Ontario City Council
July 16, 2024

1.3 PROJECT DESCRIPTION
The Ontario Regional Sports Complex (ORSC) would allow for development of a variety of recreational opportunities on an approximately 199-gross-acre site (ORSC site) in the City of Ontario. This includes a semiprofessional Minor League Baseball stadium, retail, and hospitality area in addition to a new City recreation center and aquatics center surrounded by a variety of baseball/softball, soccer, and multiuse fields.

Development on the ORSC site would require installation of a sewer line in the Vineyard Avenue right-of-way (Offsite Improvement Area). The ORSC also requires a concurrent General Plan Amendment and Rezoning (GPA and Rezone) to offset the potential loss in residential capacity in The Ontario Plan (TOP) of 1,471 units from the ORSC site when it is redesignated and rezoned to accommodate the uses of the ORSC. To offset this loss, 94 acres along the Vineyard Corridor south of the ORSC site would be assigned a more intense land use designation, changing from Low Density Residential (LDR) to Medium Density Residential (MDR) to comply with Senate Bill (SB) 330 and SB 166. The development on the ORSC site and Offsite Improvement Area and concurrent GPA and Rezone are referred to as the Proposed Project.

The ORSC site is in the southern portion of Ontario, which is known as the Ontario Ranch. The ORSC site is on the southeast corner of Vineyard Avenue and Riverside Drive in the Armstrong Ranch Specific Plan area.

The ORSC site is bounded to the north by Riverside Drive, to the south by Chino Avenue, to the west by the unimproved right-of-way for Vineyard Avenue, and to the east by the Cucamonga Creek Flood Control Channel. Much of the ORSC site is presently vacant and was primarily used for agricultural purposes, including the raising of livestock and dairy farming. Other land uses on the ORSC site include a nursery east of Ontario Avenue. Vineyard Avenue currently terminates at Riverside Drive.

Ontario Regional Sports Complex
The ORSC would provide a variety of experiences, including a 6,000-capacity, semipro, Minor League Baseball stadium with supportive retail/hospitality uses and a new city regional park and community recreation facilities, including a new recreational center; aquatics center; and baseball, softball, and soccer fields. The land use plan under the ORSC comprises seven planning areas (PA)—Baseball Stadium (PA 1); Commercial Retail (PA 2); Baseball Stadium Retail-Hospitality (PA 3); Baseball Stadium Retail-Hospitality South (PA 4); City Park–Active Fields (PA 5); City Park–Indoor Athletic Facility (PA 6); and Community Recreation Center (PA 7). The amenities are shown in Table 1, Ontario Regional Sport Complex Amenities Summary. As shown in Table 1, the ORSC would result in 540,750 square feet of commercial building space, 450,000 square feet of stadium space (110,000 square feet of conditioned space and 340,000 square feet of unconditioned space), and 272,000 square feet of parking structures.
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Table 1 Ontario Regional Sport Complex Amenities Summary Land Use Acres
Building Square Feet
Commercial Parking Stadium Number of Amenities
PA 1 BASEBALL STADIUM 16.01 — 185,000 450,000 6,000-Seat Capacity 1,600 Parking Spaces
Baseball Field Facility 11.33 — — — 6,000-Seat Capacity Conditioned Space — — — 110,000 —
Unconditioned Space — — — 340,000 —
Parking Structure A (3-stories) 4.68 — 185,000 — 1,600 Parking Spaces PA 2 COMMERCIAL RETAIL 19.62 45,000 — — 1,500 Parking Spaces Retail/Commercial, East 5.06 45,000 — — —
Surface Parking, East 14.56 — — — 1,500 Parking Spaces
PA 3 BASEBALL STADIUM RETAIL
Stadium Retail and Hospitality 4.58 91,000 — — 100 Rooms Retail/Commercial 2.17 21,000 — — —
Hotel 2.41 70,000 — — 100 Rooms
PA 4 BASEBALL STADIUM RETAIL
and Hospitality South 8.54 114,000 — — 250 Parking Spaces Retail/Commercial 6.54 114,000 — — —
Surface Parking, South 2.00 — — — 250 Parking Spaces
PA 5 CITY PARK, Active Fields 110.90 23,300 — 2,000 Parking Spaces Multipurpose Fields (Soccer/Football) 41.13 — — — 13 Fields Multiuse Fields (Baseball/Softball/Little
League) 45.11 — — — 8 Fields
Park 10.87 23,300 — — —
Parking Structure B (4 stories) 3.59 — 87,000 — 1,000 Parking Spaces Surface Parking, South 10.2 — — — 1,000 Parking Spaces
PA 6 CITY PARK, Indoor Athletic
Facility 7.58 159,450 — — 388 Parking Spaces
Indoor Athletic Facility 4.46 159,450 — — 16 max. Courts Surface Parking 3.12 — — — 388 Parking Spaces
PA 7 COMMUNITY RECREATION
CENTER 15.68 108,000 — — 525 Parking Spaces
Community Center/ Admin Building 3.46 70,000 — — —
Activity Area 8.05 38,000 — 1 Field/8 Courts
Recreation Surface Parking 4.17 — — — 525 Parking Spaces Right-of-Way 16.10 — — — —
TOTAL 199.01 540,750 272,000 450,000
6,000-Seat Capacity
100 Rooms
6,263 Parking Spaces
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The Ontario Plan (TOP) Land Use Amendments and Zone Changes The Land Use Element of the Policy Plan establishes two land use designations in the ORSC site, Low-Density Residential and Medium Density Residential. The Proposed Project would require changing the existing land use and zoning to allow for recreational facilities and regional-serving entertainment, retail, and service uses, including hotels/motels, and restaurants. The Proposed Project would:
 Convert 134.42 acres of Low Density Residential (LDR) and Medium Density Residential (MDR) to Open Space-Parkland (OS-R).
 Convert 51.57 acres of Low Density Residential (LDR) to Hospitality (HOS) for a baseball stadium, ancillary/supportive retail, and lodging uses.

Approval of the ORSC would also rescind the Armstrong Ranch Specific Plan and rezone the ORSC site with traditional zoning designations (see Table 2, Proposed Land Use Designations).

Table 2 Proposed Land Use Designations
Land Use Zoning Acres
Ontario Regional Sports Park Complex (On-Site Land Use Changes) Hospitality (HOS) Convention Center Support Retail (CCS) 51.57 Open Space–Parkland (OS-R) Open Space–Recreation 134.42 Right-of-Way (ROW)1 13.01
Proposed Project (On-Site) Total 199.00
Off-Site Land Use Changes (Senate Bills 330 and 166 Compliance) Medium-Density Residential (MDR) No proposed zoning change SP/AG (Specific Plan) 74.75
Medium-Density Residential (MDR) SP/AG/AH
(Specific Plan with Affordable Housing Overlay) 19.25
Senate Bill 330 (Off-Site) Total 94.00
Notes: SP = Specific Plan, AG = Agricultural, AH = Affordable Housing 1 ROW is consistent with TOP 2050 estimates; it is not based on Table 1.

Because the ORSC would replace areas planned for residential use with nonresidential uses, the loss in residential capacity must be offset by increasing the residential capacity by an equal amount elsewhere in the city to comply with SB 330, which mandates no net loss of residential capacity citywide, and SB 166, which mandates that a jurisdiction maintain an inventory of sites suitable to fulfill its low and very low Regional Housing Needs Assessment obligation at all times.

TOP 2050 planned for a total of 1,471 units in the areas designated LDR and MDR in the ORSC site. To offset this loss, 94 acres along the Vineyard Corridor, south of the ORSC site, would be assigned a more intense land use designation, changing from LDR to MDR. The current land use designation in the Vineyard Corridor, LDR, allowed up to 424 units under TOP 2050. Because of SB 330, the combined capacity for the ORSC site 2381

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and the Vineyard Corridor parcels must be maintained, meaning the Vineyard Corridor parcels must support a minimum capacity of 1,895 units (1,471 units to offset the Proposed Project plus 424 units to account for the existing capacity on the parcels where growth potential would be reallocated). To achieve this, the Proposed Project requires a general plan amendment designating the Vineyard Corridor parcels (94 acres) as MDR instead of LDR, creating capacity for 2,075 units, 180 units more than required to comply with SB 330.

SB 166 requires that the 194 affordable units that were allocated to the ORSC site must be reallocated to other suitable sites in the city. To comply with this requirement, two of the parcels in the Vineyard Corridor (19.25 of 94.00 acres) that were identified to accept the units reallocated from the ORSC site for SB 330 compliance would be added to the Housing Element’s sites inventory; their Assessor’s Parcel Numbers are 218-18-102 and 218-18-115.

1.4 ENVIRONMENTAL IMPACTS

1.4.1 Impacts Considered No Impact or Less Than Significant The EIR identified various thresholds from the CEQA Guidelines among a number of environmental categories that would not be significantly impacts by the proposed project in Chapter 5, Environmental Analysis, and therefore, did not require mitigation. Impacts to the following environmental resources were found to be less than significant or no impact:
 Aesthetics
 Energy
 Hydrology and Water Quality
 Land Use and Planning
 Mineral Resources
 Population and Housing
 Public Services
 Recreation
 Utilities and Service Systems

1.4.2 Potentially Significant Adverse Impacts That Can Be Mitigated, Avoided, or Substantially Lessened
The EIR concluded that the proposed project could result in one or more potentially significant impacts in the following topic areas:
 Air Quality (Regional Construction Emissions, Construction Health Risk)  Biological Resources (Sensitive Habitat/Species, Wildlife Movement)  Cultural Resources (Archeological Resources)
 Geology and Soils (Paleontological Resources)
 Hazards and Hazardous Materials (Release of Hazardous Materials, Emergency Responder/Evacuation Plan)
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 Noise (Construction Noise)
 Transportation (Emergency Responder/Evacuation Plan)
 Tribal Cultural Resources
 Wildfire (Emergency Responder/Evacuation Plan)
However, the EIR also found that these impacts would be reduced, avoided, or substantially lessened through the implementation of mitigation measures, which are listed in Table 3, Mitigation Monitoring Requirements.

1.4.3 Unavoidable Significant Adverse Impacts
The following impact would remain significant and unavoidable after implementation of required mitigation, as identified in the EIR:
 Agriculture and Forestry Resources (Loss of Prime Farmland)  Air Quality (AQMP Consistency, Regional Operation Emissions)  Greenhouse Gas Emissions
 Noise (Traffic Noise)
 Transportation (Vehicle Miles Traveled)
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2. Mitigation Monitoring Requirements

2.1 CATEGORIZED MITIGATION MEASURES/MATRIX
Project-specific mitigation measures (MM) have been categorized in matrix format, as shown in Table 3, Mitigation Monitoring Requirements. The matrix identifies the environmental factor, specific mitigation measures, schedule, and responsible monitor. The mitigation matrix will serve as the basis for scheduling the implementation of, and compliance with, all mitigation measures. 2384

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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)

AESTHETICS
No Mitigation Measures are necessary.

AGRICULTURAL AND FORESTRY RESOURCES
No Mitigation Measures would feasibly be able to reduce the significant impacts to levels less than significant.

AIR QUALITY
AQ-1 The City of Ontario shall require the construction contractor to incorporate the following to reduce air pollutant emissions during construction activities:
• Use construction equipment rated by the United States Environmental Protection Agency as having Tier 4 (model year 2015 or newer) Final or stricter emission limits for all off-road construction equipment. If Tier 4 Final equipment is not commercially available for a specific piece of equipment, the applicant shall provide documentation (e.g., rental inventory requests), to the City’s satisfaction, or otherwise demonstrate its unavailability to the City of Ontario prior to the issuance of any construction permits and replacement equipment used by the contractor shall achieve emissions reductions that are no less than what could be achieved by a Level 3 diesel emissions control strategy for a similarly sized engine as defined by the California Air Resources Board regulations.
• If Tier 4 Final equipment is not available, the construction contractor(s) and subcontractor(s) affected shall use Tier 4 Interim equipment.
• If Tier 4 Interim equipment is not available, the
construction contractor(s) and subcontractor(s) affected shall use then Tier 3 equipment outfitted with a level 3 diesel particulate filter.
• For purposes of this mitigation measure, “commercially available” shall mean the availability of Tier 4 engines similar to the availability for other large-scale construction projects in the City occurring at the same time and taking City of Ontario Planning
Department and
Construction Contractor
Prior to the start of
construction and during
construction
City of Ontario
Planning/Building
Department
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
into consideration factors such as (i) potential significant delays to critical-path timing of construction and (ii) geographic proximity to the project site of Tier 4
equipment.
• During construction, the construction contractor shall maintain a list of all operating equipment in use on the construction site for verification by the City of Ontario. The construction equipment list shall state the makes, models, Equipment Identification Numbers, Engine Family Numbers, and number of construction equipment onsite.
• Use paints with a VOC content that meets the South Coast Air Quality Management District Super Compliant architectural coatings standard of 10 grams per liter (g/L) or less (i.e.,) for coating architectural surfaces.
• Comply with South Coast Air Quality Management District Rule 403, including the following measures:
• Provide National Institute for Occupational Safety and Health (NIOSH)-approved respirators for workers with a
prior history of Valley Fever.
• Half-face respirators equipped with a minimum N-95
protection factor for use during worker collocation with surface disturbance activities. Half-face respirators
equipped with N-100 or P-100 filters should be used
during digging activities. Employees should wear
respirators when working near earth-moving machinery.
• Post warnings onsite and consider limiting access to
visitors, especially those without adequate training and respiratory protection.

These identified measures shall be incorporated into all appropriate construction documents (e.g., construction management plans) submitted to and verified by the City.
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
AQ-2 All landscaping equipment (e.g., leaf blower) used for property management shall be electric powered only. The property manager/facility owner shall provide documentation (e.g., purchase, rental, and/or services agreement) to the City of Ontario Planning Department to verify to the City’s satisfaction that all landscaping equipment utilized will be electric powered.

City of Ontario Planning
and Property
Manager/Facility Owner
During project operation City of Ontario
Planning/Building
Department
See Mitigation Measures TRAF-1, TRAF-2, and GHG-1 through GHG-4.

BIOLOGICAL RESOURCES
BIO-1 Worker Environmental Awareness Program and Biological Monitor: Prior to the start of construction of the ORSC site or sewer line within the Offsite Improvement Area, a Worker Environmental Awareness Program (WEAP) shall be developed by the City or the City’s consultant. A qualified biologist with experience with the sensitive biological resources in the region shall present the WEAP to all personnel working in the ORSC site and Offsite Improvement Area (either temporarily or permanently) prior to the start of project activities. The WEAP may be videotaped and used to train newly hired workers or those not present for the initial WEAP. The WEAP could include but shall not be limited to discussions of the sensitive biological resources associated with the ORSC, project-specific measures to avoid or eliminate impacts to these resources, consequences for not complying with project permits and agreements, and contact information for the lead biologist. Logs of personnel who have taken the training shall be kept on the site at the construction or project office.

In addition to a WEAP, a qualified biologist (biological monitor) with experience monitoring for and identifying sensitive biological resources known to occur in the area shall be present during initial ground-disturbing activities related to the ORSC and Offsite Improvement Area (including fence installation and vegetation removal activities). As required by project permits, the qualifications of a biological monitor may need to be submitted to appropriate wildlife agencies for approval based on the resources the biologist will be monitoring. Biological monitoring duties shall include, but are not limited to, conducting worker education training, verifying City of Ontario and
Qualified Biologist
Prior to the start of
construction at the ORSC
site or Offsite Improvement
Area
City of Ontario Planning
Department
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
compliance with project permits, and ensuring construction activities stay within designated work areas.

The biological monitor shall have the right to halt all activities in an affected area if a special- status species is identified in a work area and is in danger of injury or mortality. If work is halted by the biological monitor, work shall proceed only after the hazards to the individual is removed and there is no longer a risk to the individual, or the individual has been moved from harm’s way in accordance with the project’s permits and/or management/translocation plans. The biological monitor shall take representative photographs of the daily activities and shall also maintain a daily log that documents general project activities and compliance with the project’s permit conditions.

Non-compliance shall also be documented in the daily log, including any measures that were implemented to rectify the issue.

BIO-2 Rare Plant Survey: A rare plant survey shall be conducted within suitable habitat during the appropriate blooming period for the lucky morning-glory (March through September) and smooth tarplant (April through September). The survey shall be conducted by a botanist or qualified biologist in accordance with the USFWS Guidelines for Conducting and Reporting Botanical Inventories for Federally Listed, Proposed, and Candidate Plants; the CDFW Protocols for Surveying and Evaluating Impacts to Special Status Native Plant Populations and Natural Communities; and the CNPS Botanical Survey
Guidelines of the CNPS. One survey shall be conducted during a time of the year that overlaps with all blooming periods (April through September).

If these species are observed during the rare plant survey, individual plants or populations shall be marked with GPS for mapping purposes. If any of these special-status plant species are detected in the ORSC site and Offsite Improvement Area and impacts to these species are unavoidable and impacts would result in deleterious effects to the regional population of the species, the City shall consult with CDFW to develop a mitigation plan or additional avoidance and minimization measures to ensure impacts to these plant species are minimized to the maximum extent practicable. Examples of measures City of Ontario Planning
Department and
Qualified
Biologist/Botanist
Prior to the start of grounddisturbing activities from March through September
City of Ontario Planning
Department
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
that may be implemented after consultation with CDFW include establishing a no-disturbance buffer around locations of individuals or a population, or additional monitoring requirements during construction of the ORSC and Offsite Improvement Area.

BIO-3 Burrowing Owl Management Plan: A live burrowing owl was documented in the ORSC site and Offsite Improvement Area during a biological survey conducted in September 2023, at which time the individual could have been migrating, arriving for the winter, or late in leaving its summer breeding grounds. Additionally, suitable burrowing owl habitat is present throughout the ORSC site and Offsite Improvement Area. In order to offset potential project-related impacts to burrowing owl and its habitat a Burrowing Owl Management Plan (BOMP) shall be developed by a qualified Project biologist who has at least three (3) years of experience working with and/or managing burrowing owls on project sites. The BOMP shall outline projectspecific protection measures that are in accordance with CDFW’s Staff Report on Burrowing Owl Mitigation (Staff Report; CDFG 2012).

The BOMP shall also identify protection measures to be implemented should the species be found on the ORSC site or Offsite Improvement Areas at any time of the year (i.e., migration periods, breeding/summer, and wintering). The BOMP shall outline specific pre-construction survey methods and timing in accordance with the Staff Report and shall include instruction on survey requirements should there be a lapse in construction or project activities. The BOMP shall include project activities before which pre-construction survey requirements shall be required (such as grading, vegetation removal, and fence installation). Mitigation methods outlined in the BOMP shall include, but not be limited to, establishment of nodisturbance buffers around potential or occupied burrowing owl burrows, additional biological monitoring requirements during project activities, and passive relocation during the burrowing owl nonbreeding season (September 1 through January 31, annually).

Regular reporting timeframes and requirements for communication with CDFW shall also be clearly outlined in the BOMP. The BOMP City of Ontario Planning
Department and
Qualified Biologist with at
least 3 years of
experience working with
and/or managing
burrowing owls on project
site.

Prior to the start of grounddisturbing activities City of Ontario Planning Department
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
shall be submitted to CDFW for review and subject to CDFW approval prior to the start of Project ground-disturbing activities.

Additionally, the City of Ontario shall continue to carry out the requirements of its Memorandum of Agreement (MOA) with IERCD (dated November 21, 2023) to mitigate the loss of suitable burrowing owl habitat resulting from the Project. The MOA outlines the collection of Habitat Mitigation Fees by the City of Ontario that will be managed by a Land Trust for the acquisition, restoration, rehabilitation, and maintenance of lands selected by the Land Trust to have long-term conservation value for burrowing owl.

BIO-4 Preconstruction Surveys for Crotch Bumble Bee: If the Crotch bumble bee is no longer a Candidate or formally listed species under the California ESA at the time ground-disturbing activities occur, then no additional protection measures are proposed for the species.

If the Crotch bumble bee is legally protected under the California ESA as a Candidate or Listed species at the time ground-disturbing activities are scheduled to begin, preconstruction surveys shall be conducted in accordance with CDFW’s Survey Considerations for California ESA Candidate Bumble Bee the season immediately prior to project-related ground disturbing activities (including but not limited to vegetation clearing, fence installation, and grading). A minimum of three Crotch bumble bee preconstruction surveys shall be conducted at two- to four-week intervals during the colony active period (April through August) when Crotch bumble bees are most likely to be detected. Nonlethal, photo voucher surveys shall be completed by a biologist who holds a Memorandum of Understanding to capture and handle Crotch bumble bee (if nesting and chilling protocol is to be utilized) or by a CDFW-approved biologist experienced in identifying native bumble bee species (if surveys are restricted to visual surveys that will provide high-resolution photo documentation for species verification). The surveyor shall walk through all areas of suitable habitat focusing on areas with floral resources. Surveys shall be completed at a minimum of one person-hour of searching per three acres of suitable habitat during suitable weather conditions (sustained winds less than 8 mph, mostly sunny to full sun, City of Ontario and
Qualified Biologist
Prior to the start of grounddisturbing activities if the Crotch bumble bee is
legally protected under the
California ESA as a
Candidate or Listed species
at the time grounddisturbing activities are
scheduled to begin
City of Ontario Planning
Department
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
temperatures between 65 and 90ºF) at an appropriate time of day for detection (at least an hour after sunrise and at least two hours before sunset, though ideally between 9:00 a.m. and 1:00 p.m.) If Crotch bumble bees are detected, CDFW shall be notified by the designated biologist as further coordination may be required to avoid or mitigate certain impacts. At a minimum, two nesting surveys shall be conducted with focus on detecting active nesting colonies within one week and 24 hours immediately prior to ground disturbing activities that are scheduled to occur during the flight season (February through October). If an active Crotch bumble bee nest is detected, an appropriate no disturbance buffer zone (including foraging resources and flight corridors essential for supporting the colony) shall be established around the nest to reduce the risk of disturbance or accidental take and the designated biologist shall coordinate with CDFW to determine if an Incidental Take Permit under Section 2081 of the California ESA will be required. Nest avoidance buffers may be removed at the completion of the flight season and/or once the qualified biologist deems the nesting colony is no longer active and CDFW has provided concurrence of that determination. If no nests are found but the species is present, a fulltime qualified biological monitor shall be present during vegetation or ground-disturbing activities that are scheduled to occur during the queen flight period (February through March), colony active period (March through September), and/or gyne flight period (September through October). Because bumble bees move nest sites each year, two preconstruction nesting surveys shall be required during each subsequent year of construction, regardless of the previous year’s findings, whenever vegetation and ground-disturbing activities are scheduled to occur during the flight season if nesting and foraging habitat is still present or has re-established.

BIO-5 Bat Management Plan: A Bat Management Plan shall be prepared by a qualified bat biologist no less than one year prior to the commencement of project-related activities (including, but not limited to, structure removal or demolition, tree removal, grading, and City of Ontario and
Qualified Bat Biologist
No less than one year prior
to the start of grounddisturbing activities
City of Ontario Planning
Department
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
vegetation removal) that shall include specific avoidance and minimization measures to reduce impacts to roosting bats.

The project-specific Bat Management Plan may include any of the following as necessary and appropriate: additional habitat assessments of inaccessible areas that would be directly or indirectly impacted during Project activities, emergence and/or acoustic surveys for bats during the maternity season (April 1 through August 31) to assess the potential for bat maternity roosts in the ORSC site and Offsite Improvement Area, and preconstruction surveys for roosting bats including acoustic monitoring. The Bat Management Plan shall also include recommendations to minimize impacts to roosting bats, including the implementation of no-disturbance buffers, tree- and cliff-swallow nest removal protocols, passive exclusion of bats outside of the maternity and hibernation seasons (if impacts are unavoidable), and/or species-specific replacement alternative roosting habitat.

BIO-6 Tree Avoidance and Removal Process. If trees are scheduled to be removed (e.g., relocating/modified (i.e., trimming) that were determined to be suitable for bat roosting, these activities shall be scheduled during one of the seasonal periods of bat activity listed below, and when evening temperatures are not below 45ºF and rain is not over 0.5 inch in 24 hours:
• September 1 to October 31 (preferred): This is after the maternity season but prior to winter torpor.
• February 15 to March 31: After winter torpor but prior to the start of the maternity season.

1. If trees with suitable bat roosting habitat are scheduled for removal or relocation outside of the maternity season, tree removal during the time periods and weather parameters
described above using the two-step method shall be conducted:
a. Prior to the two-step method, as much as feasible,
vegetation and trees within the area that are not suitable for roosting bats shall be removed first to provide a
City of Ontario, Qualified
Bat Biologist, and
Construction Contractor
Prior to ground-disturbingactivities between
September 1 and October
31 or February 15 and
March 31, if trees are
scheduled to be removed
City of Ontario Planning
Department
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
disturbance that might reduce the likelihood of bats using the habitat.
b. Two-step tree removal shall occur over two consecutive days under the supervision of a qualified bat biologist. On Day 1, small branches and small limbs containing no
cavity, crevice or exfoliating bark habitat on habitat trees (or outer fronds in the case of palm trees), as identified by a qualified bat biologist are removed first, using chainsaws only (i.e., no dozers, backhoes). The following day (Day 2), the remainder of the tree is to be felled/removed. (The intention of this method is to disturb the tree with noise and vibration and branch removal on Day 1. This should
cause any potentially present day-roosting bats to
abandon the roost tree after they emerge for nighttime
foraging. Removing the tree quickly the next consecutive day should avoid reoccupation of the tree by bats).

2. If tree removal/modification must occur during the maternity season (April 1 to August 31), a qualified bat biologist shall conduct a focused emergence survey(s) of the tree(s) within 48 hours of scheduled work. If a maternity roost is located, whether solitary or colonial, that roost shall remain undisturbed until after the maternity season or until a qualified biological monitor has determined the roost is no longer active.

BIO-7 Delhi Sands Flower-Loving Fly Habitat Suitability Assessment:

Prior to the start of ground-disturbing activities (including vegetation removal and fence installation activities), a habitat assessment shall be performed within the ORSC site and Offsite Improvement Area and adjacent areas by a USFWS-permitted biologist with a 10(a)(1)(A) permit to conduct surveys for Delhi sands flower-loving fly and with extensive knowledge of the species. The purpose of the habitat assessment will be to determine the presence of suitable habitat for the species in the ORSC site and Offsite Improvement Area and adjacent areas as well as ascertain the potential for the species to occur on or adjacent to the ORSC site and Offsite Improvement Area. The habitat assessment shall include a site City of Ontario and
USFWS-Permitted
Biologist with a
10(a)(1)(A) permit to
conduct surveys for Delhi
sands flower-loving fly
Prior to ground-disturbing
activities
City of Ontario Planning
Department
2394

ONTARIO REGIONAL SPORTS COMPLEX MITIGATION MONITORING AND REPORTING PROGRAM

CITY OF ONTARIO

2. Mitigation Monitoring Requirements

Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
walkover, a check of adjacent empty lots for comparison of habitat quality to the ORSC site and Offsite Improvement Area, photographs to document the site conditions, and characterizing the type and quality of the habitats within the ORSC site and Offsite Improvement Area with respect to Delhi sands flower-loving fly.

At the conclusion of the habitat assessment, a brief report of findings as well as recommendations on whether focused surveys must be conducted shall be prepared by the USFWS-permitted biologist. The report shall also include any additional project-specific avoidance, minimization, and mitigation measure recommendations for the species. The City shall follow the recommendations identified in the report of findings.

If Delhi sands flower-loving fly is present in the ORSC site and Offsite Improvement Area and impacts to the species are unavoidable, then the City must initiate consultation with USFWS under either Section 7 or 10 of the federal ESA. If suitable habitat is identified in the ORSC site and Offsite Improvement Area, then the City of Ontario will continue to carry out the requirements of its MOA with IERCD to mitigate for loss of Delhi Sands flower-loving fly habitat. This MOA outlines the collection of Habitat Mitigation Fees by the City of Ontario that will be managed by a Land Trust for the acquisition, restoration, rehabilitation, and maintenance of lands selected by the Land Trust to have long-term conservation value for species such as Delhi Sands flower-loving fly. Up to 25-percent of the total Mitigation Fee collected may be used for the recovery of the Delhi Sands flower-loving fly.

BIO-8 Preconstruction Survey for Nesting Birds: If construction or other project activities are scheduled to occur during the nesting bird and raptor season (generally February 1 through August 31), a preconstruction nesting bird and raptor survey shall be conducted by a qualified avian biologist to ensure that active bird nests will not be disturbed or destroyed. The survey shall be completed no more than three days prior to initial ground disturbance. The nesting bird survey shall include the ORSC site and Offsite Improvement Area and adjacent areas where Project activities have the potential to affect City of Ontario and
Qualified Avian Biologist
No more than three days
prior to ground-disturbing
activities
City of Ontario Planning
Department
2395

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2. Mitigation Monitoring Requirements
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
active nests, either directly or indirectly, due to construction activity, noise, human activity, or ground disturbance.

If an active nest is identified, a qualified avian biologist shall establish an appropriately sized nondisturbance buffer around the nest using flagging or staking. Construction activities shall not occur within any non-disturbance buffer zones until the nest is deemed inactive by the qualified avian biologist. If initial ground-disturbing activities are scheduled during the nesting bird season, then a biological monitor shall be present during all vegetation removal activities to ensure no impacts to nesting birds occur.

BIO-9 Biological Resources Best Management Practices: The construction contractor(s) shall implement the following construction best management practices during ground disturbing activities:
• To prevent encroachment into areas immediately adjacent to the Cucamonga Creek Flood Control Channel, temporary fencing should be installed along the eastern perimeter of the ORSC site. • Confine all work activities to a predetermined work area. • To prevent inadvertent entrapment of wildlife during the construction phase of the ORSC, all excavated, steep-walled holes or trenches more than two feet deep shall be covered at the close of each working day by plywood or similar materials. If the trenches cannot be closed, one or more escape ramps
constructed of earthen fill or wooden planks shall be installed.

Before such holes or trenches are filled, they should be thoroughly inspected for trapped animals.
• Wildlife are often attracted to burrow- or den-like structures such as pipes and may enter stored pipes and become trapped or injured. To prevent wildlife use of these structures, construction pipes, culverts, or similar structures with a diameter of four inches or greater shall be capped while stored onsite.

City of Ontario and
Construction Contractor
During ground-disturbing
activities
City of Ontario Planning
Department
2396

ONTARIO REGIONAL SPORTS COMPLEX MITIGATION MONITORING AND REPORTING PROGRAM

CITY OF ONTARIO

2. Mitigation Monitoring Requirements

Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
• Food-related trash items such as wrappers, cans, bottles, and food scraps shall be disposed of in securely closed containers and removed at least once a week from the construction site. • Use of rodenticides and herbicides on the ORSC site shall be implemented in a manner that reduces the potential for primary or secondary poisoning of non-target species. This is necessary to prevent poisoning of non-target species, including special-status species, and the depletion of prey populations on which they depend. Use of such compounds shall observe label and other restrictions mandated by the USEPA, California Department of Food and Agriculture, and other state and federal legislation. If rodent control must be conducted, zinc phosphide shall be used because it has a proven lower risk to predatory wildlife.

CULTURAL
CUL-1 Prior to the start of construction, the Project Proponent shall retain a qualified professional archaeologist to monitor all ground-disturbing activities associated with construction of the ORSC site and Offsite Improvement Area. Monitoring is not required for placement of equipment or fill inside excavations that were monitored, aboveground construction activities, or redistribution of soils that were previously monitored (such as the return of stockpiles to use in backfilling). The Monitoring Archaeologist shall meet or work under the direct supervision of someone meeting the Secretary of the Interior’s professional qualifications standards for prehistoric and historic archaeology. The archaeologist shall be present at a pregrading meeting(s), establish procedures for archeological resource monitoring during grading and construction, and establish, in conjunction with the City, procedures to temporarily halt or redirect all work to allow the sampling, identification, and evaluation of all resources as that are encountered by the archaeologist. If archeological features are discovered, the archeologist shall report such findings to the Ontario Planning Director. If the archeological resources are found to be significant, the archeologist shall determine the appropriate actions, in conjunction with the City, that City of Ontario and
Qualified Professional
Archaeologist
Prior to start of construction City of Ontario
Planning/Building
Department
2397

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2. Mitigation Monitoring Requirements
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
shall be taken for exploration and/or salvage in compliance with CEQA standards.

ENERGY
No Mitigation Measures are necessary.

GEOLOGY AND SOILS
GS-1 Prior to grading, a Paleontological Resources Mitigation and Monitoring Plan (PRMMP) shall be prepared by a Qualified Paleontologist meeting the standards of Society of Vertebrate Paleontology (2010). The PRMMP shall discuss the laws and regulations for the protection of paleontological resources, the significance of fossils, and protocol to follow in case a discovery is made. The PRMMP shall also outline the duties of paleontological monitoring onsite, including the salvaging and preparation of fossils and the final submission of all paleontological resources to an accredited museum or facility for curation.

City of Ontario and
Qualified Paleontologist
Prior to the start of grading City of Ontario
Planning/Building
Department
GS-2 During excavations exceeding depth of approximately 5 to 10 feet below ground surface, a qualified paleontological monitor shall be present during construction activities to spot check the sediments and depths of excavations to determine the geologic units encountered. If paleontological resources are discovered, full-time monitoring shall be required during grading, as identified in the Paleontological Resources Monitoring and Mitigation Plan.

City of Ontario and
Qualified Paleontologist
Monitor
During construction and
grading activities
City of Ontario
Planning/Building
Department
GS-3 In the event of any fossil discovery, regardless of depth or geologic formation, construction work shall halt within a 50-foot radius of the find until its significance can be determined by a qualified paleontologist. Significant fossils shall be recovered, prepared to the point of curation, identified by qualified experts, listed in a database to facilitate analysis, and deposited in a designated paleontological curation facility in accordance with the standards of the Society of Vertebrate Paleontology (2010). A regional repository shall be identified by the City Council and a curatorial arrangement shall be signed prior to collection of the fossils.

City of Ontario and
Qualified Paleontologist
During construction City of Ontario
Planning/Building
Department
2398

ONTARIO REGIONAL SPORTS COMPLEX MITIGATION MONITORING AND REPORTING PROGRAM

CITY OF ONTARIO

2. Mitigation Monitoring Requirements

Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)

GREENHOUSE GAS EMISSIONS
GHG-1 The City of Ontario shall require proposed buildings within the ORSC site to be all electric, with electricity to be the only permanent source of energy for all nonemergency building energy needs, including but not limited to water heating; mechanical equipment; and heating, ventilation, and air conditioning (HVAC) (i.e., space-heating and space cooling). All major appliances (e.g., dishwashers, refrigerators, and water heaters) provided/installed shall be electric-powered EnergyStar certified or an equivalent energy efficiency where applicable. The only exception to this measure shall be limited to commercial cooking uses. Prior to issuance of building permits for development projects, applicants shall provide plans that show the aforementioned requirements to the City of Ontario Planning Department. Prior to issuance of the certificate of occupancy, the City of Ontario Building Department shall verify installation of the electricpowered EnergyStar or equivalent appliances.

City of Ontario and
Future Project Applicants
Prior to issuance of the
certificate of occupancy for
project buildings
City of Ontario
Planning/Building
Department
GHG-2 The City of Ontario shall require proposed buildings and parking areas within the ORSC site to include on-site renewable energy generation systems. Proposed buildings shall include photovoltaic (PV) and battery energy storage systems compliant with the Prescriptive Requirements of the California Building Standards Code, Part 6, California Energy Code. Proposed buildings may substitute alternative renewable energy generation technology (e.g., wind) for PV systems; however, that alternative generation technology system shall be sized to provide annual electricity equal to what would be provided by a PV system for that building compliant with the Prescriptive Requirements of the California Building Standards Code, Part 6, California Energy Code. Proposed parking areas shall include a PV system or alternative renewable energy generation system (e.g., wind) to help offset electricity demand generated by electric vehicle charging. Prior to issuance of building permits for development projects, applicants shall provide plans that show the aforementioned requirements to the City of Ontario Planning Department. Prior to issuance of the certificate of occupancy, the City of Ontario Building Department shall verify installation of the PV and City of Ontario and
Future Project Applicants
Prior to issuance of the
certificate of occupancy for
project buildings
City of Ontario Building/
Planning Department
2399

ONTARIO REGIONAL SPORTS COMPLEX MITIGATION MONITORING AND REPORTING PROGRAM

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2. Mitigation Monitoring Requirements
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
battery energy storage systems or alternative renewable energy generation systems.

GHG-3 The City of Ontario shall require that the parking lots and parking structure install electric vehicle spaces in compliance with the voluntary Tier 2 standards under Section A5.106.5.3.2 of the Nonresidential Voluntary Measures in the 2022 California Green Building Standards Code. All site plans submitted to the City of Ontario Planning Department shall illustrate compliance with Section A5.106.5.3.2.

City of Ontario and
Future Project Applicants
Prior to issuance of the
certificate of occupancy for
project buildings
City of Ontario
Planning/Building
Department
GHG-4 The City of Ontario shall require applicants to design and construct buildings in Planning Areas 2, 3, and 4 to achieve a 100-point score with the 2022 Community Climate Action Plan (CCAP), Table 6, “Screening Table for Implementing GHG Performance Standards for Commercial, Office, Medical, Hotel, Industrial, and Retail Development, 2030.” Alternatively, the analysis of development projects can be done through emissions calculations to demonstrate equivalent reductions using CalEEMod or a similar tool. Projects that do not use the CCAP Screening Tables to demonstrate consistency with the 2022 CCAP must demonstrate that they will generate annual GHG emissions that do not exceed the following emission screening thresholds from the CCAP:

1. For residential development completed between 2020 and 2030, the project shall not produce GHG emissions greater than 5.85 MTCO2e/dwelling unit.

2. For residential development completed after 2030, the project shall not produce GHG emissions greater than 1.53
MTCO2e/dwelling unit.

3. For nonresidential developments of all types completed between 2020 and 2030, the project shall not produce GHG emissions greater than 8.84 MTCO2e/2,500 square feet of conditioned space.

4. For nonresidential developments of all types completed after 2030, the project shall not produce GHG emissions greater than

3.61 MTCO2e/2,500 square feet of conditioned space.

City of Ontario and
Future Project Applicants
Prior to issuance of the
certificate of occupancy for
project buildings
City of Ontario Planning
Department
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2. Mitigation Monitoring Requirements

Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
For projects that include both residential and nonresidential space, the residential and nonresidential components must be assessed separately against their respective applicable thresholds.

See Mitigation Measures AQ-2, and TRAF-1 and TRAF-2.

HAZARDS AND HAZARDOUS MATERIALS
HAZ-1 Prior to the issuance of demolition permits or grading permits, whichever is issued first, for individual development projects in the ORSC site, the project applicant/developer shall submit a Phase II Environmental Site Assessment (ESA) to the City of Ontario prepared under the responsible charge of a Professional Geologist or Professional Engineer. The Phase II ESA shall be prepared in accordance with the American Society of Testing and Materials (ASTM) Designation: E1903-19, Standard Practice for Environmental Site Assessments (ESA): Phase II Environmental Site Assessment Process (ASTM, E 1903-19). If the site is found to be impacted with potential contaminants of concern at levels exceeding applicable regulatory thresholds, the project applicant shall remediate all contaminated media, under the oversight and in accordance with state and local agency requirements of the California Department of Toxic Substances Control (DTSC), Regional Water Quality Control Board, Ontario Fire Department and/or County of San Bernardino, as applicable to their oversight jurisdictions. For minor issues the Project Environmental Consultant may self-certify with approval from the City.

All contaminated soils and/or material encountered shall be disposed of at a regulated site and in accordance with applicable laws and regulations prior to the completion of grading.

Prior to the issuance of building permits, a report documenting the field activities, results, and any additional recommendations shall be provided to the City of Ontario evidencing that all site remediation activities have been completed inclusive of environment oversight agency document of no further action determinations, as applicable.

City of Ontario and
Future Project Applicants
Prior to the issuance of
grading permits
City of Ontario Planning
Department
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
Additionally, the following specific conditions shall be adhered to:
• Pesticides. Prior to the issuance of a demolition permit for any building or structure or the issuance of a grading permit, whichever is issued first, the construction contractor shall provide proof to the City that there are no pesticides on the site that exceed Environmental Protection Agency Regional Screening Levels (EPA RSLs) or Water Board Environmental Screening Levels (ESLs), whichever is more stringent. If on-site pesticides exceed the applicable screening levels, measures shall be taken in compliance with all applicable local, State and federal regulations to either remediate the pesticides on-site, or remove and properly dispose of the pesticides and proof shall be provided to the City of their safe remediation or removal as permitted by law along with agency oversight documentation of no further action determination by DTSC.
• Methane. The construction contractor shall submit a subsurface methane soil gas report to the City Building Department, in general accordance with their methane ordinance, to screen for the presence of elevated levels of methane gas prior to installation of building foundations. The recommendations in the subsurface methane soil gas report to remove or remediate any soils with methane gas levels that exceed accepted regulatory levels shall be implemented in accordance with all applicable laws and regulations as determined by the City Building Department. • Stained Soil – Pietersma Family Trust. Prior to the issuance of a demolition permit for any building or structure or the issuance of a grading permit, whichever is issued first, shallow soils impacted with Diesel Range Total Petroleum Hydrocarbons (TPH-d) in excess of commercial and residential screening levels adjacent to the aboveground storage tanks in the hazardous materials storage area of the Pietersma Family Trust (parcels 0218-101-01, 0218-101-02, 0218-101-07, 0218-101-08, 0218-102-10, and 0218-102-11) shall be removed and disposed of in accordance with current regulations. Confirmation sampling shall be 2402

ONTARIO REGIONAL SPORTS COMPLEX MITIGATION MONITORING AND REPORTING PROGRAM

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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
conducted as required by current regulations after removal to verify that the impacted soil has been adequately removed from the site or treated insitu (in place) as deemed appropriate by the Project Environmental Consultant at the discretion of the City. If during grading activities hydrocarbon (TPH) stained soil areas are discovered, grading within the area shall be temporarily halted and redirected around the area until the appropriate evaluation and follow-up measures are implemented. TPH stained soil shall be removed and transported off-site at a State approved disposal site under the observation of the Project Environmental Consultant and confirmation samples collected from the sidewalls and bottom of each excavation area. The confirmation samples shall be transported to a state certified laboratory and analyzed for TPH in accordance with EPA Methods 8015M and 8015B, to
ensure that TPH stained soil has been adequately removed from the site. Based on the laboratory results and at the discretion of the City, the San Bernardino County Fire Department, the Project Environmental Consultant, or the City shall determine when the area of the site is suitable for grading activities to resume. • Underground Storage Tanks (UST) – 15 Dairy LLC. Prior to the issuance of a demolition permit for any building or structure or the issuance of a grading permit, whichever is issued first, subsurface sampling shall be performed in the vicinity of the structures in the northern portion of the 15 Dairy LLC (parcels 0218-111-08, 0218- 111-11, 0218-111-12, 0218-111-49, and 0218-111-50) where hazardous materials were likely stored according to historical inspection reports. A geophysical survey should be completed to determine whether any Underground Storage Tanks (USTs) are present at the property. Exploratory trenching is required to address and identify anomalies prior to soil sampling. Should USTs be discovered, subsurface sampling in the vicinity of the UST(s) is recommended to assess for any potential releases that have impacted subsurface soils. All contaminated soils and/or material encountered shall be disposed of at a regulated site and in accordance with applicable laws and regulations prior to the 2403

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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
completion of grading. The San Bernardino County Fire
Department shall be the lead environmental oversight agency for UST removal activities.
• Soil Vapor Testing – JCLIN Investment, LP. Soil vapor sampling in the northern portion of JCLIN Investment, LP (parcels 0218-101-03, 0218-101-04, 0218-101-05, and 0218-101-06) shall be conducted to evaluate whether historical possible drycleaning activities off-site have impacted the subsurface soil vapor beneath the property. The San Bernardino County Fire Department or Department of Toxic Substances Control shall be the lead agency.

See Mitigation Measures TRAF-2 and TRAF-3

HYDROLOGY AND WATER QUALITY
No Mitigation Measures are applicable.

LAND USE AND PLANNING
No Mitigation Measures are necessary.

MINERAL RESOURCES
No Mitigation Measures are necessary.

NOISE
N-1 The construction contractor shall implement the following measures during construction activities on the ORSC site and Offsite Improvement Area. These measures shall be identified on demolition, grading, and/or building permits.
• Prior to construction activities that warrant nighttime construction (e.g., infrastructure work, concrete pours, etc.), the construction contractor shall install noise pathway controls, including noise barriers and enclosures free from gaps and holes, which shall be placed as close as possible to construction areas. The temporary noise barrier shall be a sufficient height to block the direct line-ofsight between the on-site construction areas and off-site noise sensitive receptors and shall be a minimum of 6 feet tall and shall City of Ontario’s
Construction Contractor
During construction
activities
City of Ontario
Planning/Building
Department
2404

ONTARIO REGIONAL SPORTS COMPLEX MITIGATION MONITORING AND REPORTING PROGRAM

CITY OF ONTARIO

2. Mitigation Monitoring Requirements

Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
be constructed out of wood or other materials with a minimum surface weight of approximately 2.5 pounds per square foot. • Construction equipment operating on a site shall be equipped with the appropriate manufacturer’s noise reduction devices, including but not limited to a manufacturer’s muffler (or equivalently rated material) that is free of rust, holes, and exhaust leaks.
• Noise from construction devices with internal combustion engines shall be mitigated by ensuring that the engine's housing doors are kept closed, and by using noise-insulating material mounted on the engine housing that does not interfere with the manufacturer's guidelines for engine operation or exhaust.
• Portable compressors, generators, pumps, and other such devices shall be covered with noise-insulating fabric to the maximum extent possible that does not interfere with the manufacturer's guidelines for engine operation or exhaust, and shall further reduce noise by operating the device at lower engine speeds during the work to the maximum extent possible.
• Idling on-site of heavy-duty diesel vehicles with Gross Vehicle Weight Rating of 10,000 pounds shall be limited to no longer than five minutes while parking, standing, or stopping, as per 13 California Code of Regulations Section 2485, Airborne Toxic Control Measure to Limit Diesel-Fueled Commercial Motor Vehicle Idling.
• Quieter back-up alarms on construction equipment shall be used whenever feasible.
• Construction vehicles shall be strategically positioned to minimize operation near receptors and avoiding tailgate slamming to the extent possible.
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
N-2 HVAC Equipment, Planning Area 6 Indoor Athletic Facility Building. An acoustics study shall be provided to the City of Ontario prior to building permit issuance for the indoor athletic facility in Planning Area 6 that documents compliance with the overnight noise levels in the City’s municipal code (45 dBA at single-family residences from 10:00 pm to 7:00 am). HVAC equipment for the indoor athletic facility shall be designed and/or placed to yield a sound level less than 58 dBA at 50 feet. Noise associated with operation of heating and cooling equipment shall be minimized by the design and strategic placement of equipment.

City of Ontario Prior to building permit
issuance for the indoor
athletic facility in Planning
Area
City of Ontario Building
Department
N-3 HVAC Equipment, Planning Areas 2, 3, 4, and 7 Buildings. An acoustics study shall be provided to the City of Ontario prior to building permit issuance for new structures with HVAC systems in Planning Areas 2, 3, 4, and 7 that documents compliance with the overnight noise levels in the City’s municipal code (45 dBA at singlefamily residences from 10:00 pm to 7:00 am). HVAC equipment for the indoor athletic facility shall be designed and/or placed to yield a sound level less than 65 dBA at 50 feet to ensure compliance would result in a noise level of approximately 44 dBA at residential land uses to the east along Plymouth Avenue. Noise associated with operation of heating and cooling equipment shall be minimized by the design and strategic placement of equipment.

City of Ontario and
Future Project Applicants
Prior to building permit
issuance for new structures
with HVAC systems in
Planning Areas 2, 3, 4, and
7 City of Ontario
Planning/Building
Department

POPULATION AND HOUSING
No Mitigation Measures are necessary.

PUBLIC SERVICES
No Mitigation Measures are necessary.

RECREATION
No Mitigation Measures are necessary.

TRANSPORTATION
2406

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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
TRAF-1a Commercial/Hospitality TDM Measures. Applicants for commercial and hotel development in Planning Areas 2, 3, and 4 shall prepare Transportation Demand Management (TDM) measures analyzed under a VMT-reduction methodology consistent with the California Air Pollution Control Officers Association’s (CAPCOA) Final Handbook for Analyzing Greenhouse Gas Emission Reductions, Assessing Climate Vulnerabilities, and Advancing Health and Equity (2021) and approved by the City of Ontario. Measures shall include but are not limited to:
• Implement a voluntary commute trip reduction program for employees.
• Implement an employee parking cash-out program for
employees.
• Collaborate with the City to support transit service expansion. • Comply with requirements detailed in the Parking Management Plan, including providing parking validation for retail and hospitality visitors.

City of Ontario and
Future Project Applicants
Prior to issuance of building
permits
City of Ontario Planning
Department
TRAF-1b Stadium TDM Measures. The Minor League Baseball stadium operator shall prepare Transportation Demand Management (TDM) measures analyzed under a VMT-reduction methodology consistent with the California Air Pollution Control Officers Association’s (CAPCOA) Final Handbook for Analyzing Greenhouse Gas Emission Reductions, Assessing Climate Vulnerabilities, and Advancing Health and Equity (2021) and approved by the City of Ontario. The Baseball Stadium Operator shall implement the following measures at the stadium as part of the TDM plan:
• Implement a voluntary commute trip reduction program for stadium employees.
• Implement an employee parking cash-out program for stadium employees.

Minor League Baseball
Stadium Operator and
City of Ontario
Prior to issuance of
occupancy permits
City of Ontario Planning
Department and
Engineering Department
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Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
• Implement paid public parking for visitors during stadium events.

Cost structure, enforcement, and implementation will be detailed in the Parking Management Plan.
• Incentivize carpooling by providing a discounted parking rate for vehicles with five or more occupants.
• Collaborate with the City to support transit service expansion and support efforts to lower transit fares for stadium attendees.

TRAF-1c City TDM Measures. The City shall prepare Transportation Demand Management (TDM) analyzed under a VMT-reduction methodology consistent with the California Air Pollution Control Officers Association’s (CAPCOA) Final Handbook for Analyzing Greenhouse Gas Emission Reductions, Assessing Climate Vulnerabilities, and Advancing Health and Equity (2021). The City shall implement the following measures for city-owned land uses within the Ontario Regional Sports Complex as part of the TDM plan:
• Implement a voluntary commute trip reduction program for recreation employees.
• Implement paid public parking for visitors during soccer, baseball, softball, basketball, and volleyball games and tournaments. Cost structure, enforcement, and implementation will be detailed in the Parking Management Plan.
• Incentivize carpooling by providing a discounted parking rate for vehicles with five or more occupants.
• Incentivize vanpooling to and from sports games and
tournaments by implementing a vanpooling program for
recreational sports attendees that provides affordable van rentals for visiting sports teams.
• Collaborate with Omnitrans to increase transit service in the project area and reduce transit fares for stadium attendees.

City of Ontario Prior to issuance of
occupancy permits and
during operation
City of Ontario Planning
Department and
Engineering Department
2408

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2. Mitigation Monitoring Requirements

Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
TRAF-2 The City of Ontario shall prepare and implement a Parking and Event Traffic Management Plan (TMP) for events at the stadium and City athletic facilities prior to opening day of the stadium. The TMP shall outline operational strategies to optimize access to and from the stadium and sports fields within the constraints inherent to a large public event.

The TMP shall have the following high-level objectives. • Minimize single-occupancy auto mode share and reduce vehicle trips and parking demand generated by the project to the maximum extent practicable.
• Facilitate and promote safe use of nonautomobile transportation by people attending and supporting games and other events as well as other uses on-site.
• Facilitate a high-quality walking experience to the stadium from adjacent hospitality land uses in PAs 2, 3, and 4 by identifying key walking routes and major street crossing locations, so that wayfinding, infrastructure improvements, and/or personnel (e.g., traffic control officers, parking control officers, or other personnel acceptable to the City) can be placed at critical points to manage the interaction of pedestrians and vehicles during medium and large events.
• Maximize safety for all transportation users at key locations in and around the ORSC site during event ingress and egress. • Minimize conflicts between ridesharing (i.e., Lyft, Uber), taxi operations, and walking and biking near the ORSC site.
• Facilitate the safe and efficient flow of vehicle traffic into and out of the site and the adjacent neighborhoods during event conditions.
• Minimize event-related vehicular, bicycle, and pedestrian impacts to surrounding residential and commercial areas.

City of Ontario Prior to issuance of an
occupancy permit for the
Stadium and during
operation
City of Ontario Planning
Department, Engineering
Department, and Police
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2. Mitigation Monitoring Requirements
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
• Minimize impacts to through traffic on adjacent arterial streets by separating project traffic to the extent possible.

The TMP shall include the following:
• The TMP shall illustrate the recommended event management strategies, including traffic control plans pre- and post-event. • The TMP shall require parking control officers or other personnel acceptable to the City to manage pedestrian flows to and from the facilities and directing pedestrians to the primary corridors serving the ORSC site.
• Event-day measures shall typically begin two hours prior to the event’s start time until the start of the event and then again prior to the event’s conclusion until typically one to two hours after the end of the event, depending on how long it takes for all attendees to exit the stadium and sport fields.
• The TMP is intended to be a living document and would be amended periodically by the City and stadium.
• Permanent and/or temporary signs shall be installed on Vineyard Avenue, Riverside Drive, and Chino Avenue to direct event traffic. • The TMP shall address daily parking management in the ORSC site, with additional details for parking management on event days with multiple events.
• The City shall establish an operational oversight group made up of the transportation agencies and third party operator(s) that could be impacted by events as well as representation from local businesses and neighborhoods.
• The TMP shall identify:
- Queuing lanes for vehicles waiting to enter the parking garages.
- Dedicated rideshare/passenger pick-up and drop-off locations. 2410

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2. Mitigation Monitoring Requirements

Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
- Fixed overhead signage and temporary signage/traffic control devices.
- A dedicated emergency lane.
- Internal roadways and access driveways that may be closed to facilitate pedestrian movement and consolidate access. - Dedicated pedestrian routes that do not impede vehicle traffic. - Strategies to implement depending on the scale of the event (e.g., differences between weekday game operation and
weekend tournament).

TRAF-3 Prior to issuance of grading permits, the construction contractor shall prepare and submit a construction management plan. The
construction management plan shall be approved by the City of Ontario Public Works Department. The construction management plan shall identify construction hours, truck routes, travel patterns for haul routes, staging and parking areas, staggered worker arrival times, and safety procedures for pedestrians and cyclists. The construction management plan shall prohibit the use of heavy construction vehicles during peak hours. The plan shall also require the construction contractor to implement the following measures during construction activities, which shall be discussed at the pregrading conference/meeting:
• Minimize obstruction of through-traffic lanes and provide temporary traffic controls, such as a flag person, during all roadway improvement activities to maintain adequate access for emergency vehicles and personnel.
• Develop a traffic plan to minimize interference for emergency vehicles and personnel from demolition and construction activities (e.g., advanced public notice of demolition and construction activities).

City of Ontario’s
Construction Contractor
and Public Works
Prior to issuance of grading
permits
City of Ontario Planning
Department and Public
Works
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2. Mitigation Monitoring Requirements
June 2024 Page 35
Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)

TRIBAL CULTURAL RESOURCES
TRC-1 Tribal Cultural Resources Monitoring. The project archaeologist, in consultation with interested tribes and the City of Ontario, shall develop an archaeological monitoring plan (AMP) to address the details, timing, and responsibility of archaeological and cultural activities that will occur on the ORSC site and Offsite Improvement Area. Details in the AMP shall include:

1. Project-related ground disturbance (including, but not limited to, brush clearing, grading, trenching, etc.) and development scheduling;

2. The development of a rotating or simultaneous schedule in coordination with the developer and the project archeologist for designated Native American Tribal Monitors from the consulting tribes during grading, excavation, and ground-disturbing activities on the site: including the scheduling, safety requirements, duties, scope of work, and Native American Tribal Monitors’ authority to stop and redirect grading activities in coordination with all project archaeologists. Tribes shall coordinate as to Tribal Monitoring concurrent with development;

3. The protocols and stipulations that the City, Tribes, and project archaeologist will follow in the event of inadvertent cultural resources discoveries, including any newly discovered cultural resource deposits that shall be subject to a cultural resources evaluation.

At least 30 days prior to application for a grading permit and before any brush clearance, grading, excavation, and/or ground-disturbing activities on the site, the developer shall retain a tribal cultural monitor to monitor all ground-disturbing activities in an effort to identify any unknown archaeological resources.

Pursuant to the AMP, a tribal monitor from the consulting tribes shall be present during the initial grading activities. If tribal resources are found during grubbing activities, the tribal monitoring shall be present during site grading activities.

City of Ontario Planning
Department in
coordination with Project
Archeologist and
Interested Tribes
Prior to and during
construction
City of Ontario Planning
Department
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Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
TRC-2 Treatment and Disposition of Cultural Resources. In the event that Native American cultural resources are inadvertently discovered during the course of any ground-disturbing activities, including but not limited to brush clearance, grading, trenching, etc., at the ORSC site or Offsite Improvement Area, the following procedures will be carried out for treatment and disposition of the discoveries:

1. Temporary Curation and Storage: During the course of construction, all discovered resources shall be temporarily curated in a secure location on-site or at the offices of the project archaeologist. The removal of any artifacts from the ORSC site and Offsite Improvement Area will need to be thoroughly inventoried with tribal monitor oversight of the process;

2. Treatment and Final Disposition: The landowner(s) shall relinquish ownership of all cultural resources, including sacred items, burial goods, and all archaeological artifacts and nonhuman remains as part of the required mitigation for impacts to cultural resources. The City shall relinquish the artifacts through one or more of the following methods:
a. Accommodate the process for on-site reburial of the
discovered items with the consulting Native American tribes or bands. This shall include measures and provisions to protect the future reburial area from any future impacts. Reburial shall not occur until all cataloging, basic analysis, other analyses as recommended by the project archaeologist and approved by consulting tribes, and basic recordation have been completed; all documentation should be at a level of standard professional practice to allow the writing of a report of professional quality; b. A curation agreement with an appropriate qualified repository in San Bernardino County that meets federal standards per 36 CFR Part 79, and therefore the resource would be
professionally curated and made available to other
archaeologists/researchers for further study. The collections and associated records shall be transferred, including title, to an appropriate curation facility in San Bernardino County, to Ontario’s Construction
Contractor in
coordination with Project
Archeologist and
Interested Tribes
During construction City of Ontario Planning
Department/Building
Department
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2. Mitigation Monitoring Requirements
June 2024 Page 37
Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
be accompanied by payment of the fees necessary for
permanent curation;
c. For purposes of conflict resolution, if more than one Native American tribe or band is involved with the project and cannot come to an agreement as to the disposition of cultural
materials, materials shall be curated at the San Bernardino County Museum by default;
d. At the completion of grading, excavation, and grounddisturbing activities on the site, a Phase IV Monitoring Report shall be submitted to the City documenting monitoring
activities conducted by the project archaeologist and Native Tribal Monitors within 60 days of completion of grading. This report shall document the impacts to the known resources on the property; describe how each mitigation measure was
fulfilled; document the type of cultural resources recovered and the disposition of such resources; provide evidence of the required cultural sensitivity training for the construction staff held during the required pregrade meeting; and, in a
confidential appendix, include the daily/weekly monitoring notes from the archaeologist. All reports produced will be submitted to the City, County Museum, and consulting tribes.

TCR-3 Unanticipated Discovery of Human Remains and Associated Funerary or Ceremonial Objects. Native American human remains are defined in Public Resources Code Section 5097.98(d)(1) as an inhumation or cremation, and in any state of decomposition or skeletal completeness. Funerary objects, called associated grave goods in Public Resources Code Section 5097.98, are also to be treated according to this statute.
a) If Native American human remains and/or grave goods are discovered or recognized on the ORSC site, then Public
Resource Code 5097.9 as well as Health and Safety Code
Section 7050.5 shall be followed.
b) Human remains and grave/burial goods shall be treated alike per California Public Resources Code section 5097.98(d)(1) and (2).

City of Ontario’s
Construction Contractor
in coordination with
Interested Tribes
During construction City of Ontario Planning
Department
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2. Mitigation Monitoring Requirements

Table 3 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
c) Preservation in place (i.e., avoidance) is the preferred manner of treatment for discovered human remains and/or burial goods. d) Any discovery of human remains/burial goods shall be kept confidential to prevent further disturbance.

UTILITIES AND SERVICE SYSTEMS
No Mitigation Measures are necessary.

WILDFIRE
See Mitigation Measures TRAF-2 and TRAF-3.
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June 2024 Page 39

3. Report Preparation

3.1 LIST OF PREPARERS
City of Ontario
Rudy Zeledon, Community Development Assistant Director
Kimberly Ruddins, AICP, Sustainability Program Manager
Thomas Grahn, Senior Planner
PlaceWorks
Nicole Vermilion, Principal
Lexie Zimny, Associate I
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This page intentionally left blank.
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RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PGPA23-002, AN AMENDMENT TO

THE POLICY PLAN (GENERAL PLAN) COMPONENT OF THE ONTARIO PLAN TO MODIFY THE LAND USE PLAN (EXHIBIT LU-01) AND EXHIBIT LU-03 (FUTURE BUILDOUT) CHANGING THE LAND USE
DESIGNATIONS; [1] 134.42 ACRES OF LOW-DENSITY RESIDENTIAL (LDR) AND MEDIUM-DENSITY RESIDENTIAL (MDR) TO OPEN SPACEPARKLAND (OS-R) LOCATED SOUTH OF RIVERSIDE DRIVE, NORTH

OF CHINO AVENUE, EAST OF THE UNIMPROVED RIGHT-OF-WAY
FOR VINEYARD AVENUE AND WEST OF THE UNIMPROVED RIGHTOF-WAY FOR WHISPERING LAKES LANE; [2] 51.57 ACRES OF LOWDENSITY RESIDENTIAL (LDR) TO HOSPITALITY (HOS) GENERALLY

LOCATED SOUTH OF RIVERSIDE DRIVE, NORTH OF CHINO AVENUE,

EAST OF UNIMPROVED RIGHT-OF-WAY FOR WHISPERING LAKES

LANE, AND WEST OF THE CUCAMONGA CREEK FLOOD CONTROL
CHANNEL; [3] 94 ACRES OF LOW-DENSITY RESIDENTIAL (LDR) TO

MEDIUM DENSITY RESIDENTIAL (MDR) GENERALLY LOCATED

SOUTH OF CHINO AVENUE, NORTH OF ONTARIO RANCH ROAD, AND EAST AND WEST OF VINEYARD AVENUE; [4] REMOVE THE
AFFORDABLE HOUSING (AH) OVERLAY ON 36.18 ACRES OF LAND

LOCATED SOUTH OF RIVERSIDE DRIVE, NORTH OF CHINO AVENUE,

AND EAST OF THE UNIMPROVED RIGHT-OF-WAY FOR VINEYARD
AVENUE; AND [5] ADD THE AFFORDABLE HOUSING (AH) OVERLAY ZONING DISTRICT ON 19.25 ACRES OF LAND GENERALLY LOCATED

NORTH OF ONTARIO RANCH ROAD, SOUTH OF SCHAEFER AVENUE,

AND EAST OF THE UNIMPROVED RIGHT-OF-WAY FOR VINEYARD
AVENUE AND MAKING FINDINGS IN SUPPORT THEREOF—APN(S):
216-214-05, 216-214-06, 216-214-07, 216-314-07, 216-314-08, 218-101- 01, 218-101-02, 218-101-03, 218-101-04, 218-101-05, 218-101-06, 218- 101-07, 218-101-08, 218-102-10, 218-102-11, 218-111-04, 218-111-05, 218-111-06, 218-111-08, 218-111-09, 218-111-11, 218-111-12, 218-111- 45, 218-111-49, 218-111-50, 218-121-01, 218-121-02, 218-121-03, 218- 121-04, 218-181-02, 218-181-15.

WHEREAS, the City of Ontario has filed an Application for the approval of a General Plan Amendment, File No. PGPA23-002, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and WHEREAS, the Land Use Element of the Policy Plan establishes two land use designations in the proposed Project area: Low Density Residential (LDR) and Medium Density Residential (MDR). The proposed Project necessitates a modification in the existing land use designations to accommodate recreational facilities and regionalserving entertainment, retail, and service uses, including hotels/motels and restaurants.

As part of this conversion, the Proposed Project aims to:
2418
 Convert 134.42 acres of Low-Density Residential (LDR) and MediumDensity Residential (MDR) to Open Space-Parkland (OS-R) located south of Riverside Drive, north of Chino Avenue, east of the unimproved right-ofway for Vineyard Avenue and west of Whispering Lakes Lane.  Convert 51.57 acres of Low-Density Residential (LDR) to Hospitality (HOS) generally located south of Riverside Drive, north of Chino Avenue, east of Whispering Lakes Lane, and west of the Cucamonga Creek Flood Control Channel.
 Convert 94 acres of Low-Density Residential (LDR) to Medium Density Residential (MDR) generally located south of Chino Avenue, north of Ontario Ranch Road, and east and west of Vineyard Avenue.  Remove the Affordable Housing overlay on 36.18 acres of land south of Riverside Drive, north of Chino Avenue, and east of the unimproved rightof-way for Vineyard Avenue.  Add the Affordable Housing (AH) overlay zoning district on 19.25 acres of land generally located north of Ontario Ranch Road, south of Schaefer Avenue and east of the unimproved right-of-way for Vineyard Avenue.

WHEREAS, the City of Ontario adopted the Policy Plan (General Plan) as part of The Ontario Plan in January 2010. Since the adoption of The Ontario Plan, the City has evaluated Exhibits LU-01: Official Land Use Plan and LU-03: Future Buildout further and is proposing modifications; and
WHEREAS, the proposed changes to Exhibit LU-01 Official Land Use Plan include changes to land use designations of certain properties shown on Exhibit A to align the land use designations of these properties with the City's continuous endeavors to facilitate and improve future development and land use patterns as outlined in The Ontario Plan; and
WHEREAS, Policy Plan Exhibit LU-03 (Future Buildout) specifies the expected buildout for the City of Ontario, incorporating the adopted land use designations. The proposed changes to Exhibit LU-01 (Official Land Use Plan) will require that Exhibit LU03 (Future Buildout) is modified to be consistent with Exhibit LU-01 (Official Land Use Plan), as depicted on Exhibit B, attached; and
WHEREAS, a Scoping Meeting, organized in conjunction with the Notice of Preparation ("NOP"), introduced the Project and the Subsequent Environmental Impact Report ("SEIR") process was hosted by the Planning Department on Thursday, September 27, 2023, at the Westwind Recreation Center in response to the NOP. The meeting provided an opportunity for agency representatives and the public to collaborate with the City in defining the scope and content of the environmental analysis for the SEIR.

Copies of the NOP were made available for public review at the City of Ontario Planning Department and the City's website; and
2419
WHEREAS, an NOP for the Draft Environmental Impact Report ("Draft EIR") was reissued on November 14, 2023. The public review period extended from November 14, 2023, to December 15, 2023. The NOP was published in the Inland Valley Daily Bulletin on November 14, 2023. The NOP was posted at the San Bernardino County Clerk's office on November 14, 2023. Copies of the NOP were made available for public review at the City of Ontario Planning Department and the City's website; and WHEREAS, a scoping meeting for the Draft EIR was held virtually on Wednesday December 6, 2023, at 6:00 pm. The notice of a public scoping meeting was included in the NOP; and
WHEREAS, preparation of a Draft EIR, which was made available for a 45-day public review period beginning April 4, 2024, and ending May 20, 2024. The scope of the Draft EIR was determined based on the State and Local California Environmental Quality Act ("CEQA") Guidelines, comments received in response to both NOPs, and comments received at the scoping meetings conducted by the City of Ontario. The Notice of Availability ("NOA") for the Draft EIR was sent on April 4, 2024 to interested persons and organizations, the State Clearinghouse for distribution to public agencies, posted at the San Bernardino County Clerk’s office and the City of Ontario, and published in the Inland Valley Daily Bulletin. Additionally, copies of the Draft EIR were made available for review at City Hall, the Ovitt Family Community Library, as well as on the City's website; 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 ("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, the proposed Project is located within the Airport Influence Area of Chino Airport, within the City of Ontario boundary, and is subject to, and must be consistent with, the policies criteria set forth in Reference I, Chino Airport Land Use Compatibility Plan (CNO ALUCP), which applies only to jurisdictions within City of Ontario, and addresses the safety, airspace protection, and overflight impacts of current and future airport activity; and
WHEREAS, the Application is a project pursuant to the CEQA (Public Resources Code Section 21000, et seq.); and
WHEREAS, as the first action on the Project on June 25, 2024, the Planning Commission adopted a Resolution recommending the City Council certify the EIR (SCH# 2023110328) and approve the Mitigation Monitoring and Reporting Program and a Statement of Overriding Considerations prepared pursuant to CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and WHEREAS, on June 25, 2024, the Planning Commission of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date and 2420
recommended to City Council approval of the Final Environmental Impact Report ("Final EIR"); and
WHEREAS, on July 16, 2024, the City Council of the City of Ontario conducted a hearing on to consider the Final EIR 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 decisionmaking body for the Project, the City Council has reviewed and considered the information contained in the Final EIR and supporting documentation. Based upon the facts and information contained in the Final EIR and supporting documentation, including all written and oral evidence presented to the City Council, the City Council finds as follows:
(1) The environmental impacts of this Project were reviewed in conjunction with the Ontario Regional Sports Complex ("OSRC") Final EIR (State Clearinghouse No. 2023110328) that was prepared; and
(2) The Final EIR contains a complete and accurate reporting of the environmental impacts associated with the Project; and
(3) The Final EIR was completed in compliance with CEQA and the Guidelines promulgated thereunder, and the City of Ontario Local CEQA Guidelines; and
(4) The Final EIR reflects the independent judgment of the City Council.

SECTION 2: City Council Action. Based on the entire record before the City Council and all written and oral evidence presented, the City Council finds the Final EIR complies with CEQA for the following reasons:
(1) The EIR analyzes the environmental effects of the Project and finds that, if the OSRC is adopted as proposed by this plan, and with the implementation of proposed mitigation measures, the following impacts will still be significant and unavoidable: agricultural resources (loss of Prime Farmland soils), air quality (inconsistent with AQMP cumulative impacts for long-term regional operational emissions), greenhouse gasses emissions (inconsistent with plans adopted to reduce GHG emissions, magnitude of GHG emissions), noise (mobile sources), and transportation (increase in vehicle miles traveled); and
(2) The City Council further finds that the Findings of Facts and Statement of Overriding Considerations, demonstrates that the ORSC's benefits outweigh its significant and unavoidable impacts, and therefore the City 2421
would be justified in approving the ORSC notwithstanding said significant and unavoidable impacts.

SECTION 3: Housing Element Compliance. Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as the decision-making body for the Project, the City Council finds that based upon the facts and information contained in the Application and supporting documentation, at the time of Project implementation, the project is consistent with the Housing Element of the Policy Plan (General Plan) component of TOP.

SECTION 4: Ontario International 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 ALUCP, establishing the Airport Influence Area for Ontario International Airport (hereinafter referred to as "ONT"), which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. As the decision-making body for the Project, the City Council has reviewed and considered the facts and information contained in the Application and supporting documentation against the ALUCP compatibility factors, including [1] Safety Criteria (ALUCP Table 2-2) and Safety Zones (ALUCP Map 2-2), [2] Noise Criteria (ALUCP Table 2-3) and Noise Impact Zones (ALUCP Map 2-3), [3] Airspace protection Zones (ALUCP Map 2-4), and [4] Overflight Notification Zones (ALUCP Map 2-5). As a result, the City Council, therefore, finds and determines that the Project, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the ALUCP.
(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 decision2422 making body for the Project, the City Council has reviewed and considered the facts and information contained in the Application and supporting documentation against the CNO ALUCP compatibility factors, including Safety, Airspace Protection, Overflight. As a result, the City Council, therefore, finds and determines that the Project, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the California Airport Land Use Planning Handbook and the Chino ALUCP.

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 Sections 1 through 4, above, the City Council hereby concludes as follows:
(1) The proposed General Plan Amendment is consistent with the goals and policies of The Ontario Plan as follows:

Policy Plan (General Plan)
Land Use Element:
 LU-1.1 Strategic Growth. We concentrate growth in strategic locations that help create place and identity, maximize available and planned infrastructure, foster the development of transit, and support the expansion of the active and multimodal transportation networks throughout the City.
 LU-1.6 Complete Community. We incorporate a variety of land uses and building types in our land use planning efforts that result in a complete community where residents at all stages of life, employers, workers, and visitors have a wide spectrum of choices of where they can live, work, shop and recreate within Ontario.
 Goal LU-2 Compatibility: Compatibility between a wide range of uses and a resultant urban patterns and forms.

Community Economics Element:
 Goal CE-1 Complete Community: A complete community that provides for all incomes and stages of life.
 Goal CE-2 Placemaking: A City of distinctive neighborhoods, districts, corridors, and centers where people choose to be; and
(2) The proposed General Plan Amendment would not be detrimental to the public interest, health, safety, convenience, or general welfare of the City; and
2423
(3) The Land Use Element is a mandatory element allowed four general plan amendments per calendar year and this general plan amendment is the first amendment to the Land Use Element of the 2023 calendar year consistent with Government Code Section 65358; and
(4) 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
(5) During the amendment of the general plan, opportunities for the involvement of citizens, California Native American Indian tribes (Government Code Section 65352.3), public agencies, public utility companies, and civic, education, and other community groups, through public hearings or other means were implemented consistent with Government Code Section 65351.

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 proposed General Plan Amendment, as depicted in Attachment 1 (Policy Plan Land Use Plan (Exhibit LU-01) Revision) and Attachment 2 (Future Buildout Table (Exhibit LU-03) Revision) of this Resolution.

SECTION 7: 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.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 16th day of July, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________
2424

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
2425

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 July 16, 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 July 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
2426
ATTACHMENT 1: Policy Plan Land Use Plan (Exhibit LU-01) Revision 2427
ATTACHMENT 2: Future Buildout Table (Exhibit LU-03) Revision 2428
2429
2430
2431
ORDINANCE NO. ________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PZC-23-004, A ZONE CHANGE REQUEST TO CHANGE THE ZONING DISTRICT FOR [1] 134.42 ACRES

FROM THE ARMSTRONG RANCH SPECIFIC PLAN TO OS-R (OPEN

SPACE RECREATION) ZONING DISTRICT LOCATED SOUTH OF

RIVERSIDE DRIVE, NORTH OF CHINO AVENUE, WEST OF

UNIMPROVED RIGHT-OF-WAY FOR WHISPERING LAKES LANE, AND

EAST OF THE UNIMPROVED RIGHT-OF-WAY FOR VINEYARD
AVENUE; [2] 51.57 ACRES FROM THE ARMSTRONG RANCH SPECIFIC

PLAN TO CCS (CONVENTION CENTER SUPPORT COMMERCIAL)

ZONING DISTRICT GENERALLY LOCATED SOUTH OF RIVERSIDE

DRIVE, NORTH OF CHINO AVENUE, EAST OF THE UNIMPROVED

RIGHT-OF-WAY FOR WHISPERING LAKES LANE, AND WEST OF THE CUCAMONGA CREEK FLOOD CONTROL CHANNEL; [3] REMOVE THE
AH (AFFORDABLE HOUSING) OVERLAY ZONING DISTRICT ON 36.18

ACRES OF LAND LOCATED SOUTH OF RIVERSIDE DRIVE, NORTH OF

CHINO AVENUE, EAST OF THE UNIMPROVED RIGHT-OF-WAY FOR
WHISPERING LAKES LANE, AND WEST OF THE UNIMPROVED RIGHTOF-WAY FOR VINEYARD AVENUE, AND [4] ADD THE AH (AFFORDABLE HOUSING) OVERLAY ZONING DISTRICT ON 19.25

ACRES OF LAND WITHIN THE SP (SPECIFIC PLAN)/AG
(AGRICULTURAL) OVERLAY LOCATED NORTH OF ONTARIO RANCH

ROAD, SOUTH OF SCHAEFER AVENUE, EAST OF THE UNIMPROVED

RIGHT-OF-WAY FOR VINEYARD AVENUE, AND WEST OF THE
UNIMPROVED RIGHT-OF-WAY FOR HELLMAN AVENUE. (APNS: 218- 101-01, 218-101-02, 218-101-03, 218-101-04, 218-101-05, 218-101-06, 218-101-07, 218-101-08, 218-102-10, 218-102-11, 218-111-04, 218-111- 05, 218-111-06, 218-111-08, 218-111-09, 218-111-11, 218-111-12, 218- 111-45, 218-111-49, 218-111-50, 218-181-02, AND 218-181-15.

WHEREAS, The Zoning Map amendment includes the following:

Rescind the Armstrong Ranch Specific Plan and rezone the following (see Exhibit A: Proposed Zone Change):
 Convert 134.42 acres from the Armstrong Ranch Specific Plan to OS-R (Open Space Recreation) zoning district located south of Riverside Drive, north of Chino Avenue, west of unimproved right-of-way for Whispering Lakes Lane, and east of the unimproved right-of-way for Vineyard Avenue.  Convert 51.57 acres from the Armstrong Ranch Specific Plan to CCS (Convention Center Support Commercial) zoning district generally located south of Riverside Drive, north of Chino Avenue, east of Whispering Lakes Lane, and west of the Cucamonga Creek Flood Control Channel. and west of the Cucamonga Creek Flood Control Channel.
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 Remove the AH (Affordable Housing) overlay zoning district on 36.18 acres of land located south of Riverside Drive, north of Chino Avenue, and east of the unimproved right-of-way for Vineyard Avenue.
 Add the AH (Affordable Housing) Overlay zoning district on 19.25 acres of land within the SP (Specific Plan)/AG (Agricultural) Overlay generally located north of Ontario Ranch Road, south of Schaefer Avenue and east of the unimproved right-of-way for Vineyard Avenue; and WHEREAS, a Scoping Meeting, organized in conjunction with the Notice of Preparation ("NOP"), introduced the Project and the Subsequent Environmental Impact Report (SEIR) process was hosted by the Planning Department on Thursday, September 27, 2023, at the Westwind Recreation Center in response to the NOP. The meeting provided an opportunity for agency representatives and the public to collaborate with the City in defining the scope and content of the environmental analysis for the SEIR. Copies of the NOP were made available for public review at the City of Ontario Planning Department and the City's website; and
WHEREAS, an NOP for the Draft Environmental Impact Report ("Draft EIR") was reissued on November 14, 2023. The public review period extended from November 14, 2023, to December 15, 2023. The NOP was published in the Inland Valley Daily Bulletin on November 14, 2023. The NOP was posted at the San Bernardino County Clerk's office on November 14, 2023. Copies of the NOP were made available for public review at the City of Ontario Planning Department and the City's website; and WHEREAS, a scoping meeting for the Draft EIR was held virtually on Wednesday December 6, 2023, at 6:00 pm. The notice of a public scoping meeting was included in the NOP; and
WHEREAS, preparation of a Draft EIR, which was made available for a 45-day public review period beginning April 4, 2024, and ending May 20, 2024. The scope of the Draft EIR was determined based on the State and Local California Environmental Quality Act ("CEQA") Guidelines, comments received in response to both NOPs, and comments received at the scoping meetings conducted by the City of Ontario. The Notice of Availability ("NOA") for the Draft EIR was sent on April 4, 2024 to interested persons and organizations, the State Clearinghouse for distribution to public agencies, posted at the San Bernardino County Clerk’s office and the City of Ontario, and published in the Inland Valley Daily Bulletin. Additionally, copies of the Draft EIR were made available for review at City Hall, the Ovitt Family Community Library, as well as on the City's website; and WHEREAS, the Project has been reviewed for consistency with the Housing Element of the Policy Plan component of The Ontario Plan, as State Housing Element law (as prescribed in Government Code Sections 65580 through 65589.8) requires that development projects must be consistent with the Housing Element, if upon consideration of all its aspects, it is found to further the purposes, principals, goals, and policies of the Housing Element; and
WHEREAS, the Project is located within the Airport Influence Area of Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, 2433
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 ("ONT 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, the proposed Project is located within the Airport Influence Area of Chino Airport, within the City of Ontario boundary, and is subject to, and must be consistent with, the policies criteria set forth in Reference I, Chino Airport Land Use Compatibility Plan (CNO ALUCP), which applies only to jurisdictions within City of Ontario, and addresses the safety, airspace protection, and overflight impacts of current and future airport activity; and
WHEREAS, the Application is a project pursuant to CEQA (Public Resources Code Section 21000, et seq.); and
WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the Planning Commission the responsibility and authority to review and make recommendation to City Council on the subject Application; 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, as the first action on the Project on June 25, 2024, the Planning Commission adopted a Resolution recommending the City Council certify the Final EIR (SCH# 2023110328) and approve the Mitigation Monitoring and Reporting Program and a Statement of Overriding Considerations prepared pursuant to CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and WHEREAS, on June 25, 2024, 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 July 16, 2024, the City Council adopted a Resolution certifying the Final EIR (SCH# 2023110328) and approved the Mitigation Monitoring and Reporting Program and a Statement of Overriding Considerations prepared pursuant to CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and WHEREAS, on July 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 Ordinance have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND RESOLVED by the City Council of the City of Ontario, as follows:
2434
SECTION 1: Environmental Determination and Findings. As the decisionmaking body for the Project, the City Council has reviewed and considered the information contained in the Final EIR and supporting documentation. Based upon the facts and information contained in the Final EIR and supporting documentation, including all written and oral evidence presented to the City Council, the City Council finds as follows:
(1) The environmental impacts of this Project were reviewed in conjunction with the Ontario Regional Sports Complex ("OSRC") Final EIR (State Clearinghouse No. 2023110328) that was prepared; and
(2) The Final EIR contains a complete and accurate reporting of the environmental impacts associated with the Project; and
(3) The Final EIR was completed in compliance with CEQA and the Guidelines promulgated thereunder, and the City of Ontario Local CEQA Guidelines; and
(4) The Final EIR reflects the independent judgment of the City Council.

SECTION 2: City Council Action. Based on the entire record before the City Council and all written and oral evidence presented, the City Council finds the Final EIR complies with CEQA for the following reasons:
(1) The Final EIR analyzes the environmental effects of the Project and finds that, if the OSRC is adopted as proposed by this plan, and with the implementation of proposed mitigation measures, the following impacts will still be significant and unavoidable: agricultural resources (loss of Prime Farmland soils), air quality (inconsistent with AQMP cumulative impacts for long-term regional operational emissions), greenhouse gasses emissions (inconsistent with plans adopted to reduce GHG emissions, magnitude of GHG emissions), noise (mobile source), and transportation (increase in vehicle miles traveled); and
(2) The City Council further finds that the Findings of Facts and Statement of Overriding Considerations, demonstrates that the ORSC's benefits outweigh its significant and unavoidable impacts, and therefore the City would be justified in approving the ORSC notwithstanding said significant and unavoidable impacts.

SECTION 3: Housing Element Compliance. Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as the decision-making body for the Project, the City Council finds that based upon the facts and information contained in the Application and supporting documentation, at the time of Project implementation, the project is consistent with the Housing Element of the Policy Plan (general plan) component of TOP.
2435
SECTION 4: Ontario International 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 ALUCP, establishing the Airport Influence Area for Ontario International Airport (hereinafter referred to as "ONT"), which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. As the decision-making body for the Project, the City Council has reviewed and considered the facts and information contained in the Application and supporting documentation against the ALUCP compatibility factors, including [1] Safety Criteria (ALUCP Table 2-2) and Safety Zones (ALUCP Map 2-2), [2] Noise Criteria (ALUCP Table 2-3) and Noise Impact Zones (ALUCP Map 2-3), [3] Airspace protection Zones (ALUCP Map 2-4), and [4] Overflight Notification Zones (ALUCP Map 2-5). As a result, the City Council, therefore, finds and determines that the Project, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the ALUCP.
(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 decisionmaking 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, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the California Airport Land Use Planning Handbook and the Chino ALUCP.
2436
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 proposed Zone Change is consistent with the goals, policies, plans and exhibits of the Vision, Policy Plan (General Plan), and City Council Priorities components of The Ontario Plan as follows:

Land Use Element:
 Goal LU1: A community that has a spectrum of housing types and price ranges that match the jobs in the City and that make it possible for people to live and work in Ontario and maintain a quality of life.  LU-1.6: Complete Community. We incorporate a variety of land uses and building types in our land use planning efforts that result in a complete community where residents at all stages of life, employers, workers, and visitors have a wide spectrum of choices of where they can live, work, shop and recreate within Ontario.

Compliance: The proposed Zone Change will reflect the existing uses of the properties or closely coordinates with land use designations in the surrounding area and provides opportunities for choice in living environments.
 Goal LU2: Compatibility between a wide range of uses.  LU-2.1: Land Use Decisions. We minimize adverse impacts on adjacent properties when considering land use and zoning requests.

Compliance: The proposed Zone Change reflects the existing uses of the properties or closely coordinates with land use designations in the surrounding area and will not create adverse impacts on adjacent properties.
 Goal LU5: Integrated airport systems and facilities that minimize negative impacts to the community and maximize economic benefits.  LU-5.7: ALUCP Consistency with Land Use Regulations. We comply with state law that requires general plans, specific plans and all new development be consistent with the policies and criteria set forth within an Airport Land Use Compatibility Plan for any public use airport.

Compliance: The proposed Zone Change is consistent with the Ontario Airport ALUCP.

Safety Element — Noise Hazards:
 Goal S4: An environment where noise does not adversely affect the public's health, safety, and welfare.
2437
 S-4.6: Airport Noise Compatibility. We utilize information from Airport Land Use Compatibility Plans to prevent the construction of new noise sensitive land uses within airport noise impact zones.

Compliance: The City is proposing zone changes across the City, as illustrated in Exhibit A, to align with the TOP Vision. Furthermore, these zoning adjustments are an integral component of the City's continuous endeavors to influence and improve future development and land use patterns as outlined in The Ontario Plan; and (2) The proposed Zone Change would not be detrimental to the public interest, health, safety, convenience, or general welfare of the City.

The proposed zoning changes are compatible with the existing zoning and land uses in the surrounding area. In addition, Land Use Policies LU-2.3, LU-2.4, LU-2.5, and LU-2.6 would reduce the amount of conflict between contradicting land uses; and
(3) The proposed Zone Change will not adversely affect the harmonious relationship with adjacent properties and land uses. The implementation of the Project would not lead to physical improvements that could potentially divide an established community. Moreover, the Land Use Policies LU-2.3, LU-2.4, LU-2.5, and LU-2.6 would serve to minimize conflicts between conflicting land uses. As a result, no adverse impacts are anticipated; and
(4) The subject site is physically suitable, including, but not limited to, parcel sizes, shapes, access, and availability of utilities, for the request and anticipated development. The proposed zone changes are aimed at facilitating the systematic development of the Project sites. This will be achieved by rezoning parcels that constitute the Project sites, rendering it physically conducive for any anticipated future development and associated permitted land uses.

SECTION 6: City Council Action. Based upon the findings and conclusions set forth in Sections 1 through 5, above, the CITY COUNCIL hereby APPROVES the herein described Application, as detailed in "Exhibit A" attached hereto and incorporated herein by this reference.

SECTION 7: 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 8: Effective Date. This ordinance takes effect immediately upon its adoption.

SECTION 9: Publication. The City Clerk shall either: (a) have this ordinance published in a newspaper of general circulation within 15 days after its adoption or (b) 2438
have a summary of this ordinance published twice in a newspaper of general circulation, within 15 days after its adoption.

SECTION 10: This Severability. If any provision of this ordinance or its application to any person or circumstance is held to be invalid, such invalidity has no effect on the other provisions or applications of the ordinance that can be given effect without the invalid provision or application, and to this extent, the provisions of this ordinance are severable. The City Council declares that it would have adopted this ordinance irrespective of the invalidity of any portion thereof.

SECTION 11: 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 twice, in a newspaper of general circulation in the City of Ontario, California within fifteen 15) days of the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this ________ day of _________ 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
2439

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. _______ was duly introduced at a regular meeting of the City Council of the City of Ontario held _____________ and adopted at the regular meeting held ___________, 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. _______ duly passed and adopted by the Ontario City Council at their regular meeting held ____________ and that Summaries of the Ordinance were published on ___________ and _____________, in the Inland Valley Daily Bulletin newspaper.
__________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
2440
Exhibit A: File No. PZC-23-004 Proposed Zone Change
2441
Department: Financial Services
Prepared By: Nathaniel Gibson
Staff Member Presenting: Armen Harkalyan,
Executive Director of Finance
Reviewed By: Claudia Hernandez
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 29
SUBJECT: ANNUAL LEVY OF ASSESSMENTS WITHIN ONTARIO PARKWAY MAINTENANCE ASSESSMENT DISTRICT NOS. 1, 2, 3 AND 4 FOR FISCAL YEAR 2024-25

CITY OF ONTARIO
Agenda Report
July 16, 2024
SECTION:

PUBLIC HEARINGS
RECOMMENDATION: That the City Council conduct a combined public hearing for the districts and take the following actions pertaining to the levy of assessments within Ontario Parkway Maintenance Assessment Districts (OPMAD) Nos. 1, 2, 3 and 4 and:

A. Adopt a Resolution approving the Engineer’s Reports relating to the levy of assessments for each district;
B. Adopt a Resolution confirming the diagrams and assessments and providing for the assessment levy within Ontario Parkway Maintenance Assessment Districts Nos. 1, 2, & 3; and C. Adopt a Resolution confirming the diagram and assessment and providing for the assessment levy within Ontario Parkway Maintenance Assessment District No. 4.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT: The proposed Fiscal Year 2024-25 total special assessment revenue will be $665,668 from OPMAD Nos. 1, 2 and 3, and 4. For OPMAD Nos. 1, 2, and 3 (Zone 2000-1) the total estimated cost of $595,145 for administrative, operation, and maintenance will exceed assessment revenues of $264,555 by $330,590. The estimated difference of $330,590 will be funded as a transfer-in from the General Fund. The Fiscal Year 2024-25 Adopted Budget includes a funding transfer of $300,000. If additional funding is needed, it will be included in a future quarterly budget update. The assessment revenues for OPMAD No. 3 (Zone 2000-2) and OPMAD No. 4 are sufficient to pay all expenses within the respective districts.

BACKGROUND & ANALYSIS: The first of these districts was formed in 1976 pursuant to the Landscaping and Lighting Act of 1972 (the 1972 Act). Additional territories are annexed to the districts from time to time as development proceeds. The districts were formed to help minimize the continually increasing cost of maintaining and operating the landscaping along public streets 2442
where the property owners do not have direct access to the landscaping. A special assessment is levied annually on benefiting properties for the cost of operation and maintenance of certain parkway landscaping facilities within the districts. The City’s Public Works Agency establishes the annual operation and maintenance costs and administers the maintenance of the landscaping. As required by the 1972 Act, an Engineer’s Report for each district is prepared annually by the City's consultant, Harris & Associates, which apportions these costs to each parcel within the districts. The locations of the districts are shown on the maps attached to this report.

OPMAD Nos. 1, 2, and 3 are comprised of single-family residential developments. Due to varying characteristics, the districts are organized into benefit zones and/or maintenance areas. Each zone or maintenance area is assessed for only the operation and maintenance of the facilities from which it receives special direct benefit. The total assessment for each maintenance area is then apportioned to its constituent parcels. Special assessment revenue will be generated in the combined amount of $288,016 from OPMAD Nos. 1, 2 and 3. In Exhibit A, are the proposed and maximum tax rates for Fiscal Year 2024-25 and the assessed tax rates for Fiscal Year 2023-24.

OPMAD No. 4 is comprised of single-family residential tracts and the Ontario Mills development area. The district is organized into 6 maintenance areas. Each maintenance area is assessed for only the operation and maintenance of the facilities from which it receives direct special benefit.

The total assessment for each maintenance area is then apportioned to its constituent parcels. The assessments for OPMAD No. 4 will generate a total of $377,652. OPMAD No. 4 will generate sufficient revenue to pay all expenses within the service area. The assessed tax rates for Fiscal Year 2023-24, and the maximum and proposed tax rates for Fiscal Year 2024-25, are shown in Exhibit A.

On June 18, 2024, the City Council adopted Resolutions which ordered the preparation of Engineer's Reports for the annual levy of assessments within each district, preliminarily approved the Engineer's Reports, declared Council's intention to levy and collect assessments within the districts for the referenced fiscal year, and set July 16, 2024, as the date for the public hearing for each district. Notices of the public hearings have been published, and proof of publication is on file in the Records Management Department.

The Engineer’s Reports, which have been prepared for each district pursuant to the 1972 Act, are on file in the Records Management Department. Each report includes plans and specifications for the improvements and maintenance, an estimate of costs, a diagram of the area proposed to be assessed, and an assessment of the costs to the various parcels within each District. 2443
Prior Year Maximum Proposed
2023-24 2024-25 2024-25
OPMAD No. 1 $ 66.32 per Lot $ 66.32 per Lot $ 66.32 per Lot OPMAD No. 2 $ 34.04 per Lot $ 34.04 per Lot $ 34.04 per Lot OPMAD No. 3, Zone 2000-1 $ 41.29 per Lot $ 41.29 per Lot $ 41.29 per Lot OPMAD No. 3, Zone 2000-2 $ 201.81 per Lot $ 294.38 per Lot $ 207.62 per Lot Prior Year Maximum Proposed
2023-24 2024-25 2024-25
MA#99-1 $ 60.26 per Lot $ 71.63 per Lot $ 61.99 per Lot MA#99-2 $ 392.59 per Lot $ 451.83 per Lot $ 403.89 per Lot MA#99-3 $ 1,219.90 per Acre $ 1,622.43 per Acre $ 1,255.02 per Acre MA#00-1 $ 286.77 per Lot $ 444.99 per Lot $ 295.02 per Lot MA#04-1 $ 1,153.51 per Lot $ 2,834.50 per Lot $ 1,186.71 per Lot MA#05-1 $ 1,584.77 per Lot $ 3,513.51 per Lot $ 1,630.38 per Lot Exhibit A
Ontario Parkway Maintenance Assessment Districts 1, 2 & 3 Proposed Levy Rates FY 2024-25
Ontario Parkway Maintenance Assessment District 4
Proposed Levy Rates FY 2024-25
2444

E PHILADELPHIA ST

S GROVE AV

E FOURTH ST

N SULTANA AV

S ARCHIBALD AV W PHILLIPS ST N ARCHIBALD AV S VINEYARD AV S BON VIEW AV S SAN ANTONIO AV N VINEYARD AV N
G
R
O
V
E
AV

N CAMPUS AV

S SULTANA AV

S MOUNTAIN AV

S CYPRESS AV

N SAN ANTONIO AV

W FOURTH ST

S CAMPUS AV

S BAKER AV

E WALNUT ST

N MOUNTAIN AV

W PHILADELPHIA ST N BENSON AV

N CUCAMONGA AV

N BAKER AV
S.R.-60 FWY E.B.

S PALMETTO AV

N PALMETTO AVN
E
U
C
LID
AV

N TURNER AV S TURNER AV

S HELLMAN AV

S BENSON AV

E PHILLIPS ST

W MISSION BL

E MISSION BL

S CUCAMONGA AV

S WALKER AV
S.R.-60 FWY W.B.

W WALNUT AV
Date: 5/8/2024
Note: Reference is hereby made to the Maps of
the Assessor of the County of San Bernardino,
California. For detailed descriptions of the lines
and dimensions of the parcels shown hereon.

Legend
Areas Maintained
Boundary of Area Assessed
0 .

0.38 0.75 Miles
Ontario Parkway Maintenance
District No. 1 Vicinity Map
2445

E PHILADELPHIA ST

E FOURTH ST

N SULTANA AV

S ARCHIBALD AV

E SIXTH ST

W PHILLIPS ST

N ARCHIBALD AV
S
B
O
N
VIE
W
AV

S SAN ANTONIO AV
N
VIN
E
YA
R
D
AV
N
G
ROV
E
AV

N CAMPUS AV

S SULTANA AV

S MOUNTAIN AV

S CYPRESS AV

N SAN ANTONIO AV

W FOURTH ST

S CAMPUS AV

S VINEYARD AV

S BAKER AV

E WALNUT ST

N MOUNTAIN AV

W PHILADELPHIA ST

N BENSON AV

N CUCAMONGA AV

N BAKER AV

S PALMETTO AV

S GROVE AV
N
E
U
C
LID
AV
S
E
U
C
LID
AV

N TURNER AV

E EIGHTH ST

S TURNER AV

S HELLMAN AV

S BENSON AV

E PHILLIPS ST

W MISSION BL

E MISSION BL

S CUCAMONGA AV

S WALKER AV

N HELLMAN AV
S.R.-60 FWY E.B. S.R.-60 FWY W.B.

W WALNUT AV
Date: 5/8/2024
Note: Reference is hereby made to the Maps of
the Assessor of the County of San Bernardino,
California. For detailed descriptions of the lines
and dimensions of the parcels shown hereon.

Legend
Areas Maintained
Boundary of Area Assessed
0 .

0.47 0.95 Miles
Ontario Parkway Maintenance
District No. 2 Vicinity Map
2446

E PHILADELPHIA ST

S BON VIEW AV

S VINEYARD AV
S
E
U
C
LID
AV

S BAKER AV

S CAMPUS AV

S SULTANA AV

S GROVE AV

S TURNER AV

S CUCAMONGA AV

E WALNUT ST

S ARCHIBALD AV

S WALKER AV
S.R.-60 FWY E.B.

E CHINO AV

E MISSION BL

S HELLMAN AV

E SCHAEFER AV

E RIVERSIDE DR
S.R.-60 FWY W.B.

Date: 5/8/2024
Note: Reference is hereby made to the Maps of
the Assessor of the County of San Bernardino,
California. For detailed descriptions of the lines
and dimensions of the parcels shown hereon.

Legend
Areas Maintained
Boundary of Zone 2000-1
0 .

0.28 0.55 Miles
Ontario Parkway Maintenance
District No. 3 Vicinity Map
2447

E PHILADELPHIA ST

E FOURTH ST

N SULTANA AV

S ARCHIBALD AV W PHILLIPS ST N ARCHIBALD AV
S
B
O
N
VIE
W
AV

S SAN ANTONIO AV
N
VIN
E
YA
R
D
AV
N
G
R
O
V
E
AV

S CAMPUS AV N CAMPUS AV

S SULTANA AV

S MOUNTAIN AV

S CYPRESS AV

N SAN ANTONIO AV

W FOURTH ST

S VINEYARD AV

S TURNER AV

S BAKER AV

E WALNUT ST

N MOUNTAIN AV

N CUCAMONGA AV

S GROVE AV

N BAKER AV

S PALMETTO AV
N
E
U
C
LID
AV
S
E
U
C
LID
AV

W PHILADELPHIA ST

N TURNER AV

S HELLMAN AV

E PHILLIPS ST

E RIVERSIDE DR

E MISSION BL

S CUCAMONGA AV

S WALKER AV
S.R.-60 FWY E.B. S.R.-60 FWY W.B.

W WALNUT AV
Date: 5/8/2024
Note: Reference is hereby made to the Maps of
the Assessor of the County of San Bernardino,
California. For detailed descriptions of the lines
and dimensions of the parcels shown hereon. Legend
Areas Maintained
MA - # Boundary and Maintenance Area # 0
.

0.42 0.85 Miles
Ontario Parkway Maintenance
District No. 4 Vicinity Map
2448
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, APPROVING THE ENGINEER'S REPORTS FOR THE

ANNUAL LEVY OF ASSESSMENTS WITHIN ONTARIO PARKWAY
MAINTENANCE ASSESSMENT DISTRICTS NO. 1, 2, 3 AND 4 FOR
FISCAL YEAR 2024-25.

WHEREAS, the City Council of the City of Ontario, California, pursuant to the provisions of the “Landscaping and Lighting Act of 1972,” being Division 15, Part 2, of the Streets and Highways Code of the State of California, did, by previous Resolution, order the preparation of Engineer's Reports for the annual levy of assessments, consisting of plans and specifications, cost estimates, diagrams of the districts, and the assessment relating to what are now known and designated as

CITY OF ONTARIO
PARKWAY MAINTENANCE ASSESSMENT DISTRICTS NO. 1, 2, 3 and 4 (hereinafter referred to as the Districts); and
WHEREAS, there have now been presented to this City Council the Reports as required by said Division 15 of the Streets and Highways Code and as previously directed by Resolution; and
WHEREAS, this City Council has approved on a preliminary basis the Reports by a previous Resolution, and ordered the Reports to be filed in the Records Management Department to be open to public inspection; and
WHEREAS, this City Council has now examined and reviewed the Reports as presented, and is satisfied with each and all of the items and documents as set forth therein, and is satisfied that the assessments have been spread in accordance with the benefits received from the maintenance to be performed as set forth in said Reports.

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

SECTION 1. That the above recitals are all true and correct.

SECTION 2. That the Reports as presented, consisting of the following:

A. Plans and Specifications,
B. Estimates of cost,
C. Diagrams of the Districts, and
D. Assessment of the estimated cost
Are hereby approved and are ordered to be filed in the Records Management Department, as a permanent record and to remain open to public inspection. 2449
SECTION 3. That the City Clerk shall certify the passage and adoption of this Resolution, and the minutes of this meeting shall so reflect the presentation of the Engineer's Reports.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 16th day of July, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
2450

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 July 16, 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 July 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
2451
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, CONFIRMING THE DIAGRAMS AND ASSESSMENTS,

AND PROVIDING FOR THE ANNUAL ASSESSMENT LEVY WITHIN
ONTARIO PARKWAY MAINTENANCE ASSESSMENT DISTRICTS NO. 1, 2 AND 3 FOR FISCAL YEAR 2024-25.

WHEREAS, the City Council of the City of Ontario, California, has initiated proceedings for the annual levy of assessments in special maintenance districts pursuant to the terms and provisions of the "Landscaping and Lighting Act of 1972," being Division 15, Part 2, of the Streets and Highways Code of the State of California in what is known and designated as

CITY OF ONTARIO
PARKWAY MAINTENANCE ASSESSMENT DISTRICTS NO. 1, 2 AND 3 (hereinafter referred to as the Districts); and
WHEREAS, the City Council has ordered the preparation of the Engineer’s Reports, and the Engineer’s Reports have been prepared and filed with this City Council pursuant to law for its consideration, and subsequently thereto this City Council did adopt its Resolution of Intention to levy and collect assessments for the referenced fiscal year relating to the above referenced Districts, and further did proceed to give notice of the time and place for a Public Hearing on all matters relating to said annual levy of the proposed assessments; and
WHEREAS, at this time this City Council has heard all testimony and evidence and is desirous of proceeding with said annual levy of assessments.

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

SECTION 1. That the above recitals are all true and correct.

SECTION 2. That upon the conclusion of the Public Hearing, written protests filed and not withdrawn are hereby overruled and denied.

SECTION 3. That the estimates of costs, the assessment diagrams, the assessments and all other matters, as set forth in the Engineer's Reports pursuant to said "Landscaping and Lighting Act of 1972," as submitted, are hereby approved, adopted by this City Council, and hereby confirmed.

SECTION 4. That this City Council hereby confirms and orders the annual levy of the assessments for the referenced fiscal year in the amounts as set forth in the Engineer's Reports, and as referred to in the Resolution of Intention as previously adopted relating to said annual assessment levy.
2452
SECTION 5. That the adoption of this Resolution constitutes the levy of the assessments for the referenced fiscal year.

SECTION 6. That the maintenance work of improvements contemplated by the Resolution of Intention shall be performed pursuant to law.

SECTION 7. That the County Auditor shall enter on the County Assessment Roll the amount of the Assessment and said Assessment shall then be collected at the same time and in the same manner as the County taxes are collected. After collection by said County, the net amount of the assessment shall be paid to the City Treasurer of said City.

SECTION 8. That the City Treasurer has previously established a special fund into which the City Treasurer shall place all monies collected by the Tax Collector pursuant to the provisions of the Resolution and the law, and said transfer shall be made and accomplished as soon as said monies have been made available to said City Treasurer.

SECTION 9. That the City Manager is hereby ordered and directed to file, or cause to be filed, the assessment roll with the County Auditor, together with a certified copy of this Resolution upon its adoption.

SECTION 10. That a certified copy of the assessments and diagrams shall be filed in the Office of the City Manager, with a duplicate copy on file in the Records Management Department and open for public inspection.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 16th day of July, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
2453
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
2454

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 July 16, 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 July 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
2455
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, CONFIRMING THE DIAGRAM AND ASSESSMENT AND

PROVIDING FOR THE ANNUAL ASSESSMENT LEVY WITHIN ONTARIO PARKWAY MAINTENANCE ASSESSMENT DISTRICT NO. 4 FOR
FISCAL YEAR 2024-25.

WHEREAS, the City Council of the City of Ontario, California, has initiated proceedings for the levy of the annual assessment in a special maintenance district created pursuant to the terms of the “Landscaping and Lighting Act of 1972”, being Division 15, Part 2 of the Streets and Highways Code of the State of California (the “Landscaping Act”), Article XIIID of the Constitution of the State of California (“Article XIIID”) and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following) (the “Implementation Act”) (the Landscaping Act, Article XIIID and the Implementation Act may be referred to collectively herein as the “Assessment Law”), in a special maintenance district known and designated as

CITY OF ONTARIO
PARKWAY MAINTENANCE ASSESSMENT DISTRICT NO. 4
(hereinafter referred to as the “District”); and
WHEREAS, the City Council has ordered the preparation of an Engineer’s Report, and such a report (the “Assessment Engineer’s Report”) has been prepared and filed with this City Council for its consideration pursuant to Assessment Law, and subsequently thereto this City Council did adopt its Resolution of Intention to levy and collect assessments for the referenced fiscal year relating to the above-referenced District, and further did proceed to give notice of the time and place for the Public Hearing on all matters relating to said annual levy of the proposed assessment; and WHEREAS, at this time this City Council has heard all testimony and evidence and is desirous of proceeding with said annual levy of assessments.

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

SECTION 1. That the above recitals are all true and correct.

SECTION 2. That upon the conclusion of the Public Hearing, written protests filed and not withdrawn are hereby overruled and denied.

SECTION 3. That based upon the Assessment Engineer’s Report and the testimony and other evidence presented at the public hearing, the City Council hereby makes the following determinations regarding the assessments proposed to be imposed for the referenced Fiscal Year:
2456
A. The proportionate special benefit derived by each individual parcel assessed has been determined in relationship to the entirety of the cost of the operations and maintenance expenses.

B. The assessments do not exceed the reasonable cost of the proportional special benefit conferred on each parcel.

C. Only the special benefits have been assessed.

D. There are no publicly owned parcels within the District.

E. The assessments do not exceed the maximum annual assessments previously authorized to be levied pursuant to the Assessment Law.

The estimates of costs, the assessment diagram, the assessments and all other matters, as set forth in the Assessment Engineer’s Report pursuant to the Assessment Law as submitted, are hereby approved, adopted by this City Council, and hereby confirmed.

SECTION 4. That this City Council hereby confirms and orders the annual levy of the assessments for the referenced fiscal year in the amounts as set forth in the Assessment Engineer's Report, and as referred to in the Resolution of Intention as previously adopted relating to said annual assessment levy.

SECTION 5. That the adoption of this Resolution constitutes the levy of the assessments for the fiscal year.

SECTION 6. That the maintenance work of improvements contemplated by the Resolution of Intention shall be performed pursuant to law.

SECTION 7. That the County Auditor shall enter on the County Assessment Roll the amount of the Assessment and said Assessment shall then be collected at the same time and in the same manner as the County taxes are collected. After collection by said County, the net amount of the assessment shall be paid to the City Treasurer of said City.

SECTION 8. That the City Treasurer has previously established a special fund into which the City Treasurer shall place all monies collected by the Tax Collector pursuant to the provisions of the Resolution and the law, and said transfer shall be made and accomplished as soon as said monies have been made available to said City Treasurer.

SECTION 9. That the City Manager is hereby ordered and directed to file, or cause to be filed, the assessment roll with the County Auditor, together with a certified copy of this Resolution upon its adoption.
2457
SECTION 10. That a certified copy of the assessment and diagram shall be filed in the Office of the City Manager, with a duplicate copy on file in the Records Management Department and open for public inspection.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 16th day of July, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
2458

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 July 16, 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 July 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
2459
Department: Financial Services
Prepared By: Nathaniel Gibson
Staff Member Presenting: Armen Harkalyan,
Executive Director of Finance
Reviewed By: Claudia Hernandez
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 30
SUBJECT: ANNUAL LEVY OF ASSESSMENTS WITHIN STREET LIGHTING MAINTENANCE DISTRICT NOS. 1 AND 2 FOR FISCAL YEAR 2024-25

CITY OF ONTARIO
Agenda Report
July 16, 2024
SECTION:

PUBLIC HEARINGS
RECOMMENDATION: That the City Council conduct a combined public hearing for the districts and take the following actions pertaining to the levy of assessments within Street Lighting Maintenance Districts (SLMD) Nos. 1 and 2, and:

A. Adopt a Resolution approving the Engineer’s Reports relating to the levy of assessments for each district;
B. Adopt a Resolution confirming the diagram and assessment and providing for the assessment levy within Street Lighting Maintenance District 1; and C. Adopt a Resolution confirming the diagram and assessment and providing for the assessment levy within Street Lighting Maintenance District 2.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT: The proposed Fiscal Year 2024-25 total special assessment revenue will be $350,101 from the SLMD No. 1 and $104,778 from SLMD No. 2. A portion of the facilities within SLMD No. 1 provides a general benefit to the public at large and cannot be funded with the assessment. The general benefit amount of $6,771 will be funded by the General Fund and is included in the City’s Fiscal Year 2024-25 Adopted Budget. Excluding the General Benefit portion located in SLMD No. 1, both districts will have sufficient revenue to cover expenditures.

BACKGROUND & ANALYSIS: Street Lighting Maintenance District No. 1 was formed in 1984, and Street Lighting Maintenance District No. 2 was formed in 1999, pursuant to the Landscaping and Lighting Act of 1972 (the 1972 Act), to help minimize the continually increasing cost for maintaining and operating the City’s street lighting system. A special assessment is levied annually on benefiting properties for the cost of maintenance and operation of certain street lighting facilities within the districts. The locations of the districts are shown on the provided maps. 2460
The City’s Public Works Agency establishes the annual maintenance costs and maintains the street lighting system. As required by the 1972 Act, an Engineer’s Report for each district is prepared annually by the City's consultant, Harris & Associates, apportioning the costs to each parcel within the districts. The districts are comprised of commercial, industrial and some multi-family residential properties. Due to varying characteristics, the districts are organized into benefit zones and/or maintenance areas. Each zone/maintenance area is assessed for only the operation and maintenance of the facilities from which it receives direct special benefit. The total assessment for each zone/maintenance area is then apportioned to its constituent parcels. Therefore, the assessments are unique and specific to each individual parcel of property.

The City's proposed Fiscal Year 2024-25 levy for the two street light maintenance districts is based on the previous year's actual expenses. The proposed total assessments for tax year 2024-25 are $350,101 in SLMD No. 1, and $104,778 in SLMD No. 2. A portion of the facilities within SLMD No. 1 provide general benefit to the public at large and cannot be funded with the assessment. The general benefit amount of $6,771 will be funded by the General Fund and is included in the City’s Adopted Fiscal Year 2024-25 Budget. The assessed tax rates for Fiscal Year 2023-24, and the maximum and proposed tax rates for Fiscal Year 2024-25, are shown in Exhibit A.

On June 18, 2024, the City Council adopted Resolutions which ordered the preparation of Engineer's Reports for the annual levy of assessments within each district, preliminarily approved the Engineer's Reports, declared City Council's intention to levy and collect assessments within the districts for the referenced fiscal year, and set July 16, 2024, as the date for the public hearing for each district. Notices of the public hearings have been published, and proof of publication is on file in the Records Management Department.

The Engineer’s Reports, which have been prepared for each district pursuant to the 1972 Act, are on file in the Records Management Department. Each district’s report is on file in the Records Management Department. Each report includes plans and specifications for the improvements being operated and maintained, an estimate of costs, a diagram of the area proposed to be assessed, and an assessment of the costs to the various parcels within the districts. 2461
Prior Year Maximum Proposed
2023-24 2024-25 2024-25
SLMD No. 1, Zone 2000-1 per AU $ 116.00 $ 190.00 $ 119.00 SLMD No. 1, Zone 2000-2 per AU $ 67.00 $ 156.00 $ 69.00 SLMD No. 2, MA# 99-1 $ 4,677.00 $ 13,571.00 $ 3,895.00
SLMD No. 2, MA# 99-2 $ 2,503.00 $ 6,748.00 $ 2,498.00
SLMD No. 2, MA# 99-3 $ 5,006.00 $ 11,246.00 $ 4,389.00
SLMD No. 2, MA# 99-4 $ 1,642.00 $ 4,504.00 $ 1,638.00
SLMD No. 2, MA# 99-5 $ 1,376.00 $ 4,222.00 $ 2,387.00
SLMD No. 2, MA# 99-6 $ 13,483.00 $ 39,410.00 $ 14,158.00 SLMD No. 2, MA# 99-7 $ 453.00 $ 1,219.00 $ 945.00
SLMD No. 2, MA# 99-8 $ 3,338.00 $ 8,997.00 $ 3,330.00
SLMD No. 2, MA# 00-1 $ 3,046.00 $ 4,140.00 $ 3,862.00
SLMD No. 2, MA# 00-2 $ 1,668.00 $ 2,762.00 $ 1,665.00
SLMD No. 2, MA# 00-3 $ 9,174.00 $ 15,181.00 $ 9,155.00
SLMD No. 2, MA# 00-4 $ 56,053.00 $ 86,929.00 $ 56,856.00 Street Light Maintenance Districts Proposed Levy Rates FY 2024-25

EXHIBIT A
2462
S:\Engineering\Traffic & Transportation\Traffic Engineering\Research and General Inquiries\Street Light Maintenance District Count Request\FY 24-25\SLMD 1\SLMD 1 - 2024 Vicinity Map.mxd !
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Legend
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Zone 2000-1
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Date: 4/30/2024
Street Light Maintenance District No.1
Vicinity Map
Note: Reference is hereby made to the
Maps of The Assessor of the County of
San Berndardino, California, for a detailed
description of the lines and dimensions
of the parcels shown hereon.
2463
S:\Engineering\Traffic & Transportation\Traffic Engineering\Research and General Inquiries\Street Light Maintenance District Count Request\FY 24-25\SLMD 2\SLMD 2 - 2024 Vicinity Map.mxd

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Date: 4/30/2024
Street Light Maintenance District No. 2
Vicinity Map
Note: Reference is hereby made to the
Maps of The Assessor of the County of
San Berndardino, California, for a detailed
description of the lines and dimensions
of the parcels shown hereon.
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2464
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, APPROVING THE ENGINEER'S REPORTS FOR THE

ANNUAL LEVY OF ASSESSMENTS WITHIN STREET LIGHTING
MAINTENANCE DISTRICTS NO. 1 AND 2 FOR FISCAL YEAR 2024-25.

WHEREAS, the City Council of the City of Ontario, California, pursuant to the provisions of the “Landscaping and Lighting Act of 1972,” being Division 15, Part 2, of the Streets and Highways Code of the State of California, did, by previous Resolution, order the preparation of Engineer's Reports for the annual levy of assessments, consisting of plans and specifications, cost estimates, diagrams of the districts, and the assessments relating to what are now known and designated as

CITY OF ONTARIO
STREET LIGHTING MAINTENANCE DISTRICTS NO. 1 AND 2
(hereinafter referred to as the Districts); and
WHEREAS, there have now been presented to this City Council the Reports as required by said Division 15 of the Streets and Highways Code and as previously directed by Resolution; and
WHEREAS, this City Council has approved on a preliminary basis the Reports by a previous Resolution, and ordered the Reports to be filed in the Records Management Department to be open to public inspection; and
WHEREAS, this City Council has now examined and reviewed the Reports as presented, and is satisfied with each and all of the items and documents as set forth therein, and is satisfied that the assessments have been spread in accordance with the benefits received from the maintenance to be performed as set forth in said Reports.

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

SECTION 1. That the above recitals are all true and correct.

SECTION 2. That the Reports as presented, consisting of the following:

A. Plans and Specifications,
B. Estimates of cost,
C. Diagrams of the Districts, and
D. Assessment of the estimated costs
are hereby approved, and are ordered to be filed in the Records Management Department, as a permanent record and to remain open to public inspection. 2465
SECTION 3. That the City Clerk shall certify to the passage and adoption of this Resolution, and the minutes of this meeting shall so reflect the presentation of the Engineer's Reports.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 16th day of July, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
2466

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 July 16, 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 July 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
2467
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, CONFIRMING THE DIAGRAM AND ASSESSMENT AND

PROVIDING FOR THE ANNUAL ASSESSMENT LEVY WITHIN STREET
LIGHTING MAINTENANCE DISTRICT NO. 1 FOR FISCAL YEAR 2024-25.

WHEREAS, the City Council of the City of Ontario, California, has initiated proceedings for the levy of the annual assessment in a street lighting maintenance district created pursuant to the terms of the “Landscaping and Lighting Act of 1972”, being Division 15, Part 2 of the Streets and Highways Code of the State of California (the “Lighting Act”), Article XIIID of the Constitution of the State of California (“Article XIIID”) and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following) (the “Implementation Act”) (the Lighting Act, Article XIIID and the Implementation Act may be referred to collectively herein as the “Assessment Law”), in a special maintenance district known and designated as

CITY OF ONTARIO
STREET LIGHTING MAINTENANCE DISTRICT NO. 1
(hereinafter referred to as the “District”); and
WHEREAS, the City Council has ordered the preparation of an Engineer’s Report, and such report (the “Assessment Engineer’s Report”) has been prepared pursuant to the Assessment Law and filed with this City Council for its consideration, and subsequently thereto this City Council did adopt its Resolution of Intention to levy and collect assessments for the referenced fiscal year relating to the above-referenced District, and further did proceed to give notice of the time and place for the Public Hearing on all matters relating to said annual levy of the proposed assessment; and WHEREAS, at this time this City Council has heard all testimony and evidence and is desirous of proceeding with said annual levy of assessments.

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

SECTION 1. That the above recitals are all true and correct.

SECTION 2. That upon the conclusion of the Public Hearing, written protests filed and not withdrawn are hereby overruled and denied.

SECTION 3. That based upon the Assessment Engineer’s Report and the testimony and other evidence presented at the public hearing, the City Council hereby makes the following determinations regarding the assessments proposed to be imposed for the referenced fiscal year:
2468
A. The proportionate special benefit derived by each individual parcel assessed has been determined in relationship to the entirety of the cost of the operations and maintenance expenses.

B. The assessments do not exceed the reasonable cost of the proportional special benefit conferred on each parcel.

C. Only the special benefits have been assessed.

D. All parcels within the District that are owned or used either by a local government, the State of California or the United States and which specially benefit from the improvements to be maintained are being assessed.

E. The assessments do not exceed the maximum annual assessments previously authorized to be levied pursuant to the Assessment Law.

The estimate of costs, the assessment diagram, the assessments and all other matters, as set forth in the Assessment Engineer’s Report pursuant to the Assessment Law as submitted, are hereby approved, adopted by this City Council, and hereby confirmed.

SECTION 4. That this City Council hereby confirms and orders the annual levy of the assessments for the referenced fiscal year in the amounts as set forth in the Assessment Engineer's Report, and as referred to in the Resolution of Intention as previously adopted relating to said annual assessment levy.

SECTION 5. That the adoption of this Resolution constitutes the levy of the assessments for the fiscal year.

SECTION 6. That the maintenance work of improvements contemplated by the Resolution of Intention shall be performed pursuant to law.

SECTION 7. That the County Auditor shall enter on the County Assessment Roll the amount of the Assessment and said Assessment shall then be collected at the same time and in the same manner as the County taxes are collected. After collection by said County, the net amount of the assessment shall be paid to the City Treasurer of said City.

SECTION 8. That the City Treasurer has previously established a special fund into which the City Treasurer shall place all monies collected by the Tax Collector pursuant to the provisions of the Resolution and the law, and said transfer shall be made and accomplished as soon as said monies have been made available to said City Treasurer.

SECTION 9. That the City Manager is hereby ordered and directed to file, or cause to be filed, the assessment roll with the County Auditor, together with a certified copy of this Resolution upon its adoption.
2469
SECTION 10. That a certified copy of the assessment and diagram shall be filed in the Office of the City Manager, with a duplicate copy on file in the Records Management Department and open for public inspection.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 16th day of July, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
2470

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 July 16 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 July 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
2471
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, CONFIRMING THE DIAGRAM AND ASSESSMENT AND

PROVIDING FOR THE ANNUAL ASSESSMENT LEVY WITHIN STREET
LIGHTING MAINTENANCE DISTRICT NO. 2 FOR FISCAL YEAR 2024-25.

WHEREAS, the City Council of the City of Ontario, California, has initiated proceedings for the levy of the annual assessment in a street lighting maintenance district created pursuant to the terms of the “Landscaping and Lighting Act of 1972”, being Division 15, Part 2 of the Streets and Highways Code of the State of California (the “Lighting Act”), Article XIIID of the Constitution of the State of California (“Article XIIID”) and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following) (the “Implementation Act”) (the Lighting Act, Article XIIID and the Implementation Act may be referred to collectively herein as the “Assessment Law”), in a special maintenance district known and designated as

CITY OF ONTARIO
STREET LIGHTING MAINTENANCE DISTRICT NO. 2
(hereinafter referred to as the “District”); and
WHEREAS, the City Council has ordered the preparation of an Engineer’s Report, and such report (the “Assessment Engineer’s Report”) has been prepared pursuant to the Assessment Law and filed with this City Council for its consideration, and subsequently thereto this City Council did adopt its Resolution of Intention to levy and collect assessments for the referenced fiscal year relating to the above-referenced District, and further did proceed to give notice of the time and place for the Public Hearing on all matters relating to said annual levy of the proposed assessment; and WHEREAS, at this time this City Council has heard all testimony and evidence and is desirous of proceeding with said annual levy of assessments.

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

SECTION 1. That the above recitals are all true and correct.

SECTION 2. That upon the conclusion of the Public Hearing, written protests filed and not withdrawn are hereby overruled and denied.

SECTION 3. That based upon the Assessment Engineer’s Report and the testimony and other evidence presented at the public hearing, the City Council hereby makes the following determinations regarding the assessments proposed to be imposed for the referenced fiscal year:
2472
A. The proportionate special benefit derived by each individual parcel assessed has been determined in relationship to the entirety of the cost of the operations and maintenance expenses.

B. The assessments do not exceed the reasonable cost of the proportional special benefit conferred on each parcel.

C. Only the special benefits have been assessed.

D. All parcels within the District that are owned or used either by a local government, the State of California or the United States and which specially benefit from the improvements to be maintained are being assessed.

E. The assessments do not exceed the maximum annual assessments previously authorized to be levied pursuant to the Assessment Law.

The estimate of costs, the assessment diagram, the assessments and all other matters, as set forth in the Assessment Engineer’s Report pursuant to the Assessment Law as submitted, are hereby approved, adopted by this City Council, and hereby confirmed.

SECTION 4. That this City Council hereby confirms and orders the annual levy of the assessments for the referenced fiscal year in the amounts as set forth in the Assessment Engineer's Report, and as referred to in the Resolution of Intention as previously adopted relating to said annual assessment levy.

SECTION 5. That the adoption of this Resolution constitutes the levy of the assessments for the fiscal year.

SECTION 6. That the maintenance work of improvements contemplated by the Resolution of Intention shall be performed pursuant to law.

SECTION 7. That the County Auditor shall enter on the County Assessment Roll the amount of the Assessment and said Assessment shall then be collected at the same time and in the same manner as the County taxes are collected. After collection by said County, the net amount of the assessment shall be paid to the City Treasurer of said City.

SECTION 8. That the City Treasurer has previously established a special fund into which the City Treasurer shall place all monies collected by the Tax Collector pursuant to the provisions of the Resolution and the law, and said transfer shall be made and accomplished as soon as said monies have been made available to said City Treasurer.

SECTION 9. That the City Manager is hereby ordered and directed to file, or cause to be filed, the assessment roll with the County Auditor, together with a certified copy of this Resolution upon its adoption.
2473
SECTION 10. That a certified copy of the assessment and diagram shall be filed in the Office of the City Manager, with a duplicate copy on file in the Records Management Department and open for public inspection.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 16th day of July, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
2474

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 July 16, 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 July 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
2475
Department: Economic Development
Prepared By: Peter Pallesen
Department:

Prepared By: Peter Pallesen
Staff Member Presenting: Jennifer McLain
Hiramoto, Economic Development Director
Reviewed By: Charity Hernandez
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 31
SUBJECT: A PUBLIC HEARING TO CONSIDER APPROVAL OF A DISPOSITION AND

DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ONTARIO AND HDC CONSTRUCTION, INC. FOR THE ADAPTIVE REUSE OF THE HISTORIC PROPERTY LOCATED AT 207 NORTH EUCLID AVENUE (APN: 1048-565-09)

CITY OF ONTARIO
Agenda Report
July 16, 2024
SECTION:

PUBLIC HEARINGS
RECOMMENDATION: That the City Council adopt the attached Resolution approving the Disposition and Development Agreement (Agreement) between the City of Ontario and HDC Construction, Inc. (Developer) and authorize the City Manager, or his designee, to sign all documents necessary to implement the Agreement.

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 FISCAL IMPACT: The City will convey approximately one (1) acre of real property located at 207 North Euclid Avenue ("Property"), as depicted in Exhibit A, for a proposed purchase price of One Dollar ($1.00) subject to the terms and conditions precedent to the close of escrow as contained in the Agreement.

BACKGROUND & ANALYSIS: The City of Ontario is investing significant resources in revitalizing the historic downtown into a vibrant, 18-hour destination. It is doing this in several ways, including:

Acquiring underutilized or dilapidated buildings, with an emphasis on historic properties; Partnering with experienced developers capable of infusing new apartments, offices and/or retail into Downtown, and;
Investing in strategic infrastructure projects, such as improving sewer drains, lighting, wayfinding and parking.

In early 2022, the City acquired 207 N. Euclid Avenue, a three-story, 10,000 square foot historic building constructed in 1920. Later that year, the City entered into an Exclusive Negotiating 2476
Agreement with the Developer to explore the adaptive reuse of the Property.

The City and Developer have negotiated a Disposition and Development Agreement ("DDA") that provides for the conveyance of the Property to the Developer. In exchange, the Developer will deliver a 3,400 square foot restaurant on the ground floor, with an additional 3,400 square foot basement for ancillary restaurant use and private dining, as well as a 3,780 square foot second floor lounge and rooftop patio. The Developer will be required to preserve and retain the historic context of the building and obtain a Certificate of Appropriateness from the Planning Department for the proposed use.

The Property was appraised by R.P. Laurain and Associates in November of 2023 with the appraiser arriving at a negative Opinion of Value. The negative value was derived from recent comparable land and building values coupled with the Developer's overall project costs and a Historic Structures Report ("HSR") prepared by a state certified architect. The HSR included an analysis of the historic nature of the building as well as the structural integrity of the building and an engineer's cost estimate to retrofit the building to allow for the Developer's proposed use. The proposed rehabilitation/historic preservation and new tenant improvements costs of $6 million exceed the current market value of the Property, at $1.5 million, by $4.5 million. The renovation costs include, but are not limited to: seismic retrofitting, hazardous material abatement, a new elevator, new plumbing, mechanical, and electrical systems, fire sprinklers, façade improvements, interior finishes, and restaurant furnishing, fixtures, and equipment.

The proposed project will effectuate the rehabilitation of one of the City's historic landmarks (Landmark No. 29), would add much needed quality dining and entertainment options, and would serve as an impetus for additional redevelopment opportunities in downtown. It would also result in an increase in new revenues to the City in the form of both sales tax and property, as well as create new jobs. As a result, staff recommends approval of the proposed Disposition and Development Agreement.
2477
2478
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, APPROVING A DISPOSITION AND DEVELOPMENT

AGREEMENT BETWEEN THE CITY OF ONTARIO AND HDC
CONSTRUCTION INC. FOR THE DISPOSITION AND DEVELOPMENT
OF CERTAIN REAL PROPERTY LOCATED AT 207 EUCLID AVENUE
(APN 1048-565-09) AND MAKING CERTAIN FINDINGS IN CONNECTION THEREWITH.

WHEREAS, the City of Ontario (“City”) currently owns in fee certain real property located at 207 Euclid Avenue, Ontario (APN 1048-565-09) and more specifically described in Exhibit A attached to this Resolution and incorporated herein by this reference (“Property”); and
WHEREAS, an existing historic building is located on the Property (the “Building”) which consists of two-stories, approximately – 118 feet by 32 feet in size, and includes a full basement and first floor; a narrow, partial mezzanine along the south side of the first floor; a partial second floor at the rear of the building facing the alley; and a partial third floor located at the front of the building with windows facing the street; and WHEREAS, the City and HDC Construction, Inc., a California corporation (“Developer”) have been in exclusive negotiations regarding the acquisition, development, and renovation of the Property by Developer to retain the historic nature of the Building, and to have it repaired, renovated and improved in order to facilitate its adaptive reuse, including as a restaurant and other uses. Required improvements include seismic retrofit, general conformance to current building codes, and compliance with Americans with Disabilities Act (“ADA”) requirements, and certain utility connections (the “Project”); and
WHEREAS, the City and Developer have negotiated a Disposition and Development Agreement (the “Agreement”), a copy of which is attached to this Resolution as Exhibit B and which provides for the transfer of the Property to Developer, and binds Developer to construct the Project in a timely manner and in accordance with the terms therein; and
WHEREAS, the Developer’s proposed acquisition of the Property and subsequent construction and completion of the Project on the Property pursuant to the terms of this Agreement is in the best interest of the City and the health, safety and welfare of the City’s taxpayers and residents and is in accordance with the public purposes set forth in applicable law. Implementation of this Agreement will further the goals and objectives of the City’s general plan by: (i) strengthening the City’s land use and social structure, (ii) promoting and supporting the adaptive reuse of historic sites and buildings to preserve and maintain their viability; (iii) alleviating economic and physical blight on the Property and in the surrounding community; and
WHEREAS, the City Council determines that approval of the Agreement does not constitute approval of any development of the Property or of other activity on the Property 2479
that would have a direct or reasonably foreseeable indirect environmental impact pursuant to the California Environmental Quality Act (“CEQA”) (See 14 C.C.R. §§ 15060(c); 15378(b)) and that it can be seen with certainty that there is no possibility that approval of the actions authorized under this Resolution will have a significant adverse effect on the environment. Thus, the adoption of this Resolution is exempt from the requirements of CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines; and WHEREAS, pursuant to the foregoing, the City Council has determined that a Notice of exemption for approval of the Agreement should be filed pursuant to CEQA, the State CEQA Guidelines, and the Agency's Local CEQA Guidelines.

NOW, THEREFORE, THE CITY COUNCIL FOR THE CITY OF ONTARIO DOES HEREBY RESOLVE AND DECLARE AS FOLLOWS:

Section 1. Recitals. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference.

Section 2. Findings. The City Council finds that the sale and development of the Property pursuant to the Agreement will further the goals and purposes of the City, and is in the common interest of the City and its residents.

Section 3. Approval of Agreement. The City Council hereby approves the Agreement in substantially the form attached hereto as Exhibit B, subject to any nonsubstantive revisions which do not increase the City’s liability and are approved by the City Attorney, and authorizes the City Manager to sign and enter into the Agreement and perform the obligations of the City under the Agreement.

Section 4. CEQA. The City Council’s approval of the Agreement does not constitute approval of any development of the Property or of other activity on the Property that would have a direct or reasonably foreseeable indirect environmental impact pursuant to CEQA (See 14 C.C.R. §§ 15060(c); 15378(b)). The City Council further finds that it can be seen with certainty that there is no possibility that approval of the actions authorized under this Resolution will have a significant adverse effect on the environment.

Thus, the adoption of this Resolution is exempt from the requirements of the CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines. Moreover, close of escrow on the Property under the Agreement, and Developer’s future use or development of the Property is expressly conditioned on CEQA compliance.

Section 5. Notice of Exemption. The City Manager, or his designee, is hereby directed to file a Notice of Exemption for the Project under CEQA.

Section 6. Severability. If any provision of this Resolution or the application of any such provision to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Resolution that can be given effect without the invalid provision or application, and to this end the provisions of this Resolution 2480
are severable. The City declares that the City would have adopted this Resolution irrespective of the invalidity of any particular portion of this Resolution.

Section 7. Effective Date. This Resolution shall become effective immediately upon its adoption.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 16th day of July, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
2481

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 July 16, 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 July 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
2482
EXHIBIT “A”
Legal Description of the Property
207 Euclid Avenue Ontario, California 91762
APN: 1048-565-09-0000
Legal Description: Lot 10, along with the south seven inches of Lot 9, Block 37, Portion of Ontario, per map recorded in Book 9, Page 43 of Maps, in the office of the County Recorder, County of San Bernardino, California. 2483
EXHIBIT “B”
Disposition and Development Agreement
(207 Euclid Avenue)
2484
46700.00320\42466729.1
2024 DISPOSITION AND DEVELOPMENT AGREEMENT
(207 EUCLID AVENUE SITE)
between

CITY OF ONTARIO
a municipal corporation
and
HDC CONSTRUCTION, INC.
a California corporation
July 16, 2024
2485
46700.00320\42466729.1
-1-
This 2024 DISPOSITION AND DEVELOPMENT AGREEMENT (207 Euclid Avenue Site) (“Agreement”) is dated as of July 16, 2024 (“Date of Agreement”), for reference purposes only, and is entered into by and between the City of Ontario, a municipal corporation (the "City"), and HDC Construction, Inc. a California corporation (“Developer”). The City and the Developer are sometimes referred to in this Agreement, each individually, as a “Party,” or collectively, as the “Parties.”

RECITALS
This Agreement is entered into with reference to the following recitals of fact (“Recitals”) that City and Developer believe to be true as of the Effective Date of this Agreement:

A. The City is the owner of that certain real property located at 207 Euclid Avenue, Ontario (APN1048-565-09) and more specifically described in Exhibit A attached hereto and incorporated herein by this reference (“Property”).

B. An existing historic building, constructed in 1910 using unreinforced masonry, is located on the Property (the “Building”). The Building is two-stories, approximately – 118 feet by 32 feet in size, and includes a full basement and first floor; a narrow, partial mezzanine along the south side of the first floor; a partial second floor at the rear of the building facing the alley; and a partial third floor located at the front of the building with windows facing the street. The Building was significantly modified in 1962 including, but not limited to, façade modifications to “modernize” the structure.1
C. The Building is located in the Ontario Downtown Historic District, and represents a “new genre of architecture” referred to by the Architectural Historian on the team that prepared a Historic Structure Report for the City as “1960s Storefront Architecture.”2 It is a locally designated historic structure.

D. The City desires to retain the historic nature of the Building, and to have it repaired, renovated and improved in order to facilitate its adaptive reuse, including as a restaurant and other uses. Required improvements include seismic retrofit, general conformance to current building codes, and compliance with Americans with Disabilities Act (ADA) requirements, and certain utility connections (the “Project”).

E. The anticipated cost to complete the Project are attached to this Agreement as Exhibit B. Based on an appraisal completed by the City, in light of the cost of the Project, the Property has a negative value. Therefore, the City intends to transfer the Property to the Developer at no cost for the purpose of completing the Project, subject to all terms, conditions and covenants contained in this Agreement including, but not limited, the right of the City to retake the Property should Developer not comply with its obligations under this Agreement. 1 Historic Structure Report, October 4, 2023, Preservation Architects: Thirtieth Street Architects, Inc.

Architectural Historian: Daly & Associates, Structural Engineer: Grimm & Chen Structural Engineering Mechanical, Electrical, and Plumbing Engineers: NV5.
2 Id. quoting Architectural Historian, Pam Daly.
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F. The Developer’s proposed acquisition of the Property and subsequent construction and completion of the Project (as further defined in Section 1.1.56) on the Property pursuant to the terms of this Agreement is in the best interest of the City and the health, safety and welfare of the City’s taxpayers and residents and is in accordance with the public purposes set forth in applicable law. Implementation of this Agreement will further the goals and objectives of the City’s general plan by: (i) strengthening the City’s land use and social structure, (ii) promoting and supporting the adaptive reuse of historic sites and buildings to preserve and maintain their viability; (iii) alleviating economic and physical blight on the Property and in the surrounding community.

G. The City desires to transfer the Property to the Developer for the development of the Project and the Developer desires to acquire the Property from the City for the same purpose.

NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by City and Developer, the Parties agree as follows:

TERMS AND CONDITIONS

ARTICLE I
DEFINITIONS; REPRESENTATIONS AND WARRANTIES;

EFFECTIVE DATE

1.1 Definitions. All initially capitalized terms not otherwise defined in this Agreement shall have the following meanings:

1.1.1 “Additional Insureds” has the meaning ascribed to such term in Section 5.7.

1.1.2 “Affiliate” means and refers to any person or entity, directly or indirectly, Controlling or Controlled by or under common Control with the Developer, whether by direct or indirect ownership of equity interests, by contract or otherwise.

1.1.3 “City’s Title Notice Response” means the written response of the City to the Developer’s Title Notice, in which the City either (i) elects to cause the removal from the Preliminary Report of any matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy that were objected to in the Developer’s Title Notice, or (ii) elects not to cause the removal from the Preliminary Report of any matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy that were objected to in the Developer’s Title Notice.

1.1.4 “CEQA” means the California Environmental Quality Act, Public Resources Code Sections 21000, et seq.

1.1.5 “Certificate of Completion” means the written certification of City that the construction of the Project has been completed in compliance with the terms and conditions of this Agreement, substantially in the form of Exhibit G attached to this Agreement. 2487
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1.1.6 “City” means the City of Ontario, a municipal corporation.

1.1.7 “City Requirements” has the meaning ascribed to the term in Section

2.6.2. 1.1.8 “Close of Escrow” or “Closing” means the recording of the Grant Deed for the Property in the Official Records of the Recorder of the County, and completion of each of the actions set forth in ARTICLE III by the Escrow Holder for the City to transfer the Property to the Developer and the Developer to acquire the Property from the City.

1.1.9 “Construction” means all seismic retrofit; rehabilitation; reconstruction; tenant improvements; furnishings, fixtures and equipment; and other work on the Building and the Property, and any other adjacent property, required to complete the Project.

1.1.10 “Completion of Construction” means the issuance of a Certificate of Completion confirming that the final certificate of occupancy for the Project, based on the plans submitted by the Developer to the City, has been issued.

1.1.11 “Construction Costs” means the total cost incurred by Developer in acquiring the Property and completing the Project in accordance with this Agreement.

1.1.12 “Construction Lender” means a Lender(s) that provide(s) a Construction Loan to the Developer to pay the Construction Costs of all or a portion of the Project.

1.1.13 “Construction Loan” means a Loan obtained by Developer from a Construction Lender to finance all or part of the Construction Costs in conformity with the Financing Plan.

1.1.14 “Construction Loan Deed of Trust(s)” means the Lien(s) required by a Construction Lender to secure the Developer’s performance under the associated Construction Loan.

1.1.15 “Control” means and refers to possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether by ownership of equity interests, by contract or otherwise.

1.1.16 “Controlling” and “Controlled” mean and refer to exercising or having Control.

1.1.17 “County” means the County of San Bernardino, California.

1.1.18 “Developer’s Title Notice” means a written notice from the Developer to the City indicating the Developer’s acceptance of the state of the title to the Property, as described in the Preliminary Report, or the Developer’s objection to specific matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy for the Property, describing in suitable detail the actions that the Developer reasonably believes are indicated to cure or correct each of the Developer’s objections. 2488
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1.1.19 “Developer’s Title Notice Waiver” means a written notice from the Developer to the City waiving the Developer’s previous objection in the Developer’s Title Notice to specific matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy for the Property.

1.1.20 “Due Diligence Investigations” means the Developer’s due diligence investigations of the Property to determine the suitability of the Property for development and operation of the Project, including, without limitation, investigations of the environmental and geotechnical suitability of the Property, as deemed appropriate in the reasonable discretion of the Developer, all at the sole cost and expense of the Developer.

1.1.21 “Due Diligence Investigation Conclusion Notice” means a written notice of the Developer delivered to the City and the Escrow Holder, prior to the end of the Due Diligence Period, indicating the Developer’s acceptance of the condition of the Property or indicating the Developer’s rejection of the condition of the Property and refusal to accept a conveyance of fee title to the Property, describing in reasonable detail the actions that the Developer reasonably believes are indicated to allow the Developer to accept the condition of the Property.

1.1.22 “Due Diligence Period” means the date commencing on the Effective Date and ending at 5:00 p.m. on the ninetieth (90th) day following the Effective Date.

1.1.23 “Effective Date” has the meaning ascribed to the term in Section 1.3.

1.1.24 “Environmental Claims” has the meaning ascribed to the term in Section 5.6.

1.1.25 “Environmental Laws” means all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government authority regulating, relating to, or imposing liability of standards of conduct concerning any hazardous substance (as later defined), or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the Property, occupational or environmental conditions on, under, or about the Property, as now or may at any later time be in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”) [42 USC Section 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (“RCRA”) [42 USC Section 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (“FWPCA”) [33 USC Section 1251 et seq.]; the Toxic Substances Control Act (“TSCA”) [15 USC Section 2601 et seq.]; the Hazardous Materials Transportation Act (“HMTA”) [49 USC Section 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USC Section 6901 et seq.] the Clean Air Act [42 USC Section 7401 et seq.]; the Safe Drinking Water Act [42 USC Section 300f et seq.]; the Solid Waste Disposal Act [42 USC Section 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USC Section 101 et seq.] the Emergency Planning and Community Right to Know Act [42 USC Section 11001 et seq.]; the Occupational Safety and Health Act [29 USC Section 655 and 657]; the California Underground Storage of Hazardous Substances Act [California Health & Safety Code Section 25288 et seq.]; the California Hazardous Substances Account Act [California Health 2489
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& Safety Code Section 25300 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [California Health & Safety Code Section 24249.5 et seq.] the Porter-Cologne Water Quality Act [California Water Code Section 13000 et seq.] together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene, and only to the extent the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the Property, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use.

1.1.26 “Environmental Matters” has the meaning ascribed to the term in Section 5.6.

1.1.27 “Escrow” has the meaning ascribed to the term in Section 2.1.

1.1.28 “Escrow Closing Date” has the meaning ascribed to the term in Section

3.6. 1.1.29 “Escrow Holder” means Stewart Title Insurance Company.

1.1.30 “Escrow Opening Date” has the meaning ascribed to the term in Section 3.1.

1.1.31 “Event of Default” has the meaning ascribed to the term in Section 7.1.

1.1.32 “City Manager” means the City Manager of the City or his or her designee or successor in function.

1.1.33 “Financing Commitment” means (a) one or more commitment(s) from one or more Construction Lender(s) agreeing to provide sufficient funds which, when combined with the Developer’s equity contribution, is sufficient, as determined by the City in its reasonable discretion, to fully fund the Project’s Construction Costs, or (b) a letter from one or more Construction Lender(s) indicating approval of a loan to the Developer for the development of the Property.

1.1.34 “FIRPTA Affidavit” means an affidavit complying with Section 1445 of the United States Internal Revenue Code.

1.1.35 “Grant Deed” means a deed in the form of Exhibit D to this Agreement, conveying all of the City’s interest in the Property to the Developer.

1.1.36 “Governmental Agency” means any and all courts, boards, agencies, commissions, offices, or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city, or otherwise) whether now or later in existence.

1.1.37 “Governmental Requirements” means all codes, statutes, ordinances, laws, permits, orders, and any rules and regulations promulgated thereunder of any Governmental Agency.
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1.1.38 “Hazardous Substances” means, without implied limitation, substances defined as “hazardous substances,” “hazardous material,” “toxic substance,” “solid waste,” or “pollutant or contaminate” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601, et seq.; the Toxic Substances Control Act (“TSCA”) [15 U.S.C. Sections 2601, et seq.]; the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901, et seq.; those substances listed in the United States Department of Transportation (DOT) Table [49 CFR 172.101], or by the EPA, or any successor authority, as hazardous substances [40 CFR Part 302]; and those substances defined as “hazardous waste” in Section 25117 of the California Health and Safety Code or, as “hazardous substances” in Section 25316 of the California Health and Safety Code; other substances, materials, and wastes that are, or become, regulated or classified as hazardous or toxic under federal, state, or local laws or regulations and in the regulations adopted pursuant to said laws, and shall also include manure, asbestos, polychlorinated biphenyl, flammable explosives, radioactive material, petroleum products, and substances designated as a hazardous substance pursuant to 33 USC Section 1321 or listed pursuant to 33 USC Section 1317.

1.1.39 “Indemnified Parties” has the meaning ascribed to the term in Section

5.6. 1.1.40 “Lender” means any state or federally chartered bank, savings and loan, capital investment group, or other third party financial institution which routinely makes Loans to developments and developers such as the Project and the Developer in the normal course of business and which has been approved by the City pursuant to Section 6.3.

1.1.41 “Lien” means any mortgage, deed of trust, or other security instrument encumbering Developer’s fee interest in the Property and/or Project, or any part thereof, or any pledge or other agreement given as security for the repayment of a Loan and by which a Lender would be able to acquire any interest in the Developer upon the Developer’s breach of any obligation under the Lender’s Loan Documents.

1.1.42 “Loan” means any loan or third party equity/capital contribution (e.g. mezzanine financing) for the Project.

1.1.43 “Loan Documents” means the various documents and instruments made by and between the Developer and a Lender that evidence a Loan and the security for repayment of such Loan.

1.1.44 “Maintenance Deficiency” has the meaning ascribed to the term in Section 5.1.

1.1.45 “Normal Business Hours” means the normal business hours of the City. As of the Effective Date, the City’s normal business hours are Monday through Thursday, between the hours of 7:30 a.m. and 5:30 p.m. Pacific Time.

1.1.46 “Notice of Agreement” means the notice in the form of Exhibit E to this Agreement to be recorded against the Property at the Close of Escrow to provide constructive record notice of the existence and application of this Agreement to the Property. 2491
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1.1.47 “Party” means, individually, the City or the Developer, as applicable.

1.1.48 “Parties” means, collectively, the City and the Developer.

1.1.49 “PCO Statement” means a preliminary change of ownership statement provided for in California Revenue and Taxation Code Section 480.3.

1.1.50 “Permitted Exceptions” means (i) any and all items shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy that the Developer accepts, pursuant to Section 2.4; (ii) any exceptions from coverage under the proposed Title Policy resulting from the Developer’s activities on the Property; (iii) non-delinquent property taxes and assessments; (iv) this Agreement; or (v) the Grant Deed.

1.1.51 “Permitted Transfer” means and refers to any of the following types of Transfers by the Developer, where the person or entity to which such Transfer is made expressly assumes the obligations of the Developer under this Agreement in a written instrument satisfactory to the City.

1.1.51.1 Any Transfer of stock or equity of the Developer that does not change management or operational Control of the Property or the Project;

1.1.51.2 Any Transfer of any interest in the Developer or the Property or Project or any portion thereof irrespective of the percentage of ownership (i) to any other owner of any interest in the Developer; or (ii) to any Affiliate, or (iii) to any other person or entity in which any holder of an interest (including any beneficial interest) in the Developer is a manager, officer or partner or in which any of the aforementioned is a shareholder, member or partner (including a beneficial owner); and

1.1.51.3 Any Lien given to Lender in connection with a Loan approved by the City pursuant to Section 6.3.

1.1.52 “Plans and Specifications” has the meaning ascribed to the term in Section 2.6.1.

1.1.53 “Preliminary Report” means a preliminary report issued by the Title Company in contemplation of the issuance of the Title Policy, accompanied by legible copies of all documents listed in Schedule B of the report as exceptions to coverage under the proposed Title Policy. The Parties acknowledge that they may prepare one (1) or more Preliminary Reports for each parcel, or group of parcels, comprising the Property. In such case, all reports, notices, and objection letters which pertain to the Preliminary Report for the entirety of the Property shall apply separately to each Preliminary Report associated with a parcel or a group of parcels.

1.1.54 “Project” means all construction, repair, renovation and improvement of the Building including, but not limited to, seismic retrofit, improvements required for building code compliance and ADA compliance, certain utility connections and all other improvements required in order to facilitate adaptive reuse of the Building for restaurant and other purposes. The Project further includes all required or associated on-site and off-site improvements, if any, all hardscape and all landscaping, all as specifically described in the Scope of Development, and all 2492
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to be developed in accordance with the Plans and Specifications to be approved by the City and any conditions imposed by the City in its approval of the Plans and Specifications.

1.1.55 “Project Completion Date” means that date set forth therefor by which a Certificate of Completion shall be issued for the Project, as more particularly provided in the Schedule of Performance. The Project Completion Date shall be no later than eighteen (18) months from commencement of construction.

1.1.56 “Property” means that real property, and all current and future improvements thereon (including, without implied limitation, the Project), legally described in Exhibit A.

1.1.57 “Property Transfer” means and refers to any “change in ownership,” as defined in Revenue and Taxation Code Sections 60, et seq., of all or any portion of the Property.

1.1.58 “Purchase Price” [Not used.]

1.1.59 “Record”, “recorded”, “recording” or “recordation” each mean and refer to recordation of the referenced document in the official records of the Recorder of the County of San Bernardino, California.

1.1.60 “Schedule of Performance” means the schedule for the performance of certain actions by the Parties pursuant to this Agreement, attached to this Agreement as Exhibit C.

1.1.61 “Scope of Development” means the detailed description of the Project attached to this Agreement as Exhibit B.

1.1.62 “Title Company” means Stewart Title Company.

1.1.63 “Title Policy” means a standard CLTA owners’ policy of title insurance issued by the Title Company, with coverage in an amount reasonably determined by the Developer and insuring fee title to the Property, subject only to the Permitted Exceptions. However, at Developer’s option, Developer may acquire an ALTA extended coverage policy. City shall pay for the standard CLTA policy. Developer shall pay for any additional or ALTA extended coverage policy.

1.1.64 “Transfer” means any of the following:

1.1.64.1 Any total or partial sale, assignment, conveyance, trust, power, or transfer in any other mode or form, by the Developer of more than a 49% interest in the Developer’s interest in this Agreement, the Property, or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than a 49% interest in the Developer’s interest in this Agreement, the Property or the Project; or

1.1.64.2 Any total or partial sale, assignment, conveyance, or transfer in any other mode or form, of or with respect to any interest in the Developer or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than a 49% interest in any interest in the Developer; or
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1.1.64.3 Any merger, consolidation, sale, or lease of all or substantially all of the assets of the Developer or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than a 49% interest of all or substantially all of the assets of the Developer; or

1.1.64.4 Any Property Transfer; or

1.1.64.5 The recordation of any deed of trust, mortgage, Lien or similar encumbrance against all or any portion of the Property or the Project.

1.1.65 “Unavoidable Delay” means any delay that is caused by the exclusively by the other party or that is beyond the control of the City or the Developer, including delay caused by strikes, acts of God, weather, inability to obtain labor or materials, inability to obtain governmental permits or approvals, governmental restrictions, civil commotion, fire or similar causes, but excluding circumstances subject to Section 8.7.2.

1.2 Representations and Warranties.

1.2.1 City Representations and Warranties. The representations and warranties of City contained in this Section 1.2.1 shall be based upon the actual knowledge of the City Manager as of the Effective Date. All representations and warranties contained in this Section

1.2.1 are true and correct as of the Effective Date. City’s liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Closing. City hereby makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by Developer has been made in material reliance by Developer on such covenants, representations and warranties:

1.2.1.1 City is a California municipal corporation and general law city, duly formed and operating under the laws of the State of California. City has the legal power, right and authority to enter into this Agreement and to execute the instruments and documents referenced herein, and to consummate the transactions contemplated hereby.

1.2.1.2 The persons executing any instruments for or on behalf of City have been authorized to act on behalf of City and this Agreement is valid and enforceable against City in accordance with its terms and each instrument to be executed by City pursuant hereto or in connection therewith will, when executed, shall be valid and enforceable against City in accordance with its terms. No approval, consent, order or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of and compliance with this Agreement by City.

1.2.1.3 City has taken all requisite action and obtained all requisite consents for agreements or matters to which City is a party in connection with entering into this Agreement and the instruments and documents referenced herein and in connection with the consummation of the transactions contemplated hereby.

1.2.1.4 If the City becomes aware of any act or circumstance that would change or render incorrect, in whole or in part, any representation or warranty made by the City 2494
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under this Agreement, whether as of the date given or any time thereafter, whether or not such representation or warranty was based upon the City’s knowledge and/or belief as of a certain date, the City will give immediate written notice of such changed fact or circumstance to the Developer.

1.2.2 Developer Representations and Warranties. The representations and warranties of Developer contained in this Section 1.2.2 shall be based upon the actual knowledge of Baudelio Huizar as of the Effective Date. All representations and warranties contained in this Section 1.2.2 are true and correct as of the Effective Date. Developer’s liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Closing. Developer hereby makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by City has been made in material reliance by City on such covenants, representations and warranties:

1.2.2.1 Developer is a California corporation, lawfully entitled to do business in the State of California and the City. Developer has the legal right, power and authority to enter into this Agreement and the instruments and documents referenced herein and to consummate the transactions contemplated hereby. The persons executing this Agreement and the instruments referenced herein on behalf of Developer hereby represent and warrant that such persons have the power, right and authority to bind Developer.

1.2.2.2 Developer has taken all requisite action and obtained all requisite consents in connection with entering into this Agreement and the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required for Developer’s authorization to enter into Agreement.

1.2.2.3 Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any other agreement, document, instrument or other obligation to which Developer is a party or by which Developer may be bound, or under law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to Developer or to the Property.

1.2.2.4 This Agreement is, and all agreements, instruments and documents to be executed by Developer pursuant to this Agreement shall be, duly executed by and shall be valid and legally binding upon Developer and enforceable in accordance with their respective terms. No approval, consent, order or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of in compliance with this Agreement by Developer.

1.2.2.5 If the Developer becomes aware of any act or circumstance that would change or render incorrect, in whole or in part, any representation or warranty made by the Developer under this Agreement, whether as of the date given or any time thereafter, whether or not such representation or warranty was based upon the Developer’s knowledge and/or belief as of a certain date, the Developer will give immediate written notice of such changed fact or circumstance to the City.
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1.3 Effective Date. This Agreement is dated July 16, 2024 for reference purposes only.

This Agreement shall not become effective until the date on which all of the following are true (“Effective Date”): (i) this Agreement is approved and executed by the appropriate authorities of Developer and delivered to City; (ii) Developer has delivered to City a certified copy of the official action of Developer approving this Agreement; (iii) following all legally required notices and hearings, this Agreement is approved by the City Council; and (iv) this Agreement is executed by the authorized representatives of City.

1.4 Exhibit List. The following is a list of the Exhibits attached to this Agreement.

Each of the Exhibits is incorporated by this reference into the text of this Agreement.

Exhibit A Legal Description of Property
Exhibit B Scope of Development
Exhibit C Schedule of Performance
Exhibit D Form of Grant Deed
Exhibit E Form of Notice of Agreement
Exhibit F [Intentionally Omitted]
Exhibit G Form of Certificate of Completion

ARTICLE II

PROPERTY DISPOSITION

2.1 Property Disposition. In exchange for the Developer’s covenants and undertakings set forth in this Agreement, the City shall transfer the Property to the Developer and the Developer shall the Property from the City pursuant to the terms and conditions of this Agreement. For the purposes of exchanging funds and documents to complete the transfer from the City to the Developer and the acquisition by the Developer from the City of the Property pursuant to the terms of this Agreement, the City and the Developer agree to open an escrow (“Escrow”) with the Escrow Holder. ARTICLE III of this Agreement constitutes the joint escrow instructions of the Parties to the Escrow Holder for completion of the Escrow for the transfer of the Property, as contemplated by this Agreement. The Developer and the City shall execute such further escrow instructions, consistent with the provisions of this Agreement, as may be reasonably requested by the Escrow Holder. In the event of any conflict between the provisions of this Agreement and any other escrow instructions requested by the Escrow Holder, the provisions of this Agreement shall control.

2.2 Payment of Purchase Price. [NOT USED.]

2.3 Title Approval. As soon as practicable following the opening of the Escrow, the City shall obtain from Title Company the Preliminary Report and deliver a copy of the Preliminary Report to the Developer. Within thirty (30) days following the Developer’s receipt of a Preliminary Report for the entire Property, the Developer shall deliver the Developer’s Title Notice to the City. If the Developer fails to deliver the Developer’s Title Notice to the City within thirty (30) days following the Developer’s receipt of the Preliminary Report, the Developer will be deemed to disapprove the status of title to the Property and refuse to accept title to the Property, in which case the City shall have the right, subject to Section 2.4.2, to cancel the Escrow and 2496
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terminate this Agreement, in the City’s sole discretion, without liability to the Developer or any other person, by delivery of a written notice of termination to the Developer and Escrow Holder.

Within twenty (20) days following receipt by the City of Developer’s Title Notice, if any, the City shall serve City’s Title Notice Response. If Developer’s Title Notice does not object to any matter in the Preliminary Report, the City shall not be required to serve City’s Title Notice Response. If the City does not serve City’s Title Notice Response, if necessary, within twenty (20) days following its receipt of Developer’s Title Notice, the City shall be deemed to elect not to remove any matter objected to in Developer’s Title Notice, if any, from the Preliminary Report. If the City elects in City’s Title Notice Response to cause the removal of any matter objected to in Developer’s Title Notice from the Preliminary Report, the City shall cause the removal of each such objectionable matter from the Preliminary Report within sixty (60) days following receipt by the Developer of City’s Title Notice Response or such other period of time that may be agreed to in writing by both the City and the Developer. If the City is unwilling or unable to cause the removal of any matter objected to in Developer’s Title Notice from the Preliminary Report, then, within ten (10) days following the Developer’s receipt of City’s Title Notice Response stating that the City is unwilling to remove or cause the removal of any matter objected to in Developer’s Title Notice or upon the expiration of the above sixty (60) day time period during which the City elected to remove such objectionable matters from the Preliminary Report and was unable to do so, the Developer may either (1) refuse to accept the title to and conveyance of the Property, in which case the Parties shall have the right, subject to Section 2.4.2, to cancel the Escrow and terminate this Agreement without liability to either Party or any other person, by delivery of a written notice of termination to the Escrow Holder, or (2) waive its objection to any items set forth in Developer’s Title Notice by delivering Developer’s Title Notice Waiver to the City. Failure by the Developer to deliver Developer’s Title Notice Waiver, where City’s Title Notice Response or the City’s failure to serve City’s Title Notice Response indicates the City’s election not to cause the removal of any matter objected to in Developer’s Title Notice from the Preliminary Report, for the City to deliver City’s Title Notice Response under this Agreement, will be deemed the Developer’s continued refusal to accept the title to and conveyance of the Property, in which case the City shall have the right, subject to Section 2.4.2, to cancel the Escrow and terminate this Agreement, in the City’s sole discretion, without liability to the Developer or any other person, by delivery of a written notice of termination to the Developer and Escrow Holder.

2.3.1 If at any time prior to the Close of Escrow the Title Company issues an updated Preliminary Report containing any previously undisclosed matter affecting title to the Property, or the City becomes aware of any previously undisclosed matter affecting title to the Property, following the delivery of the Developer’s Title Notice, the City shall provide written notice to the Developer of such matter, together with any updated Preliminary Report related to such matter. The City and the Developer shall have such rights and obligations with respect to such previously undisclosed title matters as they did with respect to any title matters set forth in the original Preliminary Report as set forth in Section 2.4.

2.3.2 Before exercising any right a Party may have under this Section 2.4 to cancel the Escrow and terminate this Agreement, such Party shall notify the non-terminating Parties in writing of its election to terminate and shall, upon a non-terminating Party’s request, which must be delivered, if at all, within three (3) days following its receipt of the terminating Party’s notice of election to terminate, meet and confer with the non-terminating Parties for a period of thirty (30) days. During such time, the Parties shall meet as often as reasonably requested 2497
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by any Party to negotiate, in good faith, methods and means by which the objectionable title matter may be eliminated or mitigated. Nothing herein shall constitute an agreement, representation, or warranty by any Party that an acceptable resolution of the objectionable title matter will be achieved, nor shall any Party be obligated to expend any funds or undertake any other action whatsoever with respect to such title matter unless such agreement is reduced to a writing which is approved by all Parties, in their sole and absolute discretion. If, at the end of such thirty (30) day period, the Parties have not been able to agree on a mutually acceptable method of resolving such title matter, or if any proposed agreement is disapproved by the City Council, the Escrow shall be cancelled, this Agreement shall be terminated without liability to any Party, and the Parties shall proceed pursuant to Section 3.10.

2.4 Developer Investigations.

2.4.1 The Developer shall have until the expiration of the Due Diligence Period to complete all of its Due Diligence Investigations with respect to the entirety of the Property. The Developer shall complete all of its Due Diligence Investigations within the Due Diligence Period and shall conduct all of its Due Diligence Investigations at its sole cost and expense. The Developer shall rely solely and exclusively upon the results of its Due Diligence Investigations of the Property, including, without limitation, investigations regarding geotechnical soil conditions, compliance with applicable laws pertaining to the use of the Property by the Developer and any other matters relevant to the condition or suitability of the Property for the Project, as the Developer may deem necessary or appropriate. City makes no representation or warranty to the Developer relating to the condition of the Property or suitability of the Property for any intended use or development by the Developer. The Developer shall deliver a Due Diligence Investigation Conclusion Notice to the City and the Escrow Holder prior to the end of the Due Diligence Period. If the Developer does not unconditionally accept the condition of the Property by delivery of its Due Diligence Investigation Conclusion Notice indicating such acceptance prior to the end of the Due Diligence Period, the Developer shall be deemed to have rejected the condition of the Property and refused to accept conveyance of title to the Property. If the condition of the Property is rejected or deemed rejected by the Developer, then the City shall have the right, subject to Section 2.4.2, to cancel the Escrow and terminate this Agreement, in the City’s sole discretion, without liability to the Developer or any other person, by delivery of a written notice of termination to the Developer and Escrow Holder. The Developer shall accept all conditions of the Property, without any liability of the City whatsoever, upon the Developer’s acceptance of the condition of the Property indicated in its Due Diligence Investigation Conclusion Notice. The Developer’s delivery of its Due Diligence Investigation Conclusion Notice indicating the Developer’s unconditional acceptance of the condition of the Property shall evidence the acceptance of the condition of the Property by the Developer in its existing “AS IS,” “WHERE IS” and “SUBJECT TO ALL FAULTS” condition, as of the last day of the Due Diligence Period.

In its sole discretion, the Developer may accept the Property in its “AS IS,” “WHERE IS” and “SUBJECT TO ALL FAULTS” condition at any time before the end of the Due Diligence Period.

The Developer shall conduct during the Due Diligence Period such environmental assessment(s) of the Property as the Developer deems appropriate. If such assessment(s) do reveal the presence of any Hazardous Substances on the Property in levels that exceed applicable Governmental 2498
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Requirements, then the City and the Developer shall negotiate in good faith in an effort to reach agreement as to the allocation of responsibility and cost of remediation thereof.

2.4.2 Any Due Diligence Investigations of the Property by the Developer shall not unreasonably disrupt any then existing use or occupancy of the Property or the operations of the City. The Developer shall be liable for any damage or injury to any person or property arising from the acts of the Developer, its employees, agents or representatives during the course of any Due Diligence Investigations on the Property and the Developer shall indemnify, defend with counsel reasonably acceptable to the City and hold harmless the City and its elected officials, officers, directors, attorneys, contractors, agents and employees from any and all actual or alleged liens, claims, demands or liability arising from any Due Diligence Investigations by the Developer on the Property. Prior to commencing any Due Diligence Investigations on the Property, the Developer shall deliver copies of policies or certificates of insurance to the City evidencing compliance by the Developer with the insurance requirements of Section 5.7.

2.4.3 Before exercising any right a Party may have under this Section 2.5 to cancel the Escrow and terminate this Agreement, such Party shall notify the non-terminating Parties in writing of its election to terminate and shall, upon a non-terminating Party’s request, which must be delivered, if at all, within three (3) days following its receipt of the terminating Party’s notice of election to terminate, meet and confer with the non-terminating Parties for a period of thirty (30) days. During such time, the Parties shall meet as often as reasonably requested by any Party to negotiate, in good faith, methods and means by which the objectionable Due Diligence matter may be eliminated or mitigated. Nothing herein shall constitute an agreement, representation, or warranty by any Party that an acceptable resolution of the objectionable Due Diligence matter will be achieved, nor shall any Party be obligated to expend any funds or undertake any other action whatsoever with respect to such Due Diligence matter unless such obligation is reduced to a writing which is approved by all Parties, in their sole and absolute discretion. If, at the end of such thirty (30) day period, the Parties have not been able to agree on a mutually acceptable method of resolving the objectionable Due Diligence matter, or if any proposed agreement is disapproved by the City Council, the Escrow shall be cancelled, this Agreement shall be terminated without liability to any Party, and the Parties shall proceed pursuant to Section 3.10.

2.5 Developer to Obtain all Project Entitlements.

2.5.1 Developer has developed and presented to City staff and the City Council, for review, the following (collectively, the “Plans and Specifications”):

2.5.1.1 A proposed complete conceptual development plan for the Project on the Property that describes and depicts: (1) all improvements to be made to the Building; (2) the restaurant use and other proposed uses of the Building; all other improvements of the Property;

2.5.1.2 Proposed zoning change or changes to the City’s General Plan, if any, necessary to accommodate the Project on the Property; 2499
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2.5.1.3 A proposed time schedule and cost estimates for the development of the Project on the Property; and

2.5.1.4 A proposed financing plan identifying financing sources for all private and public improvements proposed for the Project.

2.5.2 The City’s zoning, building and land use regulations (whether contained in ordinances, the City’s municipal code, conditions of approval, policies, practice or elsewhere) (collectively, the “City Requirements”), shall be applicable to the use and development of the Project on the Property by the Developer. The Developer acknowledges that all Plans and Specifications and any changes to the Plans and Specifications shall be subject to the City Requirements. No action by the City with reference to this Agreement or any related documents shall be deemed to constitute a waiver of any City Requirements regarding the Property, the Project, the Developer, any successor-in-interest of the Developer or any successor-in-interest to the Property. The City Requirements may only be changed or waived by modification or variance approved by the City and consistent with this Agreement. No entitlement, permit or other approval from the City for development of the Project on the Property shall attach to any portion of the Property or otherwise become effective to allow the Developer to develop the Project on the Property until after the Developer owns fee title to that portion of the Property to which such entitlement, permit or other approval pertains. Under no circumstances shall the Developer commence development of any portion of the Project on the Property prior to the Developer owning fee title to the Property.

2.5.3 The approval of the Scope of Development shall not be binding on the City Council or the Planning Commission of the City regarding any approvals of the Project required by such bodies. The Developer obtains no right to develop the Project on the Property or any portion of the Property by virtue of this Agreement, except that following the Close of Escrow, the Developer shall possess the same rights as any other owner of property within the Property that desires to develop its property in a manner consistent with the City’s General Plan.

If any revisions of the Scope of Development are required by a Governmental Agency (other than the City) having jurisdiction over the Property or the Project, the Developer shall promptly make any such revisions that are generally consistent with the Scope of Development.

2.5.4 Notwithstanding any provision to the contrary in this Agreement, following the Close of Escrow, the Developer agrees to accept and comply fully with any and all conditions of approval applicable to all approvals, permits and other governmental actions regarding the development or operation of the Project on the Property, so long as such conditions of approval are consistent with the Scope of Development and this Agreement in all material respects.

2.5.5 Developer to Pay All Costs and Expenses. The Parties agree that the City shall not provide any financial assistance to the Developer in connection with the Project.

The Developer shall be solely responsible for paying for the costs of all design work, construction, labor, materials, fees and permit expenses associated with the Project. The Developer shall pay any and all fees pertaining to the review and approval of the Project by the City, any other Governmental Agency and utility service providers, including the costs of preparation of all required construction, planning and other documents reasonably required by a Governmental 2500
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Agency pertinent to the development or operation of the Project on the Property, including, but not limited to, specifications, drawings, plans, maps, permit applications, land use applications, zoning applications, environmental review and disclosure documents and design review documents. The Developer shall pay for any and all costs, including, but not limited to, the costs of design, construction, relocation and securing of permits for sewer or utility improvements and connections, that may be required in development of the Project, whether located on or off of the Property. The Developer shall obtain any and all necessary approvals, prior to the commencement of applicable portions of construction, and the Developer shall take reasonable precautions to ensure the safety and stability of surrounding properties during said construction. In accordance with this Section 2.6.5, Developer shall be responsible for the costs, or immediate reimbursement to the City upon delivery of an invoice for the costs, of the following:

2.5.5.1 all fees or expenses of engineers, architects, financial consultants, legal, planning or other consultants or contractors, retained by the Developer for any study, analysis, evaluation, report, schedule, estimate, environmental review, planning and/or design activities, drawings, specifications or other activity or matter relating to the Property or the Project or the negotiation of this Agreement that may be undertaken by the Developer;

2.5.5.2 all fees, charges and costs, make all deposits and provide all bonds or other security associated with the submission to and processing by the City of any and all applications and other documents and information to be submitted to the City by the Developer pursuant to this Agreement or otherwise associated with the Project; and

2.5.6 The Developer shall obtain all entitlements, permits and other approvals for use and development of the Project on the Property from each Governmental Agency, within the time period for such actions specifically set forth in the Schedule of Performance, subject to any extensions of time authorized by this Agreement upon the occurrence of an Unavoidable Delay.

ARTICLE III

ESCROW INSTRUCTIONS

3.1 Opening of Escrow. For purposes of this Agreement, the opening of Escrow shall be the first date on which a fully executed copy of this Agreement are deposited with Escrow Holder (“Escrow Opening Date”). The Developer shall cause the Escrow to be opened within five (5) days following the Effective Date. Escrow Holder shall promptly confirm in writing to each of the Parties the date of the Escrow Opening Date. This ARTICLE III shall constitute the joint escrow instructions of the City and the Developer to Escrow Holder for conduct of the Escrow to complete the transfer of the Property between them, as contemplated in this Agreement.

3.2 Conditions to Close of Escrow. The conditions set forth below shall be satisfied or waived in writing by the respective benefited Party on or before the Escrow Closing Date or the Party benefited by any unsatisfied condition shall not be required to proceed to close Escrow.

3.2.1 Developer’s Conditions to Close of Escrow. The Developer’s obligation to acquire the Property from the City on the Escrow Closing Date shall be subject to the 2501
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satisfaction of the following conditions precedent, each of which can only be waived in writing by the Developer:

3.2.1.1 The Developer agrees to accept the title to and conveyance of the Property, pursuant to Section 2.4;

3.2.1.2 The Developer delivers its Due Diligence Investigation Conclusion Notice to both the City and Escrow Holder indicating the Developer’s unconditional acceptance of the condition of the Property, prior to the expiration of the Due Diligence Period;

3.2.1.3 The City’s planning commission finds, pursuant to Government Code Section 65402, that the Project is consistent with the City’s General Plan;

3.2.1.4 The Title Company is unconditionally committed to issue the Title Policy for the Property, subject to any Permitted Exceptions, to the Developer;

3.2.1.5 The City deposits the items into the Escrow required by Section

3.4;

3.2.1.6 The representations, warranties and covenants of the City set forth in Section 1.2.1 are true and correct in all material respects on the Effective Date and on the Escrow Closing Date;

3.2.1.7 The Developer has obtained all entitlements required in connection with the development of the Property, subject to conditions of approval acceptable to Developer in Developer’s sole discretion, any applicable appeal period has expired without appeal having been filed or, if an appeal is filed, such appeal has been denied, and no legal action has been instituted against Developer or the City alleging the invalidity of such entitlements; and

3.2.1.8 The City has completed all of their material obligations required by this Agreement to be completed prior to the Close of Escrow.

3.2.2 City’s Conditions to Close of Escrow. The City’s obligation to sell the Property to the Developer on or before the Escrow Closing Date shall be subject to the satisfaction of the following conditions precedent, which can only be waived in writing by the City:

3.2.2.1 The Developer agrees to accept the title to and conveyance of the Property, pursuant to Section 2.4;

3.2.2.2 The Developer delivers its Due Diligence Investigation Conclusion Notice to both the City and Escrow Holder indicating the Developer’s unconditional acceptance of the physical condition of the Property, prior to the expiration of the Due Diligence Period;

3.2.2.3 The City’s planning commission finds, pursuant to Government Code Section 65402, that the Project is consistent with the City’s General Plan; 2502
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3.2.2.4 The Title Company is unconditionally committed to issue the Title Policy for the Property, subject to any Permitted Exceptions, to the Developer;

3.2.2.5 The City has taken the necessary actions to comply with CEQA;

3.2.2.6 The Developer submits to the City, at least five (5) business days prior to the Escrow Closing Date, evidence satisfactory to the City, in the City’s reasonable discretion, that the Developer has obtained all entitlements necessary for the development of the Property from each applicable Governmental Agency, including the City;

3.2.2.7 The Developer delivers to the City, at least thirty (30) days prior to the Escrow Closing Date, in form and substance acceptable to the City, the Financing Commitment(s) applicable to the Property;

3.2.2.8 The Developer obtains the City’s approval of the Construction Loan and Construction Lender applicable to the Property, in accordance with Section 6.3, which approval shall not be unreasonably withheld;

3.2.2.9 The Developer has completed all of its material obligations required by this Agreement to be completed prior to the Close of Escrow;

3.2.2.10 The representations, warranties and covenants of the Developer set forth in Section 1.2.2 are true and correct in all material respects on the Effective Date and on the Escrow Closing Date; and

3.2.2.11 The Developer deposits the funds and items into the Escrow required by Section 3.3 for the Escrow.

3.3 Developer’s Escrow Deposits. Following satisfaction or waiver of each of the Developer’s conditions to Close of Escrow set forth in Sections 3.2.1, as applicable, the Developer shall deposit the following funds and documents into Escrow at least two (2) business days prior to the Escrow Closing Date in a writing delivered to the Parties:

3.3.1 Closing Funds. Any funds required to be deposited into Escrow by the Developer under the terms of this Agreement to close the Escrow, all in immediately available funds.

3.3.2 PCO Statement. A PCO Statement executed by the authorized representative(s) of the Developer.

3.3.3 Acceptance of Grant Deed. The Certificate of Acceptance of the Deed, in the form attached to the Grant Deed, executed by the authorized representative(s) of the Developer in recordable form.

3.3.4 Notice of Agreement. The Notice of Agreement executed by the authorized representative(s) of the Developer in recordable form. 2503
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3.4 City’s Escrow Deposits. Following satisfaction or waiver of each of the City’s conditions to Close of Escrow set forth in Sections 3.2.2, as applicable, the City shall deposit the following documents into Escrow at least two (2) business days prior to the Escrow Closing Date:

3.4.1 Grant Deed. The Grant Deed executed by the authorized representative(s) of the City in recordable form.

3.4.2 FIRPTA Affidavit (City). The FIRPTA Affidavit completed and executed by the authorized representative(s) of the City.

3.4.3 Notice of Agreement. The Notice of Agreement executed by the authorized representative(s) of the City in recordable form.

3.5 Closing Procedure. When each of the Developer’s Escrow required deposits, as set forth in Section 3.3, and each of the City’s Escrow required deposits, as set forth in Section

3.4, are deposited into Escrow, Escrow Holder shall request confirmation in writing from both the City and the Developer that each of their respective conditions to the Close of Escrow, as set forth in Section 3.2, are satisfied or waived. Upon Escrow Holder’s receipt of written confirmation from both the City and the Developer that each of their respective conditions to the Close of Escrow are either satisfied or waived, Escrow Holder shall close the Escrow for the Property by doing all of the following:

3.5.1 Recordation of Documents. File the following with the Office of the Recorder of the County, for recordation in the order set forth in Section 3.7 (i) the Grant Deed, with the Developer’s certificate of acceptance attached, (ii) the Notice of Agreement, and (iii) if applicable, the Construction Loan Deed of Trust.

3.5.2 Distribution of Recorded Documents. Distribute each recorded document to the Party or person designated for such distribution in Section 3.7.

3.5.3 PCO Statement. File the PCO Statement with the Office of the Recorder of the County.

3.5.4 FIRPTA Affidavit. File the FIRPTA Affidavit with the United States Internal Revenue Service.

3.5.5 Title Policy. Obtain and deliver the Title Policy to the Developer.

3.5.6 Purchase Price. [Not used.]

3.6 Close of Escrow. Close of Escrow shall occur no later than the earlier of: (1) the tenth (10th) business day following Escrow Holder’s receipt of written confirmation from both the City and the Developer of the satisfaction or waiver of all conditions precedent to the Close of Escrow for the Property, or (2) thirty (30) days from the end of the Due Diligence Period (the “Escrow Closing Date”). If for any reason the Close of Escrow has not occurred by the Escrow Closing Date, then any Party not then in default of this Agreement may cancel the Escrow and terminate this Agreement, subject to the notice and cure provisions of Section 7.1 (to the extent applicable), without liability to any other Party or any other person for such termination and 2504
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cancellation, by delivering written notice of termination to the other Party(ies) and Escrow Holder and, thereafter, the Parties shall proceed pursuant to Section 3.10 if the non-terminating Party is not in default or pursuant to Section 7.2 or 7.3 (as applicable) if the non-terminating Party is in default. Without limiting the right of any Party to terminate this Agreement, pursuant to the preceding sentence, if Escrow does not close on or before the Escrow Closing Date, and no Party has exercised its contractual right to cancel Escrow and terminate this Agreement before such time, then Escrow shall close as soon as reasonably possible following the first date on which Escrow Holder is in a position to close the Escrow pursuant to the terms and conditions of this Agreement.

3.7 Recordation and Distribution of Documents. As applicable, Escrow Holder shall cause the following documents to be recorded in the official records of the Recorder of the County in the following order of priority at the Close of Escrow: (i) the Grant Deed, with the Developer’s certificate of acceptance attached, (ii) the Notice of Agreement, (iii) the Construction Loan Deed of Trust, if applicable, and (iv) any other documents to be recorded through Escrow upon the joint instructions of the Parties. All recorded documents shall provide that they are to be returned to Escrow Holder after recordation. When originals of such recorded documents are returned to Escrow Holder, Escrow Holder shall deliver: (i) the original Grant Deed, with the Developer’s original certificate of acceptance attached, to the Developer and copies to the City, each showing all recording information, (ii) the original of the Notice of Agreement to the City, with copies to the Developer, each showing all recording information, (iii) the Construction Loan Deed of Trust to the Construction Lender for the Project, with copies to the Developer and the City, each showing all recording information, and (iv) the original of any other document recorded at the close of Escrow to the Party or other person designated in the joint escrow instructions of the Parties for such recordation and a copy of each such document to the other Party or Parties, each showing all recording information.

3.8 Escrow Closing Costs, Taxes and Title Policy Premium. The City and the Developer shall each pay one-half (1/2) of the Escrow fees and such other costs as Escrow Holder may charge for the conduct of the Escrow. Escrow Holder shall notify the Developer and the City of the costs to be borne by each of them at the Close of Escrow by delivering the Escrow Holder’s estimated closing/settlement statement to both the City and the Developer at least four (4) business days prior to the Escrow Closing Date. The City shall pay the premium charged by the Title Company for the standard Title Policy for the Property, exclusive of any endorsements or other supplements to the coverage of such Title Policy that may be requested by the Developer, as well as documentary transfer taxes and any and all other charges, fees and taxes levied by a Governmental City relative to the conveyance of any portion of the Property through the Escrow transaction contemplated in this Agreement. The Developer shall pay any and all recording fees relative to the conveyance of any portion of the Property through the Escrow transaction contemplated in this Agreement.

3.9 Escrow Cancellation Charges. If the Escrow fails to close due to either the City’s material default under this Agreement and the Escrow is cancelled and this Agreement is terminated, the City shall pay all ordinary and reasonable Escrow and title order cancellation charges. If the Escrow fails to close due to the Developer’s material default under this Agreement and the Escrow is cancelled and this Agreement is terminated, the Developer shall pay all ordinary and reasonable Escrow and title order cancellation charges. If the Escrow fails to close for any reason other than the material default of either the Developer or the City and the Escrow is 2505
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cancelled and this Agreement is terminated, the Developer and the City shall each pay one-half (1/2) of any ordinary and reasonable Escrow and title order cancellation charges.

3.10 Escrow Cancellation. If this Agreement is terminated and the Escrow cancelled pursuant to a contractual right granted to a Party in this Agreement to terminate this Agreement and cancel the Escrow, other than due to the material default of another Party, the Parties shall do each of the following:

3.10.1 Cancellation Instructions. The Parties shall, within three (3) business days of receipt of Escrow Holder’s written request, execute any reasonable Escrow cancellation instructions requested by Escrow Holder;

3.10.2 Return of Funds and Documents. Within ten (10) days of receipt by the Parties of a settlement statement of Escrow and title order cancellation charges from Escrow Holder: (i) the Developer or Escrow Holder shall return to the City any documents previously delivered by the City to the Developer or Escrow Holder, (ii) the City or Escrow Holder shall return to the Developer all documents previously delivered by the Developer to the City or Escrow Holder; (iii) Escrow Holder shall return to the Developer any funds deposited by Developer into Escrow, less the Developer’s share of customary and reasonable Escrow and title order cancellation charges, if any; and (iv) Escrow Holder shall return to the City any funds deposited by City into Escrow if it has already been deposited, less the City’s share of customary and reasonable Escrow and title order cancellation charges, if any.

3.11 Report to IRS. Following the Close of Escrow and prior to the last date on which such report is required to be filed with the Internal Revenue Service, if such report is required pursuant to Section 6045(e) of the Internal Revenue Code, Escrow Holder shall report the gross proceeds of the transfer and sale of the Property to the Internal Revenue Service on Form 1099-B, W-9 or such other form(s) as may be specified by the Internal Revenue Service pursuant to Section 6045(e). Upon the filing of such reporting form with the Internal Revenue Service, Escrow Holder shall deliver a copy of the filed form to the City and the Developer.

ARTICLE IV

PROJECT DEVELOPMENT

4.1 Developer Covenant to Undertake Project. The Developer covenants, for itself, its successors and assigns, to and for the exclusive benefit of the City, that the Developer shall commence and complete the development of the Project on the Property within the time period for such actions set forth in the Schedule of Performance. The Developer covenants and agrees for itself, its successors, and assigns, that the Property shall be improved and developed with the Project in substantial conformity with the terms and conditions of this Agreement, the Scope of Development, the Schedule of Performance, any and all plans, specifications and similar development documents required by this Agreement, except for such changes as may be mutually agreed upon in writing by and among the Parties, and all applicable laws, regulations, orders and conditions of each Governmental Agency with jurisdiction over the Property or the Project. The covenants of this Section 4.1 shall run with the land of the Property until the earlier of the date of 2506
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recordation of the Certificate of Completion or the fifteenth (15th) anniversary of the date of the Close of Escrow.

4.2 Developer Changes to Plans and Specifications During Course of Construction. The Developer shall have the right during the course of construction of the Project to make “minor field changes,” without seeking the approval of the City, if such changes do not affect the type of use to be conducted within all or any portion of a structure. “Minor field changes” shall be defined as those changes from the approved Plans and Specifications that have no substantial effect on the Project or are made in order to expedite the work of construction in response to field conditions. The Developer shall submit all other changes, i.e. those changes which are not “minor field changes”, to the City for its review and approval no less than fifteen (15) days prior to the date that the Developer intends to implement such changes. The City shall have ten (10) days from its receipt of such proposed changes to review the same and advise the Developer in writing whether such changes are acceptable to the City in its reasonable discretion.

Any proposed changes which are not disapproved by the City within such ten (10) day period shall be deemed approved. Nothing contained in this Section 4.2 shall be deemed to constitute a waiver of or change in the City requirements governing “minor field changes” or other changes or in any approvals by the City otherwise required for “minor field changes” or other changes.

4.3 Construction Start and Completion of Project. The Developer shall commence construction of the Project in accordance with the Schedule of Performance and, thereafter, shall diligently proceed to complete the construction of the Project in a good and workmanlike manner in substantial conformity with the approved plans, specifications, and conditions for the Project approved by the City and the Schedule of Performance. The Developer shall obtain a Certificate of Completion on or before the Project Completion Date. The Developer will, promptly upon completion of construction of the Project, cause the Project to be inspected by each Governmental Agency with jurisdiction over the Project, shall correct any defects and deficiencies that may be disclosed by any such inspection and shall cause to be duly issued all occupancy certificates and other licenses, permits and authorizations necessary for the operation and occupancy of the completed Project. The Developer shall do and perform all of the foregoing acts and things and cause to be issued and executed all such occupancy certificates, licenses, and authorizations for the Project on or before the date set forth therefor in the Schedule of Performance as the completion date for the Project. After commencement of the work of improvement of the Project, the Developer shall not permit the work of improvement of the Project to cease or be suspended for a time period in excess of thirty (30) consecutive calendar days, subject to Unavoidable Delays.

4.4 Compliance with Laws. All work performed in connection with the development of the Project shall comply with all Governmental Requirements.

4.5 Schedule of Performance. The Schedule of Performance establishes various dates and times for the accomplishment of various tasks assigned to the City and the Developer and the satisfaction of the conditions precedent to the close of the Escrow. The Parties agree that time is of the essence in the performance of such tasks and the satisfaction of conditions precedent, in view of the large investment of resources that all Parties recognize will be required for assembly of the Property and the undertaking of the Project. If the date or time for the performance of a task or the satisfaction of a condition, as set forth in either the text of this Agreement or in the Schedule of Performance, may not be achieved, then prior to such date or time set forth in the text 2507
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of this Agreement or the Schedule of Performance, the Parties shall consider whether a modification to the text of this Agreement or to the Schedule of Performance is indicated. Any decision to approve a modification to a time or date established in either the text of this Agreement or the Schedule of Performance shall be subject to the sole discretion of each Party. Any modification of a time or date for performance of a particular task or satisfaction of a particular condition that does not result in a change of more than one hundred eighty (180) days may be approved on behalf of the City by the City Manager, in his or her reasonable discretion. A modification of a time or date for performance of a task or satisfaction of a condition (or a series of such modifications) that results in an aggregate change of more than one hundred eighty (180) days shall be subject to the approval of the City Council, in its sole and absolute discretion. If performance of a task or satisfaction of a condition in the Schedule Performance is prevented or delayed by Unavoidable Delays, the deadline for completion of such task or satisfaction of such condition shall be extended by the period of such Unavoidable Delays.

4.6 Developer Attendance at City Meetings. The Developer agrees to have one or more of its employees or consultants who are knowledgeable regarding this Agreement and the development of the Project, such that such person(s) can meaningfully respond to City questions regarding the progress of the Project, attend City Council meetings, when requested to do so on not less than ten (10) days prior written notice by City staff.

4.7 City’s Right to Inspect Project and Property. Officers, employees, agents and representatives of the City shall have the right of reasonable access to the Property, without the payment of charges or fees, during normal construction hours, during the period of construction of the Project. Such officers, employees, agents or representatives of the City shall be those persons who are designated by the City Manager. Any and all officers, employees, agents or representatives of the City who enter the Property shall identify themselves at the construction management office on the Property, upon their entrance on to the Property, and shall at all times be accompanied by a representative of the Developer, while on the Property. The Developer shall make a representative of the Developer available for this purpose at all times during normal construction hours, upon reasonable notice from the City. The City shall indemnify and hold the Developer harmless from injury, property damage or liability arising out of the exercise by the City of the right of access to the Property provided in this Section 4.7, other than injury, property damage or liability arising from the negligence or willful misconduct of the Developer or its officers, agents or employees. The City shall inspect relevant portions of the Property, prior to issuing any written statements reflecting adversely on the Developer’s compliance with the terms and conditions of this Agreement pertaining to development of the Project. If in the City’s reasonable judgment it is necessary, the City shall have the further right, from time to time, to retain a consultant or consultants to inspect the Project and verify compliance by the Developer with the provisions of this Agreement. The Developer acknowledges and agrees that any such inspections are for the sole purpose of protecting the City’s rights under this Agreement, are made solely for the City’s benefit, that the inspections may be superficial and general in nature, and are for the purposes of informing the City of the progress of the Project and the conformity of the Project with the terms and conditions of this Agreement, and that the Developer shall not be entitled to rely on any such inspection(s) as constituting an approval, satisfaction or acceptance of any materials, workmanship, conformity of the Project with this Agreement or otherwise. The Developer agrees to make its own regular inspections of the work of construction of the Project to determine that the quality of the Project and all other requirements of the work of construction of 2508
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the Project are being performed in a manner satisfactory to the Developer. The Developer also agrees to immediately notify the City in writing should the Developer’s inspections show any matters that will prevent the entire Project from being completed by the Project Completion Date set forth therefore in the Schedule of Performance. Without limiting the foregoing, the Developer shall permit the City upon reasonable notice to examine and copy all books and account records and other papers relating to the Property and the construction of the Project. The Developer will use commercially reasonable efforts to cause all contractors, subcontractors and materialmen to cooperate with the City to enable such examination.

4.8 Cost of Construction. The cost and expense of undertaking and completing the Project, including, without limitation, constructing all legally imposed on- and off-site improvements, and providing all utilities therefor, shall be borne by Developer at its sole cost, expense and liability. Developer shall be solely responsible for payment of all City land use, construction, inspection, plan check and development impact fees (collectively, “Development Fees”) imposed by the City with respect to the development of the Project. Developer shall bear all costs and expenses associated with the processing and obtaining of the entitlements and shall bear all costs and expenses (except to the extent expressly set forth otherwise in this Agreement), associated with any and all terms, conditions, requirements, mitigation measures and other exactions imposed on, or required in connection with, the entitlements.

4.9 Prevailing Wages.

4.9.1 The Developer acknowledges that the City has not made any representation, express or implied, to the Developer or any person associated with the Developer regarding whether or not laborers employed relative to the construction of the Project must be paid the prevailing per diem wage rate for their labor classification, as determined by the State of California, pursuant to Labor Code Sections 1720, et seq. The Developer agrees with the City that the Developer shall assume the responsibility and be solely responsible for determining whether or not laborers employed relative to the construction of the Project must be paid the prevailing per diem wage rate for their labor classification.

4.9.2 The Developer, on behalf of itself, its successors, and assigns, waives and releases the City from any right of action that may be available to it pursuant to Labor Code Sections 1726 and 1781. The Developer acknowledges the protections of Civil Code Section 1542 relative to the waiver and release contained in this Section 4.9, which reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO

EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING

THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST

HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR.”
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BY INITIALING BELOW, THE DEVELOPER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 4.9.2.
_________________
Developer’s Initials

4.9.3 Additionally, in accordance with Section 7.7, the Developer shall indemnify, defend with counsel acceptable to the City and hold the City harmless against any claims pursuant to Labor Code Sections 1726 and 1781 arising from this Agreement or the construction or operation of the Project.

4.10 Certificate of Completion.

4.10.1 Following the substantial completion of construction of the Project, and upon written request from the Developer for issuance of a Certificate of Completion for the Project, the City shall inspect the Project to determine whether or not the Project has been substantially completed in compliance with this Agreement. If the City determines that the Project is complete and in compliance with this Agreement, the City Manager shall furnish the Developer with a Certificate of Completion for the Project. If the City determines that the Project is not in compliance with this Agreement, the City Manager shall send written notice of each nonconformity to the Developer. Upon issuance of the final certificate of occupancy for the development of the Project, based on the plans submitted by the Developer to the City, the City shall furnish the Developer with a Certificate of Completion for the Project.

4.10.2 Upon the Developer’s substantial completion of the Project, the Developer shall request and be entitled to receive a Certificate of Completion, including the right of the City Manager to issue the Certificate of Completion, except that the Certificate of Completion, upon issuance, shall be evidence of the City’s conclusive determination of satisfactory substantial completion of the entirety of the Project pursuant to the terms of this Agreement.

4.10.3 The City shall not unreasonably withhold the issuance of a Certificate of Completion. A Certificate of Completion shall be evidence of the City’s conclusive determination of satisfactory completion of the Project to which it pertains pursuant to the terms of this Agreement. After the recordation of a Certificate of Completion for the Project, any person then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Property improved with the Project shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement regarding construction or installation of the Project except that such person shall be bound by any reservations, covenants, conditions, restrictions and other interests recorded against the Property pursuant to this Agreement and the Grant Deed.

4.10.4 If the City fails or refuses to issue a Certificate of Completion following written request from the Developer, the City shall, within fifteen (15) calendar days of the Developer’s written request or within three (3) calendar days after the next regular meeting of the City Council, whichever date occurs later, provide the Developer with a written statement setting 2510
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forth the reasons for the City’s failure or refusal to issue a Certificate of Completion. The statement shall also contain the City’s opinion of the action(s) the Developer must take to obtain a Certificate of Completion from the City. If the reason for the Developer’s failure to complete the Project is confined to the immediate unavailability of specific items or materials for construction or landscaping at a price reasonably acceptable to the Developer or other minor building “punchlist” items, the City may issue its Certificate of Completion upon the posting of a bond or irrevocable standby letter of credit by the Developer in a form reasonably acceptable to the City in an amount representing the fair value of the work on the Project remaining to be completed, as reasonably determined by the City. If the City fails to provide such written statement, within the specified time period, the Developer shall be deemed conclusively and without further action of the City to have satisfied the requirements of this Agreement with respect to the Project, as if a Certificate of Completion had been issued by the City pursuant to this Agreement.

4.10.5 A Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage securing money loaned to finance the Project, or any parts thereof. A Certificate of Completion shall not be deemed to constitute a notice of completion under Section 3093 of the California Civil Code, nor shall it act to terminate the continuing covenants, restrictions or conditions contained in the Grant Deed or any other instruments recorded against the Property pursuant to this Agreement. A Certificate of Completion is not evidence of the compliance of the Project with any City requirements, the City Requirements or any building code, conditions of approval, land use, zoning or other requirements of any Governmental Agency with jurisdiction over the Property, other than the City.

ARTICLE V

DEVELOPER COVENANTS

5.1 Maintenance Condition of the Property. The Developer for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

5.1.1 The areas of the Property that are subject to public view (including all existing and future improvements, paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear excepted. If there is an occurrence of an adverse condition on any area of the Property that is subject to public view in contravention of the general maintenance standard described above (a “Maintenance Deficiency”), then the City shall notify the Developer in writing of the Maintenance Deficiency. If the Developer fails to cure or commence and diligently pursue to cure the Maintenance Deficiency within thirty (30) days of its receipt of notice of the Maintenance Deficiency, the City shall have the right to enter the Property and perform all acts necessary to cure the Maintenance Deficiency, or to take any other action at law or in equity that may then be available to the City to accomplish the abatement of the Maintenance Deficiency.

Any sum expended by the City for the abatement of a Maintenance Deficiency on the Property pursuant to this Section 5.1.1 shall become a lien on the Property, as applicable. If the amount of the lien is not paid within thirty (30) days after written demand for payment from the City to the Developer, the City shall have the right to enforce the lien in the manner provided in Section 5.1.3. 2511
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5.1.2 Graffiti, as this term is defined in Government Code Section 38772, that has been applied to any exterior surface of a structure or improvement on the Property that is visible from any public right-of-way adjacent or contiguous to the Property, shall be removed by the Developer by either painting over the evidence of such vandalism with a paint that has been colormatched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water, as appropriate. If any such graffiti is not removed within ninety-six (96) hours following the time of the discovery of the graffiti, the City shall have the right to enter the Property and remove the graffiti, without notice to the Developer. Any sum reasonably expended by the City for the removal of graffiti from the Property pursuant to this Section 5.1.2, shall be a lien on the Property. If the amount of the lien is not paid within thirty (30) days after written demand to the Developer from the City, the City shall have the right to enforce its lien in the manner provided in Section 5.1.3.

5.1.3 The Parties further mutually understand and agree that the rights conferred upon the City under this Section 5.1.3 expressly include a grant by the Developer of a security interest in the Property with the power to establish and enforce a lien or other encumbrance against the Property or any portion thereof, in the manner provided under Civil Code Sections 2924, 2924b and 2924c, to secure the obligations of the Developer and it successors under Section 5.1.1 or Section 5.1.2, including the reasonable attorneys’ fees and costs of the City associated with the abatement of a Maintenance Deficiency or removal of graffiti. For the purposes of the preceding sentence the words “reasonable attorneys’ fees and costs of the City” mean and include the salaries, benefits and costs of the City Attorney and the lawyers employed in the Office of the City Attorney.

5.1.4 The provisions of this Section 5.1.4 shall be a covenant running with the land of the Property, and shall be enforceable against the Developer and its successors and assigns.

5.1.5 Nothing in the foregoing provisions of this Section 5.1.4 shall be deemed to preclude the Developer from making any alteration, addition, or other change to any structure or improvement or landscaping on the Property, provided that any such changes comply with applicable zoning and building regulations of the City.

5.2 Obligation to Refrain from Discrimination. The Developer for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

5.2.1 There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Developer, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessees or vendees of the Property. The covenant of this Section 5.2 shall run with the land of the Property and shall be enforceable against the Developer and its successors and assigns in perpetuity and be a covenant in the Grant Deed and the Notice of Agreement. 2512
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5.2.2 The covenant of this Section 5.2 shall run with the land of the Property in perpetuity, shall be enforceable against the Developer and its successors and assigns, and shall be covenants set forth in the Grant Deed.

5.3 Form of Non-Discrimination and Non-Segregation Clauses. The Developer for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

5.3.1 The Developer, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Property (or any portion thereof) on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds, leases or contracts pertaining to the Property shall contain or be subject to substantially the following non-discrimination or non-segregation covenants:

5.3.1.1 In deeds: “The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”

5.3.1.2 In leases: “The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sub-lessee, sub-tenants, or vendees in the premises herein leased.”

5.3.1.3 In contracts: “There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub-lessees, sub-tenants, or vendees of the premises herein transferred.” The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument. 2513
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5.3.2 The covenant of this Section 5.3 shall run with the land of the Property in perpetuity, shall be enforceable against the Developer and its successors and assigns, and shall be covenants set forth in the Grant Deed.

5.4 Survival of Special Development Covenants. All of the covenants set forth in ARTICLE V, inclusive, shall be a covenant running with the land of the Property and each such special development covenant shall survive the Close of Escrow, execution and recordation of the Grant Deed, and issuance and recordation of any Certificate of Completion for the time period specifically set forth in each such special development covenant. The Parties acknowledge that although the special development covenants apply to the entirety of the Property, portions of the Project and Property may, in accordance with the Permitted Transfer requirements, be sold or otherwise transferred to various successors and assigns of the Developer. Accordingly, the City agrees that with respect to enforcement of any of the special development covenants, it is understood and agreed that, in the event of a breach of any of the special development covenants, the City will seek to enforce those covenants only against the then-current owner(s) of that portion of the Property which is not in compliance with any one or more the special development covenants. No owner of any portion of the Property which is in compliance with the special development covenants shall be liable for the breach of any of the special development covenants by any other owner of any other portion of the Property; provided, however, that the foregoing shall not preclude City from seeking damages against any prior owner of any portion of the Property if, during the tenure of such owner’s ownership, such owner’s portion of the Property was not in compliance with any one or more of the special development covenants.

5.5 Developer Covenant to Defend this Agreement. The Developer acknowledges that the City is a “public entity” and/or “public agency” as defined under applicable California law. Therefore, the City must satisfy the requirements of certain California statutes relating to the actions of public entities and public agencies including, without limitation, CEQA. Also, as a public body, the City’s action in approving this Agreement may be subject to proceedings to invalidate this Agreement or mandamus. The Developer assumes the risk of delays and damages that may result to the Developer from any third-party legal actions related to the City’s approval of this Agreement or the pursuit of the activities contemplated by this Agreement, even in the event that an error, omission or abuse of discretion by the City is determined to have occurred. If a thirdparty files a legal action regarding the City’s approval of this Agreement or the pursuit of the activities contemplated by this Agreement, either the City may terminate this Agreement on thirty (30) days written notice to the Developer of the City’s intent to terminate this Agreement, referencing this Section 5.5, without any further obligation to perform the terms of this Agreement and without any liability to the Developer resulting from such termination, unless the Developer unconditionally agrees to indemnify and defend the City, with legal counsel acceptable to the City, against such third-party legal action, as provided in the next sentence. Within thirty (30) days of receipt of the City’s notice of intent to terminate this Agreement, as provided in the preceding sentence, the Developer may offer to defend the City, with legal counsel reasonably acceptable to the City, in the third-party legal action and pay all of the court costs, attorney fees, monetary awards, sanctions, attorney fee awards, expert witness and consulting fees, and the expenses of any and all financial or performance obligations resulting from the disposition of the legal action.

Any such offer from the Developer must be in writing and reasonably acceptable to the City in both form and substance. Nothing contained in this Section 5.5 shall be deemed or construed to be an express or implied admission that the City is liable to the Developer or any other person or 2514
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entity for damages alleged from any alleged or established failure of the City to comply with any statute, including, without limitation, CEQA. The Developer’s defense of such third party actions as described in this Section 5.5 shall constitute an Unavoidable Delay.

5.6 Environmental Indemnity of the City by the Developer. The Developer agrees, at its sole cost and expense, to fully indemnify, protect, hold harmless, and defend (with counsel selected by the Developer and approved by the City) the City and its commissions, agents, attorneys, officers, employees, and authorized representatives (collectively, the “Indemnified Parties”), from and against any and all claims, demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs, disbursements and expenses, including, without limitation, attorney fees, disbursements and costs of attorneys, environmental consultants and other experts, and all foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever (collectively, “Environmental Claims”) that may, at any time, be imposed upon, incurred or suffered by, or claimed, asserted or awarded against, the Indemnified Parties, directly or indirectly relating to or arising from any of the following “Environmental Matters” existing or occurring during or arising from the Developer’s ownership of the Property or construction or operation of the Project:

5.6.1 The presence of Hazardous Materials on, in, under, from or affecting all or any portion of the Property or the Project.

5.6.2 The storage, holding, handling, release, threatened release, discharge, generation, leak, abatement, removal or transportation of any Hazardous Materials on, in, under, from or affecting the Property or the Project.

5.6.3 The violation of any law, rule, regulation, judgment, order, permit, license, agreement, covenant, restriction, requirement or the like by the Developer, its agents or contractors, relating to or governing in any way Hazardous Materials on, in, under, from or affecting the Property or the Project.

5.6.4 The failure of the Developer, its agents or contractors, to properly complete, obtain, submit and/or file any and all notices, permits, licenses, authorizations, covenants and the like in connection with the Developer’s activities on the Property or regarding the Project.

5.6.5 The implementation and enforcement by the Developer, its agents or contractors of any monitoring, notification or other precautionary measures that may, at any time, become necessary to protect against the release, potential release or discharge of Hazardous Materials on, in, under, from or affecting the Property or the Project.

5.6.6 The failure of the Developer, its agents or contractors, in compliance with all applicable Environmental Laws, to lawfully remove, contain, transport or dispose of any Hazardous Materials existing, stored or generated on, in, under or from the Property or the Project.

5.6.7 Any investigation, inquiry, order, hearing, action or other proceeding by or before any governmental agency in connection with any Hazardous Materials on, in, under, from or affecting the Property or the Project or the violation of any Environmental Law relating to the Property or the Project.
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5.6.8 The Developer shall pay to the Indemnified Parties all costs and expenses including, without limitation, reasonable attorneys' fees and costs, incurred by the Indemnified Parties in connection with enforcement of the aforementioned environmental indemnity.

5.7 Insurance. In order to protect the City and their commissions, agents, attorneys, officers, employees and authorized representatives (collectively, “Additional Insureds”) against any and all claims and liability for death, injury, loss and damage resulting from the Developer’s actions in connection with this Agreement, the Property, and the Project, the Developer shall secure and maintain the insurance coverage, described in and required by this Section 5.7. The City shall not have any obligation under this Agreement until the Developer provides the required policies and/or certificates evidencing the insurance required by this Section 5.7 to the City and the City approves such evidence of insurance. The Developer shall pay any deductibles and selfinsured retentions under all insurance policies issued in satisfaction of the terms of this Agreement.

Developer shall retain all insurance policies as set forth in this Section 5.7 until recordation of the Certificate of Completion.

5.7.1 Workers’ Compensation Insurance Requirement. The Developer shall submit written proof that the Developer is insured against liability for workers’ compensation in accordance with the provisions of Section 3700 of the Labor Code. By executing this Agreement, the Developer makes the following certification, required by Section 1861 of the Labor Code:
“I am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of the Agreement.”
The Developer shall require each contractor and sub-contractor performing work on the Project to provide workers’ compensation coverage for all of such contractor’s or sub-contractor’s employees, unless the contractor’s or sub-contractor’s employees are covered by workers’ compensation insurance provided by the Developer. If any class of employees engaged in work or services performed in connection with the Project is not covered by Labor Code Section 3700, the Developer shall provide and/or require each contractor or sub-contractor to provide adequate workers’ compensation insurance covering such employees. Each workers’ compensation policy procured pursuant to this Section 5.7.1 shall contain a full waiver of subrogation clause in favor of the Additional Insureds.

5.7.2 Liability and Insurance Requirements.

5.7.2.1 The Developer shall maintain in full force and effect, until the issuance of the Certificate of Completion, subject to Section 5.7.2.4, the following insurance coverage:
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5.7.2.1.1 Commercial General Liability Insurance coverage, including, but not limited to, Premises-Operations, Contractual Liability Insurance (specifically covering all indemnity obligations of the Developer pursuant to this Agreement), ProductsCompleted Operations Hazards, Personal Injury (including bodily injury and death), and Property Damage for liability arising out of the construction of the Project and/or the Developer’s operations concerning the Property or the Project. The commercial general liability insurance coverage shall have minimum limits for Bodily Injury and Property Damage liability of TWO MILLION DOLLARS ($2,000,000) each occurrence and FOUR MILLION DOLLARS ($4,000,000) aggregate.

5.7.2.1.2 Automobile Liability Insurance against claims of Personal Injury (including bodily injury and death) and Property Damage covering all owned, leased, hired and non-owned vehicles used by the Developer with minimum limits for Bodily Injury and Property Damage of ONE MILLION DOLLARS ($1,000,000) each occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate. Such insurance shall be provided by a business or commercial vehicle policy.

5.7.2.1.3 If the Developer hires a consultant to provide design services, such as architectural or engineering services in connection with the Project, or any portion of the Project, the Developer shall require each such consultant to provide Professional Liability (Errors and Omissions) Insurance, for liability arising out of, or in connection with, the performance of such design services, with limits of not less than ONE MILLION DOLLARS ($1,000,000).

5.7.2.1.4 Upon acceptance of the Project or any portion thereof, from each contractor, the Developer shall maintain Fire and Extended Coverage Insurance on the Project on a blanket basis or with an agreed amount clause in amounts not less than 100% of the replacement value of all portions of the Project so accepted.

5.7.2.2 During the construction of the Project, the Developer shall require that each contractor performing work on the Project maintain the following insurance coverage, as specified below, at all times during the performance of said work, or the Developer shall provide for such contractors “wrap” coverage, as specified below, at all times during the performance of said work:

5.7.2.2.1 The Developer shall maintain Builder’s Risk
Insurance to be written on an All Risk Completed Value form, in an aggregate amount equal to 100% of the completed insurable value of the Project or portion of the Project on which such contractor is performing work.

5.7.2.2.2 Each general contractor and each sub-contractor shall maintain Commercial General Liability Insurance with limits of not less than ONE MILLION DOLLARS ($1,000,000) per occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate to protect the Developer during the construction of the Project from claims involving bodily injury and/or death and damage to the property of others.
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5.7.2.2.3 Each general contractor and each sub-contractor shall maintain Automobile Liability Insurance against claims of personal injury (including bodily injury and death) and property damage covering all owned, leased, hired and non-owned vehicles used in the performance of the contractor’s obligations with minimum limits for bodily injury and property damage of ONE MILLION DOLLARS ($1,000,000) each occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate. Such automobile liability insurance shall be provided by a business or commercial vehicle policy.

5.7.2.3 The insurance required in Section 5.7.2.1 and Section 5.7.2.2 above shall include endorsements naming the Additional Insureds as additional insured for liability arising out of this Agreement and any operation related to this Agreement.

5.7.2.4 Any insurance coverage required under this Agreement shall not be written on a “claims made” basis. The applicable certificate of insurance must clearly provide that the coverage is on an “occurrence” basis. The requirements of this Section 5.7.2.4 shall survive any expiration or termination of this Agreement and the recordation of the Grant Deed and any Certificate of Completion.

5.7.2.5 Receipt by the City of evidence of insurance that does not comply with the above requirements shall not constitute a waiver of the insurance requirements of this Agreement.

5.7.2.6 Subject to Section 5.7.2.4, all of the insurance coverage required under this Section 5.7 shall be maintained by the Developer or its contractors, as required by the terms of this Agreement, until the issuance of the Certificate of Completion and shall not be reduced, modified, or canceled without, at least, thirty (30) days prior written notice to the City.

Also, phrases such as “endeavor to” and “but failure to mail such notice shall impose no obligation or liability of any kind upon the company” shall not be included in the cancellation wording of any certificates of insurance or any coverage for the Additional Insureds. The Developer shall immediately obtain replacement coverage for any insurance policy that is terminated, canceled, non-renewed, or whose policy limits are exhausted or upon insolvency of the insurer that issued the policy.

5.7.2.7 All insurance to be obtained and maintained by the Developer under this Section 5.7 shall be issued by a company or companies listed in the then current “Best’s Key Rating Guide” publication with a minimum of an “A:VII” rating and be admitted to conduct business in the State of California by the State of California Department of Insurance.

5.7.2.8 The City will not accept self-insurance in satisfaction of the insurance requirements of this Section 5.7.

5.7.2.9 All insurance obtained and maintained by the Developer in satisfaction of the requirements of this Agreement shall be primary to and not contributing to any insurance maintained by the Additional Insureds.

5.7.2.10 Insurance coverage in the minimum amounts set forth in this Section 5.7 shall not be construed to relieve the Developer of any liability, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues 2518
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the coverage; nor shall it preclude the Additional Insureds from taking such other actions as are available to them under any other provision of this Agreement or otherwise at law.

5.7.3 Failure by the Developer to maintain all insurance coverage required by this Section 5.7 in effect shall be an Event of Default by the Developer. The City, at its sole option, may exercise any remedy available to them in connection with such an Event of Default.

Alternatively, the City may, at its sole option, purchase any such required insurance coverage and the City shall be entitled to immediate payment from the Developer for any premiums and associated costs paid by the City for such insurance coverage. Any election by the City to purchase or not to purchase insurance otherwise required to be carried by the Developer shall not relieve the Developer of its obligation to obtain and maintain the insurance coverage required by this Agreement.

ARTICLE VI

PROJECT FINANCING

6.1 Recordation of Construction Loan Deed of Trust. The Developer covenants to the City that, if Developer has arranged any secured Construction Loan, the Developer shall cause the Construction Loan Deed of Trust(s) to be recorded against the Property within sixty (60) days following the Close of Escrow.

6.2 Unauthorized Liens. Except as provided in Section 6.3, until recordation of the Certificate of Completion, the Developer shall not record, and shall not allow to be recorded, against the Property, or any portion thereof, any Lien not expressly authorized by this Agreement.

Until recordation of the Certificate of Completion, the Developer shall remove, or shall have removed, any unauthorized Lien made or recorded against the Property or any portion of the Property or shall assure the satisfaction thereof to the satisfaction of the City. After one hundred twenty (120) calendar days prior written notice to the Developer, the City shall have the right, but not the obligation, to satisfy any unauthorized Lien made or recorded prior to recordation of the Certificate of Completion and receive reimbursement from the Developer for any amounts paid or incurred in satisfying any such Lien, upon demand. Nothing in this Section 6.2, though, shall require the Developer to pay or make provisions for the payment of any tax, assessment, lien, or charge that the Developer is in the process of contesting the validity or amount thereof, in good faith, and so long as such contest shall not subject the Property, or any portion thereof, to forfeiture or sale.

6.3 Rights of Lenders and City Regarding Permitted Loans and Liens.

6.3.1 The City shall have the right of reasonable review and approval of any Lender from which the Developer proposes to obtain any Loan, whether or not such Loan is secured by a Lien against the Property or any portion thereof. The City shall not unreasonably withhold, condition or delay its approval of any proposed Lender or Loan. In deciding whether to give, condition or withhold such approval, the City may consider, among other matters, whether or not the proposed Lender is a state or federally chartered bank, savings and loan, or other financial institution which routinely provides construction financing to development projects such as the Project, whether the terms of the Loan are reasonable and customary when compared to the 2519
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financing terms of similar development projects in the County, the size and financial strength of the proposed Lender, and what effect, if any, any changes requested by the Lender to either this Agreement or any of the exhibits to this Agreement may have upon the City’s rights and remedies hereunder. In connection therewith, in any notice requesting approval of a proposed Lender and Loan, the Developer shall include a statement identifying any amendments, modifications, or other changes to this Agreement or its exhibits which the proposed Lender will request in connection with the Developer’s obtaining of the Loan. The City agrees to reasonably consider, but shall not be obligated to accept, any amendment, modification, or other change to this Agreement or any of the exhibits to this Agreement which materially restricts, diminishes, or burdens the City’s rights and remedies.

6.3.2 Whenever the City delivers any notice or demand to the Developer regarding any breach or default by the Developer under this Agreement that, if not timely cured by the Developer, would entitle the City to terminate this Agreement, the City shall send a copy of such notice to each affected Lender of which the City has received notice and a contact address for transmittal of such notices. Whenever the City delivers any notice or demand to the Developer regarding any breach or default by the Developer under this Agreement that, if not timely cured by the Developer, would entitle the City to exercise its power of termination of the fee estate of all or any portion of the Property pursuant to Section 7.6, the City shall at the same time send a copy of such notice or demand to each affected Lender of which the City has received notice and a contact address for transmittal of such notice. Each affected Lender receiving a copy of any such notice shall have the right, at its option, to commence the cure or remedy of any such default of the Developer and to diligently and continuously proceed with such cure or remedy, within one hundred eighty (180) calendar days following its receipt of notice of the default. If a default of the Developer under this Agreement cannot, with diligence, be remedied or cured, or the remedy or cure of such default cannot be commenced, within such one hundred eighty (180) calendar day period, the Lender shall have such additional time as is reasonably necessary to remedy or cure such default of the Developer, but in no event beyond three hundred sixty five (365) calendar days following its receipt of notice of the default. If such default of the Developer can only be remedied or cured by the Lender upon obtaining possession of the Property, the Lender shall seek to obtain possession of the Property with diligence and continuity through a receiver or otherwise, and shall remedy or cure such default of the Developer within one hundred eighty (180) calendar days after obtaining possession of the Property. Nothing contained in this Agreement shall be deemed to permit or authorize any Lender to undertake or continue the construction of any portion of the Project (beyond the extent necessary to conserve or protect improvements or construction already made), without expressly assuming the Developer’s obligations under this Agreement by written agreement approved by the City, in which the Lender agrees to complete, in the manner provided in this Agreement, the improvements to which the Lien or title of the Lender relates, which approval shall not unreasonably be withheld, delayed, or conditioned by the City.

6.3.3 In any case where, one hundred eighty (180) calendar days after delivery of notice of a default of the Developer under Section 6.3.2, an affected Lender has not exercised the option provided in Section 6.3.2 to construct the applicable portions of the Project, or has exercised the option, but has not proceeded diligently and continuously with construction, the City shall have the option, in the City’s sole and absolute discretion, to purchase the Loan of such Lender and any security interest of such Lender under its Loan Documents by payment to the Lender of the amount of the unpaid Loan, including principal, accrued and unpaid interest, late 2520
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charges, costs, expenses and other amounts payable to the Lender by the Developer under its Loan Documents and, if the ownership of the Property or any portion of the Property has previously vested in such Lender, the City, at its option but not as its obligation, shall be entitled to a conveyance of any title or interest in the Property vested in such Lender from such Lender.

6.3.4 After expiration of the one hundred eighty (180) calendar day period provided for in Section 6.3.3, any affected Lender may demand, in writing, that the City act to exercise or forego the option granted in Section 6.3.3. If the City fails to exercise the right granted in Section 6.3.3 within sixty (60) calendar days from the date of the City’s receipt of such written demand from a Lender, the City shall be conclusively deemed to have waived its right of purchase of that Lender’s interest pursuant to Section 6.3.3.

6.3.5 In the event of a default or breach by the Developer under any Loan Documents, where the Lender has not exercised its option to complete the Project under Section

6.3.2, the City may cure the default of the Developer under the applicable Loan Documents, but is under no obligation to do so, prior to completion of any sale or foreclosure of the Property or any portion thereof under the applicable Loan Documents. The City shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the City in curing any default of the Developer under any Loan Documents.

6.3.6 In any case where a Lender has acquired title to all or any portion of the Property or Project through foreclosure, deed in lieu of foreclosure, or any other means, and such Lender proposes to enter into an agreement to transfer the Property and/or Project, or any portion thereof, to a third party transferee, the Lender shall provide the City with written notice thereof, which notice shall include a reasonably detailed description of the terms and conditions of the proposed transaction. The City shall have the option, but not the obligation, to purchase the Property and/or Project on substantially the same terms as described in the Lender’s notice, which option, if ever, shall be exercised by written notice from the City to the Lender within twenty (20) days following the City’s receipt of the Lender’s notice. If the City elects not to exercise its option, then, subject to Section 8.2.2, the Lender may complete the transaction described in its notice, provided that such transaction is closed on materially identical terms and conditions as those described in the Lender’s notice to the City. If the Lender and third party transferee desire to materially amend the terms of their proposed transaction, the Lender shall give the City written notice of the proposed modifications and the City shall once again have the right to elect to acquire the Property and the Project (or portion thereof) on terms and conditions substantially similar to those modified terms. If, for any reason, the proposed transaction between the Lender and third party transferee fails to close within two hundred forty (240) days following the date on which the City first receives notice of the proposed transaction (or notice of the proposed modified transaction, whichever is later), then the City once again have the right to elect to acquire the Property and/or Project pursuant to this Section 6.3.6.

6.3.7 The restrictions set forth in this Section 6.3 shall remain in effect only until the recordation of the Certificate of Completion for the Project. 2521
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ARTICLE VII

DEFAULTS, REMEDIES AND TERMINATION

7.1 Defaults - General.

7.1.1 Subject to any extensions of time provided for in this Agreement, failure or delay by any Party to perform any term or provision of this Agreement shall constitute an “Event of Default” under this Agreement; provided, however, that if a Party otherwise in default commences to cure, correct or remedy such default, within thirty (30) calendar days after receipt of written notice from the injured Party specifying such default, and shall diligently and continuously prosecute such cure, correction or remedy to completion (and where any time limits for the completion of such cure, correction or remedy are specifically set forth in this Agreement, then within said time limits), such Party shall not be deemed to be in default under this Agreement and no Event of Default shall be deemed to have occurred.

7.1.2 The injured Party shall give written notice of default to the Party in default, specifying the default complained of by the non-defaulting Party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default.

7.1.3 Any failure or delays by any Party in asserting any of their rights and/or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by any Party in asserting any of its rights and/or remedies shall not deprive that Party of its right to institute and maintain any actions or proceedings that it may deem necessary to protect, assert or enforce any such rights or remedies.

7.1.4 In addition to other acts or omissions of the Developer that may legally or equitably constitute a default or breach of this Agreement, the occurrence of any of the following specific events, prior to the issuance of a Certificate of Completion for the Project, shall constitute an “Event of Default” under this Agreement and shall not be subject to the notice and cure provisions of Section 7.1.1:

7.1.4.1 Any material default by the Developer under any Loan Documents for any purpose or reason that remains uncured following any applicable notice and expiration of any applicable cure period under such Loan Documents.

7.1.4.2 Any representation, warranty or disclosure made to the City by the Developer regarding this Agreement or the Project is materially false or misleading, whether or not such representation or disclosure appears in this Agreement.

7.1.4.3 The Developer fails to make any payment or deposit of funds required under this Agreement or to pay any other charge set forth in this Agreement, following seven (7) days’ written notice to the Developer from the City of such failure.

7.1.4.4 The construction of the Project is delayed or suspended for a period in excess of that permitted under Section 4.3 or the Developer has not been issued, or entitled to be issued, a Certificate of Completion by the Project Completion Date. 2522
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7.1.4.5 There occurs any event of dissolution, reorganization or termination of the Developer that adversely and materially affects the operation or value of the Property or the Project, and such event is not corrected within five (5) days following written notice of such event from the City to the Developer.

7.1.4.6 The Developer Transfers its interest in this Agreement, the Property, or the Project, or any portion thereof, whether voluntarily or involuntarily or by operation of law, in violation of the terms and conditions of this Agreement and such action is not cured within the period prescribed in Section 8.2.2.

7.1.4.7 The Developer becomes insolvent or a receiver is appointed to conduct the affairs of the Developer under state or federal law.

7.1.4.8 The Developer’s legal status as a California corporation authorized by the Secretary of State of the State of California to transact business in California is suspended or terminated.

7.2 LIQUIDATED DAMAGES TO THE CITY. UPON THE OCCURRENCE OF

AN EVENT OF DEFAULT BY THE DEVELOPER UNDER THIS AGREEMENT PRIOR TO

THE CLOSE OF ESCROW, THE CITY MAY CANCEL THE ESCROW PURSUANT TO SECTION 3.10, AND UPON CANCELLATION OF THE ESCROW, THE CITY SHALL BE

RELIEVED OF ANY OBLIGATION UNDER THIS AGREEMENT TO SELL OR CONVEY

THE PROPERTY OR ANY PORTION THEREOF AND ANY SUCH ESCROW

CANCELLATION SHALL BE WITHOUT ANY LIABILITY OF THE CITY TO THE DEVELOPER OR ANY OTHER PERSON ARISING FROM SUCH ACTIONS. THE CITY

AND THE DEVELOPER ACKNOWLEDGE THAT IT IS EXTREMELY DIFFICULT AND

IMPRACTICAL, IF NOT IMPOSSIBLE, TO ASCERTAIN THE AMOUNT OF DAMAGES

THAT WOULD BE SUFFERED BY THE CITY IN THE EVENT OF A CANCELLATION OF

THE ESCROW DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE DEVELOPER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW. HAVING

MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL

DAMAGES THE CITY WOULD SUFFER IN THE EVENT OF A CANCELLATION OF THE

ESCROW DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE

DEVELOPER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW, THE

CITY AND THE DEVELOPER AGREE THAT A REASONABLE ESTIMATE OF THE CITY’S DAMAGES IN SUCH EVENT IS THE TOTAL SUM OF $10,000.00 (THE “LIQUIDATED DAMAGES AMOUNT”). THEREFORE, UPON THE CANCELLATION OF

THE ESCROW BY THE CITY DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT

BY THE DEVELOPER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF THE

ESCROW, ESCROW HOLDER SHALL IMMEDIATELY CANCEL THE ESCROW AND PAY

THE LIQUIDATED DAMAGES AMOUNT TO THE CITY, IN PART, FROM THE DEPOSIT WITHIN FIVE (5) DAYS OF ESCROW CANCELLATION. RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT SHALL BE THE CITY’S SOLE AND EXCLUSIVE REMEDY UPON

THE CANCELLATION OF THE ESCROW DUE TO THE OCCURRENCE OF AN EVENT OF

DEFAULT BY THE DEVELOPER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW.
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CITY’S INITIALS: _____ DEVELOPER’S INITIALS: _____

7.3 DEVELOPER’S ELECTION RE: SPECIFIC ENFORCEMENT OF

AGREEMENT OR WAIVER OF RIGHT TO SPECIFIC PERFORMANCE AND LIMITATION ON RECOVERY OF DAMAGES PRIOR TO CLOSE OF ESCROW.

UPON THE OCCURRENCE OF AN EVENT OF DEFAULT PERTAINING TO THE

CONVEYANCE OF THE PROPERTY BY THE CITY UNDER THIS AGREEMENT PRIOR

TO CLOSE OF ESCROW, THE DEVELOPER SHALL, AS ITS SOLE AND EXCLUSIVE

REMEDY, HAVE THE RIGHT TO EXERCISE ONE OF THE ALTERNATIVE REMEDIES DESCRIBED IN SECTIONS 7.3.1 AND 7.3.2. THE DEVELOPER’S ELECTION, ONCE MADE, SHALL BE IRREVOCABLE.

7.3.1 WAIVER OF RIGHT TO SPECIFIC PERFORMANCE AND
LIMITATION ON RECOVERY OF DAMAGES. THE DEVELOPER MAY WAIVE THE REMEDIES SET FORTH IN SECTION 7.3.2 AND MAY CANCEL THE ESCROW PURSUANT TO SECTION 3.10, AND UPON CANCELLATION OF THE ESCROW, THE

DEVELOPER SHALL BE RELIEVED OF ANY OBLIGATION UNDER THIS AGREEMENT

TO ACQUIRE OR ACCEPT TITLE TO THE PROPERTY AND ANY SUCH ESCROW

CANCELLATION SHALL BE WITHOUT ANY LIABILITY OF THE DEVELOPER TO THE CITY OR ANY OTHER PERSON ARISING FROM SUCH ACTIONS. THE DEVELOPER

SHALL BE LIMITED TO RECOVERING ANY AMOUNTS ACTUALLY EXPENDED BY

THE DEVELOPER IN REASONABLE RELIANCE ON THIS AGREEMENT PRIOR TO THE

DATE OF THE OCCURRENCE OF THE EVENT OF DEFAULT BY THE CITY, NOT TO EXCEED TEN THOUSAND DOLLARS ($10,000). THE DEVELOPER WAIVES ANY RIGHT

TO RECOVER ANY OTHER SUMS FROM THE CITY ARISING FROM AN EVENT OF DEFAULT BY THE CITY PRIOR TO THE CLOSE OF ESCROW. THE DEVELOPER ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 7.3.1, WHICH CIVIL CODE SECTION READS AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO

EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING

THE RELEASE, WHICH, IF KNOWN BY HIM OR HER, MUST

HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR.”

BY INITIALING BELOW, THE DEVELOPER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 7.3.1.

DEVELOPER’S INITIALS ____________
IN CONNECTION WITH THE WAIVERS OF THIS SECTION 7.3.1, THE

DEVELOPER FURTHER WAIVES THE RIGHT TO RECORD A NOTICE OF PENDENCY

OF ACTION AGAINST ALL OR ANY PORTION OF THE PROPERTY EXCEPT

DEVELOPER MAY RECORD SUCH A NOTICE IN CONNECTION WITH ANY SUIT FOR 2524
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SPECIFIC PERFORMANCE PERMITTED HEREUNDER IN THE EVENT DEVELOPER

ELECTS NOT TO WAIVE ITS RIGHT TO SEEK SPECIFIC PERFORMANCE UNDER SECTION 7.3.2.

7.3.2 SPECIFIC PERFORMANCE. THE DEVELOPER MAY WAIVE
THE REMEDIES SET FORTH IN SECTION 7.3.1 AND, IN ACCORDANCE WITH CIVIL CODE SECTION 3384, ET SEQ., INSTITUTE AN ACTION AGAINST THE CITY FOR

SPECIFIC PERFORMANCE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT

WHICH WERE TO HAVE BEEN COMPLETED BY THE CITY PRIOR TO THE CLOSE OF ESCROW.

7.4 Legal Actions.

7.4.1 Except as otherwise provided by Section 7.3, any Party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy available to that Party under this Agreement or at law or in equity. Such legal actions must be instituted in the Superior Court of the State of California in and for the County of San Bernardino, California, in any other appropriate court within the County of San Bernardino, California.

7.4.2 The procedural and substantive laws of the State of California shall govern the interpretation and enforcement of this Agreement, without regard to conflicts of laws principles. The Parties acknowledge and agree that this Agreement is entered into, is to be fully performed in and relates to real property located in the City of Ontario, County of San Bernardino, California.

7.5 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties set forth in this ARTICLE VII are nonexclusive and cumulative, and the exercise by any Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party(ies).

7.6 City Power of Termination Regarding the Property.

7.6.1 The City hereby reserves a power of termination pursuant to Civil Code Sections 885.010, et seq., exercisable by the City, in its sole and absolute discretion, upon thirty (30) calendar days written notice to the Developer referencing this Section 7.6, to terminate the fee interest of the Developer in the Property and/or any improvements to the Property and revest such fee title in the City and take possession of all or any portion of such real property and improvements, without compensation to the Developer, upon the occurrence of an Event of Default by the Developer following the Close of Escrow and prior to the issuance of the Certificate of Completion.

7.6.2 The thirty (30) calendar day written notice specified Section 7.6.1 shall specify the Event of Default by the Developer triggering the City’s exercise of its power of termination. The City shall proceed with its remedy set forth in Section 7.6.1 only if the Developer continues in default for a period of sixty (60) calendar days following such notice or, upon 2525
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commencing to cure such default, fails to diligently and continuously prosecute said cure to satisfactory conclusion.

7.6.3 The rights of the City under this Section 7.6 shall be subject and subordinate to, shall be limited by and shall not defeat, render invalid or limit:

7.6.3.1 Each Lien recorded against the Property and specifically authorized by this Agreement as a Permitted Transfer;

7.6.3.2 Any leases, declarations of covenants, conditions and restrictions, easement agreements or other recorded documents or interests applicable to the Property and specifically authorized by this Agreement as a Permitted Transfer.

7.6.4 Upon the City’s exercise of its power of termination pursuant to this Section 7.6, the Developer or its successors or assigns shall convey by grant deed to the City title to the Property, as specified in the City’s notice pursuant to Section 7.6.1, and all improvements thereon, in accordance with Civil Code Section 1109, as such code section may hereafter be amended, renumbered, replaced or substituted. Such conveyance shall be duly acknowledged by the Developer and a notary in a manner suitable for recordation. The City may enforce its rights pursuant to this Section 7.6 by means of an injunctive relief or forfeiture of title action filed in any court of competent jurisdiction.

7.6.5 Upon the revesting in the City of title to the Property, whether by grant deed or court decree, the City shall exercise its reasonable good faith efforts to resell the Property at its then fair market value subject to the covenants contained in this Agreement related to the Project and the requirements for the preservation and adaptive reuse of the Building, as soon and in such manner as the City shall, in its sole discretion, find feasible and consistent with the objectives of the City’s General Plan and this Agreement, to a qualified and responsible person or persons (as reasonably determined by the City) who will assume the Developer’s obligations to begin and/or complete the Project located on the Property, or such other replacement development acceptable to the City, in its sole and absolute discretion. Upon any such resale of the Property (or any portion thereof), the proceeds, if any, to the City from such sale or transfer shall be applied as follows:

7.6.5.1 First, to pay any and all amounts required to release/reconvey any Lien recorded against all or any portion of the Property; and

7.6.5.2 Second, to reimburse the City on its own behalf or on behalf of the City for all actual internal and third-party costs and expenses previously or currently incurred by the City related to the Property, the Project, or this Agreement, including, but not limited to, customary and reasonable fees or salaries to third-party personnel engaged in such actions, in connection with the recapture, management and resale of the Property or any part thereof; all taxes, assessments and utility charges paid by the City with respect to the Property or portion thereof; any payment made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations incurred by the Developer with respect to the acquisition of the Property or the construction of the Project; and amounts otherwise owing 2526
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to the City by the Developer or its successors or assigns pursuant to the terms of this Agreement; and

7.6.5.3 Third, to the extent that any proceeds from such resale are, thereafter, available, taking into account any prior encumbrances with a claim thereto, to reimburse the Developer, or its successors in interest to the equal to the sum of: (1) the third-party costs actually incurred and paid by the Developer regarding the development of the Project located on the Property, including, but not limited to, pro rata costs of carry, taxes, and other items as set forth in a cost certification to be made by the Developer to the City prior to any such reimbursement, which certification shall be subject to the City’s reasonable approval; provided, however, that the Developer shall not be entitled to reimbursement for any expenses to the extent that such expenses relate to any loans, Liens or other encumbrances that are paid by the City pursuant to the provisions of sub-sections 7.6.5.1 or 7.6.5.2 above.

7.6.5.4 Any portion of the proceeds from the resale of the Property remaining after the foregoing applications shall be retained by the City as their sole and exclusive property.

7.6.6 IMMEDIATELY FOLLOWING THE THIRTY (30) DAY PERIOD
SPECIFIED IN SECTION 7.6.1, ABOVE, THE CITY, ITS EMPLOYEES AND AGENTS

SHALL HAVE THE RIGHT TO REENTER AND TAKE POSSESSION OF THE PROPERTY

AND ANY IMPROVEMENTS THEREON, WITHOUT FURTHER NOTICE OR COMPENSATION TO THE DEVELOPER. BY INITIALING BELOW, THE DEVELOPER

HEREBY EXPRESSLY WAIVES, TO THE MAXIMUM EXTENT ALLOWED BY LAW, ANY

AND ALL RIGHTS THAT THE DEVELOPER MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 791 AND CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1162,

AS THOSE STATUTES MAY BE AMENDED, REPLACED, RENUMBERED OR

SUBSTITUTED, OR UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.

DEVELOPER’S INITIALS ____________

7.6.7 THE DEVELOPER ACKNOWLEDGES AND AGREES THAT THE
CITY’S EXERCISE OF ITS POWER OF TERMINATION AND RIGHT OF REENTRY PURSUANT TO THIS SECTION 7.6 MAY WORK A FORFEITURE OF THE ESTATE IN THE

DEFAULTED PORTION OF THE PROPERTY CONVEYED TO THE DEVELOPER THROUGH THE GRANT DEED. THE DEVELOPER HEREBY EXPRESSLY WAIVES, TO

THE MAXIMUM EXTENT ALLOWED BY LAW, ANY AND ALL EQUITABLE AND

LEGAL DEFENSES THAT THE DEVELOPER MAY HAVE TO SUCH FORFEITURE,

INCLUDING, BUT NOT LIMITED TO, THE DEFENSES OF LACHES, WAIVER, ESTOPPEL, SUBSTANTIAL PERFORMANCE OR COMPENSABLE DAMAGES. THE

DEVELOPER FURTHER EXPRESSLY WAIVES, TO THE MAXIMUM EXTENT ALLOWED

BY LAW, ANY AND ALL RIGHTS AND DEFENSES THAT THE DEVELOPER MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 3275 OR ANY OTHER STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT. THE DEVELOPER ACKNOWLEDGES

THAT THE TERMS AND CONDITIONS OF THIS AGREEMENT REFLECT THE POSSIBILITY OF FORFEITURE BY VIRTUE OF THE EXERCISE OF THE CITY’S POWER 2527
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OF TERMINATION PROVIDED IN THIS SECTION 7.6 AND FURTHER ACKNOWLEDGE

THAT IT HAS RECEIVED INDEPENDENT AND ADEQUATE CONSIDERATION FOR ITS

WAIVER AND RELINQUISHMENT OF RIGHTS AND REMEDIES PURSUANT TO SECTION 7.6.6. AND THIS SECTION 7.6.7.

DEVELOPER’S INITIALS ____________

7.7 Developer Indemnification. In addition to any other specific indemnification or defense obligations of the Developer set forth in this Agreement, the Developer agrees to indemnify, defend (upon written request by the City and with counsel reasonably acceptable to the City and hold harmless the Indemnified Parties, from any and all losses, liabilities, charges, damages, claims, liens, causes of action, awards, judgments, costs and expenses, including, but not limited to reasonable attorney’s fees of counsel retained by the Indemnified Parties, expert fees, costs of staff time, and investigation costs, of whatever kind or nature, that are in any manner directly or indirectly caused, occasioned or contributed to in whole or in part, through any act, omission, fault or negligence, whether active or passive, of the Developer or the Developer’s officers, agents, employees, independent contractors or subcontractors of any tier, relating in any manner to this Agreement, any work to be performed by the Developer related to this Agreement, the Property, or the Project, or any authority or obligation exercised or undertaken by the Developer under this Agreement. Without limiting the generality of the foregoing, the Developer’s obligation to indemnify the Indemnified Parties shall include injury or death to any person or persons, damage to any property, regardless of where located, including the property of the Indemnified Parties, any workers’ compensation or prevailing wage determination, claim or suit or any other matter arising from or connected with any goods or materials provided or services or labor performed regarding the Project or the Property on behalf of the Developer by any person or entity.

ARTICLE VIII
GENERAL PROVISIONS.

8.1 Incorporation of Recitals. The Recitals of fact set forth preceding this Agreement are true and correct and are incorporated into this Agreement in their entirety by this reference.

8.2 Restrictions on Transfers.

8.2.1 The Developer acknowledges that the qualifications and identity of the Developer are of particular importance to the City. The Developer further recognizes and acknowledges that the City has relied and is relying on the specific qualifications and identity of the Developer in entering into this Agreement with the Developer and, as a consequence, Transfers are permitted only as expressly provided in this Agreement. The Developer shall promptly notify the City in writing of any and all changes whatsoever in the identity of the business entities or individuals either comprising or in control of the Developer, as well as any and all changes in the interest or the degree of control of the Developer by any such person, of which information the 2528
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Developer or any of its partners, members or officers are notified or may otherwise have knowledge or information.

8.2.2 Except as expressly permitted in this Agreement, the Developer represents to the City that it has not made and agrees that it will not make or create, or suffer to be made or created, any Transfer other than a Permitted Transfer, either voluntarily, involuntarily or by operation of law, until after the recordation of a Certificate of Completion for the Project subject to the Transfer; provided, however, that the City may approve in its reasonable discretion, Transfers other than Permitted Transfers prior to the recordation of a Certificate of Completion.

In deciding whether to approve or disapprove any proposed Transfer, the City may consider the proposed transferee’s financial strength and the experience of the proposed transferee and its senior management in undertaking and successfully completing projects of a similar type and size as the Project or that portion of the Project proposed to be transferred. Any Transfer made in contravention of this Section 8.2 shall be voidable at the election of the City and this Agreement may be terminated by the City or the City may exercise any other remedy available to the City under the terms of this Agreement, provided, however, that (i) the City shall first notify the Developer in writing of its intention to terminate this Agreement or to exercise any other remedy, and (ii) the Developer shall have twenty (20) calendar days following its receipt of such written notice to commence and, thereafter, diligently and continuously proceed to cure the default of the Developer and submit evidence of the initiation and satisfactory completion of such cure to the City, in a form and substance reasonably satisfactory to the City.

8.2.3 The Developer shall provide the City no less than thirty (30) days prior written notice of any proposed Permitted Transfer which the Developer desires to enter into prior to the recordation of a Certificate of Completion for the Project subject to the Transfer, other than a Permitted Transfer for which no notice shall be required. The Developer shall have the burden of demonstrating to the City’s reasonable satisfaction that the proposed Permitted Transfer meets the conditions and requirements of this Agreement with respect to Permitted Transfers.

8.2.4 In connection with the City’s review of any request for approval of any proposed Transfer under this Section 8.2, or of any Lender or Loan under Section 6.3, the Developer agrees to reimburse the City for those third party costs and expenses incurred by the City in connection with its review of the Developer’s request for approval, including, without implied limitation, the reasonable fees and costs of those outside consultants and legal counsel retained by the City to assist it in its review of the Developer’s request, including the City Counsel.

8.2.5 Anything in this Agreement to the contrary notwithstanding, the restrictions and prohibitions on Transfers contained in this Section 8.2 shall terminate upon issuance of a Certificate of Completion for the Project.

8.3 Notices, Demands and Communications Between the Parties.

8.3.1 Any and all notices, demands or communications submitted by any Party to another Party pursuant to or as required by this Agreement shall be proper, if in writing and dispatched by messenger for immediate personal delivery, by a nationally recognized overnight courier service or by registered or certified United States Mail, postage prepaid, return receipt requested, to the principal office of the City or the Developer, as applicable, as designated 2529
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in Section 8.3.2. Such written notices, demands or communications may be sent in the same manner to such other addresses as either Party may from time to time designate. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is delivered by personal delivery, on the date of delivery by a nationally recognized overnight courier service or three (3) calendar days after it is placed in the United States Mail, as provided in this Section 8.3.

8.3.2 The following are the authorized addresses for the submission of notices, demands or communications to the Parties:

TO DEVELOPER: HDC Construction, Inc.
5642 W. Mission Blvd.

Ontario, CA 91762
Attn: Baudelio Huizar
TO CITY:

ELECTRONICALLY

DELIVERED
COPY TO:

City of Ontario
303 East B Street
Ontario, CA 91764
Attn: Peter Pallesen,
Economic Development Coordinator
Best Best & Krieger LLP
Attn: Ruben Duran
[email protected]

8.4 Conflict of Interest. No member, official or employee of the City, having any conflict of interest, direct or indirect, related to this Agreement, the Property, or the development or operation of the Project shall participate in any decision relating to this Agreement. The Parties represent and warrant that they do not have knowledge of any such conflict of interest.

8.5 Warranty Against Payment of Consideration for Agreement. The Developer warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement. Third parties, for the purposes of this Section 8.5, shall not include persons to whom fees are paid for professional services, if rendered by attorneys, financial consultants, accountants, engineers, architects and the like when such fees are considered necessary by the Developer.

8.6 Non-liability of City, Officials and Employees. No member, official or employee of the City shall be personally liable to the Developer, or any successor in interest of the Developer, in the event of any default or breach by the City under this Agreement or for any amount that may become due to the Developer or to its successor, or on any obligations under the terms of this Agreement, except as may arise from the gross negligence or willful acts of such member, official or employee.

8.7 Unavoidable Delay; Extension of Time of Performance.

8.7.1 Subject to specific provisions of this Agreement, performance by any 2530
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Party under this Agreement shall not be deemed, or considered to be, in default where any such default is due to an Unavoidable Delay that is not attributable to the fault of the Party claiming an extension of time to perform. An extension of time for any Unavoidable Delay shall be for the period of the Unavoidable Delay and shall commence to run from the date of occurrence of the Unavoidable Delay, if the Party asserting the existence of the Unavoidable Delay provides the other Parties with written notice of the occurrence of the Unavoidable Delay, within ten (10) days of the commencement of such asserted Unavoidable Delay. Otherwise, the extension of time for an Unavoidable Delay shall commence on the date of receipt of written notice of the occurrence of the Unavoidable Delay by the Parties not requesting an extension of time to perform due to such Unavoidable Delay.

8.7.2 The Parties expressly acknowledge and agree that changes in either general economic conditions or changes in the economic assumptions of either of them that may have provided a basis for entering into this Agreement and that occur at any time after the execution of this Agreement, do not constitute an Unavoidable Delay and do not provide any Party with grounds for asserting the existence of an Unavoidable Delay in the performance of any covenant or undertaking arising under this Agreement. Each Party expressly assumes the risk that changes in general economic conditions or changes in such economic assumptions relating to the terms and covenants of this Agreement could impose an inconvenience or hardship on the continued performance of such Party under this Agreement.

8.8 Inspection of Books and Records. The City shall have the right at all reasonable times, at the City’s cost and expense, to inspect the books and records of the Developer pertaining to the Property and/or the Project. The Developer shall also have the right at all reasonable times, at the Developer’s sole cost and expense, to inspect the books and records of the City pertaining to the Property and/or the Project, to the extent relevant to the Developer’s obligations under this Agreement. Nothing in this Section 8.8 or elsewhere in this Agreement shall, however, constitute a waiver or modification of any right or privilege which any Party may have with respect to any document, statement, or other record, including, without implied limitation, the attorney-client privilege, the attorney-work product privilege, any privilege arising under any state or federal evidentiary code or rule, or any privilege or exclusionary right arising under any state or federal freedom of information or public records disclosure law.

8.9 Real Estate Commissions. The City shall not be liable for any real estate commissions, brokerage fees or finder fees that may arise from or be related to this Agreement.

The Developer shall pay any fees or commissions or other expenses related to its retention or employment of real estate brokers, agents or other professionals.

8.10 Binding on Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors, and assigns.

8.11 Entire Agreement.

8.11.1 This Agreement shall be executed in three (3) duplicate originals, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. This Agreement includes47 pages (exclusive of signature pages) and six (6) 2531
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exhibits, that constitute the entire understanding and agreement of the Parties regarding the Property, the Project, and the other subjects addressed in this Agreement.

8.11.2 This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to the Property, the Project, and the other subjects addressed in this Agreement.

8.11.3 None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with any deed conveying title to the Property and this Agreement shall continue in full force and effect before and after such conveyances.

8.11.4 All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the authorized representative(s) of all Parties.

8.12 Execution of this Agreement. Following execution of three (3) originals of this Agreement by the authorized representative(s) of the Developer and prompt delivery of such originals, thereafter, to the City, accompanied by an official action of the governing body of the Developer authorizing the individuals executing this Agreement on behalf of the Developer to execute and perform this Agreement, in form and substance acceptable to the City, this Agreement shall be subject to the review and approval by the City Council, in their sole and absolute discretion, no later than forty-five (45) calendar days after such date of delivery to the City. If the City have not approved, executed, and delivered an original of this Agreement to the Developer within the foregoing time period, then no provision of this Agreement shall be of any force or effect for any purpose.

8.13 Review by Legal Counsel. Developer expressly represents and acknowledges that Developer has been advised to have this Agreement reviewed by an attorney representing Developer, and has been provided a full and fair opportunity for such review. Whether or not Developer has consulted an attorney, Developer represents and acknowledges that Developer has reviewed and understands the terms and provisions of this Agreement specifically including, but not limited to, the covenants and conditions contained herein and the power of termination reserved by the City. Developer agrees that such terms are reasonable and enforceable.

8.14 Survival of Indemnity Obligations. All general and specific indemnity and defense obligations of the Parties set forth in this Agreement shall survive the expiration or termination of this Agreement, the execution or recordation of the Grant Deed, and/or the issuance and recordation of any Certificate of Completion.

8.15 Time Declared to be of the Essence. As to the performance of any obligation hereunder as to which time is a component thereof, the performance of such obligation within the time provided is of the essence.
[Signatures on Following Pages]
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48 SIGNATURE PAGE
TO
2024 DISPOSITION AND DEVELOPMENT AGREEMENT
(207 EUCLID AVENUE SITE)
CITY:

CITY OF ONTARIO
a municipal corporation
Dated:_________________, 2024 By:

City Manager
ATTEST:
____________________________
City Clerk
APPROVED AS TO LEGAL FORM:

BEST BEST & KRIEGER LLP
By: _______________________
City Attorney
2533
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49 SIGNATURE PAGE
TO
2024 DISPOSITION AND DEVELOPMENT AGREEMENT
(207 EUCLID AVENUE SITE)
DEVELOPER:

HDC CONSTRUCTION, INC., a California
corporation
Dated:_____________________ By:

Baudelio Huizar, President
2534
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EXHIBIT A

EXHIBIT A
TO
2024 DISPOSITION AND DEVELOPMENT AGREEMENT
(207 EUCLID AVENUE SITE)
Legal Description of the Property
207 Euclid Avenue Ontario, California 91762
APN: 1048-565-09-0000
Legal Description: Lot 10, along with the south seven inches of Lot 9, Block 37, Portion of Ontario, per map recorded in Book 9, Page 43 of Maps, in the office of the County Recorder, County of San Bernardino, California.
2535
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EXHIBIT B

EXHIBIT B
TO
2024 DISPOSITION AND DEVELOPMENT AGREEMENT
(207 EUCLID AVENUE SITE)
Scope of Development and Construction Costs
[Attached Behind This Page]
2536
Qty Unit Cost Total
13,000 SF $28.85 SF $375,000
200 LF $200 LF $40,000
2,000 SF $30.00 SF $60,000
7000 SF $14 SF $98,000
400 LF $20.00 LF $8,000
10 $5,000 $50,000
7,000 SF $10.00 LF $70,000
200 EAC $83 SF $16,600
2,000 SF $82.50 SF $165,000
370 LF $270 LF $99,900
$982,500
$245,625
$196,500
$1,424,625
Qty Unit Cost Total
Allowance $45,000
Allowance $50,000
Allowance $15,000
3,500 $11.43 $30,005
Allowance $60,000
Allowance $35,000
1,000 $6.00 $60,000
35 $2,500.00 $87,500
10,000 $8.00 $80,000
Allowance $100,000
Allowance $132,772
Allowance $12,500
11,154 $3.00 $33,462
Allowance $35,000
Allowance $50,000
Allowance $25,000
3,500 $85.71 $150,985
1,000 $75.00 $75,000
10,000 $18.00 $150,000

SEISMIC RETROFIT
Item
CONSTRUCTION COST - 207 EUCLID
Shotcrete wall Reinforcing 6 inches thick
Steel Drags
Floor Diaphragm
Roof Diaphragm
Blocking
Steel Frames at openings
truss strengthing
anchorage
Steel Deck
Foundation strengthening
Plumbing (Rough-In)
Subtotal
Contingency 25 %

SHELL GENERAL REHAB REQUIREMENTS
Item
Demolition- General
Demolition 2nd Floor
Miscellaneous Site Work
Landscaping & Irrigation (including patio)
New Utilities (Electrical, Water, & Gas)
Fire Sprinklers, Alarm & Annunciator
Interior Finishes (Shell)
HVAC
Electrical
New Elevator (3 stop, shaft & car)
Hazardous Materials Abatement
Basement Waterproofing
Clean Façade (Sandblast, Scaffolding, Seal)
Terra Cotta Repair
New Exterior Windows & Doors
New Openings (North Wall)
New Dining Patio (North Side)
New Service Yard (East Side)
Overhead /profit /general conditions 20 %
TOTAL
2537
$1,227,224
$306,806
$245,445
$1,779,475
Qty Unit Cost Total
10,000 $6.00 $60,000
10,000 $35.00 $200,000
10,000 $6.00 $60,000
10,000 $5.00 $50,000
10,000 $6.00 $60,000
10,000 $12.00 $120,000
10,000 $2.00 $20,000
$570,000
$57,000
$114,000
$741,000
Qty Unit Cost Total
10,000 $95.00 $950,000
$950,000
$95,000
$1,045,000
Item
Subtotal
Contingency 25 %
Overhead /profit /general conditions 20 %
TOTAL
TOTAL
Item
Security System
Subtotal
Contingency 10 %
Overhead /profit /general conditions 20 %
Furnishings, Fictures & Equipment
Subtotal
Contingency 10 %

FURNISHINGS, FIXTURES & EQUIPMENT
Partitions & Interior Doors
Interior Finishes
Specialties
Plumbing Finish
HVAC Finish
Electrical & Lighting Finish
TOTAL

TENANT IMPROVEMENTS

SEISMIC RETROFIT

SHELL GENERAL REHAB REQUIREMENTS

TENANT IMPROVEMENTS
$1,424,625
$1,779,475
$741,000
$1,045,000
SUMMARY GRAND TOTAL $4,990,100

FURNISHINGS, FIXTURES & EQUIPMENT
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EXHIBIT C

EXHIBIT C
TO
2024 DISPOSITION AND DEVELOPMENT AGREEMENT
(207 EUCLID AVENUE SITE)
Schedule of Performance
Action Date Action to be
Completed By

1. Effective Date See Section 1.3

2. Developer to open Escrow Within 5 days
following the
Effective Date

3. Due Diligence Period commences The date of the
Escrow Opening
Date

4. City to deliver Preliminary Report to Developer Within 3 days following City’s
receipt of the
Preliminary Report
from Title
Company

5. Developer to deliver Developer’s Title Notice to Agency Within 14 days following
Developer’s receipt
of the Preliminary
Report

6. City to deliver City’s Title Notice Response to Developer, if appropriate
Within 14 days
following City’s
Receipt of
Developer’s Title
Notice

7. Developer to deliver Developer’s Title Notice Waiver, if appropriate
Within 5 days
following
Developer’s receipt
of City’s Title
Notice Response

8. Developer to deliver its Due Diligence Investigation Conclusion Notice
On or before the
end of the Due
Diligence Period

9. Due Diligence Period ends On the 45th day
following the
Escrow Opening
Date
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EXHIBIT C
Action Date Action to be
Completed By

15. Escrow Closing Date No later than 30
days from approval
and issuance of
building permits.

16. Developer to begin entitlement process. No later than 30 days after the
opening of escrow

17. Developer to receive entitlement approval from the City. No later than 180 days after the
opening of escrow.

18. Developer to submit construction drawings to the City. No later than 60 days from approval
of entitlements.

19. Developer to commence construction. No later than 90 days from the close
of escrow.

20. Developer to complete construction and receive Certificate of Occupancy.

No later than 18
months from the
commencement of
construction.
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EXHIBIT D

EXHIBIT D
TO 2024 DISPOSITION AND DEVELOPMENT AGREEMENT
(207 EUCLID AVENUE SITE)
Form of Grant Deed
[Attached Behind This Page]
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EXHIBIT D

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
_____________

CITY OF ONTARIO

GRANT DEED
(207 Euclid Avenue Site)

PART ONE
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, CITY OF ONTARIO, a municipal corporation (“Grantor”),
hereby grants to
HDC Construction, Inc., a California corporation (“Grantee”), that certain real property located in the City of Ontario, County of San Bernardino, State of California, specifically described in Exhibit “A” attached to this Grant Deed (“Property”) and made a part of this Grant Deed by this reference.

PART TWO
The conveyance of the Property by the Grantor to the Grantee in Part One is subject to the following community development terms, conditions, covenants and restrictions:

Section 1. Conveyance Subject to Terms of a Disposition and Development Agreement. The Property is conveyed subject to that certain 2024 Disposition and Development Agreement (207 Euclid Avenue Site), dated as of July 16, 2024, between the Grantor and the Grantee (the “Agreement”). The provisions of the Agreement are incorporated into this Grant Deed by this reference and are deemed to be a part of this Grant Deed, as though fully set forth in this Grant Deed.

Section 2. Condition of Property. The Grantee acknowledges and agrees that the Property is conveyed by the Grantor to the Grantee in its “AS IS,” “WHERE IS” and “SUBJECT TO ALL FAULTS CONDITION,” as of the date of recordation of this Grant Deed, with no warranties, expressed or implied, as to the environmental or other physical condition of the Property, the presence or absence of any patent or latent environmental or other physical condition on or in the Property, or any other matters affecting the Property.

Section 3. Obligation to Refrain from Discrimination. The Grantee for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

3.1 There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or 2542
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EXHIBIT D
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Grantee, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessees or vendees of the Property.

The covenant of this Section 3 shall run with the land of the Property and shall be enforceable against the Grantee and its successors and assigns in perpetuity and be a covenant in the Grant Deed and the Notice of Agreement.

3.2 The covenant of this Section 4 shall run with the land of the Property in perpetuity, shall be enforceable against the Grantee and its successors and assigns, and shall be covenants set forth in the Grant Deed.

Section 4. Form of Non-Discrimination and Non-Segregation Clauses. The Grantee for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

4.1 The Grantee, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Property (or any portion thereof) on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds, leases or contracts pertaining to the Property shall contain or be subject to substantially the following non-discrimination or non-segregation covenants:
(a) In deeds: “The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”
(b) In leases: “The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sub-lessee, sub-tenants, or vendees in the premises herein leased.” (c) In contracts: “There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination 2543
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EXHIBIT D
or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub-lessees, sub-tenants, or vendees of the premises herein transferred.” The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument.

4.2 The covenants of this Section 4 shall run with the land of the Property in perpetuity.

Section 5. Maintenance Condition of the Property. The Grantee for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

5.1 The areas of the Property that are subject to public view (including all existing and future improvements, paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear excepted. If there is an occurrence of an adverse condition on any area of the Property that is subject to public view in contravention of the general maintenance standard described above (a “Maintenance Deficiency”), then the Grantor shall notify the Grantee in writing of the Maintenance Deficiency. If the Grantee fails to cure or commence and diligently pursue to cure the Maintenance Deficiency within thirty (30) days of its receipt of notice of the Maintenance Deficiency, the Grantor shall have the right to enter the Property and perform all acts necessary to cure the Maintenance Deficiency, or to take any other action at law or in equity that may then be available to the Grantor to accomplish the abatement of the Maintenance Deficiency.

Any sum expended by the Grantor for the abatement of a Maintenance Deficiency on the Property pursuant to this Section 5.1 shall become a lien on the Property, as applicable. If the amount of the lien is not paid within thirty (30) days after written demand for payment from the Grantor to the Grantee, the Grantor shall have the right to enforce the lien in the manner provided in Section

5.1. 5.2 Graffiti, as this term is defined in Government Code Section 38772, that has been applied to any exterior surface of a structure or improvement on the Property that is visible from any public right-of-way adjacent or contiguous to the Property, shall be removed by the Grantee by either painting over the evidence of such vandalism with a paint that has been colormatched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water, as appropriate. If any such graffiti and is not removed within ninety-six (96) hours following the time of the discovery of the graffiti, the Grantor shall have the right to enter the Property and remove the graffiti, without notice to the Grantee. Any sum expended by the Grantor for the removal of graffiti from the Property pursuant to this Section 5.2, shall be a lien on the Property. If the amount of the lien is not paid within thirty (30) days after written demand to the Grantee from the Grantor, the Grantor shall have the right to enforce its lien in the manner provided in Section 5.2.

5.3 The Parties further mutually understand and agree that the rights conferred upon the Grantor under this Section 5.3 expressly include a grant by the Grantee of a security interest in the Property with the power to establish and enforce a lien or other encumbrance against the Property or any portion thereof, in the manner provided under Civil Code Sections 2924, 2924b and 2924c, to secure the obligations of the Grantee and it successors under Section 5.1 or Section 2544
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EXHIBIT D

5.2, including the reasonable attorneys’ fees and costs of the Grantor associated with the abatement of a Maintenance Deficiency or removal of graffiti. For the purposes of the preceding sentence the words “reasonable attorneys’ fees and costs of the Grantor” mean and include the salaries, benefits and costs of the City Attorney and the lawyers employed in the Office of the City Attorney.

5.4 The provisions of this Section 5.4, shall be a covenant running with the land of the Property, shall be enforceable against the Grantee and its successors and assigns. Nothing in the foregoing provisions of this Section shall be deemed to preclude the Grantee from making any alteration, addition, or other change to any structure or improvement or landscaping on the Property, provided that any such changes comply with applicable zoning and building regulations of the City.

Section 6 Grantor Power of Termination Regarding the Property.

6.1 The Grantor hereby reserves a power of termination pursuant to Civil Code Sections 885.010, et seq., exercisable by the Grantor, in its sole and absolute discretion, upon thirty (30) calendar days written notice to the Grantee referencing this Section 6.1, to terminate the fee interest of the Grantee in the Property and/or any improvements to the Property and revest such fee title in the Grantor and take possession of all or any portion of such real property and improvements, without compensation to the Grantee, upon the occurrence of an Event of Default by the Grantee following the Close of Escrow and prior to the issuance of the Certificate of Completion for Property.

6.2 The thirty (30) calendar day written notice specified Section 6.1 shall specify the Event of Default by the Grantee triggering the Grantor’s exercise of its power of termination. The Grantor shall proceed with its remedy set forth in Section 6.1 only if the Grantee continues in default for a period of sixty (60) calendar days following such notice or, upon commencing to cure such default, fails to diligently and continuously prosecute said cure to satisfactory conclusion.

6.3 The rights of the Grantor under this Section 8 shall be subject and subordinate to, shall be limited by and shall not defeat, render invalid or limit:
(1) Each Lien recorded against the Property and specifically authorized by this Agreement as a Permitted Transfer;
(2) Any leases, declarations of covenants, conditions and restrictions, easement agreements or other recorded documents or interests applicable to the Property and specifically authorized by this Agreement as a Permitted Transfer.

6.4 Upon the Grantor’s exercise of its power of termination pursuant to this Section 6, the Grantee or its successors or assigns shall convey by grant deed to the Grantor title to the Property, as specified in the Grantor’s notice pursuant to Section 6.1, and all improvements thereon, in accordance with Civil Code Section 1109, as such code section may hereafter be amended, renumbered, replaced or substituted. Such conveyance shall be duly acknowledged by the Grantee and a notary in a manner suitable for recordation. The Grantor may enforce its rights 2545
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EXHIBIT D
pursuant to this Section 6.4 by means of an injunctive relief or forfeiture of title action filed in any court of competent jurisdiction.

6.5 Upon the revesting in the Grantor of the Property, whether by grant deed or court decree, the Grantor shall exercise its reasonable good faith efforts to resell the Property at its then fair market value, as soon and in such manner as the Grantor shall, in its sole discretion, find feasible and consistent with the objectives of the City’s General Plan, to a qualified and responsible person or persons (as reasonably determined by the Grantor) who will assume the Grantee’s obligations to begin and/or complete and/or operate the Project located on the Property, or such other replacement development acceptable to the Grantor, in its sole and absolute discretion. Upon any such resale of the Defaulted Portion of the Property (or any portion thereof), the proceeds to the Grantor from such sale shall be applied as follows:
(1) First, to pay any and all amounts required to release/reconvey any Lien recorded against all or any portion of the Property; and (2) Second, to reimburse the Grantor for all actual internal and thirdparty costs and expenses previously or currently incurred by the Grantor related to the Property, the Project, or this Agreement, including, but not limited to, customary and reasonable fees or salaries to third-party personnel engaged in such actions, in connection with the recapture, management and resale of the Property or any part thereof; all taxes, assessments and utility charges paid by Grantor with respect to the Property or portion thereof; any payment made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations incurred by the Grantee with respect to the acquisition of the Property or the construction of the Project and amounts otherwise owing to the Grantor or authority by the Grantee or its successors or assigns pursuant to the terms of this Agreement; and
(3) Third, to the extent that any proceeds from such resale are, thereafter, available, taking into account any prior encumbrances with a claim thereto, to reimburse the Grantee, or its successors in interest to the equal to the sum of: the third-party costs actually incurred and paid by the Grantee regarding the development of the Project, including, but not limited to, pro rata costs of carry, taxes, and other items as set forth in a cost certification to be made by the Grantee to the Grantor prior to any such reimbursement, which certification shall be subject to the Grantor’s reasonable approval; provided, however, that the Grantee shall not be entitled to reimbursement for any expenses to the extent that such expenses relate to any loans, Liens or other encumbrances that are paid by the Grantor pursuant to the provisions of sub-sections (1) or (2) above.
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EXHIBIT D
(4) Any portion of the proceeds from the resale of the Property remaining after the foregoing applications shall be retained by the Grantor as its sole and exclusive property.

6.6 IMMEDIATELY FOLLOWING THE THIRTY (30) DAY PERIOD
SPECIFIED IN SECTION 6.1, ABOVE, THE GRANTOR, ITS EMPLOYEES AND AGENTS

SHALL HAVE THE RIGHT TO REENTER AND TAKE POSSESSION OF THE PROPERTY

AND ANY IMPROVEMENTS THEREON, WITHOUT FURTHER NOTICE OR COMPENSATION TO THE GRANTEE. BY INITIALING BELOW, THE GRANTEE

HEREBY EXPRESSLY WAIVES, TO THE MAXIMUM EXTENT ALLOWED BY LAW, ANY

AND ALL RIGHTS THAT THE GRANTEE MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 791 AND CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1162,

AS THOSE STATUTES MAY BE AMENDED, REPLACED, RENUMBERED OR

SUBSTITUTED, OR UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.

GRANTEE’S INITIALS ____________

6.7 THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE
GRANTOR’S EXERCISE OF ITS POWER OF TERMINATION AND RIGHT OF REENTRY PURSUANT TO THIS SECTION 6.7 MAY WORK A FORFEITURE OF THE ESTATE IN THE PROPERTY CONVEYED TO THE GRANTEE THROUGH THE GRANT DEED. THE

GRANTEE HEREBY EXPRESSLY WAIVES, TO THE MAXIMUM EXTENT ALLOWED BY

LAW, ANY AND ALL EQUITABLE AND LEGAL DEFENSES THAT THE GRANTEE MAY

HAVE TO SUCH FORFEITURE, INCLUDING, BUT NOT LIMITED TO, THE DEFENSES

OF LACHES, WAIVER, ESTOPPEL, SUBSTANTIAL PERFORMANCE OR COMPENSABLE DAMAGES. THE GRANTEE FURTHER EXPRESSLY WAIVES, TO THE

MAXIMUM EXTENT ALLOWED BY LAW, ANY AND ALL RIGHTS AND DEFENSES THAT THE GRANTEE MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 3275 OR ANY OTHER STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT. THE

GRANTEE ACKNOWLEDGES THAT THE TERMS AND CONDITIONS OF THE

AGREEMENT REFLECT THE POSSIBILITY OF FORFEITURE BY VIRTUE OF THE EXERCISE OF THE GRANTOR’S POWER OF TERMINATION PROVIDED IN THIS SECTION 6.7 AND FURTHER ACKNOWLEDGE THAT IT HAS RECEIVED

INDEPENDENT AND ADEQUATE CONSIDERATION FOR ITS WAIVER AND RELINQUISHMENT OF RIGHTS AND REMEDIES PURSUANT TO SECTION 8.6 AND THIS SECTION 6.7.

GRANTEE’S INITIALS ____________

PART THREE
Section 7. Developer Covenant to Undertake Project. The Developer covenants, for itself, its successors and assigns, to and for the exclusive benefit of the City, that the Developer shall commence and complete the development of the Project on the Property within the time period for such actions set forth in the Schedule of Performance. The Developer covenants and agrees for itself, its successors, and assigns, that the Property shall be improved and developed 2547
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EXHIBIT D
with the Project in substantial conformity with the terms and conditions of this Agreement, the Scope of Development, the Schedule of Performance, any and all plans, specifications and similar development documents required by this Agreement, except for such changes as may be mutually agreed upon in writing by and among the Parties, and all applicable laws, regulations, orders and conditions of each Governmental Agency with jurisdiction over the Property or the Project. The covenants of this Section 7 shall run with the land of the Property until the earlier of the date of recordation of the Certificate of Completion or the fifteenth (15th) anniversary of the date of the Close of Escrow.

Section 8. Covenants Run with the Land of the Property. Each of the covenants and agreements contained in this Grant Deed touch and concern the Property and each of them is expressly declared to be a community development covenant that runs with the land for the benefit of the Grantor, and such covenants run with the land in favor of the Grantor for the entire period that such covenants are in full force and effect, regardless of whether the Grantor is or remains an owner of any land or interest in land to which such covenants relate. The Grantor, in the event of any breach of any such covenants, has the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings, to enforce the curing of such breach, as provided in the Agreement or by law. The covenants contained in this Grant Deed are for the benefit of and are enforceable only by the Grantor, and shall survive the execution and recordation of this Grantor Deed and the issuance and recordation of each and every Certificate of Completion, for the time period set forth above for each covenant.

Section 9. Costs and Attorneys’ Fees for Enforcement Proceeding. If legal proceedings are initiated to enforce the rights, duties or obligations of any of the covenants set forth in this Grant Deed, then the prevailing party in such proceeding shall be entitled to collect its reasonable attorney fees and costs from the other party in addition to any other damages or relief obtained in such proceedings.

Section 10. Effect of Unlawful Provision; Severability. In the event that any provision of this Grant Deed is held to be invalid or unlawful by a final judgment of a court of competent jurisdiction, such invalidity shall not affect the validity of any other provision of this Grant Deed. [Signature on following page]
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SIGNATURE PAGE
TO

CITY OF ONTARIO

GRANT DEED
(207 Euclid Avenue Site)
IN WITNESS WHEREOF, the Grantor has caused this Grant Deed to be executed by its authorized representative(s) on this ____ day of _____________, 2024.

GRANTOR:

CITY OF ONTARIO
a municipal corporation
By: ___________________________
City Manager
[ALL SIGNATURES MUST BE NOTARY ACKNOWLEDGED]
2549
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EXHIBIT D

EXHIBIT A
TO

GRANT DEED
Property Legal Description
207 North Euclid Avenue Ontario, California 91762
APN: 1048-565-09-0000
Legal Description: Lot 10, along with the south seven inches of Lot 9, Block 37, Portion of Ontario, per map recorded in Book 9, Page 43 of Maps, in the office of the County Recorder, County of San Bernardino, California.
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EXHIBIT D

CERTIFICATE OF ACCEPTANCE OF

GRANT DEED
The undersigned hereby acknowledges acceptance by HDC Construction, Inc. a California corporation, the Grantee in the within Grant Deed, of the delivery of the subject Property described in the within Grant Deed from the City of Ontario.

GRANTEE:

HDC CONSTRUCTION, INC.
a California corporation
Dated: _____________________ By: _________________________ [TITLE]
[ALL SIGNATURES MUST BE NOTARY ACKNOWLEDGED]
2551
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EXHIBIT E

EXHIBIT E
TO
2024 DISPOSITION AND DEVELOPMENT AGREEMENT
(207 EUCLID AVENUE SITE)
Form of Notice of Agreement
[Attached Behind This Page]
2552
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EXHIBIT E

RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:

City of Ontario
303 East B Street
Ontario, California 91764
Attn: City Manager
Exempt from Recording fee
pursuant to Gov’t Code § 27383

NOTICE OF AGREEMENT
2024 Disposition and Development Agreement
(207 Euclid Avenue Site)
TO ALL INTERESTED PERSONS PLEASE TAKE NOTICE that HDC Construction, Inc., a California corporation (the “Developer”) and City of Ontario, a municipal corporation (the “City”) entered into an agreement entitled 2024 Disposition and Development Agreement (207 Euclid Avenue Site), dated as of July 16, 2024 (the “Agreement”). A copy of the Agreement is on file with the City and is available for inspection and copying by interested persons as a public record of the City at the City’s offices located at 303 East B Street, Ontario, California 91764 during the City’s regular business hours.

The Agreement affects the real property described in Exhibit A attached to this Notice of Agreement (the “Property”). The meaning of defined terms, indicated by initial capitalization, used in this Notice of Agreement shall be the same as the meaning ascribed to such terms in the Agreement.

PLEASE TAKE FURTHER NOTICE that the Agreement contains certain development covenants running with the land of the Property and other agreements between the Developer and the City affecting the Property, as set forth below (all section references are to the Agreement):

Section 4.1 of the Agreement provides:

4.1 Developer Covenant to Undertake Project. The Developer covenants, for itself, its successors and assigns, to and for the exclusive benefit of the City, that the Developer shall commence and complete the development of the Project on the Property within the time period for such actions set forth in the Schedule of Performance. The Developer covenants and agrees for itself, its successors, and assigns, that the Property shall be improved and developed with the Project in substantial conformity with the terms and conditions of this Agreement, the Scope of Development, the Schedule of Performance, any and all plans, specifications and similar development documents required by this Agreement, except for such changes as may be mutually agreed upon in writing by and among the Parties, and all applicable laws, regulations, orders and conditions of each Governmental Agency with jurisdiction over the Property or the Project. The covenants of this Section 4.1 shall run with the land of the Property until the earlier of the date of 2553
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EXHIBIT E
recordation of the Certificate of Completion or the fifteenth (15th) anniversary of the date of the Close of Escrow.

Section 5.1 of the Agreement provides:

5.4 Maintenance Condition of the Property. The Developer for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

5.4.1 The areas of the Property that are subject to public view (including all existing and future improvements, paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear excepted. If there is an occurrence of an adverse condition on any area of the Property that is subject to public view in contravention of the general maintenance standard described above (a “Maintenance Deficiency”), then the City shall notify the Developer in writing of the Maintenance Deficiency. If the Developer fails to cure or commence and diligently pursue to cure the Maintenance Deficiency within thirty (30) days of its receipt of notice of the Maintenance Deficiency, the City shall have the right to enter the Property and perform all acts necessary to cure the Maintenance Deficiency, or to take any other action at law or in equity that may then be available to the City to accomplish the abatement of the Maintenance Deficiency. Any sum expended by the City for the abatement of a Maintenance Deficiency on the Property pursuant to this Section 5.4.1 shall become a lien on the Property, as applicable. If the amount of the lien is not paid within thirty (30) days after written demand for payment from the City to the Developer, the City shall have the right to enforce the lien in the manner provided in Section 5.4.3.

5.4.2 Graffiti, as this term is defined in Government Code Section 38772, that has been applied to any exterior surface of a structure or improvement on the Property that is visible from any public right-of-way adjacent or contiguous to the Property, shall be removed by the Developer by either painting over the evidence of such vandalism with a paint that has been color-matched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water, as appropriate. If any such graffiti is not removed within ninety-six (96) hours following the time of the discovery of the graffiti, the City shall have the right to enter the Property and remove the graffiti, without notice to the Developer. Any sum reasonably expended by the City for the removal of graffiti from the Property pursuant to this Section 5.4.2, shall be a lien on the Property. If the amount of the lien is not paid within thirty (30) days after written demand to the Developer from the City, the City shall have the right to enforce its lien in the manner provided in Section 5.4.3.

5.4.3 The Parties further mutually understand and agree that the rights conferred upon the City under this Section 5.4 expressly include a grant by the Developer of a security interest in the Property with the power to establish and enforce a lien or other encumbrance against the Property or any portion thereof, in the manner provided under Civil Code Sections 2924, 2924b and 2924c, to secure the obligations of the Developer and it successors under Section 5.4.1 or Section 5.4.2, including the reasonable attorneys’ fees and costs of the City associated with the abatement of a Maintenance Deficiency or removal of graffiti. For the purposes of the preceding sentence the words “reasonable attorneys’ fees and costs of the City” mean and include the salaries, benefits and costs of the City Attorney and the lawyers employed in the Office of the City Attorney. 2554
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EXHIBIT E

5.4.4 The provisions of this Section 5.4, shall be a covenant running with the land of the Property, shall be enforceable against the Developer and its successors and assigns, and shall be covenants set forth in the Grant Deed. Nothing in the foregoing provisions of this Section 5.3 shall be deemed to preclude the Developer from making any alteration, addition, or other change to any structure or improvement or landscaping on the Property, provided that any such changes comply with applicable zoning and building regulations of the City.

Section 5.5 of the Agreement provides:

5.5 Obligation to Refrain from Discrimination. The Developer for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

5.5.1 There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Developer, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessees or vendees of the Property.

The covenant of this Section 5.5 shall run with the land of the Property and shall be enforceable against the Developer and its successors and assigns in perpetuity and be a covenant in the Grant Deed and the Notice of Agreement.

5.5.2 The covenant of this Section 5.5 shall run with the land of the Property in perpetuity, shall be enforceable against the Developer and its successors and assigns, and shall be covenants set forth in the Grant Deed.
[Signatures on following pages]
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EXHIBIT E
This NOTICE OF AGREEMENT is dated as of _________________, 2024, and has been executed on behalf of the Developer and the City by and through the signatures of their authorized representative(s) set forth below. This Notice of Agreement may be executed in counterparts and when fully executed each counterpart shall be deemed to be one original instrument.

CITY:

CITY OF ONTARIO
a municipal corporation
Dated: _________________, 2024 By: _______________________________ City Manager
ATTEST:
____________________________
City Clerk
APPROVED AS TO LEGAL FORM:

BEST BEST & KRIEGER LLP
By: _______________________
City Attorney
2556
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EXHIBIT E
DEVELOPER:

HDC CONSTRUCTION, INC.,
a California corporation
Dated: _____________________ By: _________________________ [TITLE]
[ALL SIGNATURES MUST BE NOTARY ACKNOWLEDGED]
2557
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EXHIBIT E

EXHIBIT A
TO

NOTICE OF AGREEMENT
Legal Description of Property
207 North Euclid Avenue Ontario, California 91762
APN: 1048-565-09-0000
Legal Description: Lot 10, along with the south seven inches of Lot 9, Block 37, Portion of Ontario, per map recorded in Book 9, Page 43 of Maps, in the office of the County Recorder, County of San Bernardino, California.
2558
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EXHIBIT F

EXHIBIT F
[Intentionally Omitted]
2559
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EXHIBIT G

EXHIBIT G
TO
2024 DISPOSITION AND DEVELOPMENT AGREEMENT
(207 Euclid AVENUE SITE)
Form of Certificate of Completion
[Attached Behind This Page]
2560
46700.00320\42466729.1

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
________________________________
________________________________
________________________________
________________________________
Attention:

Exempt from Recording fee
pursuant to Gov’t Code § 27383

CITY OF ONTARIO

CERTIFICATE OF COMPLETION
(207 Euclid AVENUE SITE)
I, Scott Ochoa, City Manager of the City of Ontario (the “City”) certify that:

Section 1. The Project described as the adaptive reuse of an existing historic building in accordance with that certain 2024 Disposition and Development Agreement (207 Euclid Avenue Site), dated as of July 16, 2024 (“DDA”), between the City and HDC Construction, Inc. a California corporation (the “Developer”), on that certain real property specifically described in the legal description(s) attached to this Certificate of Completion as Exhibit A (the “Property”), is complete in accordance with the provisions of the Agreement.

This Certificate of Completion constitutes conclusive evidence of the City’s determination of the Developer’s satisfaction of its obligation under the Agreement to construct and complete the Project on the Property, including any and all retrofits and improvements of the building, parking areas, landscaping areas and related improvements necessary to support or meet any requirements applicable to the Project and its use and occupancy on the Project, whether or not such improvements are located on or off the Property or on other property subject to the Agreement. Notwithstanding any provision of this Certificate of Completion, the City may enforce any covenant surviving this Certificate of Completion in accordance with the terms and conditions of the Agreement and the Grant Deed by which the Property was conveyed to the Developer by the City under the Agreement. The Agreement is an official record of the City and a copy of the Agreement may be inspected at the City’s office located at 303 East B Street, Ontario, California 91764 during the City’s regular business hours.

DATED AND ISSUED this _____ day of ______________, _____.

CITY OF ONTARIO
a California municipal corporation and
general law city

By: ___________________________
City Manager
2561
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EXHIBIT A
TO

CERTIFICATE OF COMPLETION
Legal Description of the Property
207 North Euclid Avenue Ontario, California 91762
APN: 1048-565-09-0000
Legal Description: Lot 10, along with the south seven inches of Lot 9, Block 37, Portion of Ontario, per map recorded in Book 9, Page 43 of Maps, in the office of the County Recorder, County of San Bernardino, California.
2562
46700.00320\42466729.1
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA )
) ss.

COUNTY OF ________________ )
On ________________, before me, , Notary Public,
personally appeared , personally known to me to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

WITNESS my hand and official seal.
_____________________________
Notary Public
2563
Department: Economic Development
Prepared By: Karla Tavera
Staff Member Presenting: Jennifer McLain
Hiramoto, Economic Development Director
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 32
SUBJECT: TAX EQUITY AND FISCAL RESPONSIBILITY ACT (TEFRA) HEARING, MEMBERSHIP

AGREEMENT WITH THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY,

AND ISSUANCE OF REVENUE OBLIGATIONS FOR REAL JOURNEY ACADEMIES

CITY OF ONTARIO
Agenda Report
July 16, 2024
SECTION:

PUBLIC HEARINGS
RECOMMENDATION: That the City Council take the following actions:

A. Conduct a public hearing as required by Section 147(f) of the Internal Revenue Code of 1986 to receive comments relating to the issuance by the California Enterprise Development Authority (“CEDA”) of not to exceed $55,500,000 of the Authority’s Revenue Obligations (the “Obligations”) for the benefit of REAL Journey Academies Foundation, Inc., a California nonprofit public benefit corporation (the “Borrower”);
B. Adopt a Resolution approving an Associate Membership Agreement between the City of Ontario and the CEDA; and,
C. Adopt a Resolution approving the issuance of the Obligations by the Authority to finance the Facilities for the benefit of the Borrower.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
Invest in the Growth and Evolution of the City’s Economy FISCAL IMPACT: There is no direct fiscal impact to the City. The Resolution complies with IRS Section 147(f). The City is not responsible for the tax-exempt status, debt service, or other matters related to the Obligations. Approval is not subject to the California Environmental Quality Act.

BACKGROUND & ANALYSIS: CEDA is a joint powers authority ("JPA") formed by the California Association for Local Economic Development ("CALED") to issue tax-exempt and taxable bonds for commercial and industrial projects. Cities and counties join JPAs to benefit from economies of scale, specialized knowledge, and reduced local staff involvement.

Created by the cities of Selma, Lancaster, and Eureka, CEDA includes approximately 200 associate 2564
members. It supports economic development as an extension of CALED. CEDA's Board has invited the City of Ontario to become an Associate Member, which will help finance industrial, commercial, and public purpose projects. Associate membership offers benefits similar to regular membership without added obligations and allows independent project financing.

The Borrower and CEDA request the City conduct a TEFRA hearing and approve a resolution for the issuance of up to $55,500,000 in tax-exempt obligations. This hearing, required by the IRS, allows public comment on the use of tax-exempt funds by the Borrower. Proceeds will finance the acquisition, renovation, and equipping of educational facilities in Fontana and Ontario, and cover related expenses. The Borrower, a 501(c)(3) nonprofit, will own the facilities, which will be leased to and operated by Real Journey Academies, Inc., a public charter school operator. Real Journey Academies serves about 2,360 students across four campuses in Fontana, and maintains an 8,700 SF administrative office that will employ 26 people in Ontario. The office is located at 3333 Concours Street. While $50,000,000 of the funds will go toward the campuses in Fontana and only $5,000,000 will go toward the administrative offices in Ontario, tax code requires that all parties voting on the matter must approve the total amount of the loan, not just the portion that will be applied to its jurisdiction.

Issuing the Obligations as tax-exempt reduces financing and debt service costs for the Borrower. To comply with tax-exempt requirements, an elected representative of CEDA must conduct the TEFRA hearing and approve the issuance. The City Council of Ontario qualifies as this representative.

Public notice of the hearing was published in accordance with legal requirements. 2565

ASSOCIATE MEMBERSHIP AGREEMENT

BY AND BETWEEN

CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY

AND THE

CITY OF ONTARIO, CALIFORNIA
THIS ASSOCIATE MEMBERSHIP AGREEMENT (this “Associate Membership Agreement”), dated as of __________________ by and between CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY (the “Authority”) and the CITY OF ONTARIO, CALIFORNIA, a municipal corporation, duly organized and existing under the laws of the State of California (the “City”);
WITNESSETH:

WHEREAS, the Cities of Selma, Lancaster and Eureka (individually, a “Member” and collectively, the “Members”), have entered into a Joint Powers Agreement, dated as of June 1, 2006 (the “Agreement”), establishing the Authority and prescribing its purposes and powers; and WHEREAS, the Agreement designates the Executive Committee of the Board of Directors and the President of the California Association for Local Economic Development as the initial Board of Directors of the Authority; and
WHEREAS, the Authority has been formed for the purpose, among others, to assist for profit and nonprofit corporations and other entities to obtain financing for projects and purposes serving the public interest; and
WHEREAS, the Agreement permits any other local agency in the State of California to join the Authority as an associate member (an “Associate Member”); and WHEREAS, the City desires to become an Associate Member of the Authority; and WHEREAS, Council of the City has adopted a resolution approving the Associate Membership Agreement and the execution and delivery thereof; and WHEREAS, the Board of Directors of the Authority has determined that the City should become an Associate Member of the Authority.

NOW, THEREFORE, in consideration of the above premises and of the mutual promises herein contained, the Authority and the City do hereby agree as follows:
2566
2 Section 1. Associate Member Status. The City is hereby made an Associate Member of the Authority for all purposes of the Agreement and the Bylaws of the Authority, the provisions of which are hereby incorporated herein by reference. From and after the date of execution and delivery of this Associate Membership Agreement by the City and the Authority, the City shall be and remain an Associate Member of the Authority, unless or until the City opts to withdraw from the Authority, upon written notice to the Authority Board in accordance with the terms of the Agreement.

Section 2. Restrictions and Rights of Associate Members. The City shall not have the right, as an Associate Member of the Authority, to vote on any action taken by the Board of Directors or by the Voting Members of the Authority, except as to amendment of the Joint Powers Agreement, in which instance the City shall have one vote in accordance with Section 8.5 of the Agreement. In addition, no officer, employee or representative of the City shall have any right to become an officer or director of the Authority.

Section 3. Effect of Prior Authority Actions. The City hereby agrees to be subject to and bound by the Agreement and the Bylaws; provided, however, that the Authority agrees that the City will not be bound by any amendment to the Bylaws that in any way either increases the City’s responsibilities or potential liability under this Agreement or diminishes the City’s rights under this Agreement.

Section 4. No Obligations of Associate Members. The debts, liabilities and obligations of the Authority shall not be the debts, liabilities and obligations of the City.

Section 5. Execution of the Agreement. Execution of this Associate Membership Agreement shall satisfy the requirements of the Agreement and Article XII of the Bylaws of the Authority for participation by the City in all programs and other undertakings of the Authority. 2567
3 IN WITNESS WHEREOF, the parties hereto have caused this Associate Membership Agreement to be executed and attested by their proper officers thereunto duly authorized, on the day and year first set forth above.

CALIFORNIA ENTERPRISE

DEVELOPMENT AUTHORITY
By:

Gurbax Sahota, Chair of the
Board of Directors
Attest:

Michelle Stephens, Assistant Secretary

CITY OF ONTARIO, CALIFORNIA
By:

Mayor
Attest:

City Clerk
2568
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA APPROVING ASSOCIATE MEMBERSHIP IN THE

CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY AND THE

EXECUTION OF AN ASSOCIATE MEMBERSHIP AGREEMENT

RELATING TO ASSOCIATE MEMBERSHIP OF THE CITY IN THE

AUTHORITY
WHEREAS, the City of Ontario, California (the “City”) is a municipal corporation, duly organized and existing under the Constitution and the laws of the State of California; and
WHEREAS, the City, upon authorization of the City Council (the “City Coucil”), may pursuant to Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California, commencing with Section 6500 (the “JPA Law”) enter into a joint exercise of powers agreement with one or more other public agencies pursuant to which such contracting parties may jointly exercise any power common to them; and WHEREAS, the Cities of Selma, Lancaster and Eureka have entered into a Joint Powers Agreement, dated as of June 1, 2006 (the “Agreement”), establishing the California Enterprise Development Authority (the “Authority”) and prescribing its purposes and powers; and
WHEREAS, in furtherance of the City’s economic development efforts, the City desires to become an associate member of the Authority; and WHEREAS, under the JPA Law and the Agreement, the Authority is a public entity separate and apart from the parties to the Agreement and the debts, liabilities and obligations of the Authority will not be the debts, liabilities or obligations of the City or the other members of the Authority; and
WHEREAS, the form of associate membership agreement (the “Associate Membership Agreement”) between the City and the Authority has been filed with the City, and the members of the City Council, with the aid of the City’s staff, have reviewed the Associate Membership Agreement;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Ontario, hereby finds, determines and declares as follows:

Section 1. Associate Membership in the Authority. The City Council hereby approves associate membership by the City in the Authority.

Section 2. Approval of Associate Membership Agreement. The City Council hereby approves the form of, and authorizes the Mayor, the City Manager or any 2569
designee of such officers, to execute the Associate Membership Agreement and authorizes the City Clerk to attest to such signature, in substantially the form on file with the City Clerk, together with any changes therein deemed advisable by the official signing the Associate Membership Agreement.

Section 3. Official Action. The Mayor, the City Manger, the City Clerk and other officers and officials of the City, are hereby authorized and directed to take all actions and do all things necessary with respect to associate membership in the Authority including but not limited to the execution and delivery of any and all agreements, certificates, instruments and other documents which are necessary to effectuate the purposes of this resolution.

Section 4. Effective Date. This Resolution shall take effect upon its adoption by the City Council.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 16th day of July, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
2570

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 July 16, 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 July 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
2571
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, APPROVING THE ISSUANCE OF REVENUE BONDS BY

THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY IN AN
AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $55,500,000

FOR THE PURPOSE OF FINANCING CERTAIN EDUCATIONAL

FACILITIES AND CERTAIN OTHER MATTERS RELATING THERETO
FOR THE BENEFIT OF REAL JOURNEY ACADEMIES, INC.

WHEREAS, the City Council adopted a resolution to become an associate member of the California Enterprise Development Authority (“Authority”) in order to participate in economic development financing programs for the benefit of businesses and nonprofit entities within its jurisdiction.

WHEREAS, the Authority is authorized to issue and sell revenue bonds for the purpose, among others, of financing or refinancing the acquisition, construction, renovation, equipping and furnishing of capital projects.

WHEREAS, REAL Journey Academies, Inc., a nonprofit corporation (the “School”) and an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), has requested that the California Enterprise Development Authority (the “Authority”) issue and sell revenue bonds (the “Bonds”) in the maximum principal amount not to exceed $55,500,000 for the purpose of making a loan to the School to (i) finance the cost of acquisition, renovation, equipping and furnishing of certain educational and ancillary facilities located at the Borrower’s campuses at (a) 7775 Sierra Ave., Fontana, CA 92336, consisting of approximately 51,000 square feet designed to serve approximately 525 students in preschool and in grades 9 through 12 in an amount not to exceed $50,000,000 (the “Entrepreneur High School Fontana”), and (b) 3333 Concours St., Building 9, Ontario, California 91764, consisting of approximately 8,700 square feet designed to serve as administrative offices in an amount not to exceed $5,500,000 (the “Ontario Project”) (collectively, the “Facilities”), (together, the “Project”), (ii) fund a debt service reserve fund; (ii) pay capitalized interest; and (iii) pay certain costs of issuance and other related costs in connection with the issuance of the Bonds.

WHEREAS, The Ontario Project is owned by the School, used for the educational purposes thereof, and is located entirely within the territorial limits of the City.

WHEREAS, pursuant to Section 147(f) of the Code, the issuance of the Bonds by the Authority must be approved by the City because a portion of the Project constituting the Ontario Project is located within the territorial limits of the City.

WHEREAS, the Council of the City (the “City Council”) is the elected legislative body of the City and is one of the “applicable elected representatives” required to approve the issuance of the Bonds under Section 147(f) of the Code. 2572
WHEREAS, the Authority has requested that the City Council approve the issuance of the Bonds by the Authority in order to satisfy the public approval requirements of Section 147(f) of the Code.

WHEREAS, a public hearing was held by the City Council on July 16, 2024, at the meeting which commenced at 6:30 p.m., at the Ontario City Hall located at 303 East B Street, Ontario, California 91764, following duly published notice thereof in a newspaper of general circulation in the City of Ontario, on July 9, 2024, and all persons desiring to be heard have been heard.

WHEREAS, the City Council now desires to approve the issuance of the Bonds by the Authority.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Ontario, California, does hereby resolve, declare, determine and order as follows:

Section 1. The foregoing recitals are true and correct.

Section 2. The City Council hereby approves the refinancing of the Ontario Project and the issuance of the Bonds by the Authority. It is the purpose and intent of the City Council that this Resolution constitute approval of the plan of finance for the Ontario Project and the issuance of the Bonds for the purposes of: Section 147(f) of the Code by the applicable elected representative of the governmental unit having jurisdiction over the area in which the Ontario Project is located, in accordance with said Section 147(f); provided, however, that this Resolution shall not constitute an approval by the City Council of the Project for any other purpose.

Section 3. The issuance of the Bonds shall be subject to the approval of the Authority of all financing documents relating thereto to which the Authority is a party. The City Council shall have no responsibility or liability whatsoever with respect to the Bonds.

Section 4. The officers of the City are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents which they deem necessary or advisable in order to carry out, give effect to and comply with the terms and intent of this Resolution and the financing transaction approved hereby.

Section 5. This Resolution shall take effect immediately upon its adoption.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 16th day of July, 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 July 16, 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 July 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
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Department: Planning
Prepared By: Diane Ayala
Staff Member Presenting: Scott Murphy,
Executive Director Community Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 33
SUBJECT: A PUBLIC HEARING TO CONSIDER FILE NO. PUD23-004, A PLANNED UNIT DEVELOPMENT FOR 21.58 ACRES OF LAND GENERALLY LOCATED SOUTH OF E

STREET, NORTH OF HOLT BOULEVARD, WEST OF EUCLID AVENUE, EAST OF PALM

AVENUE AND THE NORTHERN PORTION OF THE BLOCK BETWEEN FERN AND

PALM AVENUES AND C AND D STREETS

CITY OF ONTARIO
Agenda Report
July 16, 2024
SECTION:

PUBLIC HEARINGS
RECOMMENDATION: That the City Council take the following actions:

A. Consider and adopt a Resolution approving a Mitigated Negative Declaration in accordance with the California Environmental Quality Act and adopting a related Mitigation Monitoring and Reporting Program for File No. PUD23-004; and
B. Introduce and waive further reading of an Ordinance approving File No. PUD23-004, the Downtown West Planned Unit Development (PUD), to establish a set of planning and design principles, development regulations and performance standards to govern future development of 21.58 acres, generally located south of E Street, north of Holt Boulevard, west of Euclid Avenue, east of Palm Avenue and the northern portion of the block between Fern and Palm Avenues and C and D Streets, within the LUA-1 (Euclid Avenue Entertainment) of the MU-1 (Downtown Mixed Use) zoning district.

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 FISCAL IMPACT: There is not a direct fiscal impact associated with this action. Implementation of the Planned Unit Development would result in an increase in property taxes from future development and the one-time payment to the City for plan check fees and development impacts fees.

BACKGROUND & ANALYSIS: The City has initiated a PUD to facilitate the revitalization of downtown Ontario, streamline development, encourage historic preservation and adaptive reuse, and provide development flexibility to achieve the City’s goals to economically revitalize and 2576
aesthetically enhance the Project area. The MU-1 (Downtown Mixed-Use) zoning district requires the preparation and approval of a PUD to establish a set of planning and design principles, development regulations and performance standards to govern future development. The proposed Downtown West Planned Unit Development is appended to the attached Ordinance as "Attachment A.” The Project area is envisioned as a district with a mixture of retail, office, and residential uses in a pedestrian friendly atmosphere, with the most intensive uses envisioned along Euclid Avenue and Holt Boulevard. A maximum intensity of 2.0 Floor Area Ratio and a density range of 25.0 to 75.0 dwelling units per acre is allowed as provided by the MU-1 (Downtown Mixed-Use) zoning district.

The District and Block Plans of the PUD establishes 3 land use subdistricts and includes context sensitive development standards that are specific to each block and location. The Downtown Mixed-Use Retail Core (MU-RC) zone is comprised of 4 City blocks (Blocks A thru D) that front onto Euclid Avenue from Holt Boulevard to D Street and is envisioned as an 18-hour entertainment, shopping, and dining destination. Holt Boulevard, a future multi-modal corridor, is envisioned as the primary east-west connection from the Ontario International Airport/Hospitality district to the downtown. The goals of the MU-RC zone are to enable a mixture of commercial uses with strategic multiple-family residential infill development to activate storefronts to generate pedestrian foot traffic, create an enhanced, vibrant, and active public realm and streetscape along Euclid Avenue, create mid-block connections along Euclid Avenue to increase walkability and activity where public art and outdoor dining are encouraged, and to transform the north-south running public alley into a pedestrian-friendly enhanced connection with entrances, outdoor dining, and “greening” (landscape and enhanced paving) that collectively creates a lively and dynamic atmosphere.

The Downtown Mixed-Use Transitional (MU-T) zone is comprised of 4 City blocks (Blocks E thru H), bordered by Laurel Avenue to the east, Palm Avenue to the west, D Street to the north and Holt Boulevard to the south and is envisioned to enable a mix of commercial uses, multiple-family residential housing types, and mixed-use development. The goals of the MU-T zone are to support development flexibility by allowing variations in building heights to respond to the surrounding context, identifying B Street as an extension of Euclid Avenue as a more walkable retail “Main Street” atmosphere, enhancing the public realm with decorative crosswalks, “bulb out” curb extensions, public art, bicycle infrastructure, and introducing new “placemaking” elements such as suspended lighting and parklets.

The Downtown Residential (DR) zone is a half city block (Block I) located west of Palm Avenue, east of Fern Avenue, south of D Street and north of the public alley. The primary goal of the DR zone is to ensure compatible housing types with the existing surrounding residential neighborhood and create an appropriate transition of land uses and building scale.

COMMUNITY MEETINGS: Community and stakeholder engagement for the PUD included 3 rounds of community outreach conducted through in-person pop-up events as part of existing community events, 2 rounds of targeted stakeholder conversations via roundtable sessions and one in-person showcase. The community and participants displayed overall support for the vision and goals, highlighting the unique character of Ontario’s historic downtown. In addition, they advocated for mobility options to promote accessibility, active transportation infrastructure for safer connections, and public realm enhancements.
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PLANNING COMMISSION REVIEW AND ACTION: On May 28, 2024, the Planning Commission conducted a public hearing to consider the proposed PUD. Upon conclusion of the public hearing, the Planning Commission voted unanimously (5-0) to approve Resolution No. PC24-015, recommending the City Council approve the proposed PUD.

COMPLIANCE WITH THE ONTARIO PLAN: The proposed Project is consistent with the principles, goals and policies contained within the Vision, Governance, Policy Plan (General Plan), and City Council Priorities components of TOP. Goals and policies of TOP that are furthered by the proposed PUD are addressed in the attached Planning Commission backup material.

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. On April 19, 2011, the City Council of the City of Ontario approved and adopted the Ontario International Airport Land Use Compatibility Plan ("ONT ALUCP"), 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. Staff 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, staff has concluded that the proposed PUD is consistent with the policies and criteria set forth within the ONT ALUCP.

ENVIRONMENTAL REVIEW: The proposed PUD is a “project” pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) ("CEQA") and an initial study has been prepared to determine possible environmental impacts. On the basis of the initial study, which indicated that all potential environmental impacts from the Project were less than significant or could be mitigated to a level of insignificance, a Mitigated Negative Declaration was prepared pursuant to CEQA, the State CEQA Guidelines and the City of Ontario Local CEQA Guidelines. Furthermore, to ensure that the mitigation measures are implemented, a Mitigation Monitoring and Reporting Program has been prepared for the Project pursuant to CEQA Guidelines Section 15097, which specifies responsible agencies/departments, monitoring frequency, timing and method of verification and possible sanctions for non-compliance with mitigation measures.

The environmental documentation for this Project is available for review at the Planning Department.
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Case Planner: Diane Ayala Hearing Body Date Decision Action Planning Director
Approval:

PC 5/28/2024 Recommend
CC 1st reading 7/2/2024 Introduction
Submittal Date: N/A CC 2nd reading 7/16/2024 Final
FILE NO: PUD23-004
SUBJECT: A Planned Unit Development to establish a set of planning and design principles, development regulations and performance standards to govern future development of 21.58 acres of land, generally located south of E Street, north of Holt Boulevard, west of Euclid Avenue, east of Palm Avenue, and the northern portion of the block between Fern and Palm Avenues and C and D Streets, within the MU-1 (Downtown Mixed Use) zoning district. City initiated. City Council action is required.

PROPERTY OWNERS: Various
RECOMMENDED ACTION: That the Planning Commission consider and recommend that the City Council approve a Mitigated Negative Declaration, adopting a Mitigation Monitoring Report Program, and approve File No. PUD23-004, pursuant to the facts and reasons contained in the staff report and attached Resolutions.

PROJECT SETTING: The Project site is comprised of 21.58 acres of land generally located south of E Street, north of Holt Boulevard, west of Euclid Avenue, east of Palm Avenue, and the northern portion of the block between Fern and Palm Avenues and C and D Streets, within the MU-1 (Downtown
Mixed Use) zoning district (see Figure 1:

Project Location). The Project area is
situated within the City of Ontario’s
historic downtown and is adjacent to the
City’s Civic Center. The existing
surrounding land uses, zoning, and Policy
Plan (general plan) and specific plan
land use designations are summarized in
the "Surrounding Zoning & Land Uses"
table located in the Technical Appendix
of this report.

PROJECT ANALYSIS:
(1) Background — The Downtown
West Planned Unit Development (“PUD”)
builds upon the vision, development and
Figure 1: Project Location
303 East B Street, Ontario, California 91764 Phone: 909.395.2036 / Fax: 909.395.2420

PLANNING COMMISSION

AGENDA REPORT
May 28, 2024
Project
Area
Approval
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Planning Commission Agenda Report
File No.: PUD23-004
May 28, 2024