following ways:
(a) Recommendation of the Planning staff;
(b) Affirmative vote of at least four (4) members of the Planning Commission; or (c) Affirmative vote of at least three (3) members of the City Council.

7.1.3 Notice of Special Review. The City Manager shall begin the special review proceeding by giving notice that the CITY intends to undertake a special review of this Agreement to the OWNER. Such notice shall be given at least ten (10) days in advance of the time at which the matter will be considered by the Planning Commission.

7.1.4 Public Hearing. The Planning Commission shall conduct a hearing at which the OWNER must demonstrate good faith compliance with the terms of this Agreement.

The burden of proof on this issue is upon the OWNER.

7.1.5 Findings Upon Public Hearing. The Planning Commission shall determine upon the basis of substantial evidence whether or not the OWNER has, for the period under review, complied in good faith with the terms and conditions of this Agreement.

7.1.6 Procedure Upon Findings.
(a) If the Planning Commission finds and determines on the basis of substantial evidence that the OWNER has complied in good faith with the terms and conditions of this Agreement during the period under review, the review for that period is concluded. (b) If the Planning Commission finds and determines on the basis of substantial evidence that the OWNER has not complied in good faith with the terms and conditions of this Agreement during the period under review, the Planning Commission may recommend to the City Council to modify or terminate this Agreement. (c) The OWNER may appeal a determination pursuant to paragraph (b) to the City Council in accordance with the CITY's rule for consideration of appeals in zoning matters generally.

7.2 Proceedings Upon Modification or Termination. If, upon a finding under Section

7.1.6(b), the CITY determines to proceed with modification or termination of this Agreement, the CITY shall give notice to the property OWNER of its intention so to do.

The notice shall contain:
(a) The time and place of the hearing;
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25 (b) A statement as to whether or not the CITY proposes to terminate or to modify this Agreement; and
(c) Other information that the CITY considers necessary to inform the OWNER of the nature of the proceeding.

7.3 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, the OWNER shall be given an opportunity to be heard.

The OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on the OWNER.

If the City Council finds, based upon substantial evidence in the administrative record, that the OWNER has not complied in good faith with the terms and conditions of the agreement, the City Council may terminate this Agreement or modify this Agreement and impose those conditions to the action it takes as it considers necessary to protect the interests of the CITY. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.

7.4 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon written request by OWNER, issue a Certificate of Agreement Compliance ("Certificate") to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Planning Director and City Council that (1) this Agreement remains in effect and (2) OWNER is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. OWNER may record the Certificate with the County Recorder. Whether or not the Certificate is relied upon by assignees or other transferees or OWNER, CITY shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Planning Director or City Council.

8. [OMITTED]

9. DEFAULT AND REMEDIES.

9.1 Remedies in General. It is acknowledged by the parties that CITY would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof. In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that (i) CITY shall not be liable in damages to OWNER, or to any successor in interest of OWNER, or to any other person, and OWNER covenants not to sue for damages or claim any damages and (ii) OWNER shall not be liable in damages to CITY, or to any other person, and CITY covenants not to sue for damages or claim any damages:
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26 (a) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
(b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
(c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.

9.2 Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other nonmonetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
(a) Money damages are unavailable against CITY and OWNER as provided in Section 9.1 above.
(b) Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the Property or portions thereof. OWNER has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate OWNER for such efforts.

9.3 Release. Except for non-damage remedies, including the remedies of judicial review and of specific performance as provided for in Sections 7.3 and 9.2, respectively,, OWNER, for itself, its successors and assignees, hereby releases the CITY, its officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the CITY because it entered into this Agreement or because of the terms of this Agreement.

9.4 Termination or Modification of Agreement for Default of OWNER. Subject to the provisions contained in Sections 7.2 and 7.3 herein, CITY may terminate or modify this Agreement for any failure of OWNER to perform any material duty or obligation of OWNER under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as "default"); provided, however, CITY may terminate or modify this Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such 1214
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27 actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

9.5 Termination of Agreement for Default of CITY. OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default and, where the default can be cured, CITY has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

10.THIRD PARTY LITIGATION.

10.1 General Plan Litigation. CITY has determined that this Agreement is consistent with the General Plan, as such General Plan exists as of the Effective Date ("General Plan"), and that the General Plan meets all requirements of law. OWNER has reviewed the General Plan and concurs with CITY's determination. CITY shall have no liability in damages under this Agreement for any failure of CITY to perform under this Agreement or the inability of OWNER to develop the Property as contemplated by the Development Plan or this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.

10.2 Third Party Litigation Concerning Agreement. OWNER shall defend, at its expense, including attorneys' fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. CITY shall promptly notify OWNER of any such claim, action or proceeding, and CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of any such claim, action or proceeding, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action or proceeding.

10.3 Indemnity. In addition to the provisions of Section 10.2 above, OWNER shall indemnify and hold CITY, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of OWNER, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury, or death (OWNER's employees included) or any other element of damage of any kind or nature, to the extent relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and 1215
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28 conveyance of the public improvements, save and except claims for damages arising through the sole active negligence or sole willful misconduct of CITY. OWNER shall defend, at its expense, including attorneys' fees, CITY, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions. CITY may in its discretion participate in the defense of any such legal action.

OWNER’s indemnity obligation shall terminate following CITY’s legal acceptance of (i.e. taking of title to) the Improvements.

10.4 Environment Assurances. OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, to the extent based or asserted, upon any act or omission of OWNER, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property during OWNER'S period of ownership of the Property, including, but not limited to, soil and groundwater conditions caused by OWNER, and OWNER shall defend, at its expense, including attorneys' fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action.

10.5 Reservation of Rights. With respect to Sections 10.2, 10.3 and 10.4 herein, CITY reserves the right to either (1) approve the attorney(s) which OWNER selects, hires or otherwise engages to defend CITY hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense, provided, however, that OWNER shall reimburse CITY forthwith for any and all reasonable expenses incurred for such defense, including attorneys' fees, upon billing and accounting therefor.

10.6 Survival. The provisions of this Sections 10.1 through 10.6, inclusive, shall survive the termination of this Agreement.

11. MORTGAGEE PROTECTION.

11.1 Mortgagee Protection. The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. CITY acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law.
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29 (b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER's obligations under this Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement. (d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.

Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of OWNER's obligations or other affirmative covenants of OWNER hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by OWNER is a condition precedent to the performance of a covenant by CITY, the performance thereof shall continue to be a condition precedent to CITY's performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Agreement (e) In the event of a default by OWNER, any Mortgagee shall have the right to remedy, or cause to be remedied, such default within sixty (60) days following the later to occur of (i) the date of Mortgagee's receipt of the notice referred to in Section 9.4 above, or (ii) the expiration of the period provided herein for OWNER to remedy or cure such default, and CITY shall accept such performance by or at the insistence of the Mortgagee as if the same had been timely made by OWNER; provided, however, that (i) if such default is not capable of being cured within the timeframes set forth in this Section and Mortgagee commences to cure the default within such timeframes, then Mortgagee shall have such additional time as is required to cure the default so long as Mortgagee diligently prosecutes the cure to completion and (ii) if possession of the Property (or portion thereof) is required to effectuate such cure or remedy, the Mortgagee shall be deemed to have timely cured or remedied if it commences the proceedings necessary to obtain possession thereof within sixty (60) days after receipt of the copy of the notice, diligently pursues such proceedings to completion, and, after obtaining possession, diligently completes such cure or remedy.

12. MISCELLANEOUS PROVISIONS.

12.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the San Bernardino County Recorder by the City Clerk within ten (10) days after the CITY executes this Agreement, as required by Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement as provided for herein and in Government Code 1217
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30 Section 65868, or if the CITY terminates or modifies the agreement as provided for herein and in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of this Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder.

12.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.

12.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 4 of this Agreement, including the payment of the fees set forth therein, are essential elements of this Agreement and CITY would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.

12.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.

12.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.

12.6 Singular and Plural. As used herein, the singular of any word includes the plural.

12.7 Joint and Several Obligations. Pursuant to Section 2.4, if at any time during the term of this Agreement the Property is subsequently owned, in whole or in part, by more than one owner, all obligations of such owners under this Agreement shall be joint and several, and the default of any such owner shall be the default of all such owners.

Notwithstanding the foregoing, no owner of a single lot which has been finally subdivided and sold to such owner as a member of the general public or otherwise as an ultimate user shall have any obligation under this Agreement except as provided under Section 4 hereof.

12.8 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
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31 12.9 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.

12.10 No Third-Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.

12.11 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the party's control, (including the party's employment force), government regulations, governmental orders related to statewide or national pandemics, any third party court actions challenging the Project (including but not limited to writs of mandate, restraining orders or injunctions), or other causes beyond the party's control. If any such events shall occur, the term of this Agreement and the time for performance by either party of any of its obligations hereunder may be extended by the written agreement of the parties for the period of time that such events prevented such performance, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years.

12.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.

12.13 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.

12.14 Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.

12.15 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of San Bernardino, State of California, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court. 1219
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32 12.16 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property.

12.17 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. The City Manager may delegate his powers and duties under this Agreement to an Assistant City Manager or other management level employee of the CITY.

12.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain.

12.19 Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, OWNER shall file with the Planning Director, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon OWNER. If for any reason service of such process upon such agent is not feasible, then in such event OWNER may be personally served with such process out of this County and such service shall constitute valid service upon OWNER. OWNER is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto.

12.20 Estoppel Certificate. Within thirty (30) business days following a written request by any of the parties, the other party shall execute and deliver to the requesting party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the responding party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification 1220
46700.10300\33554440.1
33 except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may be represented by the requesting party. OWNER shall pay to CITY all costs incurred by CITY in connection with the issuance of estoppel certificates requested by OWNER under this Section 12.20 prior to CITY's issuance of such certificates.

12.21 Authority to Execute. The person or persons executing this Agreement on behalf of OWNER warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind OWNER to the performance of its obligations hereunder.

12.22 Prevailing Wage. OWNER, for itself, its successors, and assigns, agrees, covenants, and warrants that the development of the Property, if any, shall comply with all applicable federal and state labor laws (including, without limitation, the requirement under California law to pay prevailing wages and hire apprentices), and all obligations as set forth herein.12.22.1 CITY makes no representations concerning prevailing wages in compliance with California Labor Code Section 1770 et seq.

12.22.2 OWNER acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations with respect to the payment of prevailing wages and complying therewith. OWNER shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.

12.22.3 The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the construction and development of the Property by OWNER, its successors or assigns. OWNER shall be solely responsible for determining and effectuating compliance with such laws.

12.22.4 OWNER, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND ASSIGNS,

WAIVES AND RELEASES CITY FROM ANY RIGHT OF ACTION THAT MAY BE AVAILABLE TO OWNER PURSUANT TO LABOR CODE SECTION 1781 OR THE DAVIS BACON ACT. RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 12.22, OWNER ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: A GENERAL RELEASE DOES

NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT

KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF

EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE

MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

INITIALS. BY INITIALING BELOW, OWNER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY WITH THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES:
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34 _______________
(Owner's Initials)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year set forth below.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
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35 SIGNATURE PAGE

TO DEVELOPMENT AGREEMENT
FILE NO. PDA21-006
"OWNER"
EUCLID LAND VENTURE 2, LLC.
a Delaware limited liability company
by: RBV Euclid, LLC, a Delaware limited
liability company, its managing member
by: REDA Bascom Ventures, LLC, a
Delaware limited liability company, its
managing member
by: Real Estate Development Associates,
LLC, a California limited liability company, its
administrative member
by: Waters Edge Property Group, LLC, a
California limited liability company, its
member
By: ________________________
Jason Krotts
Authorized Signatory
Date: ___________________
ATTEST:

City Clerk, Ontario
APPROVED AS TO FORM:

BEST BEST & KRIEGER, LLP
City Attorney
"CITY"

CITY OF ONTARIO
By:

Scott Ochoa
City Manager
Date: ___________________
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36 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA

COUNTY OF
On this ___ day of ______________, 2023 before
me, , Notary Public, personally
appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature: (Seal)
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37 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA

COUNTY OF
On this ___ day of ______________, 2023 before
me, , Notary Public, personally
appeared , who proved to me
on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature: (Seal)
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38 EXHIBIT "A"

TO DEVELOPMENT AGREEMENT
Legal Description of Property

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF

ONTARIO, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

LOTS 7, 8, 9, 10, 23, 24, 25 AND 26 IN SECTION 20, TOWNSHIP 2 SOUTH, RANGE 7 WEST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO

THE MAP OF THE SUBDIVISION OF RANCHO SANTA ANA DEL CHINO, IN

THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, RECORDED IN BOOK 6, PAGE 15 OF MAPS OF RECORDS OF SAID COUNTY.

APNs: 1054-031-01, 1054-031-02, 1054-261-01, 1054-261-02, 1054-041-01, 1054-041-02, 1054-291-01, 1054-291-02
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39 EXHIBIT "B"

TO DEVELOPMENT AGREEMENT
Map showing Property and its location
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40 EXHIBIT "C"

TO DEVELOPMENT AGREEMENT
Existing Development Approvals
On July 28, 2020, the Planning Commission:
a) Approved Resolution No. PC20-048, recommending the City Council certify the Environmental Impact Report (SCH #2019050018) for the Ontario Ranch Business Park Specific Plan (File No. PSP18-002). b) Approved Resolution No. PC20-049, recommending the City Council approve the General Plan Amendment (File No. PGPA18-008). c) Approved Resolution No. PC20-050, recommending the City Council approve the Ontario Ranch Business Park Specific Plan (File No. PSP18- 002).

On September 15, 2020, the City Council:
a) Adopted Resolution No. 2020-159, certifying the Environmental Impact Report (SCH #2019050018) for the Ontario Ranch Business Park Specific Plan (File No. PSP18-002).
b) Adopted Resolution No. 2020-160, approving the General Plan Amendment (File No. PGPA18-008).

On October 6, 2020, the City Council:
a) Adopted Ordinance No. 3168, approving the Ontario Ranch Business Park Specific Plan.

On August 30, 2022, the Planning Commission:
a) Approved Resolution No. PC22-053, recommending the City Council certify the project Subsequent Environmental Impact Report (SCH#2019050018) for the Ontario Ranch Business Park Specific Plan Amendment (PSPA21- 002).
b) Approved Resolution No. PC22-054, recommending the City Council approve File No. PSPA21-002, an amendment to the Ontario Ranch Business Park Specific Plan.
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41 EXHIBIT "C" Continued

TO DEVELOPMENT AGREEMENT
On October 18, 2022, the City Council:
a) Adopted Resolution No. 2022-143, certifying the Subsequent Environmental Impact Report (SCH#2019050018) for the Ontario Ranch Business Park Specific Plan Amendment (File No. PSPA21-002). b) Adopted Resolution No. 2022-144, approving File No. PSPA21-002, an amendment to the Ontario Ranch Business Park Specific Plan. 1229
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42 EXHIBIT "D"

TO DEVELOPMENT AGREEMENT
Existing Land Use Regulations
These documents are listed for reference only:

1. General Plan Amendment (File No. PGPA20-002)

2. Ontario Ranch Business Park Specific Plan (File No. PSP18-002), Ordinance No. 3168

3. Ontario Ranch Business Park Environmental Impact Report (SCH#2019050018)

4. Ontario Ranch Business Park Specific Plan Amendment (File No. PSPA21- 002)

5. City of Ontario Municipal Code
a. Six – Sanitation & Health
b. Seven – Public Works
c. Eight – Building Regulations
d. Nine – Development Code
e. Ten – Parks & Recreation
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43 EXHIBIT “E”

TO THE DEVELOPMENT AGREEMENT

DESCRIPTION OF REQUIRED IMPROVEMENTS
OWNER shall design, construct, and complete the following Street, Sewer, Storm Drain, Potable Water, Recycled Water, and Fiber Optic improvements, prior to OWNER’s request for any final certificate of occupancy permit for any building within the Property.

1. OWNER shall design, construct, and complete the following Improvements, Potable Water (WT), Storm Drain (SD), Streets (ST), Sewer (SW), Recycled Water (RW), and Fiber Optics (FO), as described, prior to OWNER’s request for final occupancy of the first building:
a. WT on Sultana Avenue between Eucalyptus Avenue and Merrill Avenue.
b. WT on Campus Avenue between Eucalyptus Avenue and Merrill Avenue.
c. WT on Eucalyptus Avenue between Sultana Avenue and Grove Avenue (Local Water DIF Project WT-011).
d. WT on Eucalyptus Avenue between Grove Avenue and Carpenter Avenue (Regional Water DIF Project, portion of Phase 2A Water). e. WT on Merrill Avenue between Sultana Avenue and Carpenter Avenue (Local Water DIF Project WT-011).
f. SW (Western Trunk Sewer) on Euclid Avenue between Kimball Avenue and Merrill Avenue (Regional Sewer DIF Project SW-002). g. SW (Western Trunk Sewer) on Merrill Avenue between Euclid Avenue and Campus Avenue (Regional Sewer DIF Project SW-002).
h. SW on Sultana Avenue between Merrill Avenue and Eucalyptus Avenue.
i. SW on Campus Avenue between Merrill Avenue and Eucalyptus Avenue.
j. RW on Sultana Avenue between Eucalyptus Avenue and Merrill Avenue.
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44 k. RW on Merrill Avenue between Sultana Avenue and Campus Avenue (Local Water DIF Project WT-016).
l. RW on Campus Avenue between Merrill Avenue and Eucalyptus Avenue.
m. SD onsite detention shall be designed, constructed, and completed by ONWER prior to issuance of the first building permit. However, OWNER is eligible to request from CITY a grading permit prior to completion of the SD onsite detention.
n. SD on Sultana Avenue between Eucalyptus Avenue and Merrill Avenue.
o. SD on Merrill Avenue between Euclid Avenue and Sultana Avenue. p. SD on Merrill Avenue between Sultana Avenue and Campus Avenue. q. SD on Campus Avenue between Eucalyptus Avenue and Merrill Avenue.
r. SD bleeder line or alternative interim connection at the discretion of the City Engineer, on Euclid Avenue south of Merrill Avenue. This shall connect to the SD on Merrill Avenue between Euclid Avenue and Campus Avenue.
s. Two (2) Debris Separation Baffle Boxes at the intersections of Euclid Avenue and Merrill Avenue.
t. Full half ST improvements on the south half and circulation land improvements on the north half of Eucalyptus Avenue, from Sultana Avenue to Campus Avenue.
u. Full half ST improvements on both sides of Merrill Avenue, between Euclid Avenue and Carpenter Avenue.
v. Full half ST improvements on the west side and circulation lane improvements on the east side of Campus Avenue, between Eucalyptus Avenue and Merrill Avenue.
w. Full half ST improvements on the east side and circulation lane improvements on the west side of Sultana Avenue, between Eucalyptus Avenue and Merrill Avenue.
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45 x. Traffic Signals at Sultana Avenue and Eucalyptus Avenue, Sultana Avenue and Merrill Avenue, Campus Avenue and Eucalyptus Avenue, and Campus and Merrill Avenues.
y. Traffic Signal modifications at Euclid Avenue and Eucalyptus Avenue, and Euclid Avenue and Merrill Avenue.
z. FO on Eucalyptus Avenue between Sultana Avenue and Campus Avenue.
aa.FO on Merrill Avenue between Sultana Avenue and Campus Avenue. bb.FO on Sultana Avenue between Eucalyptus Avenue and Merrill Avenue.
cc. FO on Campus Avenue between Eucalyptus Avenue and Merrill Avenue.

2. CITY shall design, construct, and complete the Phase 2 Water (WT) Improvements and Interim Chino Avenue Loop. The Phase 2 Water Improvements will be constructed by the CITY in phases, with the initial improvements, designated as Phase 2A Water Improvements, Interim Chino Avenue Loop, and Phase 2B Water Improvements as described below. a. Phase 2A Water Improvements shall consist of the following:
i. WT on Grove Avenue between Eucalyptus Avenue and Chino Avenue (Regional Water DIF Project WT-010).
b. Interim Chino Avenue Loop shall consist of the following:
i. WT on Chino Avenue between Cucamonga Channel and
Grove Avenue, which will provide the second point of
connection from the 1010 Pressure Zone (Local Water DIF Project WT-009).
ii. Pressure Reducing Station at Grove Avenue and Chino Avenue, which will provide the second point of connection from 1010 Pressure Zone (Future Local Water DIF Project WT-009). 1233
46700.10300\33554440.1
46 OWNER shall pay one hundred percent (100%) of the costs to construct the Phase 2A Improvements and the Interim Chino Avenue Loop, within forty-five (45) days from the Effective Date of this Agreement, and such payment shall be the “Phase 2A Water Payment”. The costs in the foregoing sentence shall equal the actual bid amount of the awarded contracts for the work, plus fifteen percent (15%). Upon OWNER’s full and complete payment to CITY, the CITY shall issue a Certificate of DIF Credit in the Regional Water Category and/or the Local Adjacent Water Category, as appropriate. Each DIF Water Certificate shall be issued by CITY within thirty (30) days of the receipt of such required payment.

CITY shall not issue any building permits until receipt of the full Phase 2A Water Payment.
c. Phase 2B Water Improvements shall consist of the following:
i. WT on Francis Street between Grove Avenue and Bon View Avenue (Regional Water DIF Project WT-010).
ii. WT on Bon View Avenue between Francis Street and the Bon View Reservoir Site (Regional Water DIF Project WT-010). iii. WT – Nine (9) Million Gallon reservoir at Bon View Reservoir Site (Regional Water DIF Project WT-014).
iv. WT – Two (2) Groundwater Production Wells in vicinity of Bon View Reservoir Site (Regional Water DIF Project WT-007). v. WT on Grove Avenue between Chino Avenue and Francis
Street (Regional Water DIF Project WT-010). The final design and alignment north of Riverside Drive is subject to change at the reasonable discretion of the CITY.

The Phase 2B Water Improvements will be constructed by the CITY and funded by OWNER, pursuant to Section 4.5 of this Agreement.

CITY and OWNER mutually agree and understand, that with completion of Phase 2A and the Interim Chino Avenue Loop, the project will be utilizing interim water supply and storage capacity from the 1010’ Pressure Zone and OWNER will be required to participate in the funding of future Phase 2 Water Improvements to support the permanent water supply and storage needs of future development within Ontario Ranch.
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46700.10300\33554440.1
47 EXHIBIT "F"

TO DEVELOPMENT AGREEMENT
Required Infrastructure Improvements
(SEE ATTACHED EXHIBITS)
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48 1236
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49 1237
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50 1238
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51 1239
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52 1240
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53 1241
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54 1242
46700.10300\33554440.1
55 Exhibit "G"

TO DEVELOPMENT AGREEMENT

FORM OF CERTIFICATE OF REGIONAL DIF CREDIT
Pursuant to Section 4.5.3 of this Agreement by and between the City of Ontario and ____________________, dated _______________, 20 , the terms and definitions of which are hereby incorporated herein by this reference and hereinafter called the "Development Agreement', the City of Ontario hereby certifies that OWNER is entitled to the following amount and nature of DIF Credits in the Regional Water DIF Infrastructure Category:

Amount of Credit: $
Scott Ochoa, City Manager
Dated:
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Department: Development Administration
Prepared By: Derrick E Womble
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 26
SUBJECT: AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT (FILE NO. PDA22- 005) BETWEEN THE CITY OF ONTARIO AND RB ONTARIO LLC

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council consider and adopt an Ordinance approving a Development Agreement (File No. PDA22-005) between the City of Ontario and RB Ontario LLC, to establish the terms and conditions associated with Tentative Tract Map 20536 (File No. PMTT22- 021), a 23.2-acre property located approximately 875 feet south of the intersection of Riverside Drive and Archibald Avenue, within Planning Area 1 (Neighborhood 2) land use district of the Countryside Specific Plan.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT: The proposed Development Agreement (File No. PDA22-005) will not have a direct impact on the City's General Fund. The Development Agreement will provide funding from the formation of a Community Facilities District (CFD) for City services and facilities required to support the Countryside Specific Plan development, thereby mitigating the increased costs associated with such services. In addition, the City will receive public service funding fees plus development impact, compliance processing, licensing, and permitting fees. No General Fund revenue will be used to support the Ontario Ranch development.

BACKGROUND & ANALYSIS: On June 20, 2023, the City Council held a public hearing to introduce and waive further reading of an Ordinance Approving the Development Agreement (File No. PDA22- 005).
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The Ontario Ranch financial commitments required for construction of properties within a specific plan are substantial. Therefore, in order to adequately forecast these costs and gain assurance that the project may proceed under the existing policies, rules, and regulations, RB Ontario LLC (Applicant), has requested that the City enter into negotiations to create a Development Agreement (Agreement).

The Agreement proposes to include 23.2 acres of land within the Planning Area 1 (Neighborhood 2) land use district of the Specific Plan, as shown on the attached Exhibit A. The Agreement grants the Applicant a vested right to develop Tentative Tract Map 20536 (the Map), provided the Applicant complies with the terms and conditions of the Specific Plan and related EIR.

The Map (see attached Exhibit B) is located 875 feet south of the intersection of Riverside Drive and Archibald Avenue and proposes to subdivide 23.2 acres of land for condominium purposes, into 141 numbered lots and 27 lettered lots, to facilitate the development of 265 dwelling units, park land, private recreation area, private drives, and private alleys.

The term of the Agreement is for 10 years, with a 5-year option to extend. The main points of the Agreement address funding for all new City expenses created by the project, which includes:

It is important to note the Applicant is currently in negotiations with the current Owners to purchase the property. The Agreement shall be executed and recorded upon the acquisition of the property by the Applicant. In the event the Applicant is unable to acquire the property, the Agreement and Ordinance shall become null and void and of no further force and effect.

In considering the Agreement at their meeting on May 23, 2023, the Planning Commission found the Agreement to be consistent with State law, The Ontario Plan, and the City's Development Agreement policies. As a result, the Planning Commission adopted Resolution No. PC23-041 with a 4 to 0 vote, recommending City Council approval of the Agreement.

ENVIRONMENTAL REVIEW: An Addendum to the Countryside Specific Plan Environmental Impact Report (State Clearinghouse No. 2004071001), which was certified by the City Council on April 18, 2006, was prepared to be consistent with The Ontario Plan 2050 and associated Supplemental Environmental Impact Report (SEIR) (State Clearinghouse No. 2021070364), which was certified by the City Council on August 16, 2022. This application introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of Project approval and are incorporated herein by this reference.
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Exhibit A— COUNTRYSIDE SPECIFIC PLAN LAND USE MAP AMENDMENT (File No. PSPA22-002)
1246
Exhibit B— TENTATIVE TRACT MAP 20536
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ORDINANCE NO. _______

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PDA22-005, A DEVELOPMENT

AGREEMENT BETWEEN THE CITY OF ONTARIO AND RB ONTARIO

LLC, TO ESTABLISH THE TERMS AND CONDITIONS ASSOCIATED
WITH TENTATIVE TRACT MAP NO. 20536 (FILE NO. PMTT22-021), A

23.2 ACRE PROPERTY LOCATED APPROXIMATELY 875 FEET SOUTH

OF THE INTERSECTION OF RIVERSIDE DRIVE AND ARCHIBALD
AVENUE, WITHIN PLANNING AREA 1 (NEIGHBORHOOD 2) LAND USE DISTRICT OF THE COUNTRYSIDE SPECIFIC PLAN (FILE NO.

PSP04-001); AND MAKING FINDINGS IN SUPPORT THEREOF -
APNS: 0218-111-60 AND 0218-111-61.

WHEREAS, RB Ontario LLC ("Applicant") has filed an Application for the approval of a Development Agreement, File No. PDA22-005, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and WHEREAS, the Application applies to 23.2 acres of land located approximately 875 south of the intersection of Riverside Drive and Archibald Avenue, within Planning Area 1 (Neighborhood 2) land use district of the Countryside Specific Plan; and WHEREAS, the Applicant has submitted a Tentative Tract Map 20536 (File No.

PMTT22-021) to subdivide 23.2 acres of land into 141 numbered lots and 27 lettered lots, to facilitate the potential development of 265 dwelling units, parkland, private recreation area, private drives, and private alleys; and
WHEREAS, an Addendum to the Countryside Specific Plan Environmental Impact Report (State Clearinghouse No. 2004071001), which was certified by the City Council on April 18, 2006, was prepared to be consistent with The Ontario Plan 2050 and associated Supplemental Environmental Impact Report (SEIR) (State Clearinghouse No. 2021070364), which was certified by the City Council on August 16, 2022. This application introduces no new significant environmental; and WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the Planning Commission the responsibility and authority to review and make recommendations to the City Council on the subject Application; and WHEREAS, the Project has been reviewed for consistency with the Housing Element of the Policy Plan component of The Ontario Plan, as State Housing Element law (as prescribed in Government Code Sections 65580 through 65589.8) requires that development projects must be consistent with the Housing Element, if upon consideration of all its aspects, it is found to further the purposes, principals, goals, and policies of the Housing Element; and
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WHEREAS, the Project is located within the Airport Influence Area of Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and is subject to, and must be consistent with, the policies and criteria set forth in the Ontario International Airport Land Use Compatibility Plan (hereinafter referred to as "ALUCP"), which applies only to jurisdictions within San Bernardino County, and addresses the noise, safety, airspace protection, and overflight impacts of current and future airport activity; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on May 23, 2023, the Planning Commission of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date, voting to issue Resolution No. PC23-041 recommending the City Council approve the Application; and
WHEREAS, on June 20, 2023, the City Council of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date; and WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND ORDAINED by the City Council of the City of Ontario, as follows:

SECTION 1. Environmental Determination and Findings. As the decisionmaking body for the Project, the City Council has reviewed and considered the information contained in the administrative record for the Project. Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the City Council, the City Council finds as follows:
(1) The environmental impacts of the Project were reviewed in conjunction with an Addendum to Countryside Specific Plan Environmental Impact Report (State Clearinghouse No. 200407100; certified by the Ontario City Council on April 16, 2006 in conjunction with File No. PSP04-001), was prepared to be consistent with The Ontario Plan 2050 and associated Supplemental Environmental Impact Report (SEIR) (State Clearinghouse No. 2021070364), which was certified by the City Council on August 16, 2022; and
(2) The EIR Addendum and administrative record have been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and
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(3) The City's "Guidelines for the Implementation of the California Environmental Quality Act (CEQA)" provide for the use of a single environmental assessment in situations where the impacts of subsequent projects are adequately analyzed. This Application introduces no new significant environmental impacts; and (4) All previously adopted mitigation measures shall be a condition of project approval, as they are applicable to the Project, and are incorporated herein by this reference; and
(5) The EIR Addendum contains a complete and accurate reporting of the environmental impacts associated with the Project, and reflects the independent judgment of the Planning Commission; and
(6) There is no substantial evidence in the administrative record supporting a fair argument that the project may result in significant environmental impacts SECTION 2. Subsequent or Supplemental Environmental Review Not Required. Based on the EIR Addendum, all related information presented to the City Council, and the specific findings set forth in Section 1, above, the City Council finds that the preparation of a subsequent or supplemental Certified EIR is not required for the Project, as the Project:
(1) Does not constitute substantial changes to the Certified EIR that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and
(2) Does not constitute substantial changes with respect to the circumstances under which the Certified EIR was prepared, that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and (3) Does not contain new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the Certified EIR was certified/adopted, that shows any of the following:
(a) The Project will have one or more significant effects not discussed in the Certified EIR; or
(b) Significant effects previously examined will be substantially more severe than shown in the Certified EIR; or
(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the City declined to adopt such measures; or (d) Mitigation measures or alternatives considerably different from those analyzed in the Certified EIR would substantially reduce one or more significant effects on the environment, but which the City declined to adopt. 1250
SECTION 3. Housing Element Compliance. Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as the decision-making body for the Project, the City Council finds that based upon the facts and information contained in the Application and supporting documentation, at the time of Project implementation, the project is consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan, as the project site is not one of the properties in the Housing Element Sites Inventory contained in Tables B-1 and B-2 of the Housing Element Technical Report.

SECTION 4. Airport Land Use Compatibility Plan ("ALUCP") Compliance.

The California State Aeronautics Act (Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan. (1) On April 19, 2011, the City Council of the City of Ontario approved and adopted the Ontario International Airport Land use Compatibility Plan, establishing the Airport Influence Area for Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. As the decision-making body for the Project, the City Council has reviewed and considered the facts and information contained in the Application and supporting documentation against the ONT ALUCP compatibility factors, including [1] Safety Criteria (ONT ALUCP Table 2-2) and Safety Zones (ONT ALUCP Map 2-2), [2] Noise Criteria (ONT ALUCP Table 2-3) and Noise Impact Zones (ONT ALUCP Map 2-3), [3] Airspace protection Zones (ONT ALUCP Map 2-4), and [4] Overflight Notification Zones (ONT ALUCP Map 2-5). As a result, the City Council, therefore, finds and determines that the Project, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the ONT ALUCP; and SECTION 5. Concluding Facts and Reasons. Based upon the substantial evidence presented to the City Council during the above-referenced hearing, and upon the specific findings set forth in Section 1 through 4, above, the City Council hereby concludes as follows:
(1) The Development Agreement applies to approximately 23.2 acres of land located approximately 875 feet south of the intersection of Riverside Drive and Archibald Avenue, within Planning Area 1 (Neighborhood 2) land use district of the Countryside Specific Plan (File No. PSP04-001); and
(2) The Development Agreement establishes parameters for the development of land within the Countryside Specific Plan. The Development Agreement also grants the Applicant, the right to develop, the ability to quantify the fees; and establish the terms and conditions that apply to those projects. These terms and conditions are consistent with The Ontario Plan Policy Plan (General Plan), design guidelines and development standards for the Countryside Specific Plan; and
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(3) The Development Agreement grants the Applicant a vested right to develop Tentative Parcel Map 20536 (File No. PMTT22-021) as long as the Applicant complies with the terms and conditions of the Countryside Specific Plan and EIR. Tentative Tract Map 20536 is located approximately 875 feet south of the intersection of Riverside Drive and Archibald Avenue, within Planning Area 1 (Neighborhood 2) land use district of the Countryside Specific Plan, and proposes to subdivide 23.2 acres of land into 141 numbered lots and 27 lettered lots, to facilitate the development of 265 dwelling units, parkland, private recreation area, private drives, and private alleys; and (4) The Development Agreement has been prepared in conformance with the goals and policies of The Ontario Plan Policy Plan (General Plan); and (5) The Development Agreement does not conflict with the Land Use Policies of The Ontario Plan Policy Plan (General Plan) and will provide for development, within the district, in a manner consistent with the Policy Plan and with related development; and
(6) This Development Agreement will promote the goals and objectives of the Land Use Element of the Policy Plan; and
(7) This Development Agreement will not be materially injurious or detrimental to the adjacent properties and will not have a significant impact on the environment or the surrounding properties. An Addendum to the Countryside Specific Plan Environmental Impact Report (State Clearinghouse No. 2004071001), which was certified by the City Council on April 18, 2006, was prepared to be consistent with The Ontario Plan 2050 and associated Supplemental Environmental Impact Report (SEIR) (State Clearinghouse No. 2021070364), which was certified by the City Council on August 16, 2022; and (8) This Application introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of project approval and are incorporated herein by this reference.

SECTION 6. City Council Action. Based upon the findings and conclusions set forth in Sections 1 through 5, above, the City Council hereby APPROVES the herein described Development Agreement (File No. PDA22-005), attached hereto as "Attachment A," and incorporated herein by this reference. City Council’s approval of the Development Agreement is contingent upon the approval of the following:
(a) Countryside Specific Plan Amendment (File No. PSPA22-002); (b) EIR Addendum to the Countryside Specific Plan (File No. PSP04-001); and
(c) Applicant’s acquisition of the Property.

If the City Council does not approve the Specific Plan Amendment (File No.

PSPA22-002), EIR Addendum to the Countryside Specific Plan (File No. PSP04-001), and/or the Applicant does not acquire the Property, this Ordinance shall become null and void and of no further force and effect.
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SECTION 7. City Manager Administrative Authority. The City Manager, with the approval of the City Attorney, shall be authorized to make any minor clarifying and conforming changes to the Development Agreement, including but not limited to modifying the owner’s name upon its acquisition of the Property.

SECTION 8. Indemnification. The Applicant shall agree to defend, indemnify and hold harmless, the City of Ontario or its agents, officers, and employees from any claim, action or proceeding against the City of Ontario or its agents, officers or employees to attack, set aside, void, or annul this approval. The City of Ontario shall promptly notify the applicant of any such claim, action, or proceeding, and the City of Ontario shall cooperate fully in the defense.

SECTION 9. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings have been based are located at the City of Ontario City Hall, 303 East "B" Street, Ontario, California 91764. The custodian for these records is the City Clerk of the City of Ontario.

SECTION 10. Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The People of the City of Ontario hereby declare that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

SECTION 11. Effective Date. This Ordinance shall become effective 30 days following its adoption.

SECTION 12. Publication and Posting. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within 15 days following the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this ____ day of _________ 2023. _____________________________________
PAUL S. LEON, MAYOR
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ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
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STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. 3255 was duly introduced at a regular meeting of the City Council of the City of Ontario held June 20, 2023 and adopted at the regular meeting held July 18, 2023 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
I hereby certify that the foregoing is the original of Ordinance No. 3255 duly passed and adopted by the Ontario City Council at their regular meeting held July 18, 2023 and that Summaries of the Ordinance were published on June 27, 2023 and July 25, 2023, in the Inland Valley Daily Bulletin newspaper.
__________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
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ATTACHMENT A:

FILE NO. PDA22-005

DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation
and
RB Ontario LLC
a Delaware limited liability company
(Development Agreement to follow this page)
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

CITY OF ONTARIO

CITY CLERK / RECORDS MANAGEMENT
303 EAST “B” STREET
ONTARIO, CA 91764-4196
Exempt from Fees Per Gov. Code § 6103
______________________________________________________________________ Space above this line for Recorder’s Use Only
FILE NO. PDA22-005

DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation
and
RB Ontario LLC
a Delaware limited liability company
_________________________, 2023
San Bernardino County, California
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DEVELOPMENT AGREEMENT NO. PDA22-005
This Development Agreement (hereinafter “Agreement”) is entered into effective as of the ____ day of ____________, 2023 by and among the City of Ontario, a California municipal corporation (hereinafter “CITY”), and RB Ontario LLC, a Delaware limited liability company (hereinafter “OWNER”):

RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864, et seq. of the Government Code; and WHEREAS, OWNER has requested CITY to enter into a development agreement and proceedings have been taken in accordance with the rules and regulations of CITY; and
WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and
WHEREAS, the terms and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and
WHEREAS, the best interests of the citizens of the CITY and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Project and the Agreement in that Countryside Specific Plan (State Clearinghouse No. 2006051081 (the “FEIR”). The City Council found and determined that the FEIR was prepared in accordance with the requirements of the California Environmental Quality Act and adequately describes the impacts of the project described in the FEIR, which included consideration of this Agreement; and WHEREAS, this Agreement and the Project are consistent with the CITY’s Comprehensive General Plan and the Countryside Specific Plan; and WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and WHEREAS, development of the Property in accordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary 1258
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improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under Sections 65864 et seq. of the Government Code are intended; and
WHEREAS, OWNER has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Property in accordance with this Agreement; and WHEREAS, the Property is located in an area of the City of Ontario that has been known as the “New Model Colony” area and the New Model Colony area has now been renamed as “Ontario Ranch.”; and
WHEREAS, the property developer/owners are made aware of the South Archibald Trichloroethylene (TCE) Plume Disclosure Letter (Exhibit “G”). Property owner may wish to provide the attached Letter as part of the Real Estate Transfer Disclosure requirements under California Civil Code Section 1102 et seq. This may include notifications in the Covenants, Conditions and Restrictions (CC&Rs) or other documents related to property transfer and disclosures. Additional information on the plume is available from the Santa Ana Regional Water Quality Control Board at http://geotracker.waterboards.ca.gov/profile_report.asp?global_id=T10000004658.

1. DEFINITIONS AND EXHIBITS.

1.1 Definitions. The following terms when used in this Agreement shall be defined as follows:

1.1.1 “Agreement” means this Development Agreement.

1.1.2 “CITY” means the City of Ontario, California, a California municipal corporation.

1.1.3 “Construction Agreement” means that certain Agreement for the Financing and Construction of Phases I and II Infrastructure Improvements to Serve an Easterly Portion of the New Model Colony, entered into between the CITY and NMC Builders as of the 4th day of October, 2005, and all amendments thereto and “Construction Agreement Amendment” means that First Amended and Restated Agreement for the Financing and Construction of Limited Infrastructure Improvements to Serve and Easterly Portion of the New Model Colony entered into between the CITY and NMC Builders as of the 21st day of August 2012.
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1.1.4 “Development” means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of public infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping. “Development” does not include the maintenance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.

1.1.5 “Development Approvals” means all permits and other entitlements for use subject to approval or issuance by CITY in connection with development of the Property including, but not limited to:
(a) specific plans and specific plan amendments;
(b) tentative and final subdivision and parcel maps;
(c) development plan review;
(d) conditional use permits (including model home use permits), public use permits and plot plans;
(e) zoning;
(f) grading and building permits.

1.1.6 “Development Exaction” means any requirement of CITY in connection with or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests.

1.1.7 “Development Impact Fee” means a monetary exaction, other than a tax or special assessment, whether characterized as a fee or a tax and whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, and, for purposes of this Agreement only, includes fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4, For purposes of this Agreement only, "Development Impact Fee" shall not include processing fees and charges imposed by CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued, including, without limitation, fees for zoning variances; zoning changes; use permits; building inspections; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000, 1260
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Division 3 (commencing with Section 56000) of Title 5 of the Government Code; the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Government Code, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public Utilities Code, as such codes may be amended or superceded, including by amendment or replacement.

1.1.8 “Development Plan” means the Existing Development Approvals and the Existing Land Use Regulations applicable to development of the Property.

1.1.9 “Effective Date” means the date that the ordinance approving this Agreement goes into effect.

1.1.10 “Existing Development Approvals” means all Development Approvals approved or issued prior to the Effective Date. Existing Development Approvals includes the Approvals incorporated herein as Exhibit “C” and all other Approvals which are a matter of public record on the Effective Date.

1.1.11 “Existing Land Use Regulations” means all Land Use Regulations in effect on the Effective Date. Existing Land Use Regulations includes the Regulations incorporated herein as Exhibit “D” and all other Land Use Regulations that are in effect and a matter of public record on the Effective Date.

1.1.12 “General Plan” means the General Plan adopted on August 16, 2022.

1.1.13 “Improvement” or “Improvements” means those public improvements required to support the development of the Project as described in the Tract Map conditions for Tract No. 20536 as further described in Exhibit “E” and depicted in Exhibit “F” (the “Infrastructure Improvements Exhibit”).

1.1.14 “Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. “Land Use Regulations” does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
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(d) the granting of encroachment permits and the conveyance of similar rights and interests that provide for the use of or the entry upon public property; (e) the exercise of the power of eminent domain.

1.1.15 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns.

1.1.16 “Net MDD” means net maximum daily water demand.

1.1.17 “NMC Builders” means the consortium of investors and developers responsible for the construction of infrastructure within the New Model Colony incorporated as NMC Builders, LLC.

1.1.18 “Model Units” means a maximum of ten (10) model units, private common recreation facilities and sales facilities constructed by OWNER prior to the construction of any Production units and not offered for sale and occupancy for a period of time after the issuance of permits for Production Units.

1.1.19 “OWNER” means the persons and entities listed as owner on page 1 of this Agreement and their permitted successors in interest to all or any part of the Property.

1.1.20 “Phase 2 Water EDUs” means the number of equivalent dwelling units or non-residential square footage assigned to OWERN upon payment to CITY of the Phase 2 Water Participation Fee for the Project and evidenced by the issuance by CITY of a Certificate of Phase 2 Net MDD Availability in the form attached as Exhibit “G”. 1.1.21 “Phase 2 Water Improvements” means the future water infrastructure Improvements required for the issuance by CITY of the “Water Availability Equivalents” (WAE) for the Project.

1.1.21 “Phase 2 Water Participation Fee” means the fee paid to City upon City approval of the first Development Entitlement for the Project, to fund the Property’s respective share of the projected costs of the design and construction of the Phase 2 Water Improvements by City. The Phase 2 Water Participation Fee shall be the calculated amount of the Regional Water DIF for the Project based upon the number of units, and land use category for residential units or the number of square feet, and land use category for non-residential square footage of the Project.

1.1.22 “Production Unit(s)” means all units constructed for sale and occupancy by OWNER and excludes the specified number of Model Units constructed by OWNER for promotion of sales.

1.1. 23 “Project” means the development of the Property contemplated by the Development Plan, as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement.

1.1.24 “Property” means the real property described on Exhibit “A” and shown on Exhibit “B” to this Agreement.
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1.1.25 “Reservations of Authority” means the rights and authority excepted from the assurances and rights provided to OWNER under this Agreement and reserved to CITY under Section 3.6 of this Agreement.

1.1.26 “Specific Plan” means that certain specific plan adopted by the City Council, and entitled, “Countryside Specific Plan.”

1.1.27 "Storm Water Treatment Capacity Availability” means a designated portion of the total Storm Water Treatment Capacity Availability made available through the completion of construction of a Phase of regional storm water treatment facilities by the NMC Builders LLC as described in the Construction Agreement Amendment. The amount, in acres, of Storm Water Treatment Capacity Availability required for the issuance of a grading permit shall be based upon the factors and assumptions listed in the Construction Agreement Amendment.

1.1.28 “Subsequent Development Approvals” means all Development Approvals required subsequent to the Effective Date in connection with development of the Property.

1.1.29 “Subsequent Land Use Regulations” means any Land Use Regulations adopted and effective after the Effective Date of this Agreement.

1.1.30 “Water Availability Equivalent (WAE)” means a designated portion of the total Net MDD made available through the construction of each Phase described in the Water Phasing Plan of the Construction Agreement. The number of Water Availability Equivalents (of portions thereof) required for the issuance of each building permit shall be based upon water demand factors and assumptions listed in the Construction Agreement and Construction Agreement Amendment as “Water Availability Equivalents by Land Use” for each land use category.

1.1.31 “Amendment to the Construction Agreement” means the amendment to the Construction Agreement modifying the boundaries of the property in Exhibit A of such Construction Agreement to include the Property covered by this Agreement and to provide for the additional funds required for CITY’s future construction of the “Phase 2 Water Improvements” described in a modification to Exhibit C-3 of the Construction Agreement.

1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:

Exhibit “A” — Legal Description of the Property.

Exhibit “B” — Map showing Property and its location.

Exhibit “C” — Existing Development Approvals.

Exhibit “D” — Existing Land Use Regulations.

Exhibit “E” — Description of Required Infrastructure Improvements 1263
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Exhibit “F” — Depiction of Required Infrastructure Improvements Exhibit Exhibit “G” - Form of Certificate of Net MDD to be issued by CITY Exhibit “H” – Form of Certificate of DIF Credit to be issued by CITY Exhibit “I-1” – Ontario Ranch Water Supply Phasing Plan Exhibit “I-2” - Water Demand Equivalents by Land Use
Exhibit “J” - Form of Plume Disclosure Letter

2. GENERAL PROVISIONS.

2.2 Ownership of Property. OWNER represents and covenants that it is the owner of the fee simple title to the Property or a portion thereof, or has the right to acquire fee simple title to the Property or a portion thereof from the current owner(s) thereof. To the extent OWNER does not own fee simple title to the Property, OWNER shall obtain written consent from the current fee owner of the Property agreeing to the terms of this Agreement and the recordation thereof.

2.3 Term. The term of this Agreement shall commence on the Effective Date and shall continue for an initial term of ten (10) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement. The term of this Agreement may be extended for an additional five (5) years following expiration of the initial ten (10) year term, provided the following have occurred:
(a) OWNER provides at least 180 days written notice to CITY prior to expiration of the initial term; and
(b) In non-mixed use and residential use only projects, the OWNER shall have obtained, as applicable, building permits for at least seventy percent (70%) of the actual number of residential units permitted under this Agreement; and (c) OWNER is not then in uncured default of this Agreement.

2.4 Assignment.

2.4.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410, et seq.), to any person, partnership, limited liability company, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment 1264
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shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following:
(a) No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property. OWNER may be required to provide disclosure that the Property is within the South Archibald Trichloroethylene (TCE) Plume. OWNER may wish to provide the attached Disclosure Letter (Exhibit G) as part of the Real Estate Transfer Disclosure requirements under California Civil Code Section 1102 et seq. (b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, OWNER shall notify CITY’s City Manager, in writing, of such sale, transfer or assignment and shall provide CITY with: (1) an executed agreement, in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Agreement with respect to the portion of the Property so sold, transferred or assigned; and (2) the payment of the applicable processing charge to cover the CITY’s review and consideration of such sale, transfer or assignment.
(c) Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by OWNER under this Agreement.

2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement unless such transferring owner is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring owner of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the portion of the Property sold, transferred or assigned.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder.
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2.4.3 Effect of Assignment and Release of Obligations. In the event of a sale, transfer or assignment pursuant to the provisions of Section 2.4.2 above:
(a) The assignee shall be liable for the performance of all obligations of OWNER with respect to transferred property, but shall have no obligations with respect to the portions of the Property, if any, not transferred (the “Retained Property”). (b) The owner of the Retained Property shall be liable for the performance of all obligations of OWNER with respect to Retained Property, but shall have no further obligations with respect to the transferred property.
(c) The assignee’s exercise, use and enjoyment of the Property or portion thereof shall be subject to the terms of this Agreement to the same extent as if the assignee were the OWNER.

2.4.4 Subsequent Assignment. Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section 2.4.

2.4.5 Termination of Agreement with Respect to Individual Lots Upon Sale to Public and Completion of Construction. The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one year) of any lot which has been finally subdivided and is individually (and not in “bulk” meaning more than one) sold or leased to a member of the public or other ultimate user. Notwithstanding any other provisions of this Agreement, this Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
(a) The lot has been finally subdivided and individually (and not in “bulk”) sold or leased (for a period longer than one year) to a member of the public or other ultimate user; and,
(b) A certificate of occupancy has been issued for a building on the lot, and the fees set forth under Section 4 of this Agreement have been paid.

2.5 Amendment or Cancellation of Agreement. This Agreement may be amended or cancelled in whole or in part only in the manner provided for in Government Code Section 65868.1. Any amendment of this Agreement, which amendment has been requested by OWNER, shall be considered by the CITY only upon the payment of the applicable processing charge. This provision shall not limit any remedy of CITY or OWNER as provided by this Agreement. Either Party or successor in interest, may propose an amendment to or cancellation, in whole or in part, of this Agreement. Any amendment or cancellation shall be by mutual consent of the parties or their successors in interest except as provided otherwise in this Agreement or in Government Code Section 65865.1. For purposes of this section, the term “successor in interest” shall mean any person having a legal or equitable interest in the whole of the Property, or any portion 1266
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thereof as to which such person wishes to amend or cancel this Agreement. The procedure for proposing and adopting an amendment to, or cancellation of, in whole or in part, this Agreement shall be the same as the procedure for adopting and entering into this Agreement in the first instance. Notwithstanding the foregoing sentence, if the CITY initiates the proposed amendment to, or cancellation of, in whole or in part, this Agreement, CITY shall first give notice to the OWNER of its intention to initiate such proceedings at least sixty (60) days in advance of the giving the public notice of intention to consider the amendment or cancellation.

2.5.1 Amendment to Reflect Consistency With Future Amendments to the Construction Agreement. To the extent any future amendment to the Construction Agreement provides for modifications to rights or obligations that differ from or alter the same or similar rights or obligations contained in this Development Agreement, OWNER reserves the right to request an amendment to the Development Agreement to reflect any or all of such modifications.

2.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
(a) Expiration of the stated term of this Agreement as set forth in Section

2.3. (b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement.
(d) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications.

Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Agreement. Upon such termination, any public facilities and services mitigation fees paid pursuant to Section 4.2 of this Agreement by OWNER to CITY for residential units on which construction has not yet begun shall be refunded to OWNER by CITY.

2.7 Notices.
(a) As used in this Agreement, “notice” includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. 1267
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(b) All notices shall be in writing and shall be considered given either: (i) when delivered in person, including, without limitation, by courier, to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below. All notices shall be addressed as follows:

If to CITY:

Scott Ochoa, City Manager
City of Ontario
303 East "B" Street
Ontario, CA 91764
If to OWNER:

RB Ontario LLC
Attn: Jeff Ragland
11766 Wilshire Blvd., Suite 820
Los Angeles, CA 90025
with a copy to:

Ruben Duran, City Attorney
Best Best & Krieger, LLP
2855 E Guasti Road
Ontario, CA 91761
with a copy to:

Cox Castle
Attn: Kenneth Bley
2029 Century Park East, Suite 2100
Los Angeles, CA 90067
[email protected]
(c) Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.

3. DEVELOPMENT OF THE PROPERTY.

3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservations of Authority, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the Development Plan. The Project shall remain subject to all Subsequent Development Approvals required to complete the Project as contemplated by the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Development Plan.

3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservations of Authority, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, CITY shall exercise discretion in accordance with the same manner as it exercises its discretion under its police powers, including the Reservations of Authority set forth herein; provided however, that such 1268
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discretion shall not prevent development of the Property for the uses and to the density or intensity of development set forth in this Agreement.

City of Camarillo (1984) 37 Ca1. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that OWNER shall have the right to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment.

3.3.1 Infrastructure Improvement Exhibit. Attached hereto as Exhibits “E” and “F” are a description and depiction, respectively, of the improvements needed for the development of the Property. In the event of any discrepancy between Exhibit E and Exhibit F, Exhibit F shall control.

3.4 Requirement for Public Infrastructure Improvements. Development of the Property is contingent in part on the phasing of area-wide infrastructure improvements over which the OWNER has control. The issuance of building permits by CITY for Model Units and Production Units is, in general, contingent on OWNER’s completion of needed infrastructure improvements and the availability of improvements and services to serve the Property.

3.4.1 Attached hereto as Exhibit “E” and Exhibit “F” are the description and depiction of the infrastructure improvements needed for the development of the Property (“the Infrastructure Improvement Exhibit”).

3.4.2 Subject to the prior submittal by OWNER and approval by CITY of a plan to provide sufficient public infrastructure for the construction of a maximum number of ten (10) Model Units, private common recreation facilities and sales facilities.

CITY may issue a maximum of ten (10) building permits for Model Units, private common recreation facilities and sales facilities. The plan to be submitted by OWNER for CITY approval shall describe the utilities and other infrastructure necessary to provide sufficient fire protection and other public health and safety requirements for the Model Units and other facilities.

3.5 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event OWNER finds that a change in the Existing Development Approvals is necessary or appropriate, OWNER shall apply for a Subsequent Development Approval to effectuate such change and CITY shall process and act on such application in accordance with the Existing Land Use Regulations, except 1269
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as otherwise provided by this Agreement including the Reservations of Authority. If approved, any such change in the Existing Development Approvals shall be incorporated herein as an addendum to Exhibit “C”, and may be further changed from time to time as provided in this Section. Unless otherwise required by law, as determined in CITY’s reasonable discretion, a change to the Existing Development Approvals shall be deemed “minor” and not require an amendment to this Agreement provided such change does not:
(a) Alter the permitted uses of the Property as a whole; or, (b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings; or, (d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or,
(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.

3.6 Reservations of Authority.

3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the CITY shall not be prevented from applying new rules, regulations and policies upon the OWNER, nor shall a development agreement prevent the CITY from denying or conditionally approving any subsequent development project application on the basis of such new rules, regulations and policies where the new rules, regulations and policies consist of the following:
(a) Processing fees by CITY to cover costs of processing applications for development approvals or for monitoring compliance with any development approvals;
(b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records and any other matter of procedure;
(c) Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including all uniform codes adopted by the CITY and any local amendments to those codes adopted by the CITY; provided however that, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the standards and specifications that are expressly identified in the Specific Plan;
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(d) Regulations that may conflict with this Agreement and the Development Plan but that are reasonably necessary to protect the residents of the project and/or of the immediate community from a condition perilous to their health or safety;
(e) Regulations that do not conflict with those rules, regulations and policies set forth in this Agreement or the Development Plan; (f) Regulations that may conflict but to which the OWNER consents.

3.6.2 Subsequent Development Approvals. This Agreement shall not prevent CITY, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations that do not conflict with the Development Plan, nor shall this Agreement prevent CITY from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan.

3.6.3 Modification or Suspension by State or Federal Law. In the event that State or Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce.

In the event OWNER alleges that such State or Federal laws or regulations preclude or prevent compliance with one or more provisions of this Agreement, and the CITY does not agree, the OWNER may, at its sole cost and expense, seek declaratory relief (or other similar non-monetary remedies); provided however, that nothing contained in this Section 3.6.3 shall impose on CITY any monetary liability for contesting such declaratory relief (or other similar non-monetary relief) and OWNER shall comply with Section 9 of this Agreement and cover any reasonable CITY costs and expenses involved with the declaratory relief.

3.6.4 Intent. The parties acknowledge and agree that CITY is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to CITY all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority which cannot be restricted by contract.

3.7 Public Works; Utilities. If OWNER is required by this Agreement to construct any public works facilities which will be dedicated to CITY or any other public agency upon completion, and if required by applicable laws to do so, OWNER shall perform such work in the same manner and subject to the same requirements as would 1271
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be applicable to CITY or such other public agency should it have undertaken such construction. As a condition of development approval, OWNER shall connect the Project to all utilities necessary to provide adequate water, recycled water, sewer, gas, electric, and other utility service to the Project. As a further condition of development approval, OWNER shall contract with the CITY for CITY-owned or operated utilities for this purpose, for such price and on such terms as may be available to similarly situated customers in the CITY.

3.7.1 OWNER agrees that development of the Project shall require the construction of storm drain improvements as described in Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the storm drain improvements, as described in Exhibit E and depicted in Exhibit F.

3.7.2 OWNER agrees that development of the Project shall require the construction of street improvements as described in Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the street improvements, as described in Exhibit E and depicted in Exhibit F.

3.7.3 OWNER agrees that development of the Property shall require the construction of water and recycled water improvements as described in Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the water and recycled water improvements as described in Exhibit E and depicted in Exhibit F. OWNER also agrees that recycled water shall be available and utilized by OWNER for all construction-related water uses including prior to, and during, any grading of the Property.

3.7.4 OWNER agrees that development of the Property shall require the construction of sewer improvements, as described in the attached Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the sewer improvements, as described in Exhibit E and depicted in Exhibit F.

3.7.5 OWNER agrees that development of the Property shall require the extension of fiber optic communications improvements as described in the attached Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the fiber optic communication improvements, as described in Exhibit E and depicted in Exhibit F.

3.8 Acquisition of Offsite Provision of Real Property Interests. In any instance where OWNER is required by any Development Approval or Land Use Regulation and the Construction Agreement to construct any public improvement on land not owned by OWNER (“Offsite Improvements”), the CITY and OWNER shall cooperate in acquiring the necessary legal interest (“Offsite Property”) in accordance with the procedures set 1272
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forth in Section 2.4 of the Construction Agreement. This section 3.8 is not intended by the parties to impose upon the OWNER an enforceable duty to acquire land or construct any public improvements on land not owned by OWNER, except to the extent that the OWNER elects to proceed with the development of the Project, and then only in accordance with valid conditions imposed by the CITY upon the development of the Project under the Subdivision Map Act or other legal authority.

3.8.1 CITY Acquisition of Non-Construction Agreement Offsite Property. In the event OWNER is required to construct any public improvements on land not owned by OWNER, but such requirement is not based upon the Construction Agreement, Sections 3.8.1 and 3.8.2 shall control the acquisition of the necessary property interest(s) (“Non-Construction Agreement Offsite Property”). If the OWNER is unable to acquire such Non-Construction Agreement Offsite Property, and following the written request from the OWNER to CITY, CITY agrees to use reasonable and diligent good faith efforts to acquire the Non-Construction Agreement Offsite Property from the owner or owners of record by negotiation to the extent permitted by law and consistent with this Agreement. If CITY is unable to acquire the Non-Construction Agreement Offsite Property by negotiation within thirty (30) days after OWNER’S written request, CITY shall, initiate proceedings utilizing its power of eminent domain to acquire that Non-Construction Agreement Subject Property at a public hearing noticed and conducted in accordance with California Code of Civil Procedure Section 1245.235 for the purpose of considering the adoption of a resolution of necessity concerning the Non-Construction Agreement Offsite Property, subject to the conditions set forth in this Section 3.8.

The CITY and OWNER acknowledge that the timelines set forth in this Section

3.8.1 represent the maximum time periods which CITY and OWNER reasonably believe will be necessary to complete the acquisition of any Non-Construction Agreement Offsite Property. CITY agrees to use reasonable good faith efforts to complete the actions described within lesser time periods, to the extent that it is reasonably able to do so, consistent with the legal constraints imposed upon CITY.

3.8.2 Owner’s Option to Terminate Proceedings. CITY shall provide written notice to OWNER no later than fifteen (15) days prior to making an offer to the owner of the Non-Construction Agreement Offsite Property. At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease all acquisition proceedings with respect to that Non-Construction Agreement Offsite Property, whereupon CITY shall cease such proceedings. CITY shall provide written notice to OWNER no later than fifteen (15) days prior to the date of the hearing on CITY’S intent to consider the adoption of a resolution of necessity as to any Non-Construction Agreement Offsite Property. At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease condemnation proceedings, whereupon CITY shall cease such proceedings. If OWNER does not notify CITY to cease condemnation proceedings within said fifteen (15) day period, then the CITY may proceed to consider and act upon the Non-Construction Agreement Offsite Property resolution of necessity. If CITY adopts such resolution of necessity, then CITY shall diligently 1273
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institute condemnation proceedings and file a complaint in condemnation and seek an order of immediate possession with respect to the Non-Construction Agreement Offsite Property.

3.9 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies. CITY agrees to cooperate fully, at no cost to CITY, with OWNER in obtaining any required permits or compliance with the regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations or policies of the CITY.

3.10 Tentative Tract Maps; Extension. With respect to applications by OWNER for tentative subdivision maps for portions of the Property, CITY agrees that OWNER may file and process tentative maps in accordance with Chapter 4.5 (commencing with Section 66498.1) of Division 2 of Title 7 of the California Government Code and the applicable provisions of CITY’s subdivision ordinance, as the same may be amended from time to time. In accordance with the provisions of Section 66452.6 of the Government Code, each tentative subdivision map or tentative parcel map, heretofore or hereafter approved in connection with development of the Property, shall be deemed to have been granted an extension of time to and until the date that is five (5) years following the Effective Date of this Agreement.; The CITY’s City Council may, in its discretion, extend any such map for an additional period of up to five (5) years beyond its original term, so long as the subdivider files a written request for an extension with the City prior to the expiration of the initial five (5) year term.

4. PUBLIC BENEFITS.

4.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public needs that will not be fully met by the Development Plan and further acknowledge and agree that this Agreement confers substantial private benefits on OWNER that should be balanced by commensurate public benefits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on OWNER by providing more fully for the satisfaction of the public needs resulting from the Project.

4.2 Development Impact Fees.

4.2.1 Amount of Development Impact Fee. Development Impact Fees (DIF) shall be paid by OWNER. The Development Impact Fee amounts to be paid by OWNER shall be the amounts that are in effect at the time such amounts are due. Nothing contained in this Agreement shall affect the ability of the CITY to impose new Development Impact Fees or amend the amounts of existing Development Impact Fees. Additionally, nothing contained in this Agreement shall affect the ability of other public agencies that are not controlled by CITY to impose and amend, from time to time, Development Impact Fees established or imposed by such other 1274
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public agencies, even though such Development Impact Fees may be collected by CITY.

4.2.2 Time of Payment. The Development Impact Fees required pursuant to Subsection 4.2.1 shall be paid to CITY prior to the issuance of building permit for each applicable residential or other unit, except for the Open Space and Habitat Acquisition Development Impact fee, which shall be paid by OWNER to CITY prior to the issuance of a grading permit. Deferral of the payment of Development Impact Fees may be granted pursuant to a separate agreement approved by City pursuant to City policy.

4.2.3 Parkland and Quimby Act Fees. Pursuant to the General Plan (Ontario Plan) Goal PR1, Policy PR1-5 (achievement of a park standard of 5 acres of parkland per 1,000 residents) OWNER shall provide improved parks, developed in accordance with the City’s park standards in an amount equal to two (2) acres per 1,000 of projected population without credit, reimbursement, offset or consideration from City. Such areas shall either be dedicated to the City or transferred to a homeowners’ association. If approved by the City Manager, OWNER may satisfy this requirement through the development of non-public recreation facilities such as private recreational clubhouses or pool facilities.

Credit for such private recreational facilities areas shall be limited to a maximum of 50% of the foregoing park development requirement. If OWNER’s Project does not provide dedicated and developed park acreage equal to two (2) acres per 1,000 projected population, OWNER shall pay a fee in-lieu equal to the per acre estimated costs of acquisition and development of parkland in the City’s Development Impact Fee for the calculated park acreage deficiency, at the time the fee becomes due and payable to the City. Such in-lieu fee shall be due and payable prior to the issuance of the first building permit for Production Units issued to OWNER. Any park dedication and/or improvements in excess of such two (2) acres per thousand standard, provided such park has been developed in accordance with the City’s park standards and is open to the public generally, shall entitle OWNER to a credit toward its obligations under the Quimby Act (Gov. Code, § 64477) and the City’s implementing ordinance and/or resolution (collectively “Quimby Act Obligations”), and to the extent OWNER’s Quimby Act Obligations are satisfied, OWNER shall be entitled to have the City acquire such developed and publicly available parks as Non-Program Interests in accordance with Section

4.3.3 below.

4.3 Responsibility for Construction of Public Improvements.

4.3.1 Timely Construction of Public Infrastructure. The phasing of the areawide infrastructure construction within the New Model Colony will be as approved by the CITY. OWNER shall be responsible for the timely construction and completion of all public infrastructure required for the Project as shown on the attached Exhibit “F” and any and all tentative tract map conditions. Unless otherwise specified in the Subdivision Agreement/Tract Map conditions, all other required Improvements for each Tract Map, shall be completed and operational 1275
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prior to, and as a condition precedent to, OWNER requesting and CITY’s granting of the first building permit for Production Units for each such Tract Map. All Infrastructure and Improvements shall be completed as required by the Subdivision Agreement/Tract Map conditions for Tract Map No. 20536.

4.3.2 Construction of DIF Program Infrastructure (Construction Agreement). To the extent OWNER is required to construct and completes construction of public improvements that are included in CITY’s Development Impact Fee Program and the Construction Agreement between CITY and NMC Builders LLC, CITY agrees that CITY shall issue DIF Credit in accordance with the provisions of the Construction Agreement and any amendments thereto. Use of DIF Credit issued to OWNER as a member of NMC Builders LLC to offset OWNER’s DIF payment obligations shall also be subject to the provisions of the Construction Agreement and any amendments thereto.

4.3.3 Construction of DIF Program Infrastructure (Non-Construction Agreement).

To the extent OWNER is required to construct and completes construction of public improvements that are included in CITY’s Development Impact Fee Program and such public improvements are not included the Construction Agreement between CITY and NMC Builders LLC, CITY agrees that CITY shall issue DIF Credit in accordance with the provisions of a separate Fee Credit Agreement between CITY and OWNER. Limitation on the use of DIF Credit issued to OWNER to offset OWNER’s DIF payment obligations shall also be subject to the provisions of a separate Fee Credit Agreement. CITY and OWNER agree that the Fee Credit Agreement between CITY and OWNER shall comply with CITY’s adopted policies applicable to such agreements.

4.3.4 Construction of Public Infrastructure by Third Parties. CITY and OWNER acknowledge the Improvements described in Exhibit E and depicted in Exhibit F are required for the development of the Property, surrounding properties within the Ontario Ranch and the other property owners are also obligated to construct the Improvements or portions thereof. As such, CITY agrees that OWNER's obligation to construct the Improvements may be satisfied by third party owners pursuant to separate written agreements between OWNER and said third party undertaking the construction of the Improvements. Nothing in this Agreement shall be construed to prohibit the coordination of the construction of the Improvements between private parties, including the allocation of costs for the construction of the Improvements. Notwithstanding anything to the contrary herein, any applicable DIF Credits may be transferred and assigned from one (1) party to another with respect to the construction of the Improvements and such transfer or assignment shall not require the conveyance of any real property.

4.4 Affordable Housing Requirement.

4.4.1 Affordable Housing- Number of Units. OWNER shall provide a minimum number of affordable housing units, equivalent to 10% of the OWNER’s total approved residential units within the Project, that are affordable to very low, low 1276
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and moderate income households. Such requirement for affordable housing shall be met through one, or a combination of one or more, of the options provided in the following Sections 4.4.2.1 through 4.4.2.5. For the purposes of this Section, any term not defined in this Agreement shall be as defined by California Community Redevelopment Law (California Health and Safety Code Section 33000 et seq.).

4.4.2 Affordability Spread. Of the total number of residential dwelling units specified in Section 4.4.1, to be constructed or rehabilitated pursuant to Sections

4.4.2.1 or 4.4.2.2 respectively, thirty percent (30%) shall be available to very low income, thirty percent (30%) shall be available to low income and forty percent (40%) shall be available to moderate income households. “Households” shall be as defined by California Health and Safety Code Section 50053.

4.4.2.1 New Construction. If OWNER elects to fully or partially satisfy the affordable housing requirement by the construction of new residential units, it shall construct and restrict the affordability of residential dwelling units within its Project or, at OWNER’s option and with the approval of the City, within another project elsewhere within the City. The affordable units constructed shall be intermingled with other units as part of the Project, and shall be built to the same construction, design and aesthetic standards, as well as number of rooms, as other units constructed as part of that OWNER’s Project. In addition, the percentage ratio of affordable units offered for sale versus those offered for rent shall equal the percentage ratio of other units offered for sale versus for rent within OWNER’s Project. Such construction shall be completed no later than the date that is five (5) years following the issuance of the first building permit for OWNER’s Project; provided however that to the extent OWNER has not constructed the required percentage of units, based on the number of building permits for non-restricted units, OWNER shall, prior to the issuance of such building permits, provide security (in the form and substance approved by the City Manager and City Attorney) to City in order to ensure the faithful completion of such required percentage of construction of affordable units. If OWNER elects the option of constructing new affordable units, a detailed Affordable Housing Agreement specifying terms for the allowable monthly housing costs or rents (as applicable) and maintenance and occupancy standards shall be prepared, executed and recorded against such units as a condition to the issuance of a building permit. The Affordable Housing Agreement shall hold a recorded priority position senior to any other non-statutory lien or encumbrance affecting the unit.

4.4.2.2 Rehabilitation. If OWNER elects to fully or partially satisfy the affordable housing requirement by the substantial rehabilitation of existing residential units in the City, it shall substantially rehabilitate and restrict the affordability of, the number of residential units specified in Section 4.4.1, provided that such units shall be provided elsewhere within the City. The rehabilitation work shall be substantial and of high quality and shall also 1277
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address any deferred property maintenance issues on the property. “Substantial rehabilitation” shall mean rehabilitated multi-family rented dwelling units with three or more units and the value of the rehabilitation constitutes 25 percent of the after rehabilitation value of the dwelling, inclusive of land value pursuant to Health and Safety Code Section 33413(b)(2)(A)(iii-iv) as such section exists as of the Effective Date of this Agreement. If OWNER chooses the option of rehabilitation of existing housing units within the City, a detailed Affordable Housing Agreement specifying the terms for the allowable month housing costs or rents (as applicable) and maintenance and occupancy standards shall be prepared, executed and recorded against such units as a condition to the issuance of a building permit. Such rehabilitation shall be completed no later than the date that is five (5) years following the issuance of the first building permit for OWNER’s Project; provided however that to the extent OWNER has not rehabilitated the required percentage of units, based on the number of building permits, OWNER shall, prior to the issuance of such building permits, provide security (in the form and substance approved by the City Manager and City Attorney) to the City in order to ensure the faithful completion of such required percentage of rehabilitation.

4.4.2.3 In-Lieu Fee. If OWNER has not fully complied with the requirements of Section 4.4.1 by providing the minimum number of affordable units through the construction of new affordable units or by the substantial rehabilitation of existing units, shall pay an “Affordability In-Lieu Fee”. If OWNER has not provided any affordable residential units by construction or rehabilitation, the Affordability In-Lieu fee shall be equal to Three Dollars Twelve Cents ($3.12) per square foot of residential development within OWNER’s Project or, if pre-paid as set forth below, Two Dollars Seventy Four Cents ($2.74) per square foot of residential development within OWNER’s Project. If OWNER has partially complied with the requirements of Section 4.4.1 by construction or rehabilitation of less than the minimum number of units, then the Affordability In-lieu Fee shall be recalculated and reduced in consideration of the number and type of affordable units provided. The Affordability In-Lieu Fee shall be paid by OWNER to City no later than prior to the issuance of each building permit within OWNER’s Project based on the square footage of the residential unit for which such building permit is sought; provided however that OWNER may, at OWNER’s election, pre-pay such Affordability In-Lieu Fee by paying such Affordability In-Lieu Fee within thirty (30) days following the earliest discretionary approval by the City for OWNER’s Project, including, but not limited to, any general plan amendment, specific plan adoption, development agreement, tentative map approval, variance, conditional use permit, or resolution of intention to form any public financing mechanism. The Three Dollars Twelve Cents ($3.12) and the Two Dollars Seventy Four Cents ($2.74) per square foot amounts shall automatically be increased annually, commencing on July 1, 2023, and automatically each July 1 thereafter. Such 1278
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adjustment shall be based on the percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA), (December 2017=100) over the preceding year. The pre-paid Affordability In-Lieu Fee shall be calculated based on the maximum floor area ratio (FAR) permitted within the General Plan and any applicable FAR contained within the applicable specific plan, whichever is greater, and the Maximum Development Density. For purposes of this Agreement, “Maximum Development Density” shall be determined by multiplying the OWNER’s Project’s density for residential development potential as set forth in the General Plan or the applicable Specific Plan, whichever is less, by the net acreage of land within OWNER’s Project. All “Affordability In-Lieu Fees” collected by the City shall be used to promote the construction of affordable housing within the City.

4.4.2.4 Affordability Covenants. Prior to the issuance of the first building permit for any affordable unit, the City and OWNER shall enter into an Affordable Housing Agreement Affordability shall be assured for a period of forty-five (45) years for for-sale units and fifty-five (55) years for rentals. For rental units, base rents shall be established by the City and rental adjustments required by the City shall be performed on an annual basis. In addition, the Affordable Housing Agreement shall impose maximum occupancy limits of 2 occupants per bedroom plus 1 additional occupant per dwelling unit, and a requirement for the owner or tenant to properly maintain each dwelling unit.

4.4.2.5 Transfer of Affordable Project. No transfer of title to any affordable housing project shall occur without the prior written consent of the City. In the event OWNER transfers title to any affordable housing project required to be constructed pursuant to this Agreement to a non-profit entity, or other entity, that receives an exemption from ad valorem real property taxes, the City shall be required to assure payment of an annual in lieu fee to the City on July 1 of each year equal to one-tenth of one percent (0.1%) of the assessed value of such project. The City may permit OWNER to satisfy this obligation by recorded covenants against the property and enforceable against said entity by the City. Any such covenants shall be approved by the Planning Director and the City Attorney.

4.5 Schools Obligations.

4.5.1 Written Evidence of Compliance with Schools Obligations.

OWNER shall, either through joint or individual agreements between OWNER and the applicable school district(s), shall satisfy its new school obligations. The new school obligations for the Mountain View School District in the Ontario Ranch area have been projected to include the acquisition or dedication of school sites for, and construction of, up to eight (8) schools. Of these eight (8) schools, six (6) are to be elementary (K-5) grade schools and two (2) are to be middle grade schools. The new school obligations for the Chaffey Joint Union High School 1279
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District in the Ontario Ranch area have been projected to include the dedication of a school site for, and construction of, an additional high school. The new school obligations for the applicable school district shall be met by a combination of the following: (1) designating and dedicating school site(s) within the Property as set forth in the General Plan, and/or (2) paying school impact fees, (3) entering into a joint mitigation agreement or individual mitigation agreements, or (4) any combination of the foregoing. Written evidence of approval by the applicable school district that OWNER has met their school obligations may be required by the City as the condition to the issuance by the City of any entitlements for OWNER’s Project. In the event OWNER is unable to provide such written evidence from the applicable school district(s), the City shall have the right to decline to honor any DIF Credit, Certificates of MDD Availability, Certificates of Storm Water Treatment Capacity Availability, or any combination thereof, presented by such OWNER, without liability to the City. To the extent that a joint mitigation agreement is approved by the applicable school district(s), and OWNER is a participant in good standing in such mitigation agreement, OWNER shall be deemed to have mitigated its new school obligations under this Section 4.4.1.

4.6 Public Services Funding Fee.

4.6.1 Requirement for Payment of Public Services Funding Fee. In order to ensure that the adequate provision of public services, including without limitation, police, fire and other public safety services, are available to the residents of each Project in a timely manner, OWNER shall pay to CITY a “Public Services Funding Fee.” The Public Services Funding Fee shall apply to residential and nonresidential uses as set forth below.

4.6.2 Public Services Funding Fee Amount. OWNER shall pay a Public Services Funding fee in the total amount of Two Thousand Four Hundred Ninety dollars and Seventy Eight Cents ($2,490.78) per residential dwelling unit. The Public Services Funding Fee shall be paid in one (1) installment within one hundred eighty (180) calendar days after the effective date of the Development Agreement or in two (2) installments, at OWNER’s option, as follows:

4.6.2.1 First Installment (Residential uses). The First Installment of the Public Services Funding Fee shall be One Thousand Two Hundred Forty Five dollars and Thirty Nine Cents ($1,245.39) per residential dwelling unit.

The First Installment shall be based upon the “Maximum Development Density” of the OWNER Project, as defined in Section 3.7.2.3 of the First Amended and Restated Construction Agreement. The First Installment shall be due and payable 30 days following the effective date of the Development Agreement.

If the First installment amount is not paid for all residential dwelling units within the Project (based on the Maximum Development Density, or the number of units described on “B Maps” if approved) by January 1, 2024, the amount of the First Installment shall be increased. Such increase shall be 1280
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based on the percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA) (December 2017=100) over the preceding year. Additionally, the amount shall be further increased automatically by the percentage increase in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA) (December 2017=100) on each January 1 thereafter.

4.6.2.2 Second Installment (Residential Uses). The Second Installment of the Public Services Funding Fee shall be One Thousand Two Hundred Forty Five dollars and Thirty Nine Cents ($1,245.39) per residential unit. The Second Installment shall be paid at the time of the issuance of each building permit for the Project. The amount of the Second Installment shall increase automatically by percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA) (December 2017=100) over the preceding year on January 1st of each year, beginning on January 1, 2024. OWNER may exercise the option to pay the Second Installment amount for all residential units, a portion of the residential units, or for the remainder of the residential units within OWNER’s Project on or before each December 31st, before the Second Installment amount is automatically increased.

4.6.2.3 Single Installment (Non-residential Uses). A single installment payment of the Public Services Funding Fee shall be required in the amount of Seventy Five Cents ($.75) per square foot of non-residential buildings.

The single installment for non-residential uses shall be due and payable prior to the issuance of the building permit for a non-residential building. The amount of the Single Installment for non-residential uses shall automatically increase by percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA), (December 2017=100) over the preceding year on January 1st of each year, beginning on January 1, 2024. OWNER may exercise the option to pay any single installment amounts for the remainder of the non-residential square footage within the Project on or before December 31st, before the Single Installment amount is automatically increased.

4.7 Net MDD/Water Availability Equivalents.

4.7.1 Effectiveness of Agreement. Notwithstanding anything else set forth in this Agreement, CITY and OWNER each acknowledge, confirm, and agree, that (i) the City approval of this Agreement and (ii) the effectiveness of this Agreement, in each case, is conditioned upon OWNER’s admission to NMC Builders as a “Member” thereof pursuant to the terms and conditions of the operating agreement of NMC Builders. OWNER and CITY agree that OWNER shall become a Member of NMC Builders within 30 days of the effective date of this Agreement.

4.7.1 Assigned Net MDD/Water Availability Equivalents. The City has agreed with NMC Builders LLC to reserve exclusively for Members of NMC Builders, 1281
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including OWNER, Net MDD made available through the construction of water system improvements funded by NMC Builders LLC. NMC Builders has assigned to OWNER its allocable share of the Net MDD issued by City. The provisions of the Construction Agreement Amendment requires that the City shall not approval a final tract map or issue building permits or certificates of occupancy for the area of development within the New Model Colony served by the water system improvements funded by NMC Builders LLC, except to the bearer of an Assignment of Net MDD Water Availability.

4.7.2 Requirement of NMC Builders, LLC Membership as a Phase 2 Water Member. OWNER and CITY agree that OWNER’s’ payment to CITY required by Section 4.7.3 below represents OWNER’s contribution to the funding required for the future construction of the Phase 2 Water Improvements and the availability of additional Net MDD Water Availability required for the development of the Property described in Exhibit A of this Agreement.

4.7.3 CITY issuance of Water Availability Equivalents. Within 30 days after the effectiveness of this Development Agreement OWNER shall pay or have paid to City the applicable Phase 2 Water Participation Fee. The Phase 2 Water Participation Fee shall be the calculated based on the amount of the Regional Water DIF for the applicable land use category and the square footage of the applicable buildings. The calculated amount of the Phase 2 Water Participation Fee shall be paid to City within 30 days after the effective date of this Agreement or, at OWNER’s option, the Phase 2 Water Participation Fee may be paid to City in two (2) installments. The first installment shall be fifty percent (50%) of the total Phase 2 Water Participation Fee and such first installment shall be due and payable to City within 30 days after the effective date of this Development Agreement. The second installment shall be the remaining amount of the Phase 2 Water Participation Fee and such second installment shall be due and payable to City within one (1) year after the payment of the first installment, or prior to, and as a condition precedent to, the recording of any final Parcel Map for the Project, whichever occurs first. Upon OWNER’s complete payment to CITY of the Phase 2 Water Participation Fee CITY shall issue a Certificate of Water Availability Equivalents in the form attached hereto as Exhibit G. Such Water Availability Equivalents Certificate shall be issued by CITY within thirty (30) days of the receipt of such required payment. CITY and OWNER agree that the amount of Water Availability Equivalents issued to OWNER shall be based on the maximum projected need for Water Availability Equivalents required for the Property based upon water demand factors and assumptions listed in Exhibit C-2R of the Phase 2 Water Amendment to the Construction Agreement “Water Demand Equivalents by Land Use” for each land use category. Additionally, within five (5) business days of CITY’s receipt of OWNER’s payment as required under this Section 4.5.2, CITY shall issue a certificate of DIF Credit against OWNER’s DIF obligations in the Regional Water DIF Category.

4.7.2 Use of Assigned Net MDD Water Availability. OWNER shall provide evidence of sufficient Net MDD Water Availability Equivalents (or portions thereof) 1282
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prior to and as a condition precedent to, the City’s approval of any and all tract maps for the Property. The amount of Net MDD Water Availability Equivalents required for City’s approval of a tract map shall be based upon water demand factors and assumptions listed in Exhibit C-2R of the Construction Agreement Amendment as “Water Demand Equivalents by Land Use” for each land use category.

4.7.3 Requirement for other Water System Improvements. A Certificate of Net MDD Availability is evidence only of available water capacity and does not satisfy any other conditions applicable to an OWNER’s Project, including those relating to design and construction of master-planned potable water and recycled water transmission and distribution system for the respective pressure zone and other public infrastructure requirements.

4.8 Storm Water Capacity Availability.

4.8.1 Requirement for Storm Water Treatment Capacity Availability. OWNER shall provide evidence of sufficient Storm Water Treatment Capacity Availability as reserved in a Certificate of Storm Water Treatment Capacity Availability the same manner and subject to the same limitations as provided for the assignment of Certificates of Net MDD Availability in Section 4.7 of this Agreement.

4.8.2 Use of Storm Water Treatment Capacity Availability. The amount of Storm Water Treatment Capacity Availability required for the issuance of a grading permit to OWNER shall be based upon the Net Residential Acreage of the area to be graded regardless of the corresponding use.

4.8.3 Requirement for other Storm Water Improvements. The Certificate of Storm Water Treatment Capacity Availability is evidence only of available storm water treatment capacity and does not satisfy any other conditions applicable to a particular development project, including those relating to on-site water treatment, water quality, connection to the storm water collection system, or other public infrastructure requirements.

4.9 Maintenance of Open Space. OWNER shall provide for the ongoing maintenance of all park, common areas and open space areas within the Project as more particularly set forth in the Specific Plan, through a homeowners’ association as approved by the CITY. Covenants, conditions and restrictions establishing any homeowners’ association shall be approved by the Planning Director and City Attorney.

4.10 Compliance with Public Benefits Requirements.

4.10.1 Failure to Provide Public Benefits. In the event OWNER fails or refuses to comply with any condition referenced in Section 4.1 through 4.10, or challenges (whether administratively or through legal proceedings) the imposition of such conditions, OWNER shall be deemed in default of this Agreement pursuant to Section 8.4 hereof, thereby entitling the City to any and all remedies available to 1283
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it, including, without limitation, the right of the City to withhold OWNER’s Projectrelated building permits, certificates of occupancy, or discretionary approvals, without liability.

5. FINANCING OF PUBLIC IMPROVEMENTS.

5.1 Financing Mechanism(s). In accordance with the Memorandum of Agreement between the CITY and NMC Builders, CITY will cooperate with OWNER in the formation of a CFD, or CFDs, to include all of the Project, to provide a financing mechanism to reimburse the OWNER for funds paid to NMC Builders LLC for OWNER’s share of the costs of public infrastructure pursuant to the Construction Agreement and to acquire other public facilities constructed by OWNER subject to the provisions of the Memorandum of Agreement between CITY and NMC Builders LLC. Notwithstanding such reimbursements and acquisitions, OWNER shall remain entitled to DIF Credits as provided for in Article 3 of the Construction Agreement and/or as provided for in a separate Fee Credit Agreement between CITY and OWNER. OWNER agrees that, prior to the recordation of any Tract Map for the Property, the Property shall be included in a CFD to finance City services through annual special taxes that will initially be $1,443.71 per Single Family Detached Dwelling Unit, $1,251.15 per Multiple-Family Dwelling Unit, $1,048.96 per Gated Apartment Community Dwelling Unit, and $0.27 per square foot for Non-Residential buildings. These amounts shall be subject to an automatic increase at a rate not to exceed four (4%) percent per year, unless otherwise modified by the CITY.

CITY shall be the sole and exclusive lead agency in the formation of any CFD, assessment district or other public financing mechanism within the Property; provided however, that the proceeds of any such CFD, assessment district, or financing mechanism may be used, subject to restrictions that may be imposed by applicable law, for the purposes of acquiring, constructing or maintaining public facilities to be owned or operated by other public agencies, including, without limitation those facilities owned or operated by a school district. In addition to the rights of the CITY pursuant to section 5.2 hereof, CITY shall have the right, but not the obligation, to condition the formation of any CFD, assessment district or other public financing mechanism within the Property on the OWNER mitigating all Project-related impacts to the applicable school district(s) as required by such school district(s). Written evidence by such school district(s) may be required by the CITY as the condition to the formation of any CFD, assessment district or other public financing mechanism within the Property, or any steps preliminary thereto, including, without limitation, the adoption of any resolution of intention to form such CFD, assessment district or other public financing mechanism within the Property. It is not the intent of the parties hereto, by this provision, to prohibit or otherwise limit the City’s ability to take any and all necessary steps requisite to the formation of the CFD to finance City services through annual special taxes as set forth in this Section 5.1. Formation of any CFD, assessment district or other public financing mechanism within the Property, shall be subject to CITY’s ability to make all findings required by applicable law and complying with all applicable legal procedures and requirements including, without limitation, CITY’s public financing district policies as such policies may be amended from time to time.

Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing 1284
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contained in this Agreement shall be construed as requiring CITY or the City Council to form any such district or to issue and sell bonds.

6. REVIEW FOR COMPLIANCE.

6.1 Periodic and Special Reviews.

6.1.1 Time for and Initiation of Periodic Review. The CITY shall review this Agreement every twelve (12) months from the Effective Date in order to ascertain the good faith compliance by the OWNER with the terms of this Agreement. The OWNER shall submit an Annual Monitoring Report to CITY, in a form acceptable to the City Manager, along with any applicable processing charge within ten (10) days after each anniversary date of the Effective Date of this Agreement. Within fifteen (15) days after the receipt of the Annual Monitoring Report, CITY shall review the Annual Monitoring Report. Prior to the expiration of the fifteen (15) day review period, CITY shall either issue a notice of continuing compliance or a notice of non-compliance and a notice of CITY’s intent to conduct a Special Review pursuant to Sections 6.1.2 through 6.1.6. Issuance of a notice of continuing compliance may be issued by the City Manager or his designee.

6.1.2 Initiation of Special Review. A special review may be called either by agreement between the parties or by initiation in one or more of the following ways:
(1) Recommendation of the Planning staff;
(2) Affirmative vote of at least four (4) members of the Planning Commission; or
(3) Affirmative vote of at least three (3) members of the City Council.

6.1.3 Notice of Special Review. The City Manager shall begin the special review proceeding by giving notice that the CITY intends to undertake a special review of this Agreement to the OWNER. Such notice shall be given at least ten (10) days in advance of the time at which the matter will be considered by the Planning Commission.

6.1.4 Public Hearing. The Planning Commission shall conduct a hearing at which the OWNER must demonstrate good faith compliance with the terms of this Agreement. The burden of proof on this issue is upon the OWNER.

6.1.5 Findings Upon Public Hearing. The Planning Commission shall determine upon the basis of substantial evidence whether or not the OWNER has, for the period under review, complied in good faith with the terms and conditions of this Agreement.
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6.1.6 Procedure Upon Findings.
(a) If the Planning Commission finds and determines on the basis of substantial evidence that the OWNER has complied in good faith with the terms and conditions of this Agreement during the period under review, the review for that period is concluded.
(b) If the Planning Commission finds and determines on the basis of substantial evidence that the OWNER has not complied in good faith with the terms and conditions of this Agreement during the period under review, the Planning Commission may recommend to the City Council to modify or terminate this Agreement. (c) The OWNER may appeal a determination pursuant to
paragraph (b) to the City Council in accordance with the CITY's rule for consideration of appeals in zoning matters generally.

6.2 Proceedings Upon Modification or Termination. If, upon a finding under Section 6.1.6(b), the CITY determines to proceed with modification or termination of this Agreement, the CITY shall give notice to the property OWNER of its intention so to do.

The notice shall contain:
(a) The time and place of the hearing;
(b) A statement as to whether or not the CITY proposes to terminate or to modify this Agreement; and
(c) Other information that the CITY considers necessary to inform the OWNER of the nature of the proceeding.

6.3 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, the OWNER shall be given an opportunity to be heard. The OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on the OWNER. If the City Council finds, based upon substantial evidence in the administrative record, that the OWNER has not complied in good faith with the terms and conditions of the agreement, the City Council may terminate or modify this Agreement and impose those conditions to the action it takes as it considers necessary to protect the interests of the CITY. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.

6.4 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon written request by OWNER, issue a Certificate of Agreement Compliance (“Certificate”) to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Planning Director and City Council that (1) this Agreement remains in effect and (2) OWNER is not in default. The 1286
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Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. OWNER may record the Certificate with the County Recorder. Whether or not the Certificate is relied upon by assignees or other transferees or OWNER, CITY shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Planning Director or City Council.

7. [RESERVED]

8. DEFAULT AND REMEDIES.

8.1 Remedies in General. It is acknowledged by the parties that CITY would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof.

In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that CITY shall not be liable in damages to OWNER, or to any successor in interest of OWNER, or to any other person, and OWNER covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
(b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
(c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.

8.2 Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other nonmonetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
(a) Money damages are unavailable against CITY as provided in Section 8.1 above.
(b) Due to the size, nature and scope of the project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the Property or portions thereof. OWNER has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of 1287
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this Agreement, and it is not possible to determine the sum of money which would adequately compensate OWNER for such efforts.

8.3 Release. Except for nondamage remedies, including the remedy of specific performance and judicial review as provided for in Section 6.5, OWNER, for itself, its successors and assignees, hereby releases the CITY, its officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the CITY because it entered into this Agreement or because of the terms of this Agreement.

8.4 Termination or Modification of Agreement for Default of OWNER. Subject to the provisions contained in Subsections 6.2 and 6.3 herein, CITY may terminate or modify this Agreement for any failure of OWNER to perform any material duty or obligation of OWNER under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as “default”); provided, however, CITY may terminate or modify this Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

8.5 Termination of Agreement for Default of CITY. OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default and, where the default can be cured, CITY has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

9. THIRD PARTY LITIGATION.

9.1 General Plan Litigation. CITY has determined that this Agreement is consistent with its Comprehensive General Plan, as such General Plan exists as of the Effective Date (“General Plan”), and that the General Plan meets all requirements of law.

OWNER has reviewed the General Plan and concurs with CITY’s determination. CITY shall have no liability in damages under this Agreement for any failure of CITY to perform under this Agreement or the inability of OWNER to develop the Property as contemplated by the Development Plan of this Agreement as the result of a judicial determination that 1288
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on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.

9.2 Third Party Litigation Concerning Agreement. OWNER shall defend, at its expense, including attorneys’ fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. CITY shall promptly notify OWNER of any such claim, action or proceeding, and CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of any such claim, action or proceeding, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action or proceeding.

9.3 Indemnity. In addition to the provisions of 9.2 above, OWNER shall indemnify and hold CITY, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of OWNER, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury, or death (OWNER’s employees included) or any other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sole active negligence or sole willful misconduct of CITY. OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions. CITY may in its discretion participate in the defense of any such legal action.

9.4 Environment Assurances. OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of OWNER, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action.

Ontario City CouncilJuly 18, 2023

Ontario City Council
July 18, 2023