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AM
ENDMENT NO. 5 TO THE GOODS AND SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
FORD OF UPLAND, LLC
1. P
arties and Date.
Th
is Amendment No. 5 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and Ford of Upland, LLC, a Limited Liability Co rporation “ Contractor”. City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.”
2. R
ecitals.
2.1 A greement. The City and Contractor have entered into an agreement entitled “Goods and Services” dated July 1, 2019 (“Agreement”).
2.2 A mendment Purpose . T he City and Contractor desire to amend the A greement to increase compensation by $70,000. The Parties have heretofore entered into Amendment No. 1 dated July 1, 2020, Amendment No. 2 dated June 15, 2021, Amendment No. 3 dated June 13, 2022, Amendment No. 4 dated August 4, 2023.
2.3 Amendment Authority. This Amendment No. 5 is authorized pursuant to Section 2.1,
12.9, and 12.17 of the Agreement.
3. T
erms.
3.1 Amendment . S ection 3.1 of the Agreement is hereby amended in its entirety to read as follows:
“Compensation. Contrac tor shall r eceive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached her eto and incorporated herein by reference. The total compensation shall not exceed Three-Hundred Seventy Thousand Dollars ($370,000) without written approval of City Manager. 357
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Extra Work may be authorized, as described below, and if authorized, will be compensated a t the rates and manner set forth in this Agreement.”
3.3 Continuing Effect of Agreement . Except as amended by this Amendment No. 5, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 5. From and after the date of this Amendment No. 5, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 5.
3.4 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 5.
3.5 Severability. If any portion of this Amendment No. 5 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.6 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Ame ndment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integra ted amendment.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 5 TO GOODS AND SERVICE
AGREEMENT BETWEEN THE CITY OF ONTARIO
AND FORD OF UPLAND, LLC
IN WITNESS WHEREOF, the Parties have entered into this Amendment No.5 as of the day and year first above written.
CITY OF ONTARIO FORD OF UPLAND, LLC.
By:
Its:
Printed Name:
By:
Its:
Printed Name:
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
City Clerk
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Department: Public Works
Prepared By: Tim Masot
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: 6
SUBJECT:
AN AMENDMENT TO THE GOODS AND EQUIPMENT PURCHASE AGREEMENT
WITH ALL AMERICAN ASPHALT FOR ASPHALT MATERIALS
CITY OF ONTARIO
Agenda Report
February
6, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council authorize the City Manager or his designee to execute Amendment No. 1 to the Goods and Equipment Purchase Agreement with All American Asphalt, of Corona, California, in the amount of $146,000, for a total not-to-exceed contract amount of $1,111,970 to complete the residential street overlay program 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)
FISCAL IMPACT:
The proposed Amendment No. 1 to the Goods and Equipment Purchase Agreement with All American Asphalt increases the contract amount by $146,000 for a new total contract amount not-to-exceed $1,111,970. The Fiscal Year 2023-24 Adopted Budget includes appropriations in the Gas Tax Fund for the procurement of asphalt materials for street overlay.
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 July 18, 2023, the City Council approved All American Asphalt as the asphalt materials supplier for the City’s Fiscal Year 2023-24 residential street overlay program. Due to price increases in asphalt materials and delivery, Staff now recommends increasing the total authorized compensation to ensure the Parks & Maintenance Department can continue to complete the six residential streets that are scheduled to be paved in June 2024 for our Fiscal Year 2023-24 residential street overlay program.
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AM
ENDMENT NO. 1 TO THE
GOODS AND EQUIPMENT PURCHASE AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
ALL AMERICAN ASPHALT
1. P
arties and Date.
Th
is Amendment No. 1 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and All American Asphalt , a Corporation (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.”
2. R
ecitals.
2.1 A greement. The City and Contractor have entered into an agreement entitled “Goods and Equipment Purchase Agreement” dated July 18, 2023 (“Agreement”).
2.2 A mendment Purpose. T he City and Contractor desire to amend the A greement to increase the total compensation amount b y $146,000 for a total not -to-exceed compensatio n of $1,111,970.
2.3 Amendment Authority. This Amendment No. 1 is authorized pursuant to Section 6 of the Agreement.
3. T
erms.
3.1 Amendment . Exhibit C of the Agreement is hereby amended in its entirety to read as follows:
T
he City shall issue an official City Purchase Order for products based on the terms of the contract. Upon delivery and acceptance by the City, vendor shall submit an official invoice for payment. Payment for work completed will be made within thirty (30) days of approved invoice. No payment will be made for products ordered without proper purchase order authorization. Payment cannot be made until materials, goods, or 361
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services have been received and accepted by the City in the quality and quantity ordered. The total compensation shall not exceed One Mi llion One Hundred E leven Thousand and Nine Hundred Seventy
Dollars ($1,111,970) without written approval of the City Manager. In the event of disputes, the disputed invoice shall be submitted to the City Manager for his review and decision. The determination of the City Manager shall be final.
3.2 Continuing Effect of Agreement . Except as amended by this Amendment No. 1, all other provisions of the Agreement rema in in full force and effect and shall govern the actions of the parties under this Amendment No. 1. From and after the date of this Amendment No. 1, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 1.
3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 1.
3.4 Severability. If any portion of this Amendment No. 1 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Amendment, including written or verbal communications between the Parties, which s hall have no relevance unless expressly incorporated herein. This is an integra ted amendment.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 1 TO GOODS AND EQUIPMENT
PURCHASE AGREEMENT BETWEEN THE CITY OF ONTARIO
AND ALL AMERICAN ASPHALT
IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 1 as of the day and year first above written.
CITY OF ONTARIO All American Asphalt
By:
Its:
Printed Name:
By:
Its:
Printed Name:
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
City Clerk
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Department: Police Department
Prepared By: Lizceth Zazueta
Staff Member Presenting:
Mike Lorenz, Chief of Police
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 7
SUBJECT:
AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH
WINDSONG PRODUCTIONS, LLC FOR VIDEO PRODUCTION SERVICES
CITY OF ONTARIO
Agenda Report
February
6, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council authorize the City Manager or his designee to execute Amendment No. 2 to the Professional Services Agreement with Windsong Productions, LLC, of Fresno, California to extend the scope of services and increase funding for a total not-to-exceed contract amount of $812,302.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
FISCAL IMPACT:
The recommended Amendment increases the authorized contract of $753,312 by $61,735 over the remaining three years. Funding includes a 25% increase for contingency in case estimated costs of the projects exceed the contract amount. This brings the total not-to-exceed contract amount to $815,047. Appropriations are included in the General Fund for the Fiscal Year 2023-24 Adopted Budget.
BACKGROUND & ANALYSIS:
On November 2, 2021, the City executed a Professional Services Agreement with Windsong Productions, LLC. (Windsong) for video production services following a competitive Request for Proposals (RFP) process. The Ontario Police Department has requested estimated costs to update the recruitment video that can generate interest in future candidates looking for a career with the Police Department. The amended agreement also includes estimated funding to produce a video that will highlight the Community Outreach and Support Team (COAST), a newly formed crisis intervention team. It will promote the City's effort to provide resources and assistance related to mental health.
Currently Windsong's services include the Made in Ontario series and the annual State of the City video. In addition, Windsong films City events including Route 66 Cruising Reunion, Holiday Tree Lighting Ceremony, and the Fourth of July Parade, among others. Video production services are an imperative part of the City's marketing and advertising efforts as they allow the City to feature businesses to the public, as well as provide engaging visual content for the community and prospective candidates.
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AMENDMENT NO. 2 TO THE
PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
WINDSONG PRODUCTIONS LLC
1. Parties and Date.
This Amendment No. 2 to the Professional Services Agreement (“Agreement”) is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California (“City”), and Windsong Productions, LLC, a California limited liability company. City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Recitals.
2.1 Agreement. City and Consultant entered into an agreement titled “Professional Services Agreement”” dated November 2nd, 2021 (“Agreement”).
2.2 First Amendment. City and Consultant entered into Amendment No. 1 to the Agreement, dated September 7, 2022, for the purposes of increasing the not-to-exceed compensation amount.
2.2 Amendment Purpose. City and Consultant now desire to amend the Agreement to expand the scope of services and once again increase the not to exceed compensation amount.
2.3 Amendment Authority. This Amendment No. 2 is authorized pursuant to Section
3.7.14 of the Agreement.
3. Terms.
3.1 Amendment. The not to exceed compensation amount in Section 3.2.1 of the Agreement, as amended by Amendment No. 2, shall be increased by $61,735.00, bringing the total not-to-exceed compensation amount to Eight Hundred Fifteen Thousand, Forty-Seven Dollars and Zero Cents ($815,047.00).
SHEILA MAUTZ
CITY CLERK
JAMES R. MILHISER
TREASURER
SCOTT OCHOA
CITY MANAGER
PAUL S. LEON
MAYOR
DEBRA PORADA
MAYOR PRO TEM
ALAN D. WAPNER
JIM W. BOWMAN
RUBEN VALENCIA
COUNCIL MEMBERS
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3.2 Amendment. An expanded Scope of Services, which is attached hereto and referenced herein as Exhibit “A-1” is hereby added to the Agreement.
3.3 Continuing Effect of Agreement. Except as amended by this Amendment No. 2, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 2. From and after the date of this Amendment No. 2, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 2.
3.4 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 2.
3.5 Severability. If any portion of this Amendment No. 2 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.6 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Amendment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integrated amendment.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 2 TO THE
PROFESSIONAL SERVICES AGREEMENT BETWEEN
THE CITY OF ONTARIO AND
WINDSONG PRODUCTIONS LLC
IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 2 as of the day and year first above written.
CITY OF ONTARIO WINDSONG PRODUCTIONS LLC
If Corporation, Two Signatures are required. President or Vice President and Secretary or Treasurer.
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
City Clerk
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Exhibit A-1
Expanded Scope of Services
COAST Team Production
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Exhibit A-1
Expanded Scope of Services
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Exhibit A-1
Expanded Scope of Services
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Exhibit A-1
Expanded Scope of Services
Police Recruitment Filming and Editing
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Exhibit A-1
Expanded Scope of Services
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Department: Financial Services
Prepared By: Daniel Becerra
Staff Member Presenting:
Armen Harkalyan, Executive Director of Finance
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 8
SUBJECT:
A RESOLUTION APPROVING THE ADOPTION OF PUBLIC AGENCIES POST-
EMPLOYMENT BENEFITS TRUST ADMINISTERED BY PUBLIC AGENCY RETIREMENT
SERVICES (PARS)
CITY OF ONTARIO
Agenda Report
February
6, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council take the following actions:
A
.
Adopt a Resolution authorizing the Post-Employment Benefits Trust to be administered by Public Agency Retirement Services (PARS); and
B
.
Authorize the City Manager to execute the agreement for administrative services with Public Agency Retirement Services (PARS).
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Operate in a Businesslike Manner
FISCAL IMPACT:
There is not a direct fiscal impact associated with this action.
BACKGROUND & ANALYSIS:
On July 16, 2019, the City Council took a significant step towards enhancing the management of its retiree benefits by executing an agreement with the Board of Administrators of the California Public Employees Retirement Systems (CalPERS) to participate in the California Employers’ Retiree Benefit Trust (CERBT). This is in alignment with Section 115 of the Internal Revenue Code and the principles outlined in the Governmental Accounting Standards Board (GASB) Statements No. 45 and 75. The City established its Employer Prefunding Account, a strategic move to fortify the City's commitment to fiscal responsibility and long-term financial planning.
The Resolution proposed today seeks to further enhance the City's approach to managing these funds. It will authorize the City to engage with Public Agency Retirement Services (PARS), and to utilize the investment managers under their guidance. PARS currently collaborates with PFM Asset Management, a wholly owned subsidiary of US Bank N.A., for investment management services.
PARS currently has 536 government agencies as clients, with $5.9 billion in assets under management in their section 115 trust, which is GASB 75 compliant for OPEB and IRS approved.
Having the ability to transfer assets to PARS will provide several advantages to the City. It will 373
provide the City with greater transparency regarding the underlying investments. We anticipate improved service delivery, which is essential for efficient and effective management of these assets, and it will allow for more diversified investment options for assets under the City's custodianship.
The expectation, with the establishment of the PARS account; will give us more versatility in managing the assets and superior investment performance net of all fees. The faster growth of assets will lower our unfunded liabilities and improve our balance sheet sooner. 374
RESOLUTION NO. ________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, APPROVING THE ADOPTION OF THE PUBLIC AGENCIES
POST-EMPLOYMENT BENEFITS TRUST ADMINISTERED BY PUBLIC AGENCY RETIREMENT SERVICES (PARS).
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ONTARIO DOES HEREBY RESOLVE AND FIND AS FOLLOWS:
SECTION 1. PARS has made available the PARS Public Agencies Post-Employment Benefits Trust (“Program”) for the purpose of prefunding pension obligations and/or other post-employment benefits obligations; and
SECTION 2. The City of Ontario (“City”) is eligible to participate in the Program, a tax- exempt trust performing an essential governmental function within the meaning of Section 115 of the Internal Revenue Code (as amended and the Regulations issued there under), and is a tax- exempt trust under the relevant statutory provisions of the State of California; and SECTION 3. The City’s adoption and operation of the Program has no effect on any current or former employee’s entitlement to post-employment benefits; and SECTION 4. The terms and conditions of post-employment benefit entitlement, if any, are governed by contracts separate from and independent of the Program; and SECTION 5. The City’s funding of the Program does not, and is not intended to, create any new vested right to any benefit nor strengthen any existing vested right; and SECTION 6. The City reserves the right to make contributions, if any, to the Program.
NOW THEREFORE, BE IT RESOLVED THAT:
1. The City Council hereby adopts the PARS Public Agencies Post-Employment Benefits Trust, effective February 6, 2024; and
2. The City Council hereby appoints the City Manager, or his/her successor or his/her designee, as the City’s Plan Administrator for the Program; and
3. The City’s Plan Administrator is hereby authorized to execute the PARS legal and administrative documents on behalf of the City; and to take whatever additional actions are necessary to maintain the City’s participation in the Program and to maintain compliance of any relevant regulation issued or as may be issued (therefore, authorizing him/her to take whatever additional actions are required to administer the City’s Program).
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 6th day of February 2024. _
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 Resolution No. 2024- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held February 6, 2024 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. 2024- duly passed and adopted by the Ontario City Council at their regular meeting held February 6, 2024. _____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
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AGREEMENT FOR ADMINISTRATIVE SERVICES
This agreement (“Agreement”) is made this 6th day of February, 2024, between Phase II Systems, a corporation organized and existing under the laws of the State of California, doing business as Public Agency Retirement Services (“PARS”) and the City of Ontario (“Agency”).
WHEREAS, the Agency has adopted the PARS Public Agencies Post-Employment Benefits Trust for the purpose of pre-funding pension obligations and/or Other Post-Employment Benefits (“OPEB”) obligations (“Plan”) and is desirous of retaining PARS as Trust Administrator to the Trust, to provide administrative services.
NOW THEREFORE, the parties agree:
1. Services. PARS will provide the services pertaining to the Plan as described in the exhibit attached hereto as “Exhibit 1A” (“Services”) in a timely manner, subject to the further provisions of this Agreement.
2. Fees for Services. PARS will be compensated for performance of the Services as described in the exhibit attached hereto as “Exhibit 1B”.
3. Payment Terms. Payment for the Services will be remitted directly from Plan assets unless the Agency chooses to make payment directly to PARS. In the event that the Agency chooses to make payment directly to PARS, it shall be the responsibility of the Agency to remit payment directly to PARS based upon an invoice prepared by PARS and delivered to the Agency. If payment is not received by PARS within thirty (30) days of the invoice delivery date, the balance due shall bear interest at the rate of 1.5% per month.
If payment is not received from the Agency within sixty (60) days of the invoice delivery date, payment plus accrued interest will be remitted directly from Plan assets (unless PARS has previously received written communication disputing the subject invoice that is signed by a duly authorized representative of the Agency).
4. Fees for Services Beyond Scope. Fees for services beyond those specified in this Agreement will be billed to the Agency at the rates indicated in the PARS’ standard fee schedule in effect at the time the services are provided and shall be payable as described in Section 3 of this Agreement. Before any such services are performed, PARS will provide the Agency with a detailed description of the services, terms, and applicable rates for such services. Such services, terms, and applicable rates shall be agreed upon in writing and executed by both parties.
5. Information Furnished to PARS. PARS will provide the Services contingent upon the Agency providing PARS the information specified in the exhibit attached hereto as “Exhibit 1C” (“Data”). It shall be the responsibility of the Agency to certify the accuracy, content, and completeness of the Data so that PARS may rely on such information without further audit. It shall further be the responsibility of the Agency to deliver the Data to PARS in such a manner that allows for a reasonable amount of time for the Services to be performed. Unless specified in Exhibit 1A, PARS shall be under no duty to question Data received from the Agency (to compute contributions made to the Plan, to determine or inquire whether contributions are adequate to meet and discharge liabilities under the Plan, or to determine or inquire whether contributions made to the Plan are in compliance with 378
the Plan or applicable law). In addition, PARS shall not be liable for nonperformance of Services to the extent such nonperformance is caused by or results from erroneous and/or late delivery of Data from the Agency. PARS reserves the right (notwithstanding the further provisions of this Agreement) to terminate this Agreement upon no less than ninety (90) days written notice to the Agency in the event that the Agency fails to provide Data in a complete, accurate, and timely manner and pursuant to the specifications in Exhibit 1C.
6. Records. Throughout the duration of this Agreement and for a period of five (5) years after termination of this Agreement, PARS shall provide duly authorized representatives of Agency access to all records and material relating to calculation of PARS’ fees under this Agreement. Such access shall include the right to inspect, audit, and reproduce such records and material to verify reports furnished in compliance with the provisions of this Agreement. All information so obtained shall be accorded confidential treatment as provided under applicable law.
7. Confidentiality. PARS shall not disclose any information relating to the Plan except to duly authorized officials of the Agency, subject to applicable law, and to parties retained by PARS to perform specific services within this Agreement without the Agency’s consent.
The Agency shall not disclose any information relating to the Plan to individuals not employed by the Agency without the prior written consent of PARS, except as such disclosures may be required by applicable law.
8. Independent Contractor. PARS is and at all times hereunder shall be an independent contractor. As such, neither the Agency (nor any of its officers, employees, or agents) shall have the power to control the conduct of PARS (its officers, employees, or agents), except as specifically set forth and provided for herein. PARS shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement; and shall be responsible for all reports and obligations respecting them (such as social security, income tax withholding, unemployment compensation, workers’ compensation, and similar matters).
9. Indemnification. PARS and Agency hereby indemnify each other and hold the other harmless (including their respective officers, directors, and employees) from any claim, loss, demand, liability, or expense including reasonable attorneys’ fees and costs incurred by the other as a consequence of (to the extent PARS’ or Agency’s as the case may be) negligent acts, errors, or omissions with respect to the performance of their respective duties hereunder.
10. Compliance with Applicable Law. The Agency shall observe and comply with federal, state, and local laws in effect when this Agreement is executed, or which may come into effect during the term of this Agreement, regarding the administration of the Plan. PARS shall observe and comply with federal, state, and local laws in effect when this Agreement is executed, or which may come into effect during the term of this Agreement, regarding Plan administrative services provided under this Agreement.
11. Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. In the event any party institutes legal 379
proceedings to enforce or interpret this Agreement, venue and jurisdiction shall be in any state court of competent jurisdiction.
12. Force Majeure. When a party’s nonperformance hereunder was beyond the control and not due to the fault of the party not performing, a party shall be excused from performing its obligations under this Agreement during the time and to the extent that its performance is prevented by such cause. Such cause shall include but not be limited to any incidence of fire; flood; acts of God or unanticipated communicable disease; acts of terrorism or war commandeering of material, products, plants, or facilities by the federal, state, or local government; a material act or omission by the other party; or any law, ordinance, rule, guidance, or recommendation by the federal, state, local government, or any agency thereof which becomes effective after the date of this Agreement that delays or renders impractical either party’s performance under the Agreement.
13. Ownership of Reports and Documents. The originals of all letters, documents, reports, and data produced for the purposes of this Agreement shall be delivered to and become the property of the Agency. Copies may be made for PARS but shall not be furnished to others without written authorization from Agency.
14. Designees. The Plan Administrator of the Agency (or their designee) shall have the authority to act for and exercise any of the rights of the Agency as set forth in this Agreement, subsequent to and in accordance with the written authority granted by the Governing Body of the Agency (a copy of which writing shall be delivered to PARS). Any officer of PARS, or his or her designees, shall have the authority to act for and exercise any of the rights of PARS as set forth in this Agreement.
15. Notices. All notices hereunder and communications regarding the interpretation of the terms of this Agreement, or changes thereto, shall be effected by delivery of the notices in person or by depositing the notices in the U.S. mail, registered or certified mail, return receipt requested, postage prepaid, and addressed as follows:
(A) To PARS: PARS; 4350 Von Karman Avenue, Suite 100, Newport Beach, CA 92660; Attention: President
(B) To Agency: City of Ontario; 303 East B Street, Ontario, CA 91764; Attention: City Manager.
Notices shall be deemed given on the date received by the addressee.
16. Term of Agreement. This Agreement shall remain in effect for the period beginning February 6, 2024 and ending February 5, 2027 (“Term”). This Agreement may be terminated at any time by giving thirty (30) days written notice to the other party of the intent to terminate. Absent a thirty (30) day written notice to the other party of the intent to terminate, this Agreement will continue unchanged for successive twelve-month periods following the Term.
17. Amendment. This Agreement may not be amended orally, but only by a written instrument executed by the parties hereto.
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18. Entire Agreement. This Agreement, including exhibits, contains the entire understanding of the parties with respect to the subject matter set forth in this Agreement. In the event a conflict arises between the parties (with respect to any term, condition, or provision of this Agreement), the remaining terms, conditions, and provisions shall remain in full force and legal effect. No waiver of any term or condition of this Agreement by any party shall be construed by the other as a continuing waiver of such term or condition.
19. Attorney’s Fees. In the event any action is taken by a party hereto to enforce the terms of this Agreement the prevailing party herein shall be entitled to receive its reasonable attorney’s fees.
20. Counterparts. This Agreement may be executed in any number of counterparts; and in that event, each counterpart shall be deemed a complete original and be enforceable without reference to any other counterpart.
21. Headings. Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions.
22. Effective Date. This Agreement shall be effective on the date first above written, and also shall be the date the Agreement is executed.
AGENCY:
BY:
Scott Ochoa
TITLE: City Manager
DATE:
PARS:
BY:
Tod Hammeras
TITLE: Chief Financial Officer
DATE:
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EXHIBIT 1A
SERVICES
PARS will provide the following services for the City of Ontario Public Agencies Post- Employment Benefits Trust:
1. Plan Installation Services:
(A) Meeting with appropriate Agency personnel to discuss plan provisions, implementation timelines, actuarial valuation process, funding strategies, benefit communication strategies, data reporting, and submission requirements for contributions/reimbursements/distributions;
(B) Providing the necessary analysis and advisory services to finalize these elements of the Plan;
(C) Providing the documentation needed to establish the Plan to be reviewed and approved by Agency legal counsel. Resulting final Plan documentation must be approved by the Agency prior to the commencement of PARS Plan Administration Services outlined in Exhibit 1A, paragraph 2 below.
2. Plan Administration Services:
(A) Monitoring the receipt of Plan contributions made by the Agency to the trustee of the PARS Public Agencies Post-Employment Benefits Trust (“Trustee”), based upon information received from the Agency and the Trustee;
(B) Performing periodic accounting of Plan assets, reimbursements/distributions, and investment activity, based upon information received from the Agency and/or Trustee; (C) Coordinating the processing of distribution payments pursuant to authorized direction by the Agency; and the provisions of the Plan based upon Agency-provided Data to the extent possible;
(D) Coordinating actions with the Trustee as directed by the Plan Administrator within the scope of this Agreement;
(E) Preparing and submitting a monthly report of Plan activity to the Agency, unless directed by the Agency otherwise;
(F) Preparing and submitting an annual report of Plan activity to the Agency; (G) Facilitating actuarial valuation updates and funding modifications for compliance with the applicable Governmental Accounting Standards Board pronouncements and/or statements, if prefunding other post-employment benefits obligations; (H) Coordinating periodic audits of the Trust;
(I) Monitoring Plan and Trust compliance with federal and state laws.
3. PARS is not licensed to provide and does not offer tax, accounting, legal, investment, or actuarial advice.
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EXHIBIT 1B
FEES FOR SERVICES
PARS will be compensated for performance of Services, as described in Exhibit 1A based upon the following schedule:
An annual asset fee shall be paid from Plan assets based on the following schedule:
For Plan Assets from: Annual Rate:
$1 to $10,000,000 0.25%
$10,000,001 to $15,000,000 0.15%
$15,000,001 to $50,000,000 0.10%
$50,000,001 and above 0.05%
Annual rates are prorated and paid monthly. The annual asset fee shall be calculated by the following formula [Annual rate divided by 12 (months of the year) multiplied by the Plan asset balance at the end of the month]. Trustee and Investment Management Fees are not included.
The annual asset fee will be capped at $70,000.00 for the first 12-month period following the initial contribution or transfer of assets to the Plan, provided that the Agency's Plan asset balance remains at $80,000,000.00 or below.
In the event that the Plan asset balance exceeds $80,000,000.00, the annual asset fee cap of $70,000.00 will be removed, and the annual asset fee schedule outlined above will apply.
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EXHIBIT 1C
DATA REQUIREMENTS
PARS will provide the Services under this Agreement contingent upon receiving the following information. Agency is solely responsible for ensuring that all information and documentation provided to PARS is true, correct, and authorized:
1. Executed Legal Documents:
(A) Certified Resolution
(B) Adoption Agreement to the Public Agencies Post-Employment Benefits Trust (C) Trustee Investment Forms
2. Contribution – completed Contribution Transmittal Form signed by the Plan Administrator (or authorized Designee) which contains the following information:
(A) Agency name
(B) Contribution amount
(C) Contribution date
(D) Contribution method (Check, ACH, Wire)
3. Distribution – completed Payment Reimbursement/Distribution Form signed by the Plan Administrator (or authorized Designee) which contains the following information:
(A) Agency name
(B) Payment reimbursement/distribution amount
(C) Applicable statement date
(D) Copy of applicable premium, claim, statement, warrant, and/or administrative expense evidencing payment
(E) Signed certification of reimbursement/distribution from the Plan Administrator (or authorized Designee)
4. Other information pertinent to the Services as reasonably requested by PARS and Actuarial Provider.
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U.S. Bank Trustee Forms
A? achment 1:
Sample Investment Strategy Selec? on & Disclosure Form
A? achment 2:
Sample Discre? onary Trustee Fee Schedule
385
U.S. Bank Trustee Forms
A? achment 1:
Sample Investment Strategy Selec? on & Disclosure Form
A? achment 2:
Sample Discre? onary Trustee Fee Schedule
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387
Department: Police Department
Prepared By: Mary Salem
Staff Member Presenting:
Mike Lorenz, Chief of Police
Reviewed By: Lizceth Zazueta
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 9
SUBJECT:
AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH
UNIVERSAL PROTECTION SERVICES LP
CITY OF ONTARIO
Agenda Report
February
6, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council authorize the City Manager or his designee to execute Amendment No. 4 to the Professional Services Agreement with Universal Protection Services LP,
dba Allied Universal Protection Services, of Atlanta, Georgia, to extend the term by one year and
increase the scope of services and total not-to-exceed amount to $3,765,714.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
FISCAL IMPACT:
The Fiscal Year 2023-24 Adopted Budget includes appropriations in the General Fund for parking enforcement services at the cost of $777,367 and an extended year of booking, jail, and transportation services at the cost of $656,609, for a total additional cost of $1,433,976.
Bringing the total not-to-exceed contract amount of $3,765,714.
BACKGROUND & ANALYSIS:
The Civic Center Campus expansion has continued to move the City of Ontario’s effort to reactivate Downtown forward. Since October of 2022, Downtown Ontario has grown to include newly constructed residential locations and a new parking structure located on the C-Block. The Civic Center Campus expansion will include other future builds such as a new City Services Building, Fire Station, and a new University of La Verne location for Health and Community Well-Being. With many of these locations breaking ground in April 2024, the City of Ontario has found a need to introduce strategies to enforce parking in the area during and after construction has completed. Utilizing a third-party vendor to enforce parking would not only improve the Downtown experience for the citizens of Ontario, but would allow officers to be available for other calls for service.
Allied Universal Protection Services (Allied) is a vendor currently contracted with the City of Ontario 388
to provide booking, jail, and transportation services to the Ontario Police Department. First implemented through a comprehensive staffing study, the outsourcing of booking, jail, and transportation services has greatly reduced the amount of hours per year that officers would otherwise spend providing these services. Allied meets the standards of the California Boards of Corrections and is accredited with the American Correctional Association. They also offer a range of other services, including parking enforcement. Allied has been an outstanding vendor to work with and has shown to be reliable. Staff recommends utilizing Allied to include parking enforcement services and extending the current booking, jail, and transportation service. 389
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PAUL S. LEON
MAYOR
DEBRA PORADA
MAYOR PRO TEM
ALAN D. WAPNER
JIM W. BOWMAN
RUBEN VALENCIA
COUNCIL MEMBERS
AMENDMENT NO. 4 TO THE
PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
UNIVERSAL PROTECTION SERVICE LP,
ALLIED UNIVERSAL SECURITY SERVICES
SHEILA MAUTZ
CITY CLERK
JAMES R. MILHISER
TREASURER
SCOTT OCHOA
CITY MANAGER
1. Parties and Date.
This Amendment No. 4 to the Professional Services Agreement (“Agreement”) is made and entered as of , by and between the City of Ontario, a municipal corporation organized under the laws of the State of California (“City”), and Universal Protection Service LP, Allied Universal Protection Services, a Corporation . City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Recitals.
2.1 Agreement. City and Contractor entered into an agreement titled “Professional Services Agreement” dated July 1st, 2024 (“Agreement”).
2.2 Amendment Purpose. City and Contractor desire to amend the Agreement to expand the scope of services and once again increase the not to exceed compensation amount by $1,433,976 for a year not to exceed $3,765,714.
2.3 Amendment Authority. This Amendment No. 4 is authorized pursuant to Section 4 and 23 of the Agreement.
3. Terms.
3.1 Amendment. Exhibit A of the Agreement is hereby deleted in its entirety and replaced with Exhibit A and A-1 attached hereto and incorporated herein by reference.
3.2 Term Extension. Pursuant to Section 2(b) of the Agreement, the Parties mutually agree to exercise the second additional one year period to extend the term of the Agreement through June 30, 2025.
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3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 4, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 4. From and after the date of this Amendment No. 4, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 4.
3.4 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 4.
3.5 Severability. If any portion of this Amendment No. 4 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.6 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Amendment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integrated amendment.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 4 TO THE
PROFESSIONAL SERVICES AGREEMENT BETWEEN
THE CITY OF ONTARIO AND UNIVERSAL PROTECTION SERVICE LP,
ALLIED UNIVERSAL SECURITY SERVICES
IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 4 as of the day and year first above written.
CITY OF ONTARIO UNIVERSAL PROTECTION SERVICE
LP, ALLIED UNIVERSAL SECURITY
SERVICES
If Corporation, Two Signatures are required. President or Vice President and Secretary or Treasurer.
By:
Its: President
Printed Name: Steve Claton
By:
Its: Secretary
Printed Name: Erik Fields
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
Best Best & Krieger LLP
City Attorney
Attested By:
City Clerk
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Exhibit A
Expanded Scope of Services
Exhibit A
Scope of Services
1. General Duties and Obligations: Standards.
Contractor shall provide the specified services necessary to support the booking, jail and transportation services in compliance with the applicable Standards of Care.
2. Facilities
a. Jail Facility Classification. The Jail is currently a temporary holding facility.
b. Right to Occupy. City hereby grants permission to Contractor to Occupy designated portions of the Jail facility as required to complete the agreed upon services.
Contractor further agrees to provide all labor, equipment, and materials necessary to perform operations at the Jail for the term hereof and pursuant to the terms and conditions herein specified. c. City’s Right of Entry. Operator hereby agrees that representative of City, as designated by the City Manager or Chief of Police, shall at all times retain the right to enter and utilize all areas and facilities pertaining to the Jail. This right of entry shall extend to those partied with whom the City has entered into any Intergovernmental Agency Agreement for the supply of detainees to the City’s Jail facilities. Where practical, this right of entry shall be exercised with advance notice to the Operator to avoid adverse impacts to security. d. Locks and Keys. For each of aforesaid purposes, City shall at all times receive from Operator and have the right to retain and use keys to all gates and fence locks upon and about the Jail. City shall have the right to use keys to all gates and any and all other means which City may reasonably deem proper to open any lock upon or about the Jail in order to obtain entry in an emergency. Operator shall use City provided keys only and shall not duplicate any key or change any lock without the express written permission of the City.
3. Jail Manual
Operator shall conduct all Services in accordance with the Standard of Care contained in Section 9 of the Agreement and the Ontario Police Department Policy 900 regarding Temporary Holding Facilities, as that may be amended from time to time.
4. Specified Duties and Obligations
Operator’s duties and obligations shall be set forth in detail in the Jail Manual. In general, these shall include, but are not limited to, the performance of the services set forth below in accordance with the applicable Standards of Care.
a. Intake and Release Processing. Operator shall provide intake and 393
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release processing which shall include review of Inmate’s documents, Inmate search as permitted by law, inventory and storage of Inmate’s personal property and funds, entry of Inmate data in City’s and San Bernardino County’s booking systems, acceptance of Inmate custody, generation of intake and release documents and records, including all San Bernardino County Health Department and Board required forms and reports related to intake, photographing and fingerprinting of Inmate, initiation of Inmate health and well-being screening, classification and housing assignment of Inmate, review of court release documents, return of Inmate personal property and funds, completion of internal release documentation and ascertainment of Inmate identification confirmation prior to release, escort Inmates as appropriate and required, and any and all such duties as may be required by applicable statute of rule. Operator agrees to provide fingerprinting and processing for mandatory registrants when providing such services will not negatively impact jail services. b. Staffing. Contractor shall ensure there is appropriate staffing at the Jail as requested by City and provide services in compliance with the applicable Jail Manual and Standard of Care.
c. Safety. Operator shall at all times adhere to applicable Standards of Care relative to safety.
d. Security. Operator shall be responsible for providing security for all Inmates in accordance with the applicable Standards of Care while they are inside the Jail and when they are being transported by Operator. While any Inmate is in the custody of City, an Assigning Agency, the Sheriff, other custodial entity, or a bailiff, Operator shall not be responsible for providing security for such Inmate, and such security shall be the responsibility of such custodial entity or officer.
e. Discipline Rules and Regulations. Discipline will not be administered to any individual in custody at the facility. Any individual in custody who repeatedly fails to follow directions or facility rules should be transported to the appropriate jail, mental health facility, or hospital as soon as possible. Such conduct should be documented and reported the receiving facility,
f. Vehicles Maintenance and Insurance. Contractors shall be Responsible for procuring, insuring, maintaining, and operating all Contractor-owned Vehicles. City shall insure and maintain City owned vehicles used by Contractor. Both parties and their automobile insurers agree to waive all rights of subrogation against each other in connection with the operation of their respective vehicle fleets. All Contractor staff using any vehicle in connection with the services provided under this Agreement shall have a valid California Driver’s License, which shall be available for inspection by City. g. Uniforms. Operator shall establish a policy prescribing a standard uniform for its corrections officers including shirts, pants, belts, jackets, and associated uniform articles of clothing that are normally and routinely issued to corrections officers. Operator shall provide such uniform items to the corrections officers.
5. Utilities and Maintenance
The parties’ respective duties and obligations with respect to utilities and maintenance are as set forth below.
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a. Utilities. City shall be responsible for provision of all utilities except as provided in Section 5.b. Telephone Services.
b. Telephone Services. City shall be responsible for the provision of and payment for all pay telephone services at the Jail. City shall be responsible for the provision of and payment for in-house telephone services. c. Maintenance. City shall maintain the physical structure of the Jail and all City owned tangible personal property contained therein, in accordance with the applicable Standards of Care. Contractor will complete routine cleaning, and will in so doing, maintain, preserve, and keep the Jail in a good working order and sanitary condition, subject to normal wear and tear, and will, from time to time, make or cause to be made, all necessary and proper repairs, replacements and renewals of cleaning equipment. City shall have responsibility for all repairs, replacements and renewals related to the physical structure of the Jail and the Police Department Building systems located outside the Jail (such as electrical supply, hot water heaters, sewers, etc.), and structural conditions or defects of either building which would affect the Jail. d. Damage to Jail. Promptly after the occurrence of any damage to or loss of the Jail that materially affects the continued operation of the Jail, the parties shall notify each other of such loss or damage and shall jointly assess the nature and extent of such damage or loss as soon as practicable and desirable thereafter, the parties shall determine to rebuild, repair or restore such damage or loss or to terminate this Agreement as provided Section 12.E, Termination for Damage In the event Operator and City shall determine to repair, rebuild or retire the Jail, the City will pay the costs if undertaking such repair, rebuilding or restoration If City and Operator determine not to rebuild, repair or restore the Jail, then this Agreement shall terminate with respect to the Jail thirty (30) days after such determination Neither party is under any obligation to rebuild, repair or restore the Jail even though the City determines to rebuild, repair or restore the Police Department Building. Operator shall complete all damage reports required by the Standards of Care, including those required by the City.
6. Employees
The Operator’s duties and obligations with respect to employees, background investigations, orientation and training are set forth below. a. Background Investigation. A background investigation and psychological evaluation shall be made by Operator of the Jail manager, supervisor and all prospective employees prior to any prospective employee being hired by Operator for assignment to the Jail, the results of which investigation shall be made available to the City. City shall have the right, at its sole discretion but subject to all applicable laws, Operator policies and restrictions relating to the disclosure or use of such information, to oversee and participate in any of Operator’s background investigations conducted pursuant to this Section and to determine the suitability of any employee for assignment to the Jail. Operator shall maintain on file for each employee, a criminal history, and immigration information (where applicable). b. Orientation and Training. Operator shall provide an
orientation program for all employees, as well as initial and recurring training in compliance with the applicable Standards of Care. All training shall be conducted as close to the Jail as possible. 395
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c. Court Appearance. All costs associated with court
appearance made by Employees arising out of services provided under this Agreement shall be billed to City at the applicable regular or overtime rate.
7. City’s Responsibility
a. Cooperation. City shall cooperate with the Operator in all matters of law enforcement, security, and communication. b. Training. City shall assist Contractor in the initial orientation training of Contractor’s employees to operate the Jail. All other training shall be the responsibility of the Contractor.
c. Information. City’s Police Department shall assist and cooperate with Operator in providing information requested and needed by Operator in the screening of candidates for employment to the extent legally permitted. No liability shall attach to City for such assistance, however, and Operator agrees to fully indemnify and hold harmless City for providing such assistance.
d. City Policies and Applicable to Court Orders. City shall provide Operator with copies of all City policies applicable to City’s booking and custodial procedures and with any applicable court orders.
e. Food service. Contractor shall provide food service for all inmates in compliance with the applicable Minimum Standards. The source and costs of all food services will be maintained by City. Operator will maintain inventory and place order for food services on behalf.
f. Essentials. City shall provide all facility supplies, including hygiene items, clothing, office supplies, support items, and inmate quarter, including, but not limited to, mattresses, pillows, sheets, pillowcases, and blankets, necessary to meet the applicable Standards of Care.
g. Health Services. City shall provide routine health services at the Jail as required by outside contracting sources, if such contract is obtained. h. Inmate Care. Items City shall provide inmate care items. i. Booking Supplies. City shall provide required booking supplies.
j. Transportation Vehicle. City shall provide a transportation vehicle (See Exhibit A, section 4.g.)
k. City maintains all decision-making authority and
responsibility for the operation and management of the City Jail. City’s responsibilities include, but are not limited to:
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i. Creating and implementing the City’s Jail Manuel:
ii. Providing Universal Protection Services with copies of all relevant policies and procedures:
iii. Managing linen and janitorial responsibilities: and iv. Maintaining responsibility for any maintenance or repair obligations. l. City, shall identify and employ the Facility Administrator and Facility Manager required by California Code of Regulations, Title 15, section 1006 (“Minimum standards for Local Detention Facilities”) issued by the Board of State and Community Corrections. As defined in Section 1006, the “Facility Administrator” means the sheriff, Chief of Police, Chief probation officer, or the other official charged by law with the administration of a local detention facility. The “Facility Manager” means the jail commander, camp superintendent, or other comparable employee who has been delegated the responsibility for operating a local detention facility by facility administrator.
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Exhibit A
Expanded Scope of Services
Exhibit A
Scope of Services
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Exhibit A-1
Expanded Scope of Services
Exhibit A-1
Scope of Services
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Exhibit A-1
Expanded Scope of Services
Exhibit A-1
Scope of Services
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Department: Community Development
Prepared By: Pablo DeLara
Staff Member Presenting:
Scott Murphy, Executive Director Community
Development
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 10
SUBJECT:
AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT (FILE NO. PDA21- 012) BETWEEN THE CITY OF ONTARIO AND RICHLAND MEADOWLAND, LTD,
STRACK FARMS LAND, LLC, AND RMD INLAND INVESTORS, LLC
CITY OF ONTARIO
Agenda Report
February
6, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council consider and adopt an Ordinance approving a Development Agreement (File No. PDA21-012) between the City of Ontario and Richland Meadowland, LTD, Strack Farms Land, LLC, and RMD Inland Investors, LLC.
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:
There is not a direct fiscal impact associated with this action . The Development
Agreement will provide funding from the formation of a Community Facilities District (CFD) for City services and facilities required to support the Subarea 29 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 January 16, 2024, the City Council held a public hearing to introduce and waive further reading of an Ordinance approving the Development Agreement (File No. PDA21- 012).
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, Richland Ontario Developers, LLC, Richland Meadowland, LTD, Strack Farms Land, LLC, and RMD Inland Investors, LLC (collectively the "Applicant" or "Owner"), has requested that the City enter into negotiations to create a Development Agreement (Agreement). 402
The Agreement proposes to include 47.16 acres of land within Planning Area 30 and Planning Area 31 of the Subarea 29 Specific Plan, as shown on the attached Exhibit "A." The Agreement grants the Applicant a vested right to develop Tentative Tract Map 20472 (Map), provided the Owner complies with the terms and conditions of the Specific Plan and related EIR.
The Map, as shown on the attached Exhibit "B," is located at the southwest corner of Eucalyptus Avenue and Haven Avenue and proposes to subdivide 47.16 acres of land into 198 numbered lots and 45 lettered lots for residential uses, private drives, parking, landscape edges and common open space purposes.
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.
In considering the Agreement at their meeting on December 18, 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. PC23-105 with a 5 to 0 vote, recommending City Council approval of the Agreement.
ENVIRONMENTAL REVIEW:
The environmental impacts of this Project were previously reviewed in conjunction with File No. PSPA21-005, a Specific Plan Amendment for which a Subsequent Environmental Impact Report (SEIR) (State Clearinghouse No. 2004011009) was adopted by the City Council on November 21, 2023. 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:
SUBAREA 29 SPECIFIC PLAN LAND USE MAP (File No. (File No. PSPA21-005)
404
Exhibit B:
TENTATIVE TRACT MAP NO. 20472
405
ORDINANCE NO. ________
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PDA21-012, A DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF ONTARIO AND RICHLAND
MEADOWLAND, LTD A TEXAS LIMITED PARTNERSHIP, STRACK
FARMS LAND, LLC, A DELAWARE LIMITED LIABILITY COMPANY,
AND RMD INLAND INVESTORS, LLC, A DELAWARE LIMITED
LIABILITY COMPANY, TO ESTABLISH THE TERMS AND
CONDITIONS ASSOCIATED WITH TENTATIVE TRACT MAP 20472
(FILE NO. PMTT21-018), A 47.16 ACRE PROPERTY LOCATED AT THE
SOUTHWEST CORNER OF EUCALYPTUS AVENUE AND HAVEN
AVENUE, WITHIN PLANNING AREA 30 MIXED RESIDENTIAL AND
PLANNING AREA 31 MIXED RESIDENTIAL OF THE SUBAREA 29
SPECIFIC PLAN (FILE NO. PSPA21-005), AND MAKING FINDINGS IN SUPPORT THEREOF—APN(S): 0218-331-31 AND 0218-331-52.
WHEREAS, Richland Ontario Developers, LLC ("Applicant") has filed an Application for the approval of a Development Agreement, File No. PDA21-012, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and
WHEREAS, the Application applies to 47.16 acres of land located at the southwest corner of Eucalyptus Avenue and Haven Avenue, within Planning Area 30 (Mixed Residential) and Planning Area 31 (Mixed-Residential) of the Subarea 29 Specific Plan (File No. PSPA21-005); and
WHEREAS, the Applicant submitted Tentative Tract Map No. 20472 (File No.
PMTT21-018), subdividing 47.16 acres of land into 198 numbered lots and 45 lettered lots for residential uses, private drives, parking, landscape edges and common open space purposes, located at the southwest corner of Eucalyptus Avenue and Haven Avenue within Planning Area 30 Mixed Residential (5-25 du/ac) and Planning Area 31 Mixed Residential (5-25 du/ac) of the Subarea 29 Specific Plan; and WHEREAS, the environmental impacts of this Project were previously reviewed in conjunction with File No. PSPA21-005, a Specific Plan Amendment for which a Subsequent Environmental Impact Report (SEIR) (State Clearinghouse No. 2004011009) was adopted by the City Council on November 21, 2023, and this Application introduces no new significant environmental impacts; and WHEREAS, the City's "Local 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; and
WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and make recommendations to the City Council on the subject Application; and
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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, 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, on December 18, 2023, the Planning Commission of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date; and WHEREAS, on January 16, 2024, 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 RESOLVED by the City Council of the City of Ontario, as follows:
SECTION 1: Environmental Determination and Findings. As the recommending authority for the Project, the City Council has reviewed and considered the information contained in the previous Certified EIR and supporting documentation. Based upon the facts and information contained in the previous Certified EIR and supporting documentation, the City Council finds as follows:
(1) The environmental impacts of this Project were previously reviewed in conjunction with File No. PSPA21-005, a Specific Plan Amendment for which a Subsequent Environmental Impact Report (SEIR) (State Clearinghouse No. 2004011009) was adopted by the City Council on November 21, 2023; 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
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(4) The previous Certified EIR reflects the independent judgment of the City Council; 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.
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 recommending authority for the Project, the City Council finds that based on the facts and information contained in the Application and supporting documentation, at the time 408
of Project implementation, the project is consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan. The project site is not one of the properties in the Housing Element Sites contained in Tables B-1 and B-2 (Housing Element Sites Inventory) 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 recommending authority 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, is will be consistent with the policies and criteria set forth within the ONT ALUCP; and
(2) On August 2, 2022, the City Council of the City of Ontario approved and adopted a Development Code Amendment to establish the Chino Airport ("CNO") Overlay Zoning District ("OZD") and Reference I, Chino Airport Land Use Compatibility Plan ("CNO ALUCP"). The CNO OZD and CNO ALUCP established the Airport Influence Area for Chino Airport, solely within the City of Ontario, and limits future land uses and development within the Airport Influence Area, as they relate to safety, airspace protection, and overflight impacts of current and future airport activity. The CNO ALUCP is consistent with policies and criteria set forth within the Caltrans 2011 California Airport Land Use Planning Handbook. The proposed Project is located within the Airport Influence Area of Chino Airport and was evaluated and found to be consistent with the California Airport Land Use Planning Handbook and the CNO ALUCP. As the recommending body for the Project, the City Council has reviewed and considered the facts and information contained in the Application and supporting documentation against the CNO ALUCP compatibility factors, including Safety, Airspace Protection, Overflight. As a result, the City Council, therefore, finds and determines that the Project is consistent with the policies and criteria set forth within the California Airport Land Use Planning Handbook and the Chino ALUCP.
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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 47.16 acres of land located at the southwest corner of Eucalyptus Avenue and Haven Avenue, within Planning Area 30 Mixed Residential and Planning Area 31 Mixed Residential of the Subarea 29 Specific Plan (File No. PSPA21-005); and (2) The Development Agreement establishes parameters for the development of land within Subarea 29 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 Subarea 29 Specific Plan; and
(3) The Development Agreement grants the Applicant a vested right to develop Tentative Tract Map 20472 (File No. PMTT21-018) as long as the Applicant complies with the terms and conditions of the Subarea 29 Specific Plan and EIR. Tentative Tract Map 20472 is located on the southwest corner of Eucalyptus Avenue and Haven Avenue, within Planning Area 30 (Mixed Residential) and Planning Area 31 (Mixed-Residential) of the Subarea 29 Specific Plan, and proposes to subdivide 47.16 acres of land into 198 numbered lots and 45 lettered lots for residential uses, private drives, parking, landscape edges and common open space purposes; 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 a Specific Plan Amendment for which a Subsequent Environmental Impact Report (SEIR) (State Clearinghouse No. 2004011009) was adopted by the City Council on November 21, 2023.
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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 Development Agreement (File No. PDA21-012), attached hereto as "Attachment A," and incorporated herein by this reference.
SECTION 7: City Manager Administrative Authority. The City Council acknowledges that refinements and further development of the Ontario Ranch development area may demonstrate that changes are appropriate with respect to the details and performance of the parties under the Development Agreement. The City Council desires to retain a certain degree of flexibility with respect to the details of the Ontario Ranch developments, and with respect to those items covered in general terms under the Development Agreement. If and when the City Manager (or designee) and the Developer mutually find that changes, adjustments, or clarifications are appropriate to further the intended purposes of the Development Agreement, and such are not materially inconsistent with the Development Agreement, they may, unless otherwise required by law, effectuate such changes, adjustments, or clarifications by written amendment to this Agreement, or through one or more memoranda which are mutually approved by the City Manager on behalf of the City and by the Developer, and, after execution, shall be attached to the Development Agreement and become a part thereof. Unless otherwise required by law, no such changes, adjustments, or clarifications shall require prior notice or hearing before the City Council. The City Manager, with the approval of the City Attorney, shall have the authority but not the obligation to execute amendments, memoranda or other documents, and may take any action necessary to implement the Development Agreement.
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.
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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 6th day of February 2024. _____________________________________
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. 3270 was duly introduced at a regular meeting of the City Council of the City of Ontario held January 16, 2024 and adopted at the regular meeting held February 6, 2024 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. 3270 duly passed and adopted by the Ontario City Council at their regular meeting held February 6, 2024 and that Summaries of the Ordinance were published on January 23, 2024 and February 13, 2024, in the Inland Valley Daily Bulletin newspaper. __________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
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ATTACHMENT A:
FILE NO. PDA21-012
DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation
and
Richland Meadowland, LTD,
a Texas limited partnership
Strack Farms Land, LLC
a Delaware Limited Liability company
RMD Inland Investors, LLC
a Delaware limited liability company
(Development Agreement to follow this page)
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45774.0021C\7810652.1
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. PDA21-012
DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation
and
Richland Meadowland, LTD,
a Texas limited partnership
Strack Farms Land, LLC
a Delaware Limited Liability company
RMD Inland Investors, LLC
a Delaware limited liability company
_________________________, 2024
San Bernardino County, California
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DEVELOPMENT AGREEMENT NO. PDA21-012
This Development Agreement (hereinafter “Agreement”) is entered into effective as of the ____ day of ____________, 2024 by and among the City of Ontario, a California municipal corporation (hereinafter “CITY”), and Richland Meadowland, LTD , a Texas limited partnership, Strack Farms Land, LLC, a Delaware limited liability company and RMD Inland Investors LLC; a Delaware Limited Liability corporations (collectively 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 Subarea 29 Specific Plan (State Clearinghouse No. 2004071001 (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
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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 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.
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.”
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.
WHEREAS, Owner’s Property is within the boundaries defined in Exhibit A of the Construction Agreement between the CITY and NMC Builders and the Property covered by this Agreement is what is known as a “Phase 2 Water Property” as such, shall be required to provide funding for CITY’s future construction of the “Phase 2 Water Improvements” which will result in the availability of additional Net MDD Water Availability required for the development as shown on Exhibit “I-1”.
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.
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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.
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 418
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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 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 Map No. 20472 as further described 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 419
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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.
1.1.15 “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 fifteen (15) 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 OWNER 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 water infrastructure Improvements required for the issuance by CITY of the “Water Availability Equivalents” (WAE) for the Project.
1.1.22 “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.
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1.1.23 “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.
1.1.24 “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.
1.1.25 “Property” means the real property described on Exhibit “A” and shown on Exhibit “B” to this Agreement.
1.1.26 “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.
1.1.27 “Specific Plan” means that certain specific plan adopted by the City Council, and entitled, “Countryside Specific Plan.”
1.1.28 “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.
1.1.29 “Subsequent Development Approvals” means all Development Approvals required subsequent to the Effective Date in connection with development of the Property.
1.1.30 “Subsequent Land Use Regulations” means any Land Use Regulations adopted and effective after the Effective Date of this Agreement.
1.1.31“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.
1.1.32 “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.
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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 Required Infrastructure Improvements Exhibit(s) Exhibit “G” — Form of Certificate of Net MDD to be issued by CITY Exhibit “H” — Form of Certificate of Regional 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.
2.1 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 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
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(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 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.
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.
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:
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(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.
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”) 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. 424
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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. CITY shall review, and if the above conditions, including but not limited to, those conditions in Section 2.4.2, are satisfied, CITY may approve the partial assignment and release and notify the purchaser, 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 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.
2.5.2 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 425
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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.
2.6 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. (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
If to OWNER:
Derek Barbour
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City of Ontario”303 East "B" Street
Ontario, CA 91764
Richland Communities
3161 Michelson, Suite 425
Irvine, CA 92612
[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:
Richland Legal Dept.
c/o John Troutman
3161 Michelson, Suite 425
Irvine, CA 92612
[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 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 427
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similar factors. Since the California Supreme Court held in Pardee Construction Co. v.
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 Exhibit “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 “F” is a 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 fifteen (15) Model Units, private common recreation facilities and sales facilities.
CITY may issue a maximum of fifteen (15) 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 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:
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(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;
(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; 429
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(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).
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 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 facilities as described in Exhibit E and depicted in Exhibit F. OWNER shall be responsible for the construction of the necessary 430
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extension of Storm Drain facilities. 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 extension of water and recycled water utility infrastructure 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 extension of sewer improvements, at OWNER’s sole cost and expense, 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 infrastructure, at OWNER’s sole cost and expense, 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.
3.7.6 OWNER shall pay their fair share contribution, for the design and construction of two (2) non-DIF traffic signals at Haven Avenue and Parkview Street (25%), and at Eucalyptus Avenue and “A” Street (50%). OWNER shall provide CITY with the estimated costs of the two (2) non-DIF traffic signal improvements and OWNER shall make such fair share contribution payment to CITY, prior to and as a condition precedent to, CITY’s issuance of the first building permit for Production Units.
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 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 431
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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 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.
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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 public agencies, even though such Development Impact Fees may be collected by CITY.
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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. 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.
4.2.4 Parkland Required and Provided. Tract Map No. 20472 includes one hundred ninety-six (196) single-family detached units and one hundred fifty- four (154) multiple family attached units requiring 2.54 acres of improved park per Section 4.2.3 above. Tract Map No. 20472 provides 2.54 acres of improved park satisfying the CITY’s park standards.
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 434
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otherwise specified in the Subdivision Agreement/Tract Map conditions, all other required Improvements for each Tract Map, shall be completed and operational 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 No. 20472.
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 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 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.
Additionally, OWNER and CITY agree that a portion of the improvements described in Exhibit E and depicted in Exhibit F, may be constructed by others. If such improvements are constructed by others and are completed and accepted by CITY prior to OWNER's request to CITY for the required grading, building or other 435
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required permits for OWNER to initiate construction of structures for the Property, then OWNER shall not be required to construct or pay for those Improvements constructed and completed by others and accepted by CITY.
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 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 4.3.2.1 through 4.3.2.1. 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 436
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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 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 Twenty Four Cents ($3.24) per square foot of residential development within OWNER’s Project or, if pre-paid as set forth below, Two Dollars Eighty Five Cents ($2.85) 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 437
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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 Twenty Four Cents ($3.24) and the Two Dollars Eighty Five Cents ($2.85) per square foot amounts shall automatically be increased annually, commencing on July 1, 2024, and automatically each July 1 thereafter. Such 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.
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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 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 non- residential 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 Five Hundred Ninety- Seven Eighty Eight Cents ($2,597.88) 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 Ninety- Eight Ninety Four Cents ($1,298.94) 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 439
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Restated Construction Agreement. The First Installment shall be due and payable 30 days following the Effective Date of this 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 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 Ninety- Eight Ninety Four Cents ($1,298.94) per residential unit. The Second Installment shall be paid at the time of the issuance of each building permit for the Project. The amount of the Second Installment shall increase automatically by percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA) (December 2017=100) over the preceding year on January 1 st of each year, beginning on January 1, 2024. OWNER may exercise the option to pay the Second Installment amount for all residential units, a portion of the residential units, or for the remainder of the residential units within OWNER’s Project on or before each December 31st, before the Second Installment amount is automatically increased.
4.6.2.3 Single Installment (Non-residential Uses). A single installment payment of the Public Services Funding Fee shall be required in the amount of Seventy Eight Cents ($.78) 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 1 st 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 Assigned Net MDD/Water Availability Equivalents. The City has agreed with NMC Builders LLC to reserve exclusively for Members of NMC Builders, including OWNER, Net MDD made available through the construction of water system 440
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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 Tract or 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 4.7.3, CITY shall issue a certificate of DIF Credit against OWNER’s DIF obligations in the Regional Water DIF Category.
4.7.4 Effectiveness of Agreement. CITY acknowledges that the OWNER is a current “Member” of NMC Builders LLC. OWNER’s assignees shall not be required to become a member of NMC. Notwithstanding anything set forth in this 441
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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, are conditioned upon OWNER’s admission to NMC Builders as a “Member” (if not already a Member) thereof pursuant to the terms and conditions of the operating agreement of NMC Builders within 30 days following the Effective Date of this Agreement. OWNER’S failure to maintain membership in NMC Builders LLC is and shall be a Default under this Agreement.
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 4.6 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 4.9, 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 it, including, without limitation, the right of the City to withhold OWNER’s Project- related building permits, certificates of occupancy, or discretionary approvals, without liability.
5. FINANCING OF PUBLIC IMPROVEMENTS.
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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, $1,049.96 per Gated Apartment Community Dwelling Unit, and $0.27 per square foot for Non-Residential buildings as of the date of this agreement. The special tax amount shall be subject to change based on the services tax rate that is in effect at the time such CFD is formed. 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. 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 5.2 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 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.
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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.
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.
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(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 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.
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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 non- monetary 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 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 446
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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 Subsection 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 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 447
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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.
9.5 Reservation of Rights. With respect to Sections 9.2, 9.3 and 9.4 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.
9.6 Survival. The provisions of this Sections 9.1 through 9.6, inclusive, shall survive the termination of this Agreement.
10. 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 448
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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. (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.
11. MISCELLANEOUS PROVISIONS.
11.1 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 the 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 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.
11.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written 449
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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.
11.3 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.
11.4 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.
11.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
11.6 Singular and Plural. As used herein, the singular of any word includes the plural.
11.7 Joint and Several Obligations. Subject to section 2.4, if at any time during the term of this Agreement the Property is 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.
11.8 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
11.9 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.
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11.10 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.
11.11 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, court actions (such as 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.
11.12 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.
11.13 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.
11.14 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.
11.15 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.
11.16 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.
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11.17 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.
11.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain.
11.19 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. OWNER for itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).
11.20 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 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 under this Section 11.20 prior to CITY’s issuance of such certificates.
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11.21 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.
11.22 Payment of 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.
11.22.1 OWNER acknowledges that the City has made no representation, express or implied, to OWNER or any person associated with OWNER regarding whether or not laborers employed relative to the construction and installation of improvements on the Property, if any, must be paid the prevailing per diem wage rate for their labor classification, as determined by the State of California, pursuant to California Labor Code Sections 1720, et seq. OWNER agrees with the City that OWNER shall assume the responsibility and be solely responsible for determining whether or not laborers employed relative to any construction of capital improvements on the Property must be paid the prevailing per diem wage rate for their labor classification, as determined by the State of California, pursuant to California Labor Code Sections 1720, et seq.
11.22.2 OWNER, on behalf of itself, its successors, and assigns, waives and releases the City from any right of action that may be available to any of them pursuant to California Labor Code Sections 1726 and 1781. OWNER acknowledge the protections of California Civil Code Section 1542 relative to the waiver and release contained in this Section 11.22, 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 AND THAT, IF KNOWN BY HIM OR HER,
WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR OR RELEASED PARTY.
BY INITIALING BELOW, OWNER KNOWINGLY AND
VOLUNTARILY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL
CODE SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 11.22:
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OWNER
11.22.3 Additionally, OWNER shall indemnify, defend with counsel acceptable to the City and hold harmless the City against any claims pursuant to California Labor Code Section 1781 arising from this Agreement or the construction or installation of any improvements on the Property, in accordance with the terms of Section 11.22 of this Agreement.
11.22.4 If Civil Code sections 9550 et seq. require contractors to procure a payment bond, then the OWNER shall ensure that its contractors deliver the required bond.
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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SIGNATURE PAGE
TO DEVELOPMENT AGREEMENT FILE NO. PDA21-012
"OWNER"
RICHLAND MEADOWLAND, LTD,
a Texas Limited partnership
By: ________________________
Name: John Troutman
Its: Vice President
Date: ___________________
STRACK FARMS LAND, LLC
a Delaware limited liability company
By: ________________________
Name: John Troutman
Its: Vice President
Date: ___________________
RMD INLAND INVESTORS, LLC,
a Delaware limited liability company
By: ________________________
Name: John Troutman
Its: Vice President
Date: ___________________
"CITY"
CITY OF ONTARIO
By:
Scott Ochoa
City Manager
Date: ___________________
ATTEST:
City Clerk, Ontario
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APPROVED AS TO FORM:
BEST BEST & KRIEGER, LLP
City Attorney
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ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
COUNTY OF____________________ )
On _________________, 20_____, before me__________________________________, Date Insert Name and Title of the Officer
personally appeared ________________________________________________________ Name(s) of Signer(s)
________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person 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, 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________________________________
Signature of Notary Public
Place Notary Seal Above
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. 457
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ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
COUNTY OF____________________ )
On _________________, 20_____, before me__________________________________, Date Insert Name and Title of the Officer
personally appeared ________________________________________________________ Name(s) of Signer(s)
________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person 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, 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________________________________
Signature of Notary Public
Place Notary Seal Above
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. 458
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EXHIBIT "A"
TO DEVELOPMENT AGREEMENT
Legal Description of Property
PARCEL ONE: (APN: 1073-171-02-0-000)
PARCEL "A" AS SHOWN ON LOT LINE ADJUSTMENT NO. LLA 18-006, AS EVIDENCED BY DOCUMENT RECORDED AUGUST 07, 2019 AS INSTRUMENT NO. 2019-0269171 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEING A PORTION OF GOVERNMENT LOT 4 OF THE NORTHEAST 1/4 OF SECTION 23, TOWNSHIP 2 SOUTH, RANGE 7 WEST, SAN BERNARDINO BASE AND MERIDIAN,
IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF AND A PORTION OF LOT 4 OF THE MAP OF THE
BONITO RANCHO SUBDIVISION, IN THE CITY OF ONTARIO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 20, PAGE 49, OF MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 23; THENCE ALONG THE NORTH LINE OF SAID SECTION, NORTH 89°57'17" WEST, A DISTANCE OF 1,323.36 FEET, TO THE NORTHWEST CORNER OF SAID GOVERNMENT LOT 4; THENCE ALONG THE WEST LINE OF SAID GOVERNMENT LOT 4, SOUTH 00°25'49" WEST, A DISTANCE OF 1,314.36 FEET, TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE SOUTHERLY HAVING A RADIUS OF 480.00 FEET, A RADIAL LINE TO SAID CURVE BEARS NORTH 04°04'47" EAST; THENCE SOUTHEASTERLY, ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 11°42'21" A DISTANCE OF 98.07 FEET; THENCE SOUTH 74°12'52" EAST, A DISTANCE OF 25.40 FEET, TO A POINT ON THE NORTHERLY LINE OF PARCEL 2 OF CERTIFICATE APPROVING LOT LINE ADJUSTMENT OWNER'S CERTIFICATE NO. LLA06- 08, RECORDED MARCH 15, 2007 AS DOCUMENT# 2007-163169 OF OFFICIAL RECORDS, SAID POINT ALSO BEING A POINT ON THE NORTHWESTERLY LINE OF SAID LOT 4; THENCE ALONG SAID NORTHERLY LINE OF SAID PARCEL 2 AND THE NORTHWESTERLY LINE OF SAID LOT 4, NORTH 62°37'22" EAST, A DISTANCE OF 42.19 FEET; THENCE CONTINUING ALONG SAID NORTHERLY LINE OF SAID PARCEL 2, SOUTH 89°41'00" EAST, 135.92
FEET, TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE NORTHERLY, HAVING A RADIUS OF 470.00 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH 07°19'42" WEST; THENCE EASTERLY, ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 14°01'24" A DISTANCE OF 115.03 FEET, TO A POINT ON SAID NORTHERLY LINE OF SAID PARCEL 2; THENCE CONTINUING ALONG SAID NORTHERLY LINE OF SAID PARCEL 2, SOUTH 89°41'00" EAST, A DISTANCE OF 916,17 FEET, TO THE EAST LINE OF SAID SECTION 23; THENCE ALONG THE EAST LINE OF SAID SECTION 23, NORTH 00°20'57" EAST, A DISTANCE OF 1,324.15 FEET, TO THE POINT OF BEGINNING.
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EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE CITY OF ONTARIO, A POLITICAL SUBDIVISION BY GRANT DEED RECORDED FEBRUARY 20, 2020 AS INSTRUMENT NO. 2020-0059874, OF OFFICIAL RECORDS.
PARCEL TWO: (APN: 1073-171-01-0-000)
PARCEL 2 AS SHOWN ON CERTIFICATE APPROVING A LOT LINE ADJUSTMENT LLA NO. 07-010, AS EVIDENCED BY DOCUMENT RECORDED JUNE 10, 2008 AS INSTRUMENT NO. 2008-0263645 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEING THOSE PORTIONS OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER, AND GOVERNMENT LOT 3 OF SECTION 23, TOWNSHIP 2 SOUTH, RANGE 7 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF ONTARIO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTH QUARTER CORNER OF SAID SECTION 23, THENCE SOUTH 0°13’25" WEST, 25.00 FEET TO A POINT ON A LINE THAT IS PARALLEL WITH AND 25.00 FEET SOUTHERLY OF THE NORTHERLY LINE OF SAID SECTION 23; THENCE SOUTH 89°57’17" EAST ALONG SAID PARALLEL LINE, 949.92 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 89°57’17" EAST, 373.54
FEET TO A POINT ON THE EASTERLY LINE OF SAID NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 23; THENCE SOUTH 0°25’49" WEST ALONG
SAID EASTERLY LINE OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER, 1259.30 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 510.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 3°51’53" EAST; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 17°19'17" AN ARC DISTANCE OF 154.18 FEET; THENCE SOUTH 76°32’36" WEST, 100.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 510.00 FEET; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 13°28’45" AN ARC DISTANCE OF 119.98 FEET TO A POINT TO WHICH A RADIAL LINE BEARS SOUTH 00°01'21" WEST; THENCE NORTH 0°13’25" EAST, 1309.69 FEET TO THE TRUE POINT OF BEGINNING.
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EXHIBIT "B"
TO DEVELOPMENT AGREEMENT
Map showing Property and its location
461
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EXHIBIT "C"
TO DEVELOPMENT AGREEMENT
Existing Development Approvals
On September 26, 2006, the Planning Commission:
a) Issued Resolution No. PC06-095 recommending City Council adopt and certify the Subarea 29 (Park place) Environmental Impact Report;
b) Issued Resolution No. PC06-096 recommending City Council approval of the General Plan Amendment (PGPA06-003); and
c) Issued Resolution No. PC06-097 recommending City Council approval of the Subarea 29 (Park Place) Specific Plan (PSP03-003).
On October 19, 2006, the City Council:
a) Issued Resolution No. 2006-089 certifying the Subarea 29 (Park place) Environmental Impact Report; and
b) Issued Resolution No. 2006-090 approving the General Plan Amendment (PGPA06- 003).
On November 7, 2006, the City Council:
a) Issued Ordinance No. 2845 approving of the Subarea 29 (Park Place) Specific Plan (PSP03-003).
On March 27, 2007, the Planning Commission:
a) Issued Resolution No. PC07-036 recommending City Council approval of an amendment to the Subarea 29 Specific Plan (PSPA07-007).
On May 1, 2007, the City Council:
a) Issued Resolution No. 2007-053 approving an amendment to the Subarea 29 Specific Plan.
On August 28, 2013, the Zoning Administrator:
a) Issued Decision No. 2013-025 approving a minor amendment to the Subarea 29 Specific Plan (PSPA13-002).
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EXHIBIT "C"
TO DEVELOPMENT AGREEMENT
Existing Development Approvals (Continued)
On March 24, 2015, the Planning Commission:
a) Issued Resolution No. PC15-035 recommending City Council approval of an amendment to the Subarea 29 Specific Plan (PSPA14-002).
On April 21, 2015, the City Council:
a) Issued Resolution No. 2015-030 approving an amendment to the Subarea 29 Specific Plan.
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EXHIBIT "D"
TO DEVELOPMENT AGREEMENT
Existing Land Use Regulations
These documents are listed for reference only:
1. Subarea 29 (Park place) Environmental Impact Report, Resolution No. 2006-089
2. Subarea 29 (Park Place) General Plan Amendment (PGPA06-003), Resolution No. 2006- 090
3. Subarea 29 (Park Place) Specific Plan (PSP03-003), Ordinance No. 2845
4. Amendment to the Subarea 29 Specific Plan (PSPA07-003), Resolution No. 2007-053
5. Amendment to the Subarea 29 Specific Plan (PSPA13-002), Decision No. 2013-025
6. Amendment to the Subarea 29 Specific Plan (PSPA14-002), Resolution No. 2015-030
7. 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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EXHIBIT "E"
TO DEVELOPMENT AGREEMENT
Description of Required Infrastructure 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 building permits for Production Units.
STREETS (ST)
a) ST improvements on Eucalyptus Avenue from the western tract boundary to Haven Avenue. b) ST improvements on Haven Avenue from Eucalyptus Avenue to Parkview Street. c) Full signalized intersection improvements at the corner of Eucalyptus Avenue and Haven Avenue.
d) Full signalized intersection improvements at the corner of Haven Avenue and Parkview Street, pursuant to Section 3.7.6.
e) Full signalized intersection improvements at the corner of Eucalyptus Avenue and “A” Street, pursuant to Section 3.7.6
FIBER OPTICS (FO)
a) FO improvements on Haven Avenue from Eucalyptus Avenue to Parkview Street. b) FO improvements on Parkview Street from Haven Avenue to the western tract boundary. c) FO improvements at the intersection of Eucalyptus Avenue and “A” Street. 465
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EXHIBIT "F"
TO DEVELOPMENT AGREEMENT
Depiction of Required Infrastructure Improvements
SEE ATTACHED
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467
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468
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EXHIBIT “G”
TO DEVELOPMENT AGREEMENT
FORM OF CERTIFICATE OF NET MDD AVAILABILITY
Pursuant to Section of this Agreement between the City of Ontario, a California municipal corporation, and , a
company, hereinafter called "OWNER", the terms and definitions of which are hereby incorporated herein by this reference and hereinafter called "Agreement", the City of Ontario hereby certifies based on CITY receipt of payment of OWNER’s share of the funding for the Phase 2 Water Improvements, that OWNER is entitled to the following Net MDD Water Availability.
Amount of Net MDD: gpm
Scott Ochoa, City Manager
Dated:
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Exhibit “H”
TO DEVELOPMENT AGREEMENT
FORM OF CERTIFICATE OF REGIONAL DIF CREDIT
Pursuant to Section 4.5.2 of this Agreement by and between the City of Ontario and , dated , 201__, 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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Exhibit “I-1”
TO DEVELOPMENT AGREEMENT
ONTARIO RANCH
WATER SUPPLY PHASING PLAN
Phase 2 Water
Availability
Equivalency
Estimated
Net MDD Available1
Phase 2 A
Supply & Storage
1. 1 - Additional Ground Water Well and Collection lines - Design and Construction
8,250 gpm2 7,750 gpm2
Pipelines (Transmission & Distribution)2
2. 925 Zone Transmission lines – Design and Construction
3. Temporary Pressure Reducing Station 3 – Design and
Construction
Phase 2B
Supply & Storage
4. 1 – Additional Ground Water Well and Collection lines – Design and Construction
5. 1 – 6 million gallon Reservoir – 925 Zone – Design and Construction
10,500 gpm2 9,860 gpm2
(1) Upon Completion of the construction of all of the improvements described for each Phase a Certificate of Net MDD Availability shall be issued to Developer for the corresponding amount of Net MDD. Net MDD means the maximum daily demand on the potable water supply, net of the water requirements for public schools and parks. The Water Availability Equivalency includes the estimated requirements for public schools and parks. The amount of Net MDD specified is the cumulative amount for which building permits may be issued upon funding of the corresponding and all preceding Phases of improvements.
(2) The ability of a particular development to utilize Net MDD assigned to it by the Developer will require the completion of design and construction of Master-planned potable and recycled water transmission and distribution pipelines for the respective pressure zone. Other factors may include its location, the particular land use and Water Availability Equivalents assigned to it as specified in Exhibit C-2. (3) Pressure reducing stations are a component of the pipeline transmission and distribution system. 471
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EXHIBIT “I-2”
TO DEVELOPMENT AGREEMENT
WATER DEMAND EQUIVALENTS BY LAND USE
Available Water Supply - See Exhibit C-1R for Net MDD Available Table A - Water Demand Equivalents By Land Use
Water
Demand
Equivalents
(WDE)2
Recycled
Water
Demand
Factor1
(ADD)
Recycled
Water
Demand Of
Total Water
Demand
(gpd/du) (gpd/ac) (gpm/unit) (gpd/ac) (%)
Detached Dwellings (less than 5 units per acre) 544 0.57 900 28% Detached or Attached Dwellings (between 5 and 11 units per acre) 464 0.48 1,000 21% Attached Dwellings (between 11 and 25 units per acre) 323 0.34 1,500 18% High Density Dwellings (25+ units per acre) 152 0.16 1,500 27% Commercial Lodging 150 0.16 1,700 50%
Retail/Serv ices Uses 2,200 2.29 2,300 51%
Office Uses 3,400 3.54 2,300 40%
Business Park Uses 2,200 2.29 2,200 50%
Industrial Uses 2,000 2.08 2,200 52%
Institutional Use 2,200 2.29 1,600 42%
Parks 1,000 1.04 1,400 58%
Schools 3,500 3.65 1,600 31%
Table B - Example Water Supply Calculation
Land Use Residential
Units
WDE Factor
(gpm)
Potable
MDD
(gpm)
Development
Detached Dwellings (less than 5 units per acre) 5,061 0.57 2,868 Detached or Attached Dw ellings (betw een 5 and 11 units per acre) 2,530 0.48 1,223 Attached Dwellings (between 11 and 25 units per acre) 3,410 0.34 1,147 Retail/Serv ices Uses (per acre)2 2.29 239
TOTAL 11,001 5,477
Three (3) Wells Are required to Support this example, assuming each w ell produces 2,000 gpm and connection to the Recycled Water System maximizing Recycled Water Use. 1 Residential Acres are estimated based on the w eighted average derived from the average number of units per land use category. 2 Commercial acreage is calculated from a total square footage of 1,361,000 SF w ith an average Floor to Area Ratio (FAR) of 0.30 for commercial services in The Ontario Plan. 1Recycled Water Demands include irrigation for right-of-w ay (medians and parkw ays), neighborhood edge, pocket parks, and common areas.
Potable WaterThe Ontario Plan Recycled Water
Land Use
1,428
166
194 202
1,950
1,284
Acres1
(gross)
104
369
803
Recycled
Water ADD
(gpm)
Water Demand Factor
(ADD)
256
2 The WDE is based on the Maximum Day Demand (MDD) w ith a peaking factor of 1.5 in the NMC for all land use categories. 472
59 EXHIBIT "J"
TO DEVELOPMENT AGREEMENT
Form of Plume Disclosure Letter
473