Agenda packet — Ontario City Council, September 3, 2024 (part 2 of 3)

303 East B Street, Ontario, California 91764 Phone: 909.395.2036 / Fax: 909.395.2420

LAND DEVELOPMENT DIVISION

CONDITIONS OF APPROVAL

Date Prepared: 7/8/2024

File No: PSP22-001

Related Files: PMTT23-005 & PDEV23-011

Project Description: A Specific Plan (File No. PSP22 -001 – Euclid Mixed Use Specific Plan) to establish the land use districts, development standards, guidelines, and infrastructure improvements for the potential development of up to 1,386,776 square feet of Business Park land uses, 290,110 square feet of office and retail land uses, and 466 dwelling units on the 84 -acre of land generally located east of Euclid Avenue, south of Schaefer Avenue, west of Sultana Avenue and north of Edison Avenue; (APNs: 1053-071-01; 1053-071-02; 1053-071-03; 1053-071-04; 1053-211- 01; 1053-211- 02; 1053- 211-05; 1053-281-01; 1053-281-02; 1053-281-03; 1053-281-04; 1053-281-07; 1053-281-08; 1053-081- 01; 1053-081- 02; 1053-081- 03; 1053-081-04); submitted by Euclid Land Investment LLC.

Prepared By: Edmelynne V. Hutter, AICP, Senior Planner
Phone: 909.395.2429 (direct)
Email: [email protected]

The Planning Department, Land Development Section, conditions of approval applicable to the above-described Project, are listed below. The Project shall comply with each condition of approval listed below:

1.0 Standard Conditions of Approval. The project shall comply with the Standard Conditions for New Development, adopted by City Council Resolution No. 2017-027 on April 18, 2017. A copy of the Standard Conditions for New Development may be obtained from the Planning Department or City Clerk/Records Management Department.

2.0 Special Conditions of Approval. In addition to the Standard Conditions for New Development identified in condition no. 1.0, above, the project shall comply with the following special conditions of approval:

2.1 Specific Plan/Specific Plan Amendment . The following shall be submitted to the Planning Department within 30 days following City Council approval of the Specific Plan/Specific Plan Amendment:

(a) Three copies of the final Specific Plan document.

(b) One complete, unbound copy of the final Specific Plan document.

(c) One USB drive, or download link, containing a complete Microsoft Word, or editable, copy of the final Specific Plan document, including original figures, images and all required revisions.
282
Planning Department – Land Development Division
Conditions of Approval
File No.: PSP22-001

Page 2 of 2 ends

2.2 Additional Fees.

(a) Within 5 days following final application approval, the Notice of Determination (“NOD”) filing fee shall be provided to the Planning Department. The fee shall be paid by check, made payable to the "Clerk of the Board of Supervisors", which shall be forwarded to the San Bernardino County Clerk of the Board of Supervisors, along with all applicable environmental forms/notices, pursuant to the requirements of the California Environmental Quality Act (“CEQA”). Failure to provide said fee within the time specified will result in the extension of the statute of limitations for the filing of a CEQA lawsuit from 30 days to 180 days.

283
Department: Development Administration
Prepared By: Pablo De Lara
Department:

Prepared By: Pablo De Lara
Staff Member Presenting: Scott Murphy,
Executive Director Community Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 7
SUBJECT:

AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT (FILE NO. PDA23- 004) BETWEEN THE CITY OF ONTARIO AND EUCLID LAND INVESTMENT, LLC

CITY OF ONTARIO
Agenda Report
September
3, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council consider and adopt an Ordinance approving a Development Agreement (File No. PDA23-004) between the City of Ontario and Euclid Land Investment, LLC, to establish the terms and conditions associated with Tentative Parcel Map 20714 (File No. PMTT23-005), a 60-acre property located east of Euclid Avenue, south of Schaefer Avenue, west of future Sultana Avenue and north of Edison Avenue within the Euclid Mixed Use Speciﬁc Plan.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT:

The proposed Development Agreement (File No. PDA23-004) will not have a direct ﬁscal impact on the City's General Fund. The Development Agreement will provide funding from the formation of a Community Facilities District (CFD) for City services and facilities required to support the Euclid Mixed Use Speciﬁc Plan (Speciﬁc Plan) development, thereby mitigating the increased costs associated with such services. In addition, the City will receive development impact, compliance processing, licensing, and permitting fees. No General Fund revenue will be used to support the Ontario Ranch development.

BACKGROUND & ANALYSIS:

On August 20, 2024, the City Council held a public hearing to introduce and waive further reading of an Ordinance Approving the Development Agreement (File No. PDA23-004).

The Ontario Ranch ﬁnancial commitments required for construction of properties within a speciﬁc 284
plan are substantial. Therefore, in order to adequately forecast these costs and gain assurance that the project may proceed under the existing policies, rules, and regulations, Euclid Land Investment, LLC ("Owner"), has requested that the City enter into negotiations to create a Development Agreement ("Agreement").

The Agreement is proposed outside of the NMC Builders Construction Agreement development area and was established in coordination between the City Attorney and the Owner's legal counsel.

The provisions of the Agreement are consistent with the commitments to assure adequate public infrastructure improvements are constructed or funded by the Owner.

The Agreement proposes to include 60 acres of land within the Euclid Mixed Use Speciﬁc Plan, as shown on the attached Exhibit A. The Agreement grants the Owner a vested right to develop Tentative Parcel Map 20714 ("Map"), provided the Owner complies with the terms and conditions of the Specific Plan and related Environmental Impact Report (EIR).

The Map (see attached Exhibit B) is generally bounded by Schaefer, Sultana, Edison and Euclid Avenues, and proposes to subdivide 60 acres of land into 13 numbered lots and 2 lettered lots to facilitate the construction of 12 business park buildings, totaling 882,538 square feet, and the associated landscape, common interest amenities, and facilities that are necessary for the project.

The term of the Agreement is for 10 years, with a 5-year option to renew. The main points of the Agreement address funding for all new City expenses created by the project, which includes:

Development Impact Fees (DIF) for construction of public improvements (i.e. streets and bridges, sewer, water, storm drain and ﬁber); and the creation of a Community Facilities District (CFD) for the maintenance of public facilities. Additionally, the Owner shall pay in lieu-fees to the City for the future construction and completion of Ontario Ranch Regional Water and Storm Drain improvements.

In considering the Agreement at their meeting on July 23, 2024, the Planning Commission found the Agreement to be consistent with State law, The Ontario Plan, and the City's Development Agreement policies. As a result, the Planning Commission adopted Resolution No. PC24012 with a 6 to 0 vote, recommending City Council approval of the Agreement.

ENVIRONMENTAL REVIEW:

The Speciﬁc Plan is located in what was formerly the City of Ontario Sphere of Inﬂuence (“SOI”) area, which consists of roughly 8,200 acres at the south end of the City.

On January 7, 1998, the City of Ontario adopted the New Model Colony (“NMC”) General Plan Amendment, setting forth a comprehensive strategy for the future development of the SOI. The NMC is bounded by Riverside Drive to the north, Hamner Avenue to the east, Euclid Avenue to the west, and Merrill Avenue/Bellegrave to the south.

Since the adoption of the NMC General Plan Amendment, the City has updated the General Plan on diﬀerent occasions. On January 27, 2010, the City adopted The Ontario Plan and certiﬁed the accompanying Environmental Impact Report (SCH# 2008101140). On August 16, 2022, the City adopted The Ontario Plan 2050 (TOP 2050), which was an update to The Ontario Plan adopted in 2010 and included the certiﬁcation of an accompanying Supplemental Environmental Impact Report (SCH# 2021070364). The Policy Plan component of TOP 2050 serves as the General Plan for 285
the entire City, including the NMC (now referred to as “Ontario Ranch”). TOP 2050 identiﬁed many areas that might have potentially signiﬁcant impacts on the environment. These areas included 1) Aesthetics; 2) Biological Resources; 3) Geology and Soils; 4) Hazards and Hazardous Materials; 5) Hydrology and Water Quality; 6) Land Use and Planning; 7) Mineral Resources; 8) Population and Housing; 9) Public Services; 10) Recreation; and 11) Utilities and Service systems. Through the EIR process, these potential impacts were analyzed, revisions were incorporated into the plan, and/or mitigation measures were identiﬁed that reduced the potential environmental impacts to a level that was less than significant.

TOP 2050 also identiﬁed several potential impacts that, even with revisions and/or mitigation measures, could not be reduced to a level of less than signiﬁcant. These areas included Air Quality, Cultural Resources, Noise, and Transportation. While these impacts will be signiﬁcant and unavoidable, the City determined that the beneﬁts of the Ontario Ranch development outweigh the potential unavoidable, adverse impacts of the plan. As a result, the City adopted a Statement of Overriding Considerations for those impacts that could not be fully mitigated to a level of less than significant.

The TOP 2050 EIR analyses focused on the program, or “big picture” impacts associated with development. With the submittal of the
EMUSP
, staﬀ is charged with evaluating the potential
impacts of development at the project level, looking speciﬁcally at the project proposal and any potential environmental impacts associated with it. Staﬀ completed an Initial Study for the Project and determined that an EIR should be prepared for the
EMUSP
. Through the Initial Study
preparation and scoping meeting discussion, an EIR was prepared for the EMUSP
addressing the
following issues:

Aesthetics
Agricultural and Forestry Resource
Air Quality Biological Resources
Cultural Resources
Energy
Geology and Soils
Greenhouse Gas Emissions
Hazards and Hazardous Materials
Hydrology and Water Quality
Land Use and Planning
Noise
Population and Housing
Public Services
Transportation
Tribal Cultural Resources
Utilities and Service Systems

The
EMUSP
EIR evaluates each of these various areas and identiﬁes mitigation measures and/or revisions to the plan to lessen the level of signiﬁcance. The EIR analyzed EMUSP
Phase 1 based on
the proposed
EMUSP
land uses, development intensities, conceptual designs, infrastructure requirements, and onsite surveys and studies. However, access to properties within Phase 2 could 286
not be obtained and, therefore, the level of impact cannot be known for categories such as Biological Resources, Geology and Soils, and Hazards and Hazardous Materials since onsite surveys could not be conducted. It is conceivable that, when development of Phase 2 is proposed and onsite access is obtained, the potentially signiﬁcant impacts on Biological Resources, Geology and Soils, and Hazards and Hazardous Materials in Phase 2 can be mitigated to less than signiﬁcant.

Nevertheless, since level of impact cannot be known for Phase 2 areas at this time, the EMUSP
EIR
conservatively concludes that there are significant and unavoidable impacts.

With the implementation of the various mitigation measures, many of the potential adverse impacts can be reduced to a level of less than signiﬁcant. Of the 17 areas considered by the EIR, all but seven areas were less than signiﬁcant or mitigated to a level of less than signiﬁcant. The seven remaining impact areas, even with the mitigation measures, could not be reduced to less than signiﬁcant, resulting in some impacts remaining potentially signiﬁcant and unavoidable. These areas are:

Agricultural and Forestry Resources
Air Quality
Biological Resources (Phase 2 only)
Cultural Resources
Geology and Soils (Phase 2 only)
Greenhouse Gas Emissions
Hazards and Hazardous Materials (Phase 2 only)

While mitigation of all potential impacts to a level of less than signiﬁcant is desirable, the fact that seven areas will remain signiﬁcant and unavoidable is not unexpected. The identiﬁcation of these areas as signiﬁcant and unavoidable also validates the work previously completed for TOP 2050.

Staﬀ continues to believe that the beneﬁts of the proposed development outweigh the potential impacts associated with it. Therefore, staﬀ recommends the Planning Commission recommend certiﬁcation of the EIR to the City Council and that a Statement of Overriding Considerations be adopted for the Project.
287
ORDINANCE NO. _________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PDA23-004, A DEVELOPMENT

AGREEMENT BETWEEN THE CITY OF ONTARIO AND EUCLID LAND

INVESTMENT, LLC, TO ESTABLISH THE TERMS AND CONDITIONS
ASSOCIATED WITH TENTATIVE PARCEL MAP 20714 (FILE
NO.PMTT23-005), A 60 ACRE PROPERTY LOCATED EAST OF

EUCLID AVENUE, SOUTH OF SCHAEFER AVENUE, WEST OF

SULTANA AVENUE AND NORTH OF EDISON AVENUE WITHIN THE
EUCLID MIXED USE SPECIFIC PLAN (FILE NO. PSP22-001); (APNS:
1053-071-01; 1053-071-02; 1053-071-03; 1053-071-04; 1053-211-01; 1053-211-02; 1053-281-08; 1053-081-01; 1053-081-02; 1053-081-03; 1053-081-04)
WHEREAS Euclid Land Investment, LLC ("Applicant") has filed an application for the approval of a Development Agreement, File No. PDA23-004 as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and WHEREAS, the Application applies to 60 acres of land, located east of Euclid Avenue, south of Schaefer Avenue, west of Sultana Avenue and north of Edison Avenue within a proposed Euclid Mixed Use Specific Plan (File No. PSP22-001); and WHEREAS, the applicant submitted Tentative Parcel Map 20714 (File No.

PMTT23-005) to subdivide 60 acres of land into 13 numbered lots and 2 lettered lots to facilitate the construction of 12 business park buildings collectively totaling 882,538 square feet, and the associated landscape, common interest amenities, and facilities that are necessary for the project; and
WHEREAS, the environmental impacts of this project were reviewed in conjunction with the Euclid Mixed Use Specific Plan (File No. PSP22-001), for which an Environmental Impact Report (State Clearinghouse No. 2023020281) was prepared.

This application introduces no new significant environmental impacts; and WHEREAS, the City's "Local Guidelines for the Implementation of the California Environmental Quality Act (CEQA)" provide for the use of a single environmental assessment in situations where the impacts of subsequent projects are adequately analyzed; and
WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and make recommendations to the City Council on the subject Application; and
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 288
of all its aspects, it is found to further the purposes, principals, goals, and policies of the Housing Element; and
WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and make recommendations to the City Council on the subject Application; and
WHEREAS, the Project has been reviewed for consistency with the Housing Element of the Policy Plan component of The Ontario Plan, as State Housing Element law (as prescribed in Government Code Sections 65580 through 65589.8) requires that development projects must be consistent with the Housing Element, if upon consideration of all its aspects, it is found to further the purposes, principals, goals, and policies of the Housing Element; and
WHEREAS, the Project is located within the Airport Influence Area of Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and is subject to, and must be consistent with, the policies and criteria set forth in the Ontario International Airport Land Use Compatibility Plan (hereinafter referred to as "ALUCP"), which applies only to jurisdictions within San Bernardino County, and addresses the noise, safety, airspace protection, and overflight impacts of current and future airport activity; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on July 23, 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 August 20, 2024, the City Council of the City of Ontario, California, conducted a hearing to consider the Project and concluded said hearing on that date; and
WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND RESOLVED by the City Council of the City of Ontario, as follows:

SECTION 1: Environmental Determination and Findings. As the recommending authority for the Project, the City Council has reviewed and considered the information contained in the EIR and supporting documentation. Based upon the facts and information contained in the EIR and supporting documentation, the City Council finds as follows:
(1) The Environmental Impact Report (State Clearing House No. 2023020281) was approved for City Council consideration by the Planning 289
Commission on July 23, 2024. This application introduces no new significant environmental impacts; and
(2) The EIR contains a complete and accurate reporting of the environmental impacts associated with the Project; and
(3) The EIR was completed in compliance with CEQA and the Guidelines promulgated thereunder; and
(4) The EIR reflects the independent judgment of the City Council; and (5) The proposed project will introduce no new significant environmental impacts beyond the EIR, and all mitigation measures adopted with the EIR, are incorporated herein by this reference.

SECTION 2: Subsequent or Supplemental Environmental Review Not Required. Based on the information presented to the City Council, and the specific findings set forth in Section 1, above, the City Council finds that the preparation of a subsequent or supplemental EIR is not required for the Project, as the Project:
(1) Does not constitute substantial changes to the EIR that will require major revisions to the EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and
(2) Does not constitute substantial changes with respect to the circumstances under which the EIR was prepared, that will require major revisions to the EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and
(3) Does not contain new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the EIR was certified/adopted, that shows any of the following:
(a) The project will have one or more significant effects not discussed in the EIR; or
(b) Significant effects previously examined will be substantially more severe than shown in the EIR; or
(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the City declined to adopt such measures; or
(d) Mitigation measures or alternatives considerably different from 290
those analyzed in the EIR would substantially reduce one or more significant effects on the environment, but which the City declined to adopt.

SECTION 3: Housing Element Compliance. Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as the recommending authority for the Project, the City Council finds that based on the facts and information contained in the Application and supporting documentation, at the time of Project implementation, the project is consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan. The project site is not one of the properties in the Housing Element Sites contained in Tables B-1 and B-2 (Housing Element Sites Inventory) of the Housing Element Technical Report.

SECTION 4: Airport Land Use Compatibility Plan ("ALUCP") Compliance.

The California State Aeronautics Act (Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan.
(1) On April 19, 2011, the City Council of the City of Ontario approved and adopted the Ontario International Airport Land use Compatibility Plan, establishing the Airport Influence Area for Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. As the recommending body for the Project, the City Council has reviewed and considered the facts and information contained in the Application and supporting documentation against the ONT ALUCP compatibility factors, including [1] Safety Criteria (ONT ALUCP Table 2-2) and Safety Zones (ONT ALUCP Map 2-2), [2] Noise Criteria (ONT ALUCP Table 2-3) and Noise Impact Zones (ONT ALUCP Map 2-3), [3] Airspace protection Zones (ONT ALUCP Map 2-4), and [4] Overflight Notification Zones (ONT ALUCP Map 2-5). As a result, the City Council, therefore, finds and determines that the Project, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the ONT ALUCP; and
SECTION 5: Concluding Facts and Reasons. Based upon the substantial evidence presented to the City Council during the above-referenced hearing, and upon the specific findings set forth in Section 1 through 4, above, the City Council hereby concludes as follows:
(1) The Development Agreement applies to approximately 60 acres of land, located east of Euclid Avenue, south of Schaefer Avenue, west of Sultana Avenue and north of Edison Avenue within a proposed Euclid Mixed Use Specific Plan (File No. PSP22-001); and
291
(2) The Development Agreement establishes parameters for the development of land within the Euclid Mixed Use Specific Plan. The Development Agreement also grants the Applicant, the right to develop, the ability to quantify the fees; and establish the terms and conditions that apply to those projects. These terms and conditions are consistent with The Ontario Plan Policy Plan (General Plan), design guidelines and development standards for the Euclid Mixed Use Specific Plan; and
(3) The Development Agreement grants the Applicant a vested right to develop Tentative Parcel Map 20714 (File No. PMTT23-005) as long as the Applicant complies with the terms and conditions of the Euclid Mixed Use Specific Plan and EIR. Tentative Parcel Map 20714 is located east of Euclid Avenue, south of Schaefer Avenue, west of Sultana Avenue and north of Edison Avenue within the Euclid Mixed Use Specific Plan, and to subdivide 60 acres of land into 13 numbered lots and 2 lettered lots to facilitate the construction of 12 business park buildings collectively totaling 882,538 square feet; and
(4) The Development Agreement has been prepared in conformance with the goals and policies of The Ontario Plan Policy Plan (General Plan); and (5) The Development Agreement does not conflict with the Land Use Policies of The Ontario Plan Policy Plan (General Plan) and will provide for development, within the district, in a manner consistent with the Policy Plan and with related development; and
(6) This Development Agreement will promote the goals and objectives of the Land Use Element of the Policy Plan. The Environmental Impact Report (State Clearing House No. 2023020281) was approved for City Council consideration by the Planning Commission on July 23, 2024; and (7) This Application introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of project approval and are incorporated herein by this reference.

SECTION 6: City Council Action. Based upon the findings and conclusions set forth in Sections 1 through 5, above, the City Council hereby RECOMMENDS THE CITY COUNCIL APPROVE the herein described Application, subject to each and every condition set forth in the Development Agreement (File No. PDA23-004) attached hereto as "Attachment A," and incorporated herein by this reference SECTION 7: City Council Required Actions. Approval of this Application is contingent upon City Council approving the following:
(1) Euclid Mixed Use Specific Plan (File No. PSP22-001) (2) Euclid Mixed Use Specific Plan EIR (SCH #2023020281) 292
If the City Council does not approve the Euclid Mixed Use Specific Plan (File No. PSP22- 001) and the Euclid Mixed Use Specific Plan EIR (SCH #2023020281), this Resolution should become null and void and of no further force and effect.

SECTION 8: Indemnification. The Applicant shall agree to defend, indemnify and hold harmless, the City of Ontario or its agents, officers, and employees from any claim, action or proceeding against the City of Ontario or its agents, officers or employees to attack, set aside, void, or annul this approval. The City of Ontario shall promptly notify the applicant of any such claim, action, or proceeding, and the City of Ontario shall cooperate fully in the defense.

SECTION 9: Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings have been based are located at the City of Ontario City Hall, 303 East "B" Street, Ontario, California 91764. The custodian for these records is the City Clerk of the City of Ontario.

SECTION 10: Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The People of the City of Ontario hereby declare that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

SECTION 11: Effective Date. This Ordinance shall become effective 30 days following its adoption.

SECTION 12: Publication and Posting. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within 15 days following the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this 3rd day of September, 2024. _____________________________________
PAUL S. LEON, MAYOR
293
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
294

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 August 20, 2024 and adopted at the regular meeting held September 3, 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 September 3, 2024 and that Summaries of the Ordinance were published on ___________ and _____________, in the Inland Valley Daily Bulletin newspaper. __________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
295
ATTACHMENT A:

FILE NO. PDA23-004

DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation
and
Euclid Land Investment, LLC
A Delaware limited liability company
(Development Agreement to follow this page)
296

Exhibit A— Euclid Mixed Use Specific Plan (File No. PSP22-001)

297
Exhibit B— TENTATIVE PARCEL MAP 20714

298
1 RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:

CITY OF ONTARIO

CITY CLERK / RECORDS MANAGEMENT
303 EAST "B" STREET
ONTARIO, CA 91764-4196
______________________________________________________________________ Space above this line for Recorder's Use Only Exempt from Fees Per Gov. Code § 6103 File No. PDA23-004

DEVELOPMENT AGREEMENT
By and Between

CITY OF ONTARIO
a California municipal corporation
and
Euclid Land Investment, LLC
A Delaware limited liability company
______________, 2024
San Bernardino County, California
299
46700.10300\33554440.1
2 DEVELOPMENT AGREEMENT NO. PDA23-004
This Development Agreement (hereinafter "Agreement") is dated for reference purposes only as of the ____ day of ____________, 2024 by and among the City of Ontario, a California municipal corporation (hereinafter "CITY"), Euclid Land Investment, LLC a Delaware limited liability company (hereinafter "OWNER"):

RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864, et seq. of the Government Code and Section

4.01.015 of the Ontario Development Code; and
WHEREAS, OWNER has requested CITY to enter into a development agreement and proceedings have been taken in accordance with the rules and regulations of CITY; and
WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and
WHEREAS, the terms and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and
WHEREAS, the best interests of the citizens of the CITY and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, all of the procedures of the California Environmental Quality Act, Pub.

Res. Code § 21000, et seq. (“CEQA”) have been met with respect to the Project and the Agreement in that certain Euclid Mixed Use Specific Plan Amendment Subsequent Environmental Impact Report (State Clearinghouse No. State Clearinghouse No. 2023020281 (the "FEIR").

WHEREAS, on _____________the City Council found and determined that the FEIR was prepared in accordance with the requirements of CEQA and adequately describes the impacts of the Project described in the FEIR, which included consideration of this Agreement; and
WHEREAS, this Agreement and the Project are consistent with the CITY's Comprehensive General Plan and the Euclid Mixed Use Specific Plan and WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and 300
46700.10300\33554440.1
3 WHEREAS, development of the Project Site, as more particularly described and depicted in Exhibits A and B, respectively (the "Property") in accordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under Section 65864 et seq. of the Government Code are intended; and
WHEREAS, OWNER has incurred and will in the future incur substantial costs in order to assure development of the Property in accordance with this Agreement; and WHEREAS, OWNER has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Property in accordance with this Agreement.

COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. DEFINITIONS AND EXHIBITS.

1.1 Definitions. The following terms when used in this Agreement shall be defined as follows:

1.1.1 "Agreement" means this Development Agreement.

1.1.2 "CITY" means the City of Ontario, California, a California municipal corporation.

1.1.3 "Development" means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of public infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping. "Development" does not include the maintenance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.

1.1.4 "Development Approvals" means all permits and other entitlements for use subject to approval or issuance by CITY in connection with development of the Property including, but not limited to:
(a) general plans and general plan amendments; and specific plans and specific plan amendments;
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4 (b) tentative and final subdivision and parcel maps;
(c) development plan review.

1.1.5 "Development Exaction" means any requirement of CITY in connection with or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests.

1.1.6 "Development Impact Fee" means a monetary exaction, other than a tax or special assessment, whether characterized as a fee or a tax and whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, and, for purposes of this Agreement only, includes fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4. For purposes of this Agreement only, "Development Impact Fee" shall not include processing fees and charges imposed by CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued, including, without limitation, fees for zoning variances; zoning changes; use permits; building inspections; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000, Division 3 (commencing with Section 56000) of Title 5 of the Government Code; the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Government Code, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public Utilities Code, as such codes may be amended or superseded, including by amendment or replacement.

1.1.7 "Development Plan" means the Existing Development Approvals and the Existing Land Use Regulations applicable to development of the Property.

1.1.8 "Effective Date" means the date that the ordinance approving this Agreement goes into effect.

1.1.9 "Existing Development Approvals" means all Development Approvals approved or issued on or prior to the Effective Date. Existing Development Approvals includes the Approvals incorporated herein as Exhibit "C" and all other Approvals which are a matter of public record on the Effective Date.
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5 1.1.10 "Existing Land Use Regulations" means all Land Use Regulations in effect on the date of the first reading of the ordinance adopting and approving this Agreement.

Existing Land Use Regulations includes the Regulations incorporated herein as Exhibit "D" and all other Land Use Regulations that are in effect and a matter of public record on such date.

1.1.11 "General Plan" means The Ontario Plan adopted on August 16, 2022, as amended up to the date of the first reading of the ordinance adopting and approving this Agreement.

1.1.12 "Improvement" or "Improvements" means those public improvements required to support the development of the Project as described in the Parcel Map conditions for Parcel Map No. 20714 ("Parcel Map") as further described in Exhibit "E" and depicted in Exhibit “F”(together, the "Infrastructure Improvements Exhibit").

1.1.13 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. "Land Use Regulations" does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of similar rights and interests that provide for the use of or the entry upon public property; (e) the exercise of the power of eminent domain.

1.1.14 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns.

1.1.15 "OWNER" means the persons and entities listed as owner on page 1 of this Agreement and their permitted successors in interest to all or any part of the Property.

1.1.16 "Owner Affiliate" shall mean, (i) any entity that directly or indirectly controls, is controlled by, or is under common control with OWNER, or (ii) an entity at least a majority of whose economic interest is owned by OWNER. For purposes of this definition, the term “control” means the power to direct the management of such entity through voting rights, ownership or contractual obligations.
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6 1.1.17 “Phase” means the development area described in the Infrastructure Improvements Exhibit to this Agreement.

1.1.18 “Phase 2 Water Participation Fee” means the fee paid to the CITY for the Project, to fund the Property’s respective share of the project costs of the design and construction of the Phase 2 Water Improvements by the CITY. The Phase 2 Water Participation Fee shall be the calculated amount of the Regional Water DIF for the Project based upon the number of square feet, acreage, and land use category for non-residential square footage of the Project.

1.1.19 "Project" means the development of the Property contemplated by the Development Plan, as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement.

1.1.20 "Property" means the real property described on Exhibit "A" and shown on Exhibit "B" to this Agreement.

1.1.21 "Reservations of Authority" means the rights and authority excepted from the assurances and rights provided to OWNER under this Agreement and reserved to CITY under Section 3.4 of this Agreement.

1.1.22 "Specific Plan" means that certain specific plan adopted by the City Council, and entitled, "Euclid Mixed Use Specific Plan".

1.1.23 "Subsequent Development Approvals" means all discretionary Development Approvals required subsequent to the Effective Date in connection with development of the Property. Subsequent Development Approvals shall be deemed to be subject to the provisions of this Agreement, without any further action needed on the part of either the CITY or OWNER.

1.1.24 "Subsequent Land Use Regulations" means any discretionary Land Use Regulations adopted and effective after the Effective Date of this Agreement.

1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:

Exhibit "A" — Legal Description of the Property.

Exhibit "B" — Map showing Property and its location.

Exhibit "C" — Existing Development Approvals.

Exhibit "D" — Existing Land Use Regulations.

Exhibit "E" — Description of Required Infrastructure Improvements Exhibit "F" — Depiction of Infrastructure Improvements Exhibits 304
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7 Exhibit "G" – Form of Certificate of DIF Credit to be issued by CITY

2. GENERAL PROVISIONS.

2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out only in accordance with the terms of this Agreement.

2.2 Ownership of Property. OWNER represents and covenants that it is the owner of fee simple title or the lessee or an optionee of the Property or a portion(s) thereof. To the extent applicable, OWNER has obtained written consent from the current fee owner of the Property agreeing to the terms of this Agreement and the recordation thereof.

2.3 Term. The term of this Agreement shall commence on the Effective Date and shall continue for an initial term of ten (10) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement. Upon approval by the City Manager, without the need for City Council approval, the term of this Agreement may be extended for an additional five (5) years following expiration of the initial ten (10) year term, provided the following have occurred:
(a) OWNER provides at least 180 days written notice to CITY prior to expiration of the initial term; and
(b) OWNER is not then in uncured default of this Agreement.

2.4 Assignment.

2.4.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410, et seq.), to any person, partnership, limited liability company, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement with respect to the portion of the Property sold and be made in strict compliance with the following:
(a) Except as expressly provided for herein, no sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property. (b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, OWNER shall notify CITY's City Manager, in writing, of such sale, transfer or assignment and shall provide CITY with: (1) an executed agreement, in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Agreement with respect to the portion of the Property so sold, transferred or assigned. 305
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8 (c) Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by OWNER under this Agreement.

Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection 2.4.1, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed. The City Manager shall have the authority to review, consider and either approve, conditionally approve, or deny any proposed sale, transfer or assignment that is not made in compliance with this section 2.4. (d) Notwithstanding the foregoing, OWNER shall have the right to assign this Agreement to an Owner Affiliate subject to the notice requirements to CITY as described in Paragraph (b) of this Section 2.4.1, above.

2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement unless such transferring owner is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring owner of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the portion of the Property sold, transferred or assigned.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed an agreement as required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER (if any) to secure performance of its obligations hereunder which are to be performed upon portion of the Property sold, transferred or assigned.

2.4.3 Effect of Assignment and Release of Obligations. In the event of a sale, transfer or assignment pursuant to the provisions of Section 2.4.1 and notwithstanding the release provisions of Section 2.4.2 above:
(a) The assignee shall be liable for the performance of all obligations of OWNER with respect to transferred property, but shall have no obligations with respect to the portions of the Property, if any, not transferred (the "Retained Property"). (b) The owner of the Retained Property shall be liable for the performance of all obligations of OWNER with respect to Retained Property, but shall have no further obligations with respect to the transferred property.
(c) The assignee's exercise, use and enjoyment of the Property or portion thereof shall be subject to the terms of this Agreement to the same extent as if the assignee were the OWNER.
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9 2.4.4 Subsequent Assignment. Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section 2.4.

2.4.5 Termination of Agreement With Respect to Individual Lots Upon Sale to Public and Completion of Construction. The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one (1) year) of any parcel which has been finally subdivided and is individually (and not in "bulk") sold or leased to a member of the public or other ultimate user of the parcel. Notwithstanding any other provisions of this Agreement, this Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
(a) The lot has been finally subdivided and individually (and not in "bulk") sold or leased (for a period longer than one (1) year) to a member of the public or other ultimate user; and,
(b) A certificate of occupancy has been issued for a building on the parcel, and the fees set forth under Section 4 of this Agreement have been paid.

2.4.6 Partial Assignment and Assumption. CITY and OWNER agree OWNER may partially assign its obligations and rights under this Agreement, and all amendments hereto, to a purchaser, transferee or assignee of a lot, which has been subdivided subject to provisions of a partial assignment and assumption agreement in a form approved by CITY. Any such complete and executed partial assignment and assumption of this Agreement shall be submitted to CITY for approval pursuant to Section 2.4.1 of this Agreement. Within thirty (30) days following such complete submittal, CITY shall review, and if the above conditions are satisfied, may approve the partial assignment and release and notify the purchaser, transferee or assignee in writing thereof. No such release approved pursuant to this Subsection 2.4.6 shall cause, or otherwise affect, a release of OWNER from the duties and obligations under this Agreement that are retained by OWNER and excluded from the transfer or assignment.

2.5 Amendment or Cancellation of Agreement. This Agreement may be amended or cancelled in whole or in part only in the manner provided for in Government Code Section 65868.1. Any amendment of this Agreement, which amendment has been requested by OWNER, shall be considered by the CITY only upon the payment of the applicable processing charge. This provision shall not limit any remedy of CITY or OWNER as provided by this Agreement. Either party or successor in interest, may propose an amendment to or cancellation, in whole or in part, of this Agreement. Any amendment or cancellation shall be by mutual consent of the parties or their successors in interest except as provided otherwise in this Agreement or in Government Code Section 65865.1. For purposes of this section, the term "successor in interest" shall mean any person having a legal or equitable interest in the whole of the Property, or any portion thereof as to which such person wishes to amend or cancel this Agreement. The procedure for proposing and adopting an amendment to, or cancellation of, in whole or in part, this Agreement shall be the same as the procedure for adopting and entering into this Agreement in the 307
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10 first instance. Notwithstanding the foregoing sentence, if the CITY initiates the proposed amendment to, or cancellation of, in whole or in part, this Agreement, CITY shall first give notice to the OWNER of its intention to initiate such proceedings at least sixty (60) days in advance of the giving the public notice of intention to consider the amendment or cancellation.

2.6 Minor Modification. Upon the written application of OWNER, minor modifications and changes to the Development Plan including modifications to building design or footprint (not affecting minimum setbacks), parking layout and design, and landscape area design may be approved by the Director of the Planning Department without the need to amend this Development Agreement. Other changes in the Development Plan shall be processed pursuant to the City Zoning Ordinance. It is also contemplated by CITY and OWNER that OWNER may, from time to time, seek amendments to one or more of the Development Approvals. Any such amendments are contemplated by CITY and OWNER as being within the scope of this Agreement as long as they are consistent with the Land Use Regulations and shall, upon approval by CITY, continue to constitute the Development Approvals as referenced herein. The parties agree that any such modifications or amendments shall not constitute an amendment to this Agreement nor require an amendment to this Agreement.

2.7 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
(a) Expiration of the stated term of this Agreement as set forth in Section 2.3. (b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement.
(d) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications.

Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Agreement. Upon such termination, any public facilities and service mitigation fees paid pursuant to Section 4.2 of this Agreement by OWNER to CITY on which construction has not yet begun shall be refunded to OWNER by CITY within ten (10) business days.

2.8 Notices.
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11 (a) As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. (b) All notices shall be in writing and shall be considered given either: (i) when delivered in person, including, without limitation, by courier, to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below. All notices shall be addressed as follows:

If to CITY:

Scott Ochoa, City Manager
City of Ontario
303 East "B" Street
Ontario, CA 91764
If to OWNER:

Euclid Land Investment, LLC, A Delaware
limited liability company
By: RCCD, Inc. a California corporation,
Its Manager
By: Richard Cisakowski, Its President
8101 E. Kaiser Blvd. Suite 140Anaheim
Hills, CA 92808
With a copy to:

Ruben Duran, City Attorney
Best Best & Krieger, LLP
2855 E Guasti Road
Ontario, CA 91761
With a copy to:

John Condas
Allen Matkins Leck Gamble Mallory &
Natsis LLP
2010 Main Street, Suite 800, Irvine, CA
92614
Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.

3. DEVELOPMENT OF THE PROPERTY.

3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservations of Authority in Section 3.4, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the Development Plan. The Project shall remain subject to all Subsequent Development Approvals required to complete the Project as contemplated by the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the 309
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12 maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Development Plan.

3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservations of Authority in Section 3.4, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, CITY shall exercise discretion in accordance with the same manner as it exercises its discretion under its police powers, including the Reservations of Authority set forth herein; provided however, that such discretion shall not prevent development of the Property for the uses and to the density or intensity of development set forth in this Agreement.

3.3 Timing of Development. The parties acknowledge that OWNER cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of OWNER, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v.

City of Camarillo (1984) 37 Cal. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that OWNER shall have the right to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment.

3.3.1 Infrastructure Improvement Exhibit. Attached hereto as Exhibits “E” and "F" are a description and depiction, respectively, of the Improvements needed for the development of the Property. In the event of any discrepancy between Exhibit E and Exhibit F, Exhibit F shall control.

3.4 Reservations of Authority.

3.4.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the CITY shall not be prevented from applying new rules, regulations and policies upon the OWNER, nor shall a development agreement prevent the CITY from denying or conditionally approving any subsequent development project application on the basis of such new rules, regulations and policies where the new rules, regulations and policies consist of the following:
(a) Processing fees by CITY to cover costs of processing applications for development approvals or for monitoring compliance with any development approvals; (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records and any other matter of procedure; 310
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13 (c) Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including all uniform codes adopted by the CITY and any local amendments to those codes adopted by the CITY; provided however that, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the standards and specifications that are expressly identified in the Specific Plan and the building codes in effect as of the Effective Date;
(d) Regulations that may conflict with this Agreement and the Development Plan but that are reasonably necessary to protect the occupants of the Project and/or of the immediate community from a condition perilous to their health or safety; (e) Regulations that do not conflict with those rules, regulations and policies set forth in this Agreement or the Development Plan and which do not impose additional obligations, costs, and expenses on OWNER or the Project; (f) Regulations that may conflict with this Agreement but to which the OWNER consents.

3.4.2 Subsequent Development Approvals. This Agreement shall not prevent CITY, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations that do not conflict with the Development Plan and/or the Existing Development Approvals, nor shall this Agreement prevent CITY from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan and/or the Existing Development Approvals.

3.4.3 Modification or Suspension by State or Federal Law. In the event that State or Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. In the event OWNER alleges that such State or Federal laws or regulations preclude or prevent compliance with one or more provisions of this Agreement, and the CITY does not agree, the OWNER may, at its sole cost and expense, seek declaratory relief (or other similar non-monetary remedies); provided however, that nothing contained in this Section 3.4.3 shall impose on CITY any monetary liability for contesting such declaratory relief (or other similar non-monetary relief).

3.4.4 Intent. The parties acknowledge and agree that CITY is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to CITY all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if 311
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14 necessary, to reserve to CITY all such power and authority which cannot be restricted by contract.

3.5 Public Works; Utilities. If OWNER is required by this Agreement or a condition of Project approval to construct any public works facilities which will be dedicated to CITY or any other public agency upon completion, and if required by applicable laws to do so, OWNER shall perform such work in the same manner and subject to the same standards as would be applicable to CITY or such other public agency should it have undertaken such construction. As a condition of development approval, OWNER shall connect the Project to all utilities necessary to provide adequate water, recycled water, sewer, gas, electric, and other utility services necessary for the Project, as further described and depicted in the Infrastructure Improvements Exhibit. As a further condition of development approval, OWNER shall to the extent possible contract with the CITY for CITY-owned or operated utilities for this purpose, for such price and on such terms as may be available to similarly situated customers in the CITY. As a further condition of development approval, to the extent OWNER does not own the Property in fee simple, OWNER will provide to CITY the written consent from the current fee owner of the Property agreeing to the terms of this Agreement and the recordation thereof, pursuant to Section 2.2.

3.5.1 OWNER agrees that development of the Project shall require the construction of storm drain Improvements from the Property described in Exhibit E and depicted in Exhibit F. OWNER shall be responsible for payment of a fee in-lieu (the Euclid Avenue Storm Drain In-Lieu Fee) of actual construction of the ultimate Euclid Avenue storm drain Improvements, south of Merrill Avenue. OWNER shall pay the CITY prior to the issuance of the first building permit, Nine Hundred Forty-Four Thousand Two Hundred Eighty Seven Dollars and Ninety Four Cents ($944,287.94). Upon OWNER’S complete payment of the Euclid Avenue Storm Drain In-Lieu Fee, the CITY shall issue a Certificate of DIF Credit in the Regional Storm Drain category equal to the amount paid to the CITY.

Such Regional Storm Drain DIF Certificate shall be issued by CITY within thirty (30) business days of the receipt of such required payment. OWNER and CITY agree that CITY may issue grading, building and other required permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY, and OWNER agrees that OWNER shall not request and CITY shall not issue a final occupancy permit for any buildings prior to payment of the Euclid Avenue Storm Drain In-Lieu Fee and construction of the storm drain Improvements described in Exhibit E and depicted in Exhibit F. CITY and OWNER mutually acknowledge and agree, that upon OWNER’s complete payment of the Euclid Avenue Storm Drain In-Lieu Fee, such obligation shall be deemed satisfied and CITY shall not hold up a request for final occupancy permit for any buildings on the Property, based on the actual construction and completion of the ultimate Euclid Avenue storm drain Improvements. CITY agrees that OWNER may request that CITY issue temporary certificates of occupancy on a building-by-building basis prior to completion of the storm drain improvements.

3.5.2 OWNER agrees that development of the Project shall require the construction of street Improvements as described in Exhibit E and depicted in Exhibit F.

OWNER and CITY agree that CITY may issue grading, building and other required 312
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15 permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY, and OWNER agrees that OWNER shall not request, and CITY shall not issue a final occupancy permit for any buildings on the Property prior to Substantial Completion of the street Improvements as described in Exhibit E and depicted in Exhibit F. For purposes of the foregoing, street Improvements shall be deemed "Substantially Complete" even if the final lift of pavement has not been completed (i.e., OWNER may install the final lift after completion of all other construction). CITY agrees that OWNER may request that CITY issue temporary certificates of occupancy on a building-by-building basis prior to completion and subject to final acceptance by CITY of the street Improvements. OWNER agrees that the street improvements shall be completed and subject to final acceptance by CITY prior to the release of any security for the construction of the street improvements. OWNER and CITY agree that a portion of the street Improvements described in Exhibit E and depicted in Exhibit F may be constructed by others, or pursuant to a cooperative agreement with others. If such street Improvements are constructed by others, or in cooperation with others, and are completed and accepted by CITY prior to OWNER's request to CITY of the required grading, building or other required permits for OWNER to initiate construction of structures for the Property, then OWNER shall not be required to construct those street Improvements constructed and completed by others and accepted by CITY.

3.5.3 OWNER agrees that development of the Property shall require the construction of water utility Improvements as described in Exhibit E and depicted in Exhibit F consisting generally of the construction of the potable water Improvements to serve the Property as described in Exhibit E and depicted in Exhibit F. OWNER and CITY agree that CITY may issue grading, building and other required permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY upon completion of sufficient water improvements to serve the Property from at least one point of connection. OWNER and CITY agree that OWNER may, in-lieu of utilizing recycled water during grading and construction, utilize water from existing agricultural wells on the Property subject to the terms of a separate Well Use Agreement between the CITY and OWNER. OWNER agrees that OWNER shall not request and CITY shall not issue a final occupancy permit for any buildings on the Property until the completion of the potable water improvements described in Exhibit E and depicted in Exhibit F. City agrees that OWNER may request that CITY issue temporary certificates of occupancy on a building-by-building basis prior to completion of the water improvements if there is available permanent water service from a minimum of two (2) points of connection and sufficient water is available for fire protection purposes for any buildings while under construction. OWNER and CITY agree that a portion of the water Improvements described in Exhibit E and depicted in Exhibit F may be constructed by others, or pursuant to a cooperative agreement with others. If such water Improvements are constructed by others, or in cooperation with others, and are completed and accepted by CITY prior to OWNER's request to CITY of the required grading, building or other required permits for OWNER to initiate construction of structures for the Property, then OWNER shall not be required to construct those water Improvements constructed and completed by others and accepted by CITY.
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16 3.5.4 OWNER agrees that development of the Property shall require the construction of sewer Improvements as described in Exhibit E and depicted in Exhibit F.

OWNER and CITY agree that CITY may issue grading, building and other required permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY, and OWNER agrees that OWNER shall not request and CITY shall not issue a final occupancy permit for any buildings prior to completion of the sewer improvements described in Exhibit E and depicted in Exhibit F. CITY agrees that OWNER may request that CITY issue temporary certificates of occupancy on a building- by-building basis prior to the completion of the sewer improvements described in Exhibit E and depicted in Exhibit F. OWNER and CITY agree that a portion of the sewer Improvements described in Exhibit E and depicted in Exhibit F may be constructed by others, or pursuant to a cooperative agreement with others. If such sewer Improvements are constructed by others, or in cooperation with others, and are completed and accepted by CITY prior to OWNER's request to CITY of the required grading, building or other required permits for OWNER to initiate construction of structures for the Property, then OWNER shall not be required to construct those sewer Improvements constructed and completed by others and accepted by CITY.

3.5.5 OWNER agrees that development of the Property shall require the construction of recycled water utility improvements to serve the Property, consisting generally of the construction of recycled water utility Improvements as described in Exhibit E and depicted in Exhibit F. OWNER and CITY agree that the CITY may issue grading, building and other required permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY upon completion of sufficient water and recycled water improvements to serve the Property from at least one point of connection and OWNER agrees that OWNER shall not request and CITY shall not issue any occupancy permit for any buildings on the Property until the completion of the water improvements described in Exhibit E and depicted in Exhibit F. CITY agrees that OWNER may request a temporary occupancy permit for a building and, if OWNER requests that a temporary certificate of occupancy be issued for a building prior to the completion of the extension of permanent master planned recycled water utility Improvements to serve the Property that CITY may consider such request and may issue temporary certificates of occupancy on a building-by-building basis prior to completion of recycled water improvements if there is available permanent recycled water service connection and sufficient recycled water is available. OWNER and CITY agree that all, or a portion of, the permanent master planned recycled water utility Improvements described in Exhibit E and depicted in Exhibit F may be constructed by others. If such recycled water utility Improvements are constructed by others and completed and accepted by CITY prior to OWNER'S request to CITY of the required grading, building, or other required permits for OWNER to initiate construction of structures for the Property, then OWNER shall not be required to construct those permanent master planned recycled water utility Improvements.

3.5.6 OWNER agrees that development of the Property shall require the construction of fiber optic communications infrastructure, at OWNER's sole cost and expense, as described in the attached Exhibit E and depicted in Exhibit F consisting generally of the construction of fiber optic communications infrastructure to serve the 314
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17 Property. OWNER and CITY agree that CITY may issue grading, building and other required permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY and OWNER agrees that OWNER shall not request and CITY shall not issue a final occupancy permit for any buildings prior to completion of the fiber optic communications infrastructure, as described in Exhibit E and depicted in Exhibit F. CITY agrees that OWNER may request that CITY issue temporary certificates of occupancy on a building-by-building basis prior to the completion of the fiber optic communications infrastructure, as described in Exhibit E and depicted in Exhibit F.

3.6 Acquisition of Offsite Provision of Real Property Interests. In any instance where OWNER is required by any Development Approval or Land Use Regulation to construct any public improvement on land not owned by OWNER ("Offsite Improvements"), the CITY and OWNER shall cooperate in acquiring the necessary legal interest ("Offsite Property") as described below in Section 3.7. This Section 3.6 is not intended by the parties to impose upon the OWNER an enforceable duty to acquire land or construct any public improvements on land not owned by OWNER, except to the extent that the OWNER elects to proceed with the development of the Project, and then only in accordance with valid conditions imposed by the CITY upon the development of the Project under the Subdivision Map Act or other legal authority.

3.7 Real Property Interests.

3.7.1 CITY Acquisition of Offsite Property. In the event OWNER is required to construct any public improvements on land not owned by OWNER, Sections 3.7.1 and

3.7.2 shall control the acquisition of the Offsite Property. If the OWNER is unable to acquire such Offsite Property, and following the written request from the OWNER to CITY, CITY agrees to use reasonable and diligent good faith efforts to acquire the Offsite Property from the owner or owners of record by negotiation to the extent permitted by law and consistent with this Agreement. If CITY is unable to acquire the Offsite Property by negotiation within thirty (30) days after OWNER'S written request, CITY may, initiate proceedings utilizing its power of eminent domain to acquire the Offsite Property at a public hearing noticed and conducted in accordance with California Code of Civil Procedure Section 1245.235 for the purpose of considering the adoption of a resolution of necessity concerning the Offsite Property, subject to the conditions set forth in this Section 3.7.1 The CITY and OWNER acknowledge that the timelines set forth in this Section 3.7.1 represent the maximum time periods which CITY and OWNER reasonably believe will be necessary to complete the acquisition of any Offsite Property. CITY agrees to use reasonable good faith efforts to complete the actions described within lesser time periods, to the extent that it is reasonably able to do so, consistent with the legal constraints imposed upon CITY.

3.7.2 Owner's Option to Terminate Proceedings. CITY shall provide written notice to OWNER no later than fifteen (15) days prior to making an offer to the owner of the Offsite Property. At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease all acquisition proceedings with respect to that Offsite Property, whereupon CITY shall cease such proceedings. CITY may provide written notice to OWNER no later than fifteen (15) days prior to the date of the hearing on 315
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18 CITY's intent to consider the adoption of a resolution of necessity as to any Offsite Property. At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease condemnation proceedings, whereupon CITY shall cease such proceedings. If OWNER does not notify CITY to cease condemnation proceedings within said fifteen (15) day period, then the CITY may proceed to consider and act upon the Offsite Property resolution of necessity. If CITY adopts such resolution of necessity, then CITY may institute condemnation proceedings and file a complaint in condemnation and seek an order of immediate possession with respect to the Offsite Property.

3.8 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies. CITY agrees to cooperate fully, at no cost to CITY, with OWNER in obtaining any required permits or compliance with the regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations or policies of the CITY.

3.9 Tentative Parcel Maps. With respect to applications by OWNER for tentative parcel maps for portions of the Property, CITY agrees that OWNER may file and process tentative maps in accordance with Chapter 4.5 (commencing with Section 66498.1) of Division 2 of Title 7 of the California Government Code and the applicable provisions of CITY's subdivision ordinance, as the same may be amended from time to time. In accordance with the provisions of Section 66452.6 of the Government Code, each tentative subdivision map or tentative parcel map, heretofore or hereafter approved in connection with development of the Property, shall be deemed to have been granted an extension of time to and until the expiration, cancellation, or termination of this Agreement.

3.10 Specific Plan Charge. Pursuant to Government Code section 65456, the City Council may consider adopting a specific plan charge upon persons seeking CITY approvals that are required to be consistent with the Specific Plan. Any such charges shall, in the aggregate, defray, but not exceed, the estimated cost of preparation, adoption, and administration of the Specific Plan, including costs incurred pursuant to the California Environmental Quality Act (Pub. Resources Code, §§ 21000 et seq.). As nearly as can be estimated, the charges shall be a prorated amount in accordance with the applicant’s relative benefit derived from the Specific Plan. If such charges are adopted, the CITY shall use such charges to reimburse the OWNER who originally paid the cost of preparing the Specific Plan, including costs incurred pursuant to the California Environmental Quality Act (Pub. Resources Code, §§ 21000 et seq.) to the extent the OWNER paid more than its relative benefit from the Specific Plan. Such charges, if adopted, shall be imposed on persons seeking CITY approvals that are required to be consistent with the Specific Plan, to the extent such person(s) has/have not entered into a reimbursement agreement with, and satisfactory to, the person(s) originally responsible for the cost of preparing the Specific Plan, including costs incurred pursuant to CEQA.

4. PUBLIC BENEFITS.
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19 4.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public needs that will not be fully met by the Development Plan and further acknowledge and agree that this Agreement confers substantial private benefits on OWNER that should be balanced by commensurate public benefits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on OWNER by providing more fully for the satisfaction of the public needs resulting from the Project.

4.2 Development Impact Fees.

4.2.1 Amount of Development Impact Fee. Development Impact Fees (DIF) shall be paid by OWNER. The Development Impact Fee amounts to be paid by OWNER shall be the amounts that are in effect at the time such amounts are due. Nothing contained in this Agreement shall affect the ability of the CITY to impose new Development Impact Fees or amend the amounts of existing Development Impact Fees. Additionally, nothing contained in this Agreement shall affect the ability of other public agencies that are not controlled by CITY to impose and amend, from time to time, Development Impact Fees established or imposed by such other public agencies, even though such Development Impact Fees may be collected by CITY.

4.2.2 Time of Payment. The Development Impact Fees required pursuant to Section 4.2.1 shall be paid to CITY prior to the issuance of building permit for each applicable building (subject to the application/use of available fee deferrals or credits), except for the Species, Habitat Conservation, and Open Space Mitigation Development Impact Fee, which shall be paid by OWNER to CITY prior to the issuance of a grading permit.

4.3 Responsibility for Construction of Public Improvements.

4.3.1 Timely Construction of Public Infrastructure. The phasing of the area wide infrastructure construction within the vicinity of the Project shall be as approved by the CITY. OWNER shall be responsible for the timely construction and completion of all public infrastructure required for the Project as described and depicted in the Infrastructure Improvements Exhibit and any and all parcel map conditions. Unless otherwise specified in the Parcel Map conditions, and subject to the provisions of Section

3.5 and 3.6, all other required Improvements for the parcel map, shall be substantially completed and operational prior to, and as a condition precedent to, OWNER requesting and CITY's granting of a final occupancy permit for any buildings to be constructed on the Property within the applicable parcel map. All Infrastructure and Improvements shall be completed as required by the Subdivision Agreement/Parcel Map conditions for Parcel Map No. 20714.

4.3.3 Construction of Public Infrastructure by Third Parties. CITY and OWNER acknowledge that a portion of the Improvements described in Exhibit E and depicted in Exhibit F are necessary for the development of surrounding properties within the Ontario Ranch and the other property owners are also obligated to construct the Improvements or portions thereof. As such, CITY agrees that OWNER's obligation to construct the 317
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20 Improvements may be satisfied by third party owners pursuant to separate written agreements between OWNER and said third party undertaking the construction of the Improvements. Nothing in this Agreement shall be construed to prohibit the coordination of the construction of the Improvements between private parties, including the allocation of costs for the construction of the Improvements. Notwithstanding anything to the contrary herein, any applicable DIF Credits may be transferred and assigned from one (1) party to another with respect to the construction of the Improvements and such transfer or assignment shall not require the conveyance of any real property.

4.3.4 Availability and Use of Recycled Water. OWNER agrees that recycled water shall be available and utilized by OWNER for all construction-related water uses including prior to, and during, any grading of the Property. OWNER and CITY agree that OWNER may, in-lieu of utilizing recycled water during grading and construction, utilize water from existing agricultural wells on the Property subject to the terms of a separate Well Use Agreement between the CITY and OWNER.

4.3.5 Construction of DIF Program Infrastructure. To the extent OWNER is required to construct and completes construction of public improvements that are included in CITY's Development Impact Fee Program, CITY agrees that CITY shall issue DIF Credit in accordance with the provisions of a separate Fee Credit Agreement between CITY and OWNER. Limitations on the use of DIF Credit issued to OWNER to offset OWNER's DIF payment obligations shall also be subject to the provisions of a separate Fee Credit Agreement. OWNER may be eligible to receive DIF Credit from OWNER's construction of DIF Program Infrastructure. Any such DIF Credit shall be subject to a Fee Credit Agreement between CITY and OWNER. CITY and OWNER agree that the Fee Credit Agreement between CITY and OWNER shall comply with CITY's adopted policies applicable to such agreements.

4.4 Water Availability.

4.5.1 Water Availability. The Property requires the completion of the Phase 2 Water Improvements (Phase 2A and 2B) for permanent water system capacity and supply. Until the Phase 2 Water Improvements are fully constructed and completed, OWNER acknowledges that the Project shall have sufficient water capacity and supply on an interim basis made available through the construction of the Potable Water Improvements (as described in Exhibit E), the Phase 2A Water Improvements, and the Interim Chino Avenue Loop depicted in Exhibit F. OWNER acknowledges and agrees that the CITY shall not issue final certificates of occupancy for the Project until the completion of the Potable Water Improvements (as described in Exhibit E), the Phase 2A Water Improvements and the Interim Chino Avenue Loop, as depicted in Exhibit F. OWNER further acknowledges and agrees the Property requires the Phase 2 Water Improvements as depicted in Exhibit F.

4.5.2 Phase 2 Water Construction Fee. Prior to CITY’s issuance of a grading permit (with the exception of the grading permit for PTUP24-043) for any parcel of the Property (each, a “Grading Permit”), OWNER shall pay to CITY the applicable Phase 2 Water Construction Fee. The Phase 2 Water Construction Fee shall be calculated based 318
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21 on the following formula: (a) the regional water development impact fee, based on the square footage of developable property and the approved land use category for each Phase of the Project (the “Base Regional Water DIF”), PLUS (b) OWNER’s pro rata share of the difference between the total projected cost of construction of the Phase 2 Water Improvements (the “Pro Rata Share”) and the Base Regional Water DIF. To determine the Pro Rata Share, which may fluctuate over time, CITY shall, at the time OWNER applies for a Grading Permit, calculate the total projected cost of construction of the Phase 2 Water Improvements and subtract from that amount (y) all Phase 2 Water Construction Fees previously collected and (z) the aggregate Base Regional Water DIF to be paid by OWNER and all developers then at that time obligated to pay a Base Regional Water DIF specifically for use of the Phase 2 Water Improvements (together, the “Phase 2 Water Developers”). If the difference is zero or a number less than zero, then there is no Pro Rata Share and the Phase 2 Water Construction Fee shall equal the sum of all Base Regional Water DIF to be paid by all Phase 2 Water Developers. If the difference results in a positive number, the funding gap (the “Funding Gap”) shall be divided by the total acreage of land to be developed by the Phase 2 Water Developers to obtain a Funding Gap “per acre” amount (the “Funding Gap Per Acre Amount”). Each Phase 2 Water Developer’s respective total acreage to be developed shall then be multiplied by the Funding Gap Per Acre Amount to obtain each Phase 2 Water Developer’s Pro Rata Share, which will then be added to each Phase 2 Water Developer’s Base Regional Water DIF to obtain the Phase 2 Water Construction Fee due and payable at the time of issuance of the applicable Grading Permit.

4.5.3 DIF Credit for Phase 2 Water Construction Fees. Within thirty (30) days of OWNER's payment of each Phase 2 Water Construction Fee, CITY shall issue a certificate of DIF Credit which may be used to offset OWNER's DIF obligations in the Regional Water DIF Category. The form of the Certificate of DIF Credit shall be as described in Exhibit G, attached hereto and incorporated herein. OWNER acknowledges that any Regional Water DIF Credit issued to OWNER shall not be used to satisfy Phase 2 Water Construction Fees and may only be used to offset OWNER’s DIF obligations in the Regional Water DIF Category.

4.5.4 Additional Contributions for Phase 2 Water Improvements. OWNER acknowledges and agrees that, as of the Effective Date of this Agreement, the CITY does not have sufficient funding to construct and complete the Phase 2 Water Improvements. OWNER agrees to provide the CITY with additional contributions for the Phase 2 Water Improvements prior to the issuance of a Grading Permit (with the exception of the grading permit for PTUP24-043) for any Phase within the Project, pursuant to the Pro Rata Share calculation as set forth in Section 4.5.2 above. OWNER acknowledges and agrees that the CITY has the right to conduct subsequent reviews of the available funding for the construction of, or continuation of the construction of, the Phase 2 Water Improvements. If at any time outside of OWNER’s submission of a request for a Grading Permit the CITY determines that there is not sufficient funding for the construction of, or continuation of the construction of, the Phase 2 Water Improvements necessary to support current and anticipated future development within the Ontario Ranch area served by the Phase 2 Water Improvements, OWNER agrees to pay such 319
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22 subsequent additional contribution payment necessary from the OWNER (on a pro rata basis with other Phase 2 Water Developers then existing at the time) to the CITY to initiate construction of, or continue construction of, the Phase 2 Water Improvements. The CITY shall determine OWNER’s additional contribution amount (above and beyond OWNER’s Pro Rata Share) and such amount shall be due and payable to the CITY within thirty (30) days of written notice from the CITY to OWNER.

4.5.5 Future Reimbursement of Pro Rata Share of Phase 2 Water Construction Fees. OWNER agrees that the CITY will be responsible for the construction and completion of the Phase 2 Water Improvements, as depicted in Exhibit F. Subject to the successful completion of the Phase 2 Water Improvements, CITY and OWNER shall meet periodically and/or as needed from the date of completion of the Phase 2 Water Improvements, to jointly develop a plan and mutually enter into an agreement for the reimbursement of OWNER’s Pro Rata Share of Phase 2 Water Construction Fees that may be reimbursed from future development in the 925 Zone as depicted in the City’s Domestic Water Master Plan, following any reallocation of each Phase 2 Water Developer’s Pro Rata Share, CITY’s collection of additional Regional Water DIF in connection with construction of the Phase 2 Water Improvements, and after the completion of the Phase 2 Water Improvements. Such agreement shall be approved at the sole discretion of the Ontario City Council.

4.5 Compliance with Public Benefits Requirements.

4.5.1 Failure to Provide Public Benefits. In the event OWNER fails or refuses to comply with any condition referenced in Section 4.1 through 4.5, or challenges (whether administratively or through legal proceedings) the imposition of such conditions, OWNER shall be deemed in default of this Agreement, thereby entitling CITY to any and all remedies available to it, including, without limitation, the right of CITY to withhold OWNER's Project-related building permits, certificates of occupancy, or discretionary approvals, without liability. Nothing herein shall waive OWNER's right to assert a default (or failure to perform) by CITY has excused OWNER's performance under this Agreement.

5. FINANCING OF PUBLIC IMPROVEMENTS.

5.1 Financing Mechanism(s). OWNER agrees that, prior to the recordation of any Parcel Map, the property subject to such Parcel Map shall be included in a CFD to finance CITY services through annual special taxes that will initially be Twenty-Five Cents ($.25) per square foot for non-residential buildings. These amounts shall be subject to an automatic increase at a rate not to exceed four (4%) percent per year, unless otherwise modified by CITY. Depending on the fiscal year that the CFD is formed and the CFD tax is levied, the annual special taxes may be higher. CITY shall be the sole and exclusive lead agency in the formation of any CFD, assessment district or other public financing mechanism within the Property; provided however, that the proceeds of any such CFD, assessment district, or financing mechanism may be used, subject to restrictions that may be imposed by applicable law, for the purposes of acquiring, constructing or maintaining public facilities to be owned or operated by other public agencies, including, without 320
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23 limitation those facilities owned or operated by a school district. In addition to the rights of the CITY pursuant to section 5.1 hereof, CITY shall have the right, but not the obligation, to condition the formation of any CFD, assessment district or other public financing mechanism within the Property on the OWNER mitigating all Project-related impacts to the applicable school district(s) as required by such school district(s). Written evidence by such school district(s) may be required by the CITY as the condition to the formation of any CFD, assessment district or other public financing mechanism within the Property, or any steps preliminary thereto, including, without limitation, the adoption of any resolution of intention to form such CFD, assessment district or other public financing mechanism within the Property. It is not the intent of the parties hereto, by this provision, to prohibit or otherwise limit CITY’s ability to take any and all necessary steps requisite to the formation of the CFD to finance CITY services through annual special taxes as set forth in this Section 5.1. Formation of any CFD, assessment district or other public financing mechanism within the Property, shall be subject to CITY's ability to make all findings required by applicable law and complying with all applicable legal procedures and requirements including, without limitation, CITY's public financing district policies as such policies may be amended from time to time. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as requiring CITY or the City Council to form any such district.

6. [OMITTED]

7. REVIEW FOR COMPLIANCE.

7.1 Periodic and Special Reviews.

7.1.1 Time for and Initiation of Periodic Review. The CITY shall review this Agreement every twelve (12) months from the Effective Date in order to ascertain the good faith compliance by the OWNER with the terms of this Agreement. The OWNER shall submit an Annual Monitoring Report to CITY, in a form acceptable to the City Manager, along with any applicable processing charge within ten (10) days after each anniversary date of the Effective Date of this Agreement. Within fifteen (15) days after the receipt of the Annual Monitoring Report, CITY shall review the Annual Monitoring Report. Prior to the expiration of the fifteen (15) day review period, CITY shall either issue a notice of continuing compliance or a notice of non-compliance and a notice of CITY's intent to conduct a Special Review pursuant to Sections 7.1.2 through 7.1.6. Issuance of a notice of continuing compliance may be issued by the City Manager or his designee.

7.1.2 Initiation of Special Review. A special review may be called either by agreement between the parties or by initiation in one or more of the following ways:
(a) Recommendation of the Planning staff;
(b) Affirmative vote of at least four (4) members of the Planning Commission; or (c) Affirmative vote of at least three (3) members of the City Council. 321
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24 7.1.3 Notice of Special Review. The City Manager shall begin the special review proceeding by giving notice that the CITY intends to undertake a special review of this Agreement to the OWNER. Such notice shall be given at least ten (10) days in advance of the time at which the matter will be considered by the Planning Commission.

7.1.4 Public Hearing. The Planning Commission shall conduct a hearing at which the OWNER must demonstrate good faith compliance with the terms of this Agreement.

The burden of proof on this issue is upon the OWNER.

7.1.5 Findings Upon Public Hearing. The Planning Commission shall determine upon the basis of substantial evidence whether or not the OWNER has, for the period under review, complied in good faith with the terms and conditions of this Agreement.

7.1.6 Procedure Upon Findings.
(a) If the Planning Commission finds and determines on the basis of substantial evidence that the OWNER has complied in good faith with the terms and conditions of this Agreement during the period under review, the review for that period is concluded. (b) If the Planning Commission finds and determines on the basis of substantial evidence that the OWNER has not complied in good faith with the terms and conditions of this Agreement during the period under review, the Planning Commission may recommend to the City Council to modify or terminate this Agreement. (c) The OWNER may appeal a determination pursuant to paragraph (b) to the City Council in accordance with the CITY's rule for consideration of appeals in zoning matters generally.

7.2 Proceedings Upon Modification or Termination. If, upon a finding under Section

7.1.6(b), the CITY determines to proceed with modification or termination of this Agreement, the CITY shall give notice to the property OWNER of its intention so to do.

The notice shall contain:
(a) The time and place of the hearing;
(b) A statement as to whether or not the CITY proposes to terminate or to modify this Agreement; and
(c) Other information that the CITY considers necessary to inform the OWNER of the nature of the proceeding.

7.3 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, the OWNER shall be given an opportunity to be heard.

The OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on the OWNER.

If the City Council finds, based upon substantial evidence in the administrative record, that the OWNER has not complied in good faith with the terms and conditions of the agreement, the City Council may terminate this Agreement or modify this Agreement and 322
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25 impose those conditions to the action it takes as it considers necessary to protect the interests of the CITY. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.

7.4 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon written request by OWNER, issue a Certificate of Agreement Compliance ("Certificate") to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Planning Director and City Council that (1) this Agreement remains in effect and (2) OWNER is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. OWNER may record the Certificate with the County Recorder. Whether or not the Certificate is relied upon by assignees or other transferees or OWNER, CITY shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Planning Director or City Council.

8. [OMITTED]

9. DEFAULT AND REMEDIES.

9.1 Remedies in General. It is acknowledged by the parties that CITY would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof. In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that (i) CITY shall not be liable in damages to OWNER, or to any successor in interest of OWNER, or to any other person, and OWNER covenants not to sue for damages or claim any damages and (ii) OWNER shall not be liable in damages to CITY, or to any other person, and CITY covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
(b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
(c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.

9.2 Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non- monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
323
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26 (a) Money damages are unavailable against CITY and OWNER as provided in Section 9.1 above.
(b) Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the Property or portions thereof. OWNER has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate OWNER for such efforts.

9.3 Release. Except for non-damage remedies, including the remedies of judicial review and of specific performance as provided for in Sections 7.3 and 9.2, respectively,, OWNER, for itself, its successors and assignees, hereby releases the CITY, its officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the CITY because it entered into this Agreement or because of the terms of this Agreement.

9.4 Termination or Modification of Agreement for Default of OWNER. Subject to the provisions contained in Sections 7.2 and 7.3 herein, CITY may terminate or modify this Agreement for any failure of OWNER to perform any material duty or obligation of OWNER under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as "default"); provided, however, CITY may terminate or modify this Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

9.5 Termination of Agreement for Default of CITY. OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default and, where the default can be cured, CITY has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has 324
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27 failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

10.THIRD PARTY LITIGATION.

10.1 General Plan Litigation. CITY has determined that this Agreement is consistent with the General Plan, as such General Plan exists as of the Effective Date ("General Plan"), and that the General Plan meets all requirements of law. OWNER has reviewed the General Plan and concurs with CITY's determination. CITY shall have no liability in damages under this Agreement for any failure of CITY to perform under this Agreement or the inability of OWNER to develop the Property as contemplated by the Development Plan or this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.

10.2 Third Party Litigation Concerning Agreement. OWNER shall defend, at its expense, including attorneys' fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. CITY shall promptly notify OWNER of any such claim, action or proceeding, and CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of any such claim, action or proceeding, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action or proceeding.

10.3 Indemnity. In addition to the provisions of Section 10.2 above, OWNER shall indemnify and hold CITY, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of OWNER, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury, or death (OWNER's employees included) or any other element of damage of any kind or nature, to the extent relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sole active negligence or sole willful misconduct of CITY. OWNER shall defend, at its expense, including attorneys' fees, CITY, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions. CITY may in its discretion participate in the defense of any such legal action.

OWNER’s indemnity obligation shall terminate following CITY’s legal acceptance of (i.e. taking of title to) the Improvements.

10.4 Environment Assurances. OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, to the extent based or asserted, upon any act or omission of OWNER, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any violation of any federal, state or local law, ordinance or regulation 325
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28 relating to industrial hygiene or to environmental conditions on, under or about the Property during OWNER'S period of ownership of the Property, including, but not limited to, soil and groundwater conditions caused by OWNER, and OWNER shall defend, at its expense, including attorneys' fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action.

10.5 Reservation of Rights. With respect to Sections 10.2, 10.3 and 10.4 herein, CITY reserves the right to either (1) approve the attorney(s) which OWNER selects, hires or otherwise engages to defend CITY hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense, provided, however, that OWNER shall reimburse CITY forthwith for any and all reasonable expenses incurred for such defense, including attorneys' fees, upon billing and accounting therefor.

10.6 Survival. The provisions of this Sections 10.1 through 10.6, inclusive, shall survive the termination of this Agreement.

11. MORTGAGEE PROTECTION.

11.1 Mortgagee Protection. The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. CITY acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER's obligations under this Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement. 326
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29 (d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.

Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of OWNER's obligations or other affirmative covenants of OWNER hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by OWNER is a condition precedent to the performance of a covenant by CITY, the performance thereof shall continue to be a condition precedent to CITY's performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Agreement (e) In the event of a default by OWNER, any Mortgagee shall have the right to remedy, or cause to be remedied, such default within sixty (60) days following the later to occur of (i) the date of Mortgagee's receipt of the notice referred to in Section 9.4 above, or (ii) the expiration of the period provided herein for OWNER to remedy or cure such default, and CITY shall accept such performance by or at the insistence of the Mortgagee as if the same had been timely made by OWNER; provided, however, that (i) if such default is not capable of being cured within the timeframes set forth in this Section and Mortgagee commences to cure the default within such timeframes, then Mortgagee shall have such additional time as is required to cure the default so long as Mortgagee diligently prosecutes the cure to completion and (ii) if possession of the Property (or portion thereof) is required to effectuate such cure or remedy, the Mortgagee shall be deemed to have timely cured or remedied if it commences the proceedings necessary to obtain possession thereof within sixty (60) days after receipt of the copy of the notice, diligently pursues such proceedings to completion, and, after obtaining possession, diligently completes such cure or remedy.

12. MISCELLANEOUS PROVISIONS.

12.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the San Bernardino County Recorder by the City Clerk within ten (10) days after the CITY executes this Agreement, as required by Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement as provided for herein and in Government Code Section 65868, or if the CITY terminates or modifies the agreement as provided for herein and in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of this Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder.

12.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 327
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30 12.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 4 of this Agreement, including the payment of the fees set forth therein, are essential elements of this Agreement and CITY would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.

12.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.

12.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.

12.6 Singular and Plural. As used herein, the singular of any word includes the plural.

12.7 Joint and Several Obligations. Pursuant to Section 2.4, if at any time during the term of this Agreement the Property is subsequently owned, in whole or in part, by more than one owner, all obligations of such owners under this Agreement shall be joint and several, and the default of any such owner shall be the default of all such owners.

Notwithstanding the foregoing, no owner of a single lot which has been finally subdivided and sold to such owner as a member of the general public or otherwise as an ultimate user shall have any obligation under this Agreement except as provided under Section 4 hereof.

12.8 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.

12.9 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.

12.10 No Third-Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.

12.11 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, 328
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31 earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the party's control, (including the party's employment force), government regulations, governmental orders related to statewide or national pandemics, any third party court actions challenging the Project (including but not limited to writs of mandate, restraining orders or injunctions), or other causes beyond the party's control. If any such events shall occur, the term of this Agreement and the time for performance by either party of any of its obligations hereunder may be extended by the written agreement of the parties for the period of time that such events prevented such performance, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years.

12.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.

12.13 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.

12.14 Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.

12.15 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of San Bernardino, State of California, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court.

12.16 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property.

12.17 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall 329
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32 promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. The City Manager may delegate his powers and duties under this Agreement to an Assistant City Manager or other management level employee of the CITY.

12.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain.

12.19 Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, OWNER shall file with the Planning Director, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon OWNER. If for any reason service of such process upon such agent is not feasible, then in such event OWNER may be personally served with such process out of this County and such service shall constitute valid service upon OWNER. OWNER is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto.

12.20 Estoppel Certificate. Within thirty (30) business days following a written request by any of the parties, the other party shall execute and deliver to the requesting party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the responding party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may be represented by the requesting party. OWNER shall pay to CITY all costs incurred by CITY in connection with the issuance of estoppel certificates requested by OWNER under this Section 12.20 prior to CITY's issuance of such certificates.

12.21 Authority to Execute. The person or persons executing this Agreement on behalf of OWNER warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind OWNER to the performance of its obligations hereunder.
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33 12.22 Prevailing Wage . OWNER, for itself, its successors, and assigns, agrees, covenants, and warrants that the development of the Property, if any, shall comply with all applicable federal and state labor laws (including, without limitation, the requirement under California law to pay prevailing wages and hire apprentices), and all obligations as set forth herein.12.22.1 CITY makes no representations concerning prevailing wages in compliance with California Labor Code Section 1770 et seq.

12.22.2 OWNER acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations with respect to the payment of prevailing wages and complying therewith. OWNER shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.

12.22.3 The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the construction and development of the Property by OWNER, its successors or assigns. OWNER shall be solely responsible for determining and effectuating compliance with such laws.

12.22.4 OWNER, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND ASSIGNS,

WAIVES AND RELEASES CITY FROM ANY RIGHT OF ACTION THAT MAY BE AVAILABLE TO OWNER PURSUANT TO LABOR CODE SECTION 1781 OR THE DAVIS BACON ACT. RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 12.22, OWNER ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: A GENERAL RELEASE DOES

NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT

KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF

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

MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

INITIALS. BY INITIALING BELOW, OWNER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY WITH THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES:
_______________
(Owner's Initials)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year set forth below.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
331
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34 SIGNATURE PAGE

TO DEVELOPMENT AGREEMENT
FILE NO. PDA23-004
"OWNER"
Euclid Land Investment, LLC
A Delaware limited liability company
By: ________________________

Authorized Signatory
Date: ___________________
ATTEST:

City Clerk, Ontario
APPROVED AS TO FORM:

BEST BEST & KRIEGER, LLP
City Attorney
"CITY"

CITY OF ONTARIO
By:

Scott Ochoa
City Manager
Date: ___________________
332
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35 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA

COUNTY OF
On this ___ day of ______________, 2023 before
me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature: (Seal)
333
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36 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature: (Seal)
334
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37 EXHIBIT "A"

TO DEVELOPMENT AGREEMENT
Legal Description of Property

LEGAL DESCRIPTION

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ONTARIO, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

LOTS 1, 2, 3, 16, 17, 18, 20, 21 AND 35 OF SECTION 18, TOWNSHIP 2 SOUTH, RANGE 7 WEST, SAN

BERNARDINO BASE AND MERIDIAN, ACCORDING TO MAP OF SUBDIVISION OF PART OF RANCHO SANTA ANA DEL CHINO, AS PER PLAT RECORDED IN BOOK 6, PAGE 15, OF MAPS, RECORDS OF SAID COUNTY.

EXCEPTING THEREFROM ANY PORTION LYING WITHIN EUCLID AVENUE 200 FEET WIDE, AS DESCRIBED IN SUPERIOR COURT CASE NO. 139648 AND CASE NO. 150425, A CERTIFIED COPY OF WHICH WAS RECORDED SEPTEMBER 13, 1972 AS INSTRUMENT NO. 614 IN BOOK 8019, PAGE 930 OF OFFICIAL RECORDS OF THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA.

APN: 1053-071-01-0-000
APN: 1053-071-02-0-000
APN: 1053-071-03-0-000
APN: 1053-071-04-0-000
APN: 1053-211-01-0-000
APN: 1053-211-02-0-000
APN: 1053-281-08-0-000
APN: 1053-081-01-0-000
APN: 1053-081-02-0-000
APN: 1053-081-03-0-000
APN: 1053-081-04-0-000
335
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38 EXHIBIT "B"

TO DEVELOPMENT AGREEMENT
Map showing Property and its location
336
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39 EXHIBIT "C"

TO DEVELOPMENT AGREEMENT
Existing Development Approvals
On, July 23, 2024, the Planning Commission:
a) Issued Resolution No.__________ recommending City Council certification of the Euclid Mixed Use Specific Plan EIR (SCH#2023020281); and
b) Issued Resolution No.__________ recommending City Council approval of the Euclid Mixed Use Specific Plan (File No. PSP22-001) On, August 20, 2024, the City Council:
a) Adopted and certified the Euclid Mixed Use Specific Plan Environmental Impact Report (SCH#2023020281) and issued Resolution No.______; and b) Adopted Ordinance No.__________ approving the Euclid Mixed Use Specific Plan (File No. PSP22-001)
337
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40 EXHIBIT "D"

TO DEVELOPMENT AGREEMENT
Existing Land Use Regulations
These documents are listed for reference only:

1. Euclid Mixed-Used Specific Plan, Ordinance No._____ (File No. PSP22- 001)

2. Euclid Mixed-Used Specific Plan EIR, Resolution No._______ (SCH#2023020281)

3. City of Ontario Municipal Code:
a. Six – Sanitation & Health
b. Seven – Public Works
c. Eight – Building Regulations
d. Nine – Development Code
e. Ten – Parks and Recreation
338
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41 EXHIBIT “E”

TO THE DEVELOPMENT AGREEMENT

DESCRIPTION OF REQUIRED IMPROVEMENTS
OWNER shall design, construct, and complete the following Street, Sewer, Storm Drain, Potable Water, Recycled Water, and Fiber Optic improvements, prior to OWNER’s request for any final certificate of occupancy permit for any building within the Property.

Street (ST) Improvements
a. ST improvements on Schaefer Ave from Euclid Ave to Sultana Ave b. ST improvements on Euclid Ave from Schaefer Ave to Edison/Ontario Ranch Rd.
c. ST improvements on Sultana Ave along the project frontage Potable Water (PW) Improvements
a. PW improvements on Schaefer Ave from Euclid Ave to Grove Ave b. PW improvements on Euclid Ave from Schaefer Ave to Eucalyptus Ave c. PW improvements on Sultana Ave
Storm Drain (SD) Improvements
a. SD improvements on Schaefer Ave from Euclid Ave to Sultana Ave b. SD improvements on Euclid Ave from Schaefer Ave to Eucalyptus Ave Recycled Water (RW) Improvements
a. RW improvements on Schaefer Ave from Euclid Ave to Sultana Ave b. RW improvements on Euclid Ave from Schaefer Ave to Eucalyptus Ave c. RW improvements on Sultana Ave
Sewer (SW) Improvements
a. SW improvements on Euclid Ave from Schaefer Ave to Eucalyptus Ave Fiber Optics (FO) improvements
a. FO improvements on Schaefer Ave from Euclid Ave to Sultana Ave b. FO improvements on Euclid Ave along project frontage c. FO improvements on Sultana along project frontage
339
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42 EXHIBIT "F"

TO DEVELOPMENT AGREEMENT
Required Infrastructure Improvements
(SEE ATTACHED EXHIBITS)
340
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43 341
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44 342
46700.10300\33554440.1
45 343
46700.10300\33554440.1
46 344
46700.10300\33554440.1
47 345
46700.10300\33554440.1
48 346
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49 347
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50 Exhibit "G"

TO DEVELOPMENT AGREEMENT

FORM OF CERTIFICATE OF REGIONAL DIF CREDIT
Pursuant to Section 4.5.3 of this Agreement by and between the City of Ontario and ____________________, dated _______________, 20 , the terms and definitions of which are hereby incorporated herein by this reference and hereinafter called the "Development Agreement', the City of Ontario hereby certifies that OWNER is entitled to the following amount and nature of DIF Credits in the Regional Water DIF Infrastructure Category:

Amount of Credit: $
Scott Ochoa, City Manager
Dated:
348
Department: Financial Services
Prepared By: Stephanie Castro
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: 8
SUBJECT:

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA,

LEVYING SPECIAL TAXES WITHIN CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 52 (SUNDANCE PARK)

CITY OF ONTARIO
Agenda Report
September
3, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council consider and adopt an Ordinance authorizing the levy of special taxes within City of Ontario Community Facilities District No. 52 ( Sundance Park
).

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT:

The use of Mello-Roos ﬁnancing in the Sundance Park residential development is projected to generate approximately $379,366 per year, at build-out, to fund administrative fees and municipal services; and approximately
$21.4 million in bond proceeds to be used to fund a
portion of the public infrastructure improvements needed to serve the project. Mello-Roos bonds are not a direct obligation of the City and are paid from special taxes levied on each taxable parcel in the District; therefore, there is no ﬁscal impact to the General Fund from the issuance of Mello- Roos bonds. City Council approval will be required to process annual special tax levies in future years.

BACKGROUND & ANALYSIS:

The Mello-Roos Community Facilities Act of 1982 (the Act) provides local government, with the consent from a majority of the property owners, the authority to establish community facilities districts for the purpose of levying special taxes to ﬁnance various public infrastructure facilities and to fund municipal services.

At a public hearing conducted by the City Council on August 20, 2024, the City Council adopted a Resolution of Formation of Community Facilities District No. 52 (Sundance Park); authorized the levy of a special tax; established an appropriations limit of the Community Facilities District; and called a special election for the Community Facilities District. On that date, an election was held in which the qualiﬁed electors of the Community Facilities District approved said proposition by more than the 349
two-thirds vote required by the Act. Adoption of the proposed ordinance to authorize the levy of special taxes within the Community Facilities District will conclude the formation process for the City of Ontario Community Facilities District No. 52 (Sundance Park).

The Sundance Park project addresses the development of two zones: Zone 1 is approximately 8.98 gross acres located west of Mill Creek Avenue, east of Haven Avenue, south of Chino Avenue, and north of Schaefer Avenue; and Zone 2 is approximately 23.89 gross acres located west of Mill Creek Avenue, east of Haven Avenue, south of Ontario Ranch Road, and north of Edison Avenue. At build- out, the project is expected to include a total of 418 residential units, comprised of 120 townhome units in Zone 1, and 298 units in Zone 2 (88 single-family and 210 townhomes). 350
ORDINANCE NO.________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, LEVYING A SPECIAL TAX WITHIN CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 52 (SUNDANCE PARK)
WHEREAS, on July 2, 2024, the City Council (the “City Council”) of the City of Ontario (the “City”), pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”), adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, of Intention to Establish a Community Facilities District Proposed to be Named City of Ontario Community Facilities District No. 52 (Sundance Park) and to Authorize the Levy of a Special Tax Therein,” stating its intention to establish City of Ontario Community Facilities District No. 52 (Sundance Park) (the “Community Facilities District”) and to authorize the Community Facilities District to levy a special tax (the “Special Tax”) within the Community Facilities District for the purpose of financing certain public facilities (the “Facilities”) and services (the “Services”); and
WHEREAS, on August 20, 2024, the City Council held a noticed public hearing on the establishment of the Community Facilities District, as required by the Act; and WHEREAS, subsequent to the close of said hearing, the City Council adopted resolutions entitled “A Resolution of the City Council of the City of Ontario, California, of Formation of City of Ontario Community Facilities District No. 52 (Sundance Park), Proposing that the Community Facilities District Be Authorized to Levy a Special Tax and Proposing that an Appropriations Limit of the Community Facilities District Be Established” (the “Resolution of Formation”), “A Resolution of the City Council of the City of Ontario, California, Deeming it Necessary for City of Ontario Community Facilities District No. 52 (Sundance Park) to Incur Bonded Indebtedness” and “A Resolution of the City Council of the City of Ontario, California, Calling Special Election for City of Ontario Community Facilities District No. 52 (Sundance Park),” which resolutions established the Community Facilities District, proposed that the Community Facilities District be authorized to levy the Special Tax within the Community Facilities District, proposed that an appropriations limit of the Community Facilities District be established and called a special election to submit to the qualified electors of the Community Facilities District the combined ballot proposition to authorize the Community Facilities District to incur bonded indebtedness, to authorize the Community Facilities District to levy the Special Tax and to establish the appropriations limit of the Community Facilities District; and
WHEREAS, on August 20, 2024, an election was held in which the qualified electors of the Community Facilities District approved said proposition by more than the two-thirds vote required by the Act; and
WHEREAS, the City Council is the legislative body of the Community Facilities District;
351
THE CITY COUNCIL OF THE CITY OF ONTARIO DOES ORDAIN AS FOLLOWS:

SECTION 1. The City Council hereby authorizes and levies the Special Tax within the Community Facilities District pursuant to Sections 53328 and 53340 of the Act, at the rate and in accordance with the method of apportionment set forth in Exhibit B to the Resolution of Formation (the “Rate and Method”). The Special Tax is hereby levied commencing in fiscal year 2024-25 and in each fiscal year thereafter until the last fiscal year in which the Special Tax is authorized to be levied pursuant to the Rate and Method.

SECTION 2. The City Council may, pursuant to subdivision (b) of Section 53340 of the Act, provide, by resolution, for the levy of the Special Tax in the current tax year or in future tax years at the same rate or at a lower rate than the rate provided by this Ordinance. In no event shall the Special Tax be levied on any parcel within the Community Facilities District in excess of the maximum tax specified therefor in the Rate and Method.

SECTION 3. The Special Tax shall be levied on all of the parcels in the Community Facilities District, unless exempted by law or by the Rate and Method.

SECTION 4. The proceeds of the Special Tax shall only be used to pay, in whole or in part, the cost of providing the Facilities and Services and incidental expenses pursuant to the Act.

SECTION 5. The Special Tax shall be collected in the same manner as ordinary ad valorem property taxes are collected and shall be subject to the same penalties and the same procedure, sale and lien priority in the case of delinquency as is provided for ad valoremtaxes or in such other manner as the City Council shall determine, including direct billing of the affected property owners.

SECTION 6. If for any reason any portion of this Ordinance is found to be invalid, or if the Special Tax is found inapplicable to any particular parcel within the Community Facilities District, by a court of competent jurisdiction, the balance of this Ordinance and the application of the Special Tax to the remaining parcels within the Community Facilities District shall not be affected.

SECTION 7. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within fifteen (15) days of the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.
352
PASSED, APPROVED, AND ADOPTED this 3rd day of September, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
353

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
354
Department: Public Works
Prepared By: Andrea Ampig
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Bonnie Tam
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 9
SUBJECT:

ACCEPTANCE OF SENATE BILL 1383 LOCAL ASSISTANCE GRANT PROGRAM

FUNDING FROM CALIFORNIA'S DEPARTMENT OF RESOURCES RECYCLING AND

RECOVERY

CITY OF ONTARIO
Agenda Report
September
3, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council Authorize the City Manager, or his designee, to execute all documents necessary to accept grant award funds in the amount of $476,003 from California's Department of Resources Recycling and Recovery (CalRecycle) for the Senate Bill (SB) 1383 Local Assistance Grant Program.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Pursue City's Goals and Objectives by Working with Other Governmental Agencies Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT:

The City has been awarded $476,003 from CalRecycle for the SB 1383 Local Assistance Grant Program. This is a prefunded grant and no cost sharing is required. If approved, appropriations in the Integrated Waste Fund will be included in future quarterly budget updates to the City Council for approval.

BACKGROUND & ANALYSIS:

Governor Jerry Brown signed SB 1383, Short-Lived Climate Pollutants (SLCP): Organic Waste Reductions, into law in September 2016. In November 2020, CalRecycle released the ﬁnal regulations for SB 1383. CalRecycle began enforcement actions on January 1, 2022. SB 1383 builds upon Assembly Bill 1826 (organic waste recycling law), which previously went into effect on April 1, 2016.

The goal of SB 1383 is to reduce methane emissions resulting from the decomposition of organic waste in landﬁlls. This is accomplished through implementing comprehensive organics recycling programs and reducing the amount of edible food being landﬁlled. In turn, cities are required to manage robust programs such as outreach to residents and commercial entities, tracking and distribution of edible food produced at certain food businesses, and overseeing the procurement of recycled organics products.

355
Funding received from the SB 1383 Local Assistance Grant Program will be used to administer various programs and fund purchases for the City to achieve compliance with SB 1383. This includes purchasing bins and lids for organic waste collection and printing informational pamphlets and truck signs promoting the City’s recycling programs. The grant award will also be used to partially fund the SMART SB 1383 software created by GO2Zero, a food donation and rescue software that the Integrated Waste Department has been utilizing since December 2023 and the Routeware routing optimization and service conﬁrmation software that the Integrated Waste Department has utilized in their operations since October 2021.

City Staﬀ is required to submit Progress Reports to Calrecycle periodically throughout the grant term ending on April 1, 2026.
356
Request for Approval
Revised May 2024
To: Karen Kayfetz
Acting Deputy Director, Division of Circular Economy

From: Michelle Martin
Branch Chief, Financial Resources Management Branch

Request Date: February 14, 2024

Decision Subject: Awards for the SB 1383 Local Assistance Grant Program (Greenhouse Gas Reduction Fund, Fiscal Year 2022–23)

Action By: February 20, 2024 May 24, 2024

Summary of Request
Staff requests approval of 387 grant awards in the amount of $109,515,543$109,590,543 for the SB 1383 Local Assistance Grant Program (Program) for fiscal year (FY) 2022–23.

Funding
The FY 2022–23 Budget Act allocated $180,000,000 to be used to assist local jurisdictions in the implementation of regulations adopted by the Department of Resources Recycling and Recovery pursuant to Chapter 395 of the Statutes of 2016, with $9,000,000 reserved to cover administrative costs. CalRecycle allocated $90,000,000 to the SB 1383 Local Assistance Grant Program. The remaining funds were allocated to the Organics Grant Program to fund immediate, critical infrastructure needed to process organic waste as required by SB 1383.

After award of the Organics Grant Program, there was $19,590,543 remaining. Those funds were moved to the SB 1383 Local Assistance Grant making the total amount available for award to $109,590,543.

Table 1. Funding
Fund Source Amount
Available
Amount to
Fund Item
Amount
Remaining Line Item
Greenhouse Gas
Reduction Fund
$109,590,543 $109,515,543
$109,590,543
$75,000
$0
Local Assistance
Grants
Background and Findings
Statutory Authority
Senate Bill (SB) 1383 Lara, Chapter 395, Statutes of 2016, set methane emissions reduction targets for California in a statewide effort to reduce emissions of short-lived climate pollutants.

The Budget Act of 2022 authorizes CalRecycle to award grants to local jurisdictions to assist in the implementation of programs to meet these statutory requirements. 357
Program Background
The SB 1383 Local Assistance Grant Program provides funding to assist local jurisdictions with meeting the requirements below:
• Provide organics collection services to all residents and businesses • Conduct education and outreach to the community
• Secure access to recycling and edible food recovery capacity • Establish edible food recovery program
• Procure recyclable and recovered organic products
• Monitor compliance and conduct enforcement

Criteria and Process
The Eligibility Criteria and Evaluation Process was approved by the Deputy Director on July 19, 2023 and was presented at the July 2023 CalRecycle Monthly Public Meeting. The Notice of Funds Available was placed on the CalRecycle web site on September 14, 2023, with an appropriate notice sent to interested parties.

Applications were due November 15, 2023, with a secondary due date of December 20, 2023, for authorizing documentation submission. CalRecycle received 390 applications requesting $78,899,869. Staff reviewed the applications in accordance with the approved evaluation and criteria. Subsequently, three applications did not meet the eligibility requirements and are therefore ineligible. The base grant award is $75,000 for eligible entities. The remaining funds will be distributed to eligible entities based on per capita calculations using the Department of Finance’s January 2023 population statistics and data provided by special districts. Staff proposes to fund 387 applications.

If additional monies become available, staff recommends funding the remaining applicants.

Listed below are the types of projects recommended for funding. The types of projects recommended for funding include but are not limited to: green bins and food waste counter pails, development of education and outreach materials, record keeping subscriptions, equipment for food rescue, compost procurement, enforcement and inspections, and personal and administrative costs.

Recommendation
Staff recommends approval of 387 grant awards as listed below for $109,515,543$109,590,543.

Table 2. Recommended Awards
358

Applicant Award Amount
Alameda County $388,722
Amador County
• City of Amador
• City of Ione
• City of Jackson
• City of Plymouth
• City of Sutter Creek
$450,000
Castro Valley Sanitary District $173,811
Central Contra Costa Solid Waste Authority dba
RecycleSmart
• City of Lafayette
• City of Orinda
• City of Walnut Creek
• Town of Danville
• Town of Moraga
$531,371
City and County of San Francisco $2,161,472
City of Adelanto $103,014
City of Agoura Hills $75,000
City of Alameda $208,212
City of Alhambra $218,610
City of Aliso Viejo $139,546
City of American Canyon $75,000
City of Anaheim $858,835
City of Antioch $306,999
City of Arcata $75,000
City of Artesia $75,000
City of Atwater $89,452
City of Auburn $75,000
City of Avalon $75,000
City of Avenal $75,000
City of Bakersfield $1,065,428
City of Banning $89,017
City of Barstow $75,000
City of Beaumont $154,625
City of Bell Gardens $107,651
City of Bellflower $207,272
City of Belmont $77,478
City of Benicia $75,891
City of Berkeley $328,023
City of Beverly Hills $90,074
City of Big Bear Lake $75,000
City of Blythe $75,000
City of Brawley $79,409
City of Brea $132,861
359

Applicant Award Amount
City of Brentwood $175,139
City of Brisbane $75,000
City of Buellton $75,000
City of Buena Park $224,342
City of Burbank $278,760
City of Burlingame $86,133
City of Calabasas $75,000
City of Calexico $108,298
City of Calimesa $75,000
City of Camarillo $187,556
City of Canyon Lake $75,000
City of Capitola $75,000
City of Carlsbad $304,687
City of Carpinteria $75,000
City of Cathedral City $141,273
City of Ceres $131,683
City of Chico $286,162
City of Chino $249,249
City of Chino Hills $207,619
City of Chula Vista $719,552
City of Citrus Heights $230,349
City of Claremont $103,281
City of Clayton $75,000
City of Clovis $330,511
City of Coachella $118,046
City of Coalinga $75,000
City of Colfax $75,000
City of Colton $145,729
City of Compton $250,756
City of Concord $324,170
City of Corcoran $75,000
City of Corona $414,610
City of Coronado $75,000
City of Costa Mesa $295,972
City of Culver City $110,849
City of Cupertino $161,264
City of Cypress $137,092
City of Daly City $270,827
City of Davis $174,062
City of Del Mar $75,000
City of Delano $142,034
City of Desert Hot Springs $92,533
City of Diamond Bar $146,317
City of Dinuba $75,000
City of Dixon $75,000
360

Applicant Award Amount
City of Dos Palos $75,000
City of Downey $296,174
City of Dublin $193,876
City of East Palo Alto $82,120
City of Eastvale $188,087
City of El Cajon $278,977
City of El Centro $123,181
City of El Cerrito $75,000
City of El Monte $283,529
City of El Segundo $75,000
City of Elk Grove $466,392
City of Emeryville $75,000
City of Encinitas $166,263
City of Escalon $75,000
City of Escondido $395,953
City of Eureka $75,785
City of Fairfield $317,573
City of Ferndale $75,000
City of Fillmore $75,000
City of Folsom $229,471
City of Fontana $561,790
City of Fort Bragg $75,000
City of Fortuna $75,000
City of Foster City $92,779
City of Fountain Valley $155,653
City of Fremont $602,222
City of Fresno $1,415,099
City of Fullerton $378,021
City of Galt $75,000
City of Garden Grove $451,318
City of Gardena $162,960
City of Glendale $503,362
City of Goleta $92,104
City of Grass Valley $75,000
City of Gustine $75,000
City of Half Moon Bay $75,000
City of Hawaiian Gardens $75,000
City of Hawthorne $229,999
City of Hayward $421,847
City of Hemet $240,915
City of Hermosa Beach $75,000
City of Hesperia $267,124
City of Hidden Hills $75,000
City of Highland $153,056
City of Holtville $75,000
361

Applicant Award Amount
City of Hughson $75,000
City of Huntington Beach $514,832
City of Huntington Park $146,058
City of Imperial $75,000
City of Imperial Beach $75,072
City of Indio $243,294
City of Industry $75,000
City of Inglewood $283,195
City of Irvine $792,738
City of Jurupa Valley $279,920
City of Kerman $75,000
City of Kingsburg $75,000
City of La Habra $168,205
City of La Mesa $164,536
City of La Puente $104,826
City of La Quinta $106,439
City of La Verne $91,104
City of Laguna Beach $75,000
City of Laguna Hills $87,140
City of Laguna Niguel $175,628
City of Laguna Woods $75,000
City of Lake Elsinore $194,453
City of Lake Forest $233,689
City of Lakewood $215,635
City of Lancaster $456,996
City of Lathrop $98,934
City of Lawndale $88,065
City of Lemon Grove $79,101
City of Lemoore $77,001
City of Lincoln $143,552
City of Livermore $227,646
City of Livingston $75,000
City of Lodi $179,747
City of Lomita $75,000
City of Lompoc $120,716
City of Long Beach $1,194,492
City of Los Alamitos $75,000
City of Los Altos $88,425
City of Los Angeles $9,758,951
City of Lynwood $179,579
City of Malibu $75,000
City of Manhattan Beach $96,873
City of Martinez $102,722
City of Maywood $75,000
City of Menifee $292,997
362

Applicant Award Amount
City of Menlo Park $92,197
City of Millbrae $75,000
City of Milpitas $217,999
City of Mission Viejo $245,907
City of Modesto $569,930
City of Montclair $105,184
City of Montebello $167,713
City of Monterey Park $161,611
City of Moorpark $99,117
City of Moreno Valley $547,390
City of Morgan Hill
• City of Gilroy
$290,583
City of Mountain View $224,560
City of Murrieta $292,904
City of Napa $207,005
City of National City $165,976
City of Newark $130,984
City of Norco $75,000
City of Norwalk $270,003
City of Oakdale $75,000
City of Oakland $1,094,382
City of Oakley $124,605
City of Oceanside $451,008
City of Ojai $75,000
City of Ontario $476,003
City of Orange $368,156
City of Orange Cove $75,000
City of Oroville $75,000
City of Oxnard $519,396
City of Pacifica $104,117
City of Palm Desert $139,155
City of Palm Springs $122,267
City of Palmdale $437,684
City of Palo Alto $182,321
City of Palos Verdes Estates $75,000
City of Paramount $143,202
City of Pasadena $362,784
City of Patterson $75,000
City of Pico Rivera $165,978
City of Pinole $75,000
City of Pittsburg $201,796
City of Placentia $144,054
City of Placerville $75,000
City of Pleasant Hill $94,576
City of Pleasanton $206,068
363

Applicant Award Amount
City of Point Arena $75,000
City of Porterville $170,155
City of Poway $133,635
City of Rancho Cordova $218,128
City of Rancho Cucamonga $457,434
City of Rancho Mirage $75,000
City of Rancho Palos Verdes $114,339
City of Rancho Santa Margarita $129,967
City of Redding $247,509
City of Redlands $194,451
City of Redondo Beach $185,221
City of Redwood City $219,107
City of Reedley $75,000
City of Rialto $274,747
City of Richmond $302,018
City of Ridgecrest $80,305
City of Rio Dell $75,000
City of Rio Vista $75,000
City of Ripon $75,000
City of Riverbank $75,000
City of Riverside $820,247
City of Rocklin $192,398
City of Rolling Hills $75,000
City of Rolling Hills Estates $75,000
City of Roseville $404,054
City of Sacramento $1,349,680
City of San Bruno $116,990
City of San Buenaventura $286,025
City of San Carlos $84,476
City of San Diego $3,551,023
City of San Dimas $96,342
City of San Fernando $75,000
City of San Gabriel $107,700
City of San Jacinto $148,186
City of San Jose $2,491,720
City of San Juan Capistrano $98,957
City of San Leandro $234,647
City of San Marcos $252,856
City of San Mateo $275,609
City of San Pablo $89,149
City of San Ramon $222,667
City of Sanger $76,049
City of Santa Ana $783,881
City of Santa Barbara $229,264
City of Santa Clara $351,102
364

Applicant Award Amount
City of Santa Cruz $171,801
City of Santa Fe Springs $75,000
City of Santa Maria $291,555
City of Santa Monica $245,580
City of Santa Paula $89,465
City of Santee $161,453
City of Scotts Valley $75,000
City of Seal Beach $75,000
City of Selma $75,000
City of Shafter $75,000
City of Solana Beach $75,000
City of South Gate $247,931
City of South Lake Tahoe $75,000
City of South San Francisco $174,647
City of Stanton $109,300
City of Stockton $835,924
City of Suisun City $81,822
City of Sunnyvale $412,829
City of Taft $75,000
City of Tehachapi $75,000
City of Temecula $290,059
City of Thousand Oaks $326,482
City of Torrance $378,497
City of Tracy $255,665
City of Trinidad $75,000
City of Tulare $188,509
City of Turlock $191,561
City of Tustin $214,092
City of Twentynine Palms $75,241
City of Union City $180,941
City of Upland $211,031
City of Vacaville $269,105
City of Vallejo $323,093
City of Vernon $75,000
City of Victorville $363,315
City of Villa Park $75,000
City of Visalia $378,430
City of Vista $266,591
City of Wasco $77,035
City of Watsonville $137,242
City of West Sacramento $148,404
City of Westlake Village $75,000
City of Westminster $242,417
City of Whittier $234,113
City of Wildomar $102,186
365

Applicant Award Amount
City of Willits $75,000
City of Winters $75,000
City of Woodlake $75,000
City of Woodland $163,146
City of Yorba Linda $181,754
City of Yucaipa $147,896
Contra Costa County $459,414
Costa Mesa Sanitary District $315,341
Del Norte Solid Waste Management Authority
• City of Crescent City
• Del Norte County
$150,000
El Dorado County $416,857
El Dorado Hills Community Services District $126,168
Fresno County $419,377
Garden Grove Sanitary District $455,122
Heber Public Utility District $75,000
Helendale Community Service District $75,000
Home Garden Community Services District $75,000
Humboldt County $191,655
Imperial County $95,705
Kensington Police Protection and Community Services
District
$75,000
Kern County $793,965
Kings County $87,593
Lake County $125,832
Los Angeles County $2,592,030
Madera County $199,091
Marin City Community Services District $75,000
Marin County Hazardous and Solid Waste Management Joint Powers Authority
• City of Belvedere
• City of Larkspur
• City of Mill Valley
• City of Novato
• City of San Rafael
• City of Sausalito
• Marin County
• Town of Corte Madera
• Town of Fairfax
• Town of Ross
• Town of San Anselmo
• Town of Tiburon
$1,157,867
366

Applicant Award Amount
Mariposa County $75,000
Mendocino County $165,846
Merced County $242,717
Midway City Sanitary District $274,786
Modoc County $75,000
Montara Water & Sanitary District $75,000
Monterey County $277,986
Monterey Regional Waste Management District (dba ReGen
Monterey)
• City of Carmel-by-the-Sea
• City of Del Rey Oaks
• City of Marina
• City of Monterey
• City of Pacific Grove
• City of Sand City
• City of Seaside
• Pebble Beach Community Services District
$612,849
Mountain House Community Service District $75,000
Nevada County $182,132
Novato Sanitary District $163,454
Orange County $350,165
Oro Loma Sanitary District $357,637
Phelan Pinon Hills Community Services District $75,360
Placer County $297,821
Plumas County $75,000
Rancho Murieta Community Services District $75,000
Regional Waste Management Authority
• City of Live Oak
• City of Marysville
• City of Wheatland
• City of Yuba City
• Sutter County
• Yuba County
$667,656
Riverside County $1,048,132
Rodeo Sanitary District $75,000
Sacramento County $1,557,735
Salinas Valley Solid Waste Authority
• City of Gonzales
• City of Greenfield
• City of King City
• City of Salinas
• City of Soledad
$722,025
367

Applicant Award Amount
San Benito County Integrated Waste Management Regional
Agency
• City of Hollister
• City of San Juan Bautista
• San Benito County
$269,157
San Bernardino County $778,319
San Diego County $1,328,221
San Gabriel Valley Council of Governments
• City of Arcadia
• City of Azusa
• City of Baldwin Park
• City of Covina
• City of Duarte
• City of Glendora
• City of Irwindale
• City of La Canada Flintridge
• City of Monrovia
• City of Pomona
• City of Rosemead
• City of San Marino
• City of Sierra Madre
• City of South El Monte
• City of South Pasadena
• City of Temple City
• City of Walnut
• City of West Covina
$2,314,899
$2,389,899
San Joaquin County $416,125
San Luis Obispo County $321,734
San Luis Obispo County Integrated Waste Management
Authority
• Avila Beach Community Services District
• California Valley Community Service District
• Cambria Community Services District
• Cayucos Sanitary District
• City of Arroyo Grande
• City of Atascadero
• City of Grover Beach
• City of Morro Bay
• City of Paso Robles
• City of Pismo Beach
• City of San Luis Obispo
• Heritage Ranch Community Service District
• Los Osos Community Services District
• Nipomo Community Service District
$1,430,723
368

Applicant Award Amount
• Oceano Community Service District
• San Miguel Community Services District
• San Simeon Community Services District
• Templeton Community Service District

San Mateo County $165,976
Santa Barbara County $365,114
Santa Clara County $245,397
Santa Cruz County $338,133
Santa Lucia Community Services District $75,000
Shasta County
• City of Anderson
• City of Shasta Lake
$328,282
Siskiyou County
• City of Dorris
• City of Dunsmuir
• City of Etna
• City of Fort Jones
• City of Montague
• City of Mount Shasta
• City of Tulelake
• City of Weed
• City of Yreka
$750,000
Solano County $75,000
Sonoma County Waste Management Agency
• City of Cloverdale
• City of Cotati
• City of Healdsburg
• City of Petaluma
• City of Rohnert Park
• City of Santa Rosa
• City of Sebastopol
• City of Sonoma
• Sonoma County
• Town of Windsor
$1,537,564
Stanislaus County $292,184
Tamalpais Community Services District
• Almonte Sanitary District
• Alto Sanitary District
• Bolinas Community Public Utility District
• Homestead Valley Sanitary District
• Las Gallinas Valley Sanitary District
• Strawberry Recreation District
$535,781
369

Applicant Award Amount
Tehama County Solid Waste Management Agency
• City of Corning
• City of Red Bluff
• City of Tehama
• Tehama County
$340,333
Town of Apple Valley $202,280
Town of Atherton $75,000
Town of Colma $75,000
Town of Hillsborough $75,000
Town of Loomis $75,000
Town of Mammoth Lakes $75,000
Town of Paradise $75,000
Town of Portola Valley $75,000
Town of Truckee $75,000
Town of Woodside $75,000
Town of Yucca Valley $75,000
Tulare County $354,476
Tuolumne County
• City of Sonora
$211,328
Upper Valley Waste Management Agency
• City of Calistoga
• City of St Helena
• Napa County
• Town of Yountville
$300,000
Ventura County $246,469
West Contra Costa Integrated Waste Management Authority • City of Hercules
$76,194
West Valley Solid Waste Management Authority
• City of Campbell
• City of Monte Sereno
• City of Saratoga
• Town of Los Gatos
$374,757
Yolo County $99,195
Total Award $109,515,543
$109,590,543

Revisions were made to the RFA because one of the participating jurisdictions was not able to resolve the outstanding debt issue in time and were subsequently removed from the grant award.
370
Deputy Director Action
On the basis of the information and analysis in this Request for Approval and the findings set out herein, I hereby conditionally approve the grant awards for the SB 1383 Local Assistance Grant Program as listed in Table 2. Each proposed grantee’s award is subject to three conditions:

1. The recommended grantee must pay all outstanding debts due to CalRecycle, or bring current any outstanding payments owed to CalRecycle, within 60 days of the date of the award email.

2. The recommended grantee is responsible for submitting all outstanding documents required by CalRecycle during the application process, as well as those identified in the Application Guidelines and Instructions, prior to the release of funding.

3. The recommended grantee must have a valid Resolution in place within 60 days of the date of the award email.

Signed By: Karen Kayfetz, Acting Deputy Director May 30, 2024 Karen Kayfetz Dated
Acting Deputy Director

371
Department: Information Technology
Prepared By: Samantha Robles
Staff Member Presenting: Colin Fernandes,
Executive Director Information Technology
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 10
SUBJECT:

AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH

COLLABORATIVE SOLUTIONS, LLC FOR WORKDAY SERVICE SUPPORT

CITY OF ONTARIO
Agenda Report
September
3, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council authorize the City Manager, or his designee, to execute Amendment No. 2 to the Professional Services with Collaborative Solutions, LLC of Teaneck, New Jersey, for ongoing full-suite Workday support and conﬁguration services, increasing the authorized contract amount by $216,020 for a total contract not-to-exceed amount of $514,824.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
FISCAL IMPACT:

The Fiscal Year 2024-25 Adopted Budget includes appropriations from the Information Technology Fund for consulting services, appropriations from the Human Resources Fund for miscellaneous services and appropriations from the Finance Fund for other professional services. The proposed Amendment to the Professional Services Agreement includes $200,000 for an additional 1,000 consultant hours and 200 project associate hours to use throughout the end date of the contract, December 31, 2028, and $16,020 for a beneﬁts tenant analysis and plan, and increases the authorized contract amount by $216,020 for a total contract not-to-exceed amount of $514,824 over the ﬁve-year term. The ﬁxed billing rates speciﬁed in the current Agreement will determine the amount charged for services and reﬂect the actual services provided. If approved, appropriations will be added to the future years' budgets consistent with the annual budget adoption process.

BACKGROUND & ANALYSIS:

The consulting ﬁrm Collaborative Solutions, LLC has provided the City with on-demand support services for Workday Human Capital Management (HCM) for over ﬁve years, on-demand support services for Workday Finance Enterprise Resource Planning (ERP) for over a year, and was also the City's implementation partner for Workday Finance Enterprise Resource Planning (ERP) system.

The City approved a new Agreement in 2023 for three years (with two optional years) with a not-to- 372
exceed amount of $298,804 to provide on-going Workday support and conﬁguration services. The City has relied on Collaborative Solutions, LLC's deep understanding of the City's Workday HCM and ERP conﬁguration and business rules to help ensure proper execution of short-term requirements while laying the foundation of long-term stability and growth. An expanded engagement with Collaborative Solutions, LLC will aim to address the long-term growth and ﬂexibility of the Workday HCM and ERP systems. In addition to maintenance services needed to upkeep the Workday system, the expanded engagement seeks to provide a comprehensive assessment of the City's HCM beneﬁts and Finance ERP conﬁguration to keep the system up-to-date with current and future business processes and requirements. Staﬀ requests City Council approval to amend the Agreement to increase the not-to-exceed amount to $514,824 with no change to the Agreement term.
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PAUL S. LEON
MAYOR

DEBRA PORADA

MAYOR PRO TEM

ALAN D. WAPNER
JIM W. BOWMAN

RUBEN VALENCIA

COUNCIL MEMBERS

SHEILA MAUTZ

CITY CLERK

JAMES R. MILHISER

TREASURER

SCOTT OCHOA

CITY MANAGER

AMENDMENT NO. 2 TO THE PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND

COLLABORATIVE SOLUTIONS, LLC

1. Parties and Date.

This Amendment No. 2 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and Collaborative Solutions, LLC, a Virginia limited liability company (“Consultant”) . City and Consult ant are sometimes individually referred to as “Party” and collectively as “Parties.”

2. Recitals.

2.1 Agreement. The City and Consultant have entered into a “Professional Services Agreement“ dated November 21, 2023 (“Agreement”).

2.2 Amendment Purpose. T he City and Consultant desire to amend the A greement to extend the terms and revise/add the scope of work. The Parties have heretofore entered into that Amendment No. 1, dated April 26, 2024.

2.3 Amendment Authority. This Amendment No. 2 is authorized pursuant to Section

3.1.1 General Scope of Service Term, 3.1.3 Deliverable and Acceptance, and 3.2.1 Compensation of the Agreement.

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3. Terms.

3.1 Amendment . Section 3.1.1 General Scope of Services and Sections 3.1.3 Deliverable and Acceptance of the Agreement is hereby amended in its entirety to read as follows:

General Scope of Services . “Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional consulting services necessary for the Project ("Services"). The Services are more particularly described in mutually agreed upon Statements of Work document(s) (“SOW”) and Project Change Order (“PCO”) dated August 2, 2024, included in the Agreement as Exhibit “B,” and Exhibit “C” which the Parties shall execute. In addition, Consultant will provide to the City certain results or proceeds of the Services that are defined as deliverables in each Statement of Work (collectively, the “ Deliverables”). All Services shall be subject to, and performed in accordance with, this Agreement, and all applicable local, state and federal laws, rules and regulations related to the performance of Consultant’s Services. Each Statement of Work and Project Change Order shall specifically identify this Agreement and indicate that it is subject to the terms hereof. Unless otherwise set forth herein or expressly identified in the SOW of P CO as a modification to a specified provision of this Agreement, to the extent there are any conflicts or inconsistencies between this Agreement and any Statement of Work or Project Change Order, the provisions of this Agreement shall govern and control. Any Affiliate of Consultant may itself provide Services directly to City and any Affiliates of C ity under this Agreement by executing SOWs and PCOs in its own name, exclusive of Consultant, and only for the purposes of any such SOW(s), shall be considered “Consultant” as that term is used in this Agreement.”

Deliverable and Acceptance. “Deliverables, if any, under this Agreement will be as set forth under any SOW and PCO . Each SOW and PCO will describe, if applicable, the Deliverables that Consultant is obligated to furnish to City hereunder, the acceptance criteria for each of the Deliverables (the “Acceptance Criteria”) and the completion criteria, if any, to signify completion of each phase of a project. City shall review, evaluate and/or test, as the case may be, each of the Deliverables within the applicable time period set forth in a SOW and PCO (with respect to each Deliverable, the “Acceptance Period”) to determine whether or not such Deliverable satisfies the applicable Acceptance Criteria in all material respects. If City does not furnish a written notice to Consultant specifying that a Deliverable has failed to satisfy its Acceptance Criteria in all material respects prior to the end of the Acceptance Period therefor and/or if City commences using the Deliverables commercially or in a production environment, then City will be deemed to have accepted such Deliverable. If any Deliverable fails to satisfy its Acceptance Criteria in any material respect, then City will notify Consultant in writing specifying the respects in which such Deliverable does not conform to the applicable Acceptance Criteria and what modifications are necessary to make it conform thereto. Thereafter, Consultant shall use its diligent commercially reasonable efforts to modify such Deliverable to so conform and the Deliverable will be resubmitted for acceptance by City . If, after repeated attempts, Consultant is unable to remedy any non- conforming portion of any Deliverable, City may terminate pursuant to Section 12.2 herein .

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Amendment. Section 3.2.1 Compensation of the Agreement is hereby amended in its entirety to read as follows:

Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in the mutually agreed upon Project Change Order included in the Agreement as “Exhibit B” and Exhibit “C .” The Agreement will increase by two -hundred sixteen thousand twenty dollars ($216,020) for a revised total not to exceed compensation of five-hundred fourteen thousand eight hundred and twenty -four dollars ($514,824) without the written approval of the City Council or City Manager, as applicable.

Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

3.2 Continuing Effect of Agreement . Except as amended by this Amendment No. 2, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 2. From and after the date of this Amendment No. 2, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 2.

3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 2.

3.4 Severability. If any portion of this Amendment No. 2 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.5 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Amendment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integrated amendment.

[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 2 TO PROFESSIONAL SERVICES

AGREEMENT BETWEEN THE CITY OF ONTARIO

AND COLLABORATIVE SOLUTIONS, LLC

IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 2 as of the day and year first above written.

CITY OF ONTARIO COLLABORATIVE SOLUTIONS, LLC
By:

Its:

Printed Name:

By:

Its:

Printed Name:

[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]

Approved By:

Scott Ochoa
City Manager
Approved as to Form:

_____________________________________
Best Best & Krieger LLP
City Attorney

Attested By:

City Clerk

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EXHIBIT “B”

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Exhibit “C”

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384
Department: Community Life and Culture
Prepared By: Lacey A Rightmer
Staff Member Presenting: Helen McAlary,
Executive Director Community Life and Culture
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 11
SUBJECT:

AMERICORPS STATE COMPETITIVE CONTINUATION GRANT FOR 2024-25

CITY OF ONTARIO
Agenda Report
September
3, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council authorize the City Manager or designee to execute grant documents and accept a $368,000 AmeriCorps Competitive Continuation Grant for October 2024 through September 2025 to fund the Ontario Promise Corps project.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Pursue City's Goals and Objectives by Working with Other Governmental Agencies Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT:

The Community Life & Culture Agency has been awarded $368,000 from AmeriCorps, a federal agency, for the Fiscal Year 2024-25 AmeriCorps Competitive Continuation Grant to fund the 2024-25 Ontario Promise Corps program year. The City is required to provide a cash match of $507,833, which includes $194,890 towards the living allowance of the AmeriCorps members, $85,605 in in-kind services related to existing personnel and administrative fees associated with the grant. The program partners (Ontario-Montclair Schools Foundation and Hope Through Housing Foundation) will reimburse up to $135,000 of the City's cash match. The number of AmeriCorps members recruited for those locations will determine the exact reimbursement amount. Additionally, $22,500 is requested to replace laptops assigned to the AmeriCorps members. The requested funds for the General Fund cash match will be added as needed at a future Quarterly Budget update. The grant period is from October 08, 2024 through September 30, 2025.

BACKGROUND & ANALYSIS:

On August 20, 2019, the City Council approved a 12-month AmeriCorps State Planning Grant for the City of Ontario. This grant was used to develop the Ontario Promise Corps program, a cradle-to-career collective impact program. The program implements services that aim to improve school readiness, improve school attendance, and increase college access and success within the local community. The AmeriCorps grant is administered on the state level by California Volunteers, and office of the State of California.

The Planning Grant outlined activities focusing on AmeriCorps' national service focus area of education. These activities provide services that contribute to improving educational outcomes for 385
economically disadvantaged children and youth.

In 2020, in alignment with the City's commitment to increasing educational opportunities, the City of Ontario submitted a successful grant application to fund AmeriCorps members to implement the strategies developed during the Planning Grant phase. On August 4, 2020, the City Council approved a 12-month round of the Ontario Promise Corps program, funded through the AmeriCorps State Formula Grant. With subsequent approvals from City Council, the program received AmeriCorps grants for Fiscal Years 2021, 2022 and 2023.

The Ontario Promise Corps program aims to recruit sixteen (16) Full-Time AmeriCorps members each program year. These members provide one-on-one educational support for low-income and at-risk students, foster mentor-mentee relationships, and oﬀer information and resources for higher education to Ontario residents. The program operates in partnership with Hope Through Housing Foundation, Ontario-Montclair Schools Foundation, Ontario City Library, and Ontario Recreation & Community Services Department.

This year, AmeriCorps has awarded the Community Life & Culture Agency a $368,000 AmeriCorps Competitive Continuation Grant to continue these programs. Highlights of the grant budget include a full-time Administrative Specialist position who is 100% responsible for the day-to-day operations of the grant at a total cost of $108,935; 16 AmeriCorps members with a state-mandated living allowance set at $30,000, health care, oﬃce supplies, training, and equipment costs. It also fund a part-time Program Specialist that will focus on outreach and program support. This one-year grant supports AmeriCorps member activities from October 2024 through September 2025. Staﬀ will submit a new application in 2025 for future funding.

The Community Life & Culture Agency requests that the Ontario City Council approve the execution of the 2024-2025 grant documents, accept the grant funds, and approve the City cash match for the 2024-2025 Ontario Promise Corps program year.
386
Department: Human Resources
Prepared By: Amanda Elias
Department:

Prepared By: Amanda Elias
Staff Member Presenting: Angela C. Lopez,
Executive Director Human Resources
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 12
SUBJECT:

A PROFESSIONAL SERVICES AGREEMENT WITH ATHENS INSURANCE SERVICES, INC. FOR THIRD-PARTY ADMINISTRATION SERVICES FOR WORKERS'

COMPENSATION CLAIMS

CITY OF ONTARIO
Agenda Report
September
3, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council approve and authorize the City Manager, or his designee, to execute a three-year Professional Services Agreement with Athens Insurance Service, Inc. of Concord, California, for third-party administration and training services for workers’ compensation claims for a total not-to-exceed amount of $1,814,460.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Maintain the Current High Level of Public Safety
FISCAL IMPACT:

The Fiscal Year 2024-25 Adopted Budget includes appropriations in the Workers Compensation Fund for these services. The Agreement has a total not-to-exceed amount of $1,051,550 over three years. Two (2) one-year terms may be exercised at the City’s sole discretion for an additional $762,910. The total recommended expenditure authorization for Athens Insurance Service, Inc., is $1,814,460. The consultant will be compensated for the scope of work at the approved billing rates, as outlined in the Agreement.

BACKGROUND & ANALYSIS:

In accordance with California's workers' compensation laws, the City operates as a self-insured entity and oversees the workers' compensation program through a third-party claims administrator (TPA). The TPA is responsible for monitoring claims and disability status, approving medical treatments, and processing medical bills. In addition, the TPA ensures compliance with workers' compensation best practices and the State of California Division of Workers' Compensation.

On March 29, 2024, the City solicited proposals for workers’ compensation related to claims administration to evaluate cost and service options across the industry. City Staﬀ reviewed seven qualifying proposals for third-party claims administration services for workers' compensation. 387
Consideration was given to the overall claims experience in managing workers' compensation programs for clients and cities in California, the expertise of each ﬁrm's personnel and medical examiners assigned to the City's account, safety-related educational/training initiatives for supervisors, competitive fee structures, and the comprehensiveness and organization of the proposal responses.

Amongst these, the City interviewed four (4) ﬁrms to include the top three (3) qualiﬁed and the City’s existing service provider as follows:

Name
Main Location
AdminSure, Inc.

Ontario, CA
Athens Insurance Service, Inc.

Concord, CA
Corvel
Irvine, CA
LWP Claims Solutions, Inc
Mill Valley, CA
City Staﬀ from the Human Resources/Risk Management Agency, Fire Department, and the Police Department reviewed the proposals and interviewed the abovementioned ﬁrms. After the initial interviews, three (3) ﬁrms moved forward to a second interview with leadership from Human Resources/Risk Management Agency and Management Services. Athens Insurance Service, Inc. was determined to provide the best overall service, claims management, technology (access, data, reporting, and real-time service), oversight
f
or the City's workers' compensation program, and
educational/training program for supervisors.

City Staﬀ recommends that the City Council approve an Agreement with Athens Insurance Service, Inc., given their outstanding reputation for providing top-notch customer service as a family-owned organization for 47 years. As one of the top-performing TPAs in the industry, Athens Insurance Service, Inc. has been recognized as a Best Place to Work and achieved a 98% client retention rate for the past ﬁve years. The Agreement ensures a cost-eﬀective option and enables the City to uphold high service standards, enhance operational eﬃciency, and maintain the current high level of public safety.

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ITY OF ONTARIO

PROFESSIONAL SERVICES AGREEMENT

1. PA
RTIES AND DATE.

This Agreement is made and entered as of __________________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764- 4196, County of San Bernardino, State of California ("City") and Athens Insurance Service, Inc. an S Corporation, with its principal place of business at 2552 Stanwell Drive, Concord, CA 94520 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Consultant.

Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.

Consultant represents that it is experienced in providing workers' compensation claims administration, medical bill review, utilization review , training and ancillary services to public clients, is licensed in the State of California, and is familiar with the plans of City.

2.2 Project.

City desires to engage Consultant to render such professional services for the workers' compensation claims administration, medical bill review, utilization review , training and ancillary services project ("Project") as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 G eneral Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional w orkers’ compensation claims administration services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreem ent, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal PAUL S. LEON
MAYOR
D

EBRA PORADA

MAYOR PRO TEM
A
LAN D. WAPNER
JIM W. BOWMAN

RUBEN VALENCIA

COUNCIL MEMBERS

SHEILA MAUTZ

CITY CLERK
JA
MES R. MILHISER

TREASURER
S

COTT OCHOA

CITY MANAGER
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BB&K (2024) -2- PROFESSIONAL SERVICES AGREEMENT

laws, rules and regulations.

3.1.2 Ter m . The term of this Agreement shall be from November 1, 2024, to October 31, 2027, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two ( 2) additional one- year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.

3.2 C ompensation.

3.2.1 C ompensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed one million, fifty-one thousand, five-hundred fifty dollars ($1,051,000) for the three-year period. Two (2) one-year terms may be exercised at the City’s sole discretion for an additional $762,910. The total compensation shall not exceed two million, five hundred thousand dollars ($1,814,460) without written approval of the City Council or City Manager, as applicable

3.2.2 w ithout written approval of the City Council or City Manager , as applicable.

Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

3.2.3 P
ayment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.

City shall, within 30 days of receiving such invoice, review the invoice and pay all non -disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.

3.2.4 Reimbursement for Expenses.

Consultant shall not be reimbursed for any
expenses unless authorized in writing by City, or included in Exhibit "B" of this Agreement.

3.2.5 Extra Work . At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.

Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
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3.2.6 Automated Clearing House (“ACH”) payments. It is the City’s policy to pay its consultant invoices via electronic fund transfers through the ACH network. All payments due and owing pursuant to a properly issued and correct invoice or under this Agreement shall be made through electronic ACH transfers, unless otherwise agreed upon by both Parties in writing.

Consultant shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Consultant in the amount required pursuant to a properly issued and correct invoice or under this Agreement. Each Party shall undertake any and all required actions and execute any required documents, instruments, or agreements required to effectuate the requirements of this Section. In the event the City erroneously deposits funds into an account, or otherwise deposits funds to which Consultant is not entitled: (1) Consultant shall immediately notify the City and the financial institution; (2) Consultant shall not withdraw any of the funds which were erroneously deposited or to which Consultant is not entitled; and (3) Consultant authorizes both the City and financial institution to take all actions necessary to correct the error and return to the City all funds erroneously deposited or to which Consultant is not entitled.

3.3 R
esponsibilities of Consultant.

3.3.1 I ndependent Contractor; Control and Payment of Subordinates . The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.

Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law.

Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.

3.3.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously . Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.

3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.

3.3.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this 391
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Agreement for cause. The key personnel for performance of this Agreement are as follows:

James Jenkins, President.

3.3.5 City's Representative . The City hereby designates Angela C. Lopez , Executive Director of Human Resources/Risk Management , or designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement.

The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.

3.3.6 Consultant's Representative. Consultant hereby designates J ames
Jenkins, President or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

3.3.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.

3.3.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure t o comply with the standard of care provided for herein. Any employee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
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3.3.9 Period of Performance.

3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.

3.3.9.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.

3.3.9.3 Should a Force Majeure Event occur, the non- performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Consultant to any additional compensation.

Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

3.3.10 Law
s and Regulations; Employee/Labor Certification.

3.3.10.1 Compliance with Laws . Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.

3.3.10.2 Em ployment Eligibility; Consultant . Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the 393
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employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement.

3.3.10.3 E
qual Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non -discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.3.10.4 Air
Quality . To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.

3.3.10.5 Wat
er Quality Management and Compliance . Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter -Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may seek damages from Consultant for delay in completing the Services caused by Consultant ’ s
f
ailure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.

3.3.10.6 Saf ety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. 394
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3.3.11 Insurance.

3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.

3.3.11.2 Types
of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, suppl ement or endorse the policies to do so.
(A) C
ommercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $2,000,000 per occurrence and no less than $4,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $2,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $ 2,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, polluti on, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement. 395
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3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Co mmercial General Liability : (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.

Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability : (1) Additional Insured: The City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Vendor or for which the Vendor is responsible. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(C) Professional Liability (Errors & Omissions): (1) Cancellation:

Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non- payment of premium. (2) This insurance shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend.
(D) Workers' Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.

3.3.11.4 P
rimary and Non- Contributing Insurance . All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
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3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.

3.3.11.6 Ev idence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.

3.3.11.7 Ac
ceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.

3.3.11.8 Enf
orcement of Agreement Provisions (non estoppel) .

Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.

3.3.11.9 Requi rements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.

3.3.11.10 Addi tional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
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(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.

3.3.11.11 I
nsurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
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3.4 Labor Code Requirements.

3.4.1 P revailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

3.4.2 Registration/DIR Compliance.

If the Services are being performed on a
public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants.

3.4.3 Compliance Monitoring. Thi s Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.

3.4.4 Labor C
ertification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code and agrees to comply with such provisions before commencing the performance of the Services.
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3.5 Termination of Agreement.

3.5.1.1 G rounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least ninety ( 90) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consul tant, may, by written notice to City, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to City of such termination, and specifying the effective date thereof, at least one hundred eighty (180) days before the effective date of such termination. (City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least ninety (90) days before the effective date of such termination. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.

3.5.1.2 Ef
fect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.

3.5.1.3 Addi
tional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.6 I
ndemnification.

3.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.

3.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which 400
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is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

3.7 General Provisions.

3.7.1 A
ccounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.

3.7.2 Independent Contractors and Subcontracting.

3.7.2.1 Use of Consultants. Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court , 4 Cal. 5th 903 (2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only utilize its employees to provide the Services. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section 3.7 .2.2 below. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.

3.7.2.2 Pr ior Approval Required. Consultant shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Consultant to use a Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent. 3.7.3 Delivery of Notices. All notices permitted or required under this Agreement 401
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shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:

Consultant: Athens Insurance Service, Inc.

DBA Athens Administrators
2552 Stanwell Drive
Concord, CA 94520
ATTN: James Jenkins, President
Cit
y: City of Ontario
303 East “B” Street
Ontario, CA 91764
ATTN: Angela C. Lopez, Executive Director of Human
Resources/Risk Management
Such notice shall be deemed made when personally delivered or when mailed, forty -eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.7.4 O wnership of Materials and Confidentiality .

3.7.4.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are pre pared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents. 402
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3.7.4.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non -exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.

3.7.4.3 Righ t to Use . City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re- use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.

3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.

3.7.4.5 Conf
identiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be di sclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.

3.7.4.6 Conf
idential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public 403
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Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.

Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.

3.7.5 C
ooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

3.7.6 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.

3.7.7 Attorneys’ Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recov er from the losing party reasonable attorneys’ fees and all costs of such action.

3.7.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.

3.7.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.

3.7.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.

3.7.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
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3.7.12 Assignment or Transfer. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination.

Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.

3.7.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.

3.7.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

3.7.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

3.7.16 No Third- P
arty Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.

3.7.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.7.18 Prohibited Interests . Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agr eement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 405
46700.00100\40935195.1
BB&K (2024) -18- PROFESSIONAL SERVICES AGREEMENT

3.7.19 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.

3.7.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

3.7.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.

GNATURES ON NEXT PAGE
406
46700.00100\40935195.1
BB&K (2024) -19- PROFESSIONAL SERVICES AGREEMENT

SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND
ATHENS INSURNCE SERVICE, INC.

I
N WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.

CITY OF ONTARIO ATHENS INSURANCE SERVICE, INC
By
:

Its:

Printed Name: James Jenkins
By:

Its:

Printed Name:
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:

Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
A
ttested By:

City Clerk
407
46700.00100\40935195.1
BB&K (2024) Exhibit “A”-1 PROFESSIONAL SERVICES AGREEMENT

EXHIBIT "A"

SCOPE OF SERVICES
Services sought under this proposal include workers' compensation claims administration, medical bill review, and utilization review services. The selected consultant will serve as a third- party administrator and will perform all services required to supervise and administer a self - insured workers’ compensation program for the City, including but not limited to:
• I
mplement effective case management practices.
• Ensure timely adjudication of City employees' workers' compensation claims by licensed adj
usters under the California Workers' Compensation Act.
• Maintain consistent excellent customer service to City employees. • Contact injured employees within 48 hours of receiving a claim. • Respond to inquiries or questions from claimants in a timely manner. • Keep the City informed and involved in all accepted or denied claims. • Notify the City of any changes to a claimant’s work restrictions. • Inform the City of all outside case management services, including defense attorneys, nurse case managers, vocational experts, and investigative consultants.

Program Goals
• D
ifferentiate between the concerns of City employees and the concerns of the City as an organization
• Ensure that employees sustaining work-related injuries or illnesses receive prompt and hi
gh-quality medical care and treatment.
• Develop and implement strategies that aim to reduce the frequency and severity of claims.
• Develop a coordinated and high-performance approach between City and vendor representatives for an efficient workers' compensation program. • Continuously review and implement best practices for administering the City's workers' compensation program.
• Maintain high standards of excellence by providing comprehensive training, excellent customer service, management support for City employees. • Ensure claimants receive appropriate medical and rehabilitative services to achiev e
m
aximum medical recovery and facilitate a safe and expedient return to work. 408
46700.00100\40935195.1
BB&K (2024) Exhibit “B”-1 PROFESSIONAL SERVICES AGREEMENT

E
XHIBIT "B"

COMPENSATION
Additional Services
Annual Administration Fee - Includes the noted services below: $5,000 Banking - includes management of (1) City bank account with monthly escrow replenishment. Each additional account will be charged at a rate of $600 per month.

D
ata Management Included
Account Management Included
Claim Reporting (web, fax, telephonic) Included
Dash Board Risk Management Web Site Included
On-Line System Access (Up to 5 Users) Included
Annual Stewardship Report Included
Electronic Delivery of Monthly Loss Runs Included
M
edical Bill Review
Medical Fee Schedule Reduction (OMFS)
Includes – Medical, Pharmacy and Supplies
$8.75 Per Bill
Hospital In Patient and Hospital Outpatient
Fee Schedule Reductions
$600 Per Bill
PPO Network & Specially Bill Negotiations 23.00% of Savings Duplicate Bills No Charge
U
tilization Review
Concurrent, Prospective and Retrospective
Review
$160 Flat Fee
UR Appeals: Peer to Peer $300 Per Hour
Authorization Only $45 Flat Rate
409
46700.00100\40935195.1
(BB&K 2017) Exhibit “D”-2

Case Management
Telephonic Nurse Case Management $125 Per Hour
Field Case Management $135 Per Hour + Travel and Mileage Catastrophic Case Management $145 Per Hour + Travel and Mileage P
eer Review
Physician Peer Review $350 Flat Fee
Records Review $250 Per Hour
Medical Review, Utilization Review, Case Management & Peer Review Fees are subject to 3.5% annual increases on the anniversary date of agreement.

A
dditional Related Services
Pharmacy Benefits Management (PBM) Included
Claim Reporting Included
Predictive Modeling Included
Jarvis Claim Communication System Included
New Loss Text Messaging to Injured
Workers
Included
CMS Reporting (Verisk) Included
Pharmacy Drug Review $125 Per Hour
Central Index Bureau &
First and Subsequent Report of Incident
Reporting
$25 Per Request
Subrogation Recovery 25% of Gross Recovery
MPN (Only applies if MPN is in place) $5.75 Per Bill
IT Special Projects (Custom report creation
API feeds & special conversions)
$180 Per Hour
410
46700.00100\40935195.1
(BB&K 2017) Exhibit “D”-3

Nurse Triage $175 Per Claim
411
Department: Planning
Prepared By: Rudy Zeledon
Staff Member Presenting: Scott Murphy,
Executive Director Community Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 13
SUBJECT:

AN APPEAL OF THE PLANNING COMMISSION'S DECISION TO UPHOLD THE

ZONING ADMINISTRATOR'S INTERPRETATION AND DETERMINATION DECISION FOR FILE NOS. PDET23-005, PDET23-007, PDET23-008, PDET23-009, PDET23-010, PDET23-015 AND PDET23-016

CITY OF ONTARIO
Agenda Report
September
3, 2024
SECTION:

PUBLIC HEARINGS

RECOMMENDATION:

That the City Council conduct a public hearing on the Appeals and after receiving all public testimony,
uphold the Planning Commission's decision to uphold Zoning Administrator Decision No’s. ZA23-024 (File No. PDET23-005), ZA23-030 (File No. PDET23-007), ZA23- 031 (File No. PDET23-008), ZA23-032 (File No. PDET23-009), ZA23-033 (File No. PDET23-010), ZA23- 038 (File No. PDET23-015) and ZA23-039 (File No. PDET23-016) and deny the Appeals.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
FISCAL IMPACT:

There is not a direct fiscal impact associated with this action.

BACKGROUND & ANALYSIS:

In 2020, the Executive Director of Finance ("License Oﬃcial") sent out a Notice of Assessment for Transient Occupancy Tax (TOT) (''Notice of Assessment"), which found that the following business operators (hereinafter referred to as “Hotels") were delinquent with unpaid Transient Occupancy Taxes (Attachment “A” on each Planning Commission Resolution).

Hotel Hacienda (File No PDET23-005), located at 2425 South Archibald Avenue; Bright Star Motel (File No. PDET23-007), located 1530 West Mission Boulevard; Days Inn Ontario Motel (File No. PDET23-008), located at 1405 East 4 th
Street;
Economy Inn (File No. PDET23-009), located at 2301 South Euclid Avenue; Mayfair Inn (File No. PDET23-010), located 1120 East Holt Boulevard; Sands Motel (File No. PDET23-015), located at 1240 West Mission Boulevard; and West Coast Inn (File No. PDET23-016) located at 1211 North Grove Avenue.

In 2021, the License Oﬃcial, sitting as the Transient Occupancy Tax License Oﬃcial under Chapter 6 of Title 3 of the Ontario Municipal Code, held hearings for the Hotels listed above. The purpose of the hearing was to allow the operators the opportunity to rebut the amount of tax assessed by the License Official and offer evidence why the specified tax, interest, and penalties are incorrect. 412
The Hotels were represented by Attorney Frank A. Weiser. Mr. Weiser argued that under Section 3-

6.03 of the TOT Ordinance, the transient occupancy tax is imposed only on transients and argued that transients are deﬁned in Section 3-6.02(g) as any person who exercises occupancy or is entitled to occupancy, for a period of 30 calendar days or less. The operators provided evidence that the Hotels rent rooms to guests for longer than 30 days and argued that these guests, having stayed longer than 30 days at the Hotels, are exempt from taxation as they no longer meet the deﬁnition of transient. Under Ontario Development Code section 5.03.250(E)(1), no hotel can rent to a guest for longer than 30 days.

The License Oﬃcial’s jurisdiction is to determine the proper tax to be remitted and give such determination and the amount of such tax, interest, and penalties (O.M.C. § 3-6.09). The License Oﬃcial does not have the jurisdiction to interpret or make a determination regarding the applicability of the Ontario Development Code (ODC), that the Hotels where a guest exceeds 30-day occupancy are exempt from the deﬁnition of transient as described in ODC Section 5.03.250(E)(l).

The Zoning Administrator, under Section l.02.015(A)(l) of the ODC, has jurisdiction of, and is responsible for, the administration and application of the regulations and provisions of the Development Code. After the testimony was completed, the License Oﬃcial issued a Stay of Decision and referred the matter to the Zoning Administrator to provide an interpretation or determination regarding the applicability and enforceability of Section 5.03.250(E)(1) to the Hotels.

In November and December of 2023, the Zoning Administrator issued Determination of Use Decisions for each of the Hotels and made the ﬁndings that the ODC Division 5.03, Section

5.03.250(E)(l) is applicable and enforceable to the operation of the Hotels (Attachment “A” on each Resolution). ODC Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days. The intent of a Hotel or Motel is to provide transient accommodations at a daily rate.

Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days. A Hotel or Motel permitting guests occupancy longer than 30 days are in violation and not exempt from ODC Section 5.03.250(E)(1). Therefore, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g).

On May 28, 2024, the Planning Commission conducted a public hearing to consider the appeal of the Zoning Administrator denial. Following the staﬀ’s presentation and after receipt of all public correspondence and testimony, the Planning Commission noted agreement with the Zoning Administrator. The Zoning Administrator acted within his limited authority to interpret the Ontario Development Code (ODC). The Zoning Administrator, under Section l.02.015(A)(l) of the ODC, has jurisdiction of, and is responsible for, the administration and application of the regulations and provisions of the Development Code. The Zoning Administrator’s power is limited to interpretation of the Code as applied to a particular case. Further, the Planning Commission found that the appellant introduced irrelevant legal arguments which did not challenge the underlying factual ﬁndings and analysis of each of the decisions by the Zoning Administrator. The Appellant takes issue with the implementation of legislation of the Ontario Development Code. For example, Ordinance No. 1569, which imposed the TOT, was passed in 1965 – ﬁfty-nine years ago. To address 413
these constitutional arguments for a legislative action that occurred in 1965 goes beyond the scope of the Zoning Administrator’s role. Thus, the Zoning Administrator’s power is limited to interpretation of the code and its application to a particular set of facts.

As a result, the Planning Commission voted 7-0 to adopt Resolution No’s PC24-018 (File No.

PDET23-005), PC24-019 (File No. PDET23-007), PC24-020 (File No. PDET23-008), PC24-021 (File No.

PDET23-009), PC24-022 (File No. PDET23-010), PC24-023 (File PDET23-015) and PC24-024 (File No.

PDET23-016) upholding the Zoning Administrator’s decision and denying the appeals.

APPEAL TO COUNCIL:

On June 6, 2024, the Appellant submitted an Appeal to the City Council, appealing the Planning Commission’s decision to uphold the Zoning Administrator’s decision. The Appellant raises the argument that the Planning Commission’s decision is not supported by the information, ﬁndings, and recommendations presented in the Background and Analysis Section of the Zoning Administrator’s Decision report.

The Appellant argues that the Planning Commission was required to adopt an Environmental Impact Report as part of their decision, and that the Zoning Administrator’s decision violated the First Amendment Petition Clause, Fourth Amendment Search and Seizure Clause, the Fifth Amendment Takings Clause, the Fourteenth Amendment Due Process Clause (Substantive and Procedural) and Equal Protection of the United States Constitution.

A copy of the Appeal applications and Appellant’s statement is included as Appendix A of this report. Staﬀ has reviewed the appeals and provides a response for each issue raised by the Appellant’s:

Appellants’ Issue No. 1:

The Planning Commission was required under California Environmental Quality Act to provide an Environmental Impact Report as the issue of the applicability of the Development Code may have a negative impact on the environment.

Staﬀ Response:

Appellants’ argument is ﬂawed because the TOT ordinance was not a “project” under CEQA requiring an Environmental Impact Report.

The California Environmental Quality Act (CEQA) provides a process through which public agencies, the public, and project developers can evaluate a project, understand its environmental impacts, and develop measures to reduce these impacts. CEQA applies to projects that may result in a change in the environment; a full environmental review is only required where the project could result in a significant adverse impact.

As part of the Planning Commission’s decision to uphold the Zoning Administrator’s decision, the Planning Commission reviewed and considered the information contained in the administrative record for the Project. Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the Planning Commission, the Planning Commission found that:

The administrative record has been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and The Resolutions were reviewed with respect to the applicability of the California Environmental 414
Quality Act of 1970 ("CEQA"), and the State CEQA Guidelines, and the Planning Commission determined that the Resolutions did not constitute a "project" within the meaning of CEQA Guidelines Section 15060(c)(2) because there is no potential that it will result in a direct or reasonably foreseeable indirect physical change in the environment and CEQA Guidelines Section 15378 because it has no potential for either a direct physical change to the environment, or a reasonably foreseeable indirect physical change in the environment.

Moreover, if the Planning Commission’s decision to uphold the Zoning Administrator’s decision comprises a project for CEQA analysis, it falls within the "common sense" CEQA exemption set forth in CEQA Guidelines Section 15061(b)(3), excluding projects where "it can be seen with certainty that there is no possibility that the activity in question (interpretation or determination regarding the applicability and enforceability of the Development Code) may have a significant effect on the environment." Additionally, the “creation of government funding mechanisms or other ﬁscal activities, which do not involve any commitment to any speciﬁc project. . .” are not considered a “project” under CEQA Guidelines Section15378(B)(4).

Here, there is no physical project undertaken and the TOT’s eﬀect is ﬁscal. Thus, the TOT Ordinance is a funding mechanism not a “project” and an EIR is not required under CEQA.

Appellant's Issue #2:

The Zoning Administrator’s decision violated the First Amendment Petition Clause, Fourth Amendment Search and Seizure Clause, the Fifth Amendment Takings Clause, the Fourteenth Amendment Due Process Clause (Substantive and Procedural) and Equal Protection of the United States Constitution Staﬀ Response:

Appellant’s arguments introduce irrelevant legal arguments that go beyond the limited scope of the Zoning Administrator’s decisions.

The Zoning Administrator has acted within his limited authority to interpret the Ontario Development Code (“ODC”). The Zoning Administrator, under Section l.02.015(A)(l) of the ODC, has jurisdiction of, and is responsible for, the administration and application of the regulations and provisions of the Development Code. The Zoning Administrator’s power is limited to interpretation of the Code as applied to a particular case, ODC § 1.02.010(B)(1). Thus, the Zoning Administrator’s power is limited to interpretation of the code and its application to a particular set of facts.

Appellants’ arguments introduce irrelevant legal arguments that do not challenge the underlying factual ﬁndings and analysis of each of the decisions by the Zoning Administrator. The Appellant takes issue with the implementation of legislation of the ODC. Ordinance No. 1569, which imposed the TOT, was passed in 1965 – ﬁfty-nine years ago. For the Zoning Administrator to consider these legal issues would exceed the power granted by the Development Code.

The Zoning Administrator acted within his limited authority to interpret the Development Code as to Appellants’ claims and found that their hotels are subject to ODC chapter 5.03.250(E)(1). Appellants do not challenge the factual ﬁndings made by the Zoning Administrator. Thus, the appeal should be denied, and the Zoning Administrator’s decisions upheld.
415
Case Planner: Rudy Zeledon CDA Assistant Director Hearing Body Date Decision Action Planning Director
Approval:

DAB N/A N/A N/A
PC 05/28/2024 Final
Submittal Date: 11/16/2023 and 01/11/2024 CC
F
ILE NOS: PDET23-005, PDET23-007, PDET23-008, PDET23-009, PDET23-010, PDET23-015, and PDET23-016 (APPEAL)
SU
BJECT: An appeal of Zoning Administrator’s interpretation and determination decision that the Ontario Development Code Division 5.03, Section 5.03.250(E)(l) is applicable and enforceable to the operation of the following hotels and motels: 1) Hotel Hacienda (File No. PDET23-005), located at 2423 South Archibald Avenue; 2) Bright Star Motel (File No. PDET23-007), located at 1530 West Mission Boulevard; 3) Days Inn Ontario Motel (File No.PDET23-008, located at 1405 East 4th Street; 4) Economy Inn (File No. PDET23- 009), located at 2301 South Euclid Avenue; 5) Mayfair Inn (File No. PDET23 -010), located 1120 East Holt Boulevard; 6) Sands Motel (File No. PDET23 -015), located at 1240 West Mission Boulevard; and 7) West Coast Inn (File No. PDET23 -016), located at 1211 North Grove Avenue; (APNS: 1083-071-26, 1011-221-15, 0108-381-32, 1051-071-04, 1049-141-25, 1101-211-03 and 1047-451-25). Submitted by Frank A. Weiser – Attorney at Law PR
OPERTY OWNER: See attached Exhibit A.

R
ECOMMENDED ACTION: That the Planning Commission consider and deny the appeals and uphold Zoning Administrators Decision No’s. ZA23-024 (File No. PDET23-005), ZA23-030 (File No. PDET23-007), ZA23-031 (File No. PDET23-008), ZA23-032 (File No. PDET23-009), ZA23- 033 (File No. PDET23-010), ZA23-038 (File No. PDET23-015) and ZA23-039 (File No. PDET23- 016), pursuant to the facts and reaso ns contained in the staff report and attached Resolutions.

P
ROJECT ANALYSIS:

Background — In 2020, the Executive Director of Finance Arman Harkalyan ("License Official"), sent out a Notice of Assessment for Transient Occupancy Tax (''Notice of Assessment"), which found that the following business operators (hereinafter referred to as “Hotels’) were delinquent with unpaid Transient Occupancy Taxes (Attachment “A” on each Resolution).
• Hotel Hacienda (File No PDET23-005), located at 2423 South Archibald Avenue; • Bright Star Motel (File No. PDET23-007), located 1530 West Mission Boulevard; • Days Inn Ontario Motel (File No. PDET23-008), located at 1405 East 4th Street; • Economy Inn (File No. PDET23-009), located at 2301 South Euclid Avenue; • Mayfair Inn (File No. PDET23-010), located 1120 East Holt Boulevard; 303 East B Street, Ontario, California 91764 Phone: 909.395.2036 / Fax: 909.395.2420

PLANNING COMMISSION

AGENDA REPORT
May 28, 2024
Denied
416
Planning Commission Agenda Report
File Nos.: PDET23-005, PDET23-007, PDET23-008, PDET23-009, PDET23-010, PDET23-015, and PDET23-016 (APPEAL)
May 28, 2024

Page 2 of 7 ends

• Sands Motel (File No. PDET23-015), located at 1240 West Mission Boulevard; and • West Coast Inn (File No. PDET23-016) located at 1211 North Grove Avenue.

Chapter 6: Transient Occupancy Taxes of the City of Ontario Municipal Code (“OMC”), allows the City of Ontario to impose a Transient Occupancy Tax (TOT) of eleven and three-quarters percent (11¾%) of the rent, charged by operator, to transient guest for the privilege of occupancy of any hotel or motel. The Ontario Municipal Code (Section 3.6.02 Definitions) defines “Transient” as any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days.

All hotel or motel operators are required to collect and hold in trust for the account and benefit of the City the tax imposed at the same time as the rent is collected from every transient. The amount of tax shall be separately stated from the amount of the rent charged. In addition, hotel and motel operators are required to report and remit TOT imposed on or before the last day of the month following the close of each calendar month, make a return to the Tax Administrator, on forms provided by him or her, of the total rents charged and received and the amount of tax collected for transient occupancies. Any hotel/motel operator who fails to report and remit TOT are subject to penalties and become delinquent.

In 2021, Executive Director of Finance A rmen Harkalyan ("License Official") sitting as the Transient Occupancy Tax License Official under Chapter 6 of Title 3 of the Ontario Municipal Code, held hearings for the hotels/motels as stated above. The purpose of the hearing was to allow the operators the opportunity to rebut the amount of tax assessed by the License Official and offer evidence why the specified tax, interest, and penalties are incorrect.

T
he Hotels were represented by attorney Frank A. Weiser who offered legal arguments orally at the hearings. Under the representation of Mr. Weiser, the Hotels argued that under the Section 3-6.03 of the TOT Ordinance, the transient occupancy tax is imposed only on transients and argued that transients are defined in Section 3 -6.02(g) as any person who exercises occupancy or is entitled to occupancy, for a period of 30 calendar days or less. The operators provided evidence that the Hotels rent rooms to guests for longer than 30 days and argued that these guests, having stayed longer than 30 days at the Hotels, are exempt from taxation as they no longer meet the definition of transient.

The License Official’s jurisdiction is to determine the proper tax to be r emitted and give such determination and the amount of such tax, interest, and penalties (" O.M.C. § 3 -

6.09). The License Official does not have the jurisdiction to interpret or make a determination regarding the applicability of the Ontario Development Cod e that the Hotels where a guest exceeds 30 -day occupancy is exempt from the definition of transient as described in Ontario Development Code (ODC) Section 5.03.250(E)(l). The Zoning Administrator, under Section l.02.015(A)(l) of the ODC, has jurisdiction of, and is 417
Planning Commission Agenda Report
File Nos.: PDET23-005, PDET23-007, PDET23-008, PDET23-009, PDET23-010, PDET23-015, and PDET23-016 (APPEAL)
May 28, 2024

Page 3 of 7 ends

responsible for, the administration and application of the regulations and provisions of this Development Code. After the testimony was completed, the License Official issued a Stay of Decision and referred the matter to the Zoning Administrator to provide an interpretation or determination regarding the applicability and enforceability of Section

5.03.250(E)(l) as to the hotels/motels.

In
November and December of 2023, the Zoning Administrator issued Determination of Use Decisions for each of the Hotels and made the findings that the Ontario Development Code Division 5.03, Section 5.03.250(E)(l) is applicable and enforceable to the operation of the H otels (Attachment “A” on each Resolution) . The ODC Division 5.03, Section

5.03.250(E)(1) states that no guestroom , for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as f ull days. The intent of a Hotel or Motel is to provide transient accommodations at a daily rate. Section 3 -6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days. A Hotel or motel permitting guests occupancy longer than 30 days are in violation and not exempt from the ODC Division 5.03, Section 5.03.250(E)(1). Therefore, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g).

A
ppeal — On November 16, 2023 and January 11, 2024, Frank A. Weiser, Attorney at Law (Appellant representative), submitted appeals to the Zoning Administrators interpretation and determination decisions that the Ontario Development Code Division 5.03, Section

5.03.250(E)(l) is applicable and enforceable to the operation of the following hotels and motels:
• Hotel Hacienda (File No PDET23-005), Appellant: Naman Patel; • Bright Star Motel (File No. PDET23-007), Appellant: Purushottam Patel/Esha Smah; • Days Inn Ontario Motel (File No. PDET23-008, Appellant: Kisham Patel; • Economy Inn (File No. PDET23-009), Appellant: Mehesh Patel; • Mayfair Inn (File No. PDET23-010), Appellant: Dilip Payaran; • Sands Motel (File No. PDET23-015), Appellant: Purushottam Patel; and • West Coast Inn (File No. PDET23-016) Appellant: Anil Patel.

A copy of the Appeal applications and Appellant’s statement is included as Appendix A of this report. Staff has reviewed the appeals and provides a response for each issue raised by the Appellant’s:

1. A
ppellants’ Issue No. 1: Subject hotels never received notice of the zoning change and adoption of Ontario Development Code (“ODC”) Division 5.03 Section

5.03.250(E)(1) and were entitled to an individualized hearing under the First Amendment Petition Clause, Fourth Amendment Search and Seizure Clause, the Fifth 418
Planning Commission Agenda Report
File Nos.: PDET23-005, PDET23-007, PDET23-008, PDET23-009, PDET23-010, PDET23-015, and PDET23-016 (APPEAL)
May 28, 2024

Page 4 of 7 ends

Amendment Takings Clause, the Fourteenth Amendment Due Process Clause (Substantive and Procedural) and Equal Protection of the United States Constitution.

Staff Response: Appellant’s arguments introduce irrelevant issues that go beyond the limited scope of the Zoning Administrator’s decisions.

The Zoning Administrator has acted within his limited authority to interpret the Ontario Development Code (“ODC”). The Zoning Administrator, under Section l.02.015(A)(l) of the ODC, has jurisdiction of, and is responsible for, the administration and application of the regulations and provisions of the Development Code. The Zoning Administrator’s power is limited to interpretation of the Code as applied to a particular case. ODC § 1.02.010(B)(1). Thus, the Zoning Administrator’s power is limited to interpretation of the code and its application to a particular set of facts.

Appellants’ arguments introduce irrelevant legal arguments that do not challenge the underlying factual findings and analysis of each of the decisions by the Zoning Administrator. Issues like the adoption and amendment of zoning ordinances are legislative acts rather than administrative or quasi-judicial acts. Arnel Dev. Co. v City of Costa Mesa (1980) 28 C3d 511, 514. Appellants take issue with the implementation of legislation of the Ontario Development Code. For reference, Ordinance No. 1569, which imposed the TOT was passed in 1965 – fifty-nine years ago. These issues are beyond the scope of the Zoning Administrator’s role. For the Zoning Administrator to consider these legal issues would exceed the power granted by the Development Code.

The Zoning Administrator has acted within his limited authority to interpret the Development Code as to Appellants’ claims and found that their hotels are subject to ODC chapter 5.03.250(E)(1). Appellants do not challenge the factual findings made by the Zoning Administrator. Thus, the appeal should be denied, and the Zoning Administrator’s decisions upheld.

2. Appellants’ Issue No. 2: Ontario Development Code chapter 5.03.250(E)(1) which prohibits hotels from having a guestroom rented for longer than 30 days is inapplicable because Ontario Municipal Code chapter 3 -06.02(g) states than an occupant can have an occupancy for longer than 30 days (with a written agreement).

Staff Response: The Zoning Administrator’s application of ODC § 5.03.250(E)(1) as to Appellants’ hotels was proper. Where the Development Code imposes a greater restriction than is imposed or required by an existing law, the provisions of the Development Code shall prevai l. ODC § 1.02.005. To the extent that there is an external inconsistency between the provisions of the Ontario Development Code and the provisions of the Ontario Municipal Code, the more restrictive provisions shall apply. ODC § 1.01.015(D). Thus, if there is a conflict between the Ontario Municipal 419
Planning Commission Agenda Report
File Nos.: PDET23-005, PDET23-007, PDET23-008, PDET23-009, PDET23-010, PDET23-015, and PDET23-016 (APPEAL)
May 28, 2024

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Code and the Ontario Development Code, the Zoning Administrator must make a decision pursuant to the Development Code.

Here, Appellants argue that because OMC § 3-06.02(g) states that a person can have an occupancy of longer than 30 days (with an agreement in writing), that Appellants can rent their hotels to occupants for longer than 30 days and be exempt from the TOT. However, under the Development Code, “no guestroom shall be rented for a period exceeding 30 consecutive calendar days for a hotel or motel. ODC §

5.03.250(E)(1). This is an explicit restriction on hotels. To the extent that there exists any conflict by infe rence with OMC section 3 -602(g), the ODC’s restriction on hotels applies, ODC § 1.01.015(D). The Zoning Administrator’s application of the ODC’s more restrictive provision prohibiting Appellants’ hotels from renting to a person for longer than 30 days was proper.

Thus, the appeals should be denied, and the Zoning Administrator’s decisions should be upheld.

CORRESPONDENCE: As of the preparation of this Agenda Report , Planning Department staff has not received any written or verbal communications from the owners or occupants of properties surrounding the Project site or from the public in general, regarding the subject application.

420
Planning Commission Agenda Report
File Nos.: PDET23-005, PDET23-007, PDET23-008, PDET23-009, PDET23-010, PDET23-015, and PDET23-016 (APPEAL)
May 28, 2024

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Exhibit A – Property Owners

1. PATEL & JOSHI HOSPITALITY CORP (Hotel Hacienda (File No PDET23-005), located at 2423 South Archibald Avenue).

2. PATEL, RAMANBHAI G & MANJULABEN R RV (Bright Star Motel (File No. PDET23- 007), located 1530 West Mission Boulevard).

3. BRIGHT MORNING STAR LLC (Days Inn Ontario Motel (File No. PDET23-008, located at 1405 East 4th Street).

4. DESAI, JAY P & SMITA ET AL (Economy Inn (File No. PDET23-009), located at 2301 South Euclid Avenue).

5. SHIVASMT, INC (Mayfair Inn (File No. PDET23-010), located 1120 East Holt Boulevard).

6. SANDS LIMITED PARTNERSHIP (Sands Motel (File No. PDET23-015), located at 1240 West Mission Boulevard).

7. PATEL, NARAYAN AMBALA (West Coast Inn (File No. PDET23-016) located at 1211 North Grove Avenue).

421
Planning Commission Agenda Report
File Nos.: PDET23-005, PDET23-007, PDET23-008, PDET23-009, PDET23-010, PDET23-015, and PDET23-016 (APPEAL)
May 28, 2024

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Appendix A

(Appeal Applications to follow this page)
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RESOLUTION NO. PC24-018

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
ONTARIO, CALIFORNIA, UPHOLDING THE ZONING ADMINSTRATOR’S INTERPRETATION AND DETERMINATION DECISION (FILE NO. PDET 23-005) THAT THE ONTARIO DEVELOPMENT CODE DIVISION 5.03, SECTION 5.03.250(E)(L) IS APPLICABLE AND ENFORCEABLE TO THE OPERATION TO THE HOTEL HACIENDA, LOCATED AT 2425 SOUTH

ARCHIBALD AVENUE, WITHIN THE COMMUNITY COMMERCIAL
ZONING DISTRICT, AND MAKING FINDINGS IN SUPPORT THEREOF— APN: 1083-071-26.

W
HEREAS, Noman Patel ("Applicant") operator of the Hotel Hacienda has filed an Appeal of Application of the Zoning Administrator s interpretation and determination decision that the Ontario Development Code Division 5.03, Section 5.03.250(E)(l) is applicable and enforceable to the operation Hotel Hacienda, File No. PDET23 -005, as described in the title of this Resolution (hereinafter referred to as " Application" or "Project"); and
W
HEREAS, the Application applies to the Hotel Hacienda (Formally America’s Best Value Inn) (“Hotel”), located at 2425 South Archibald Avenue, within the Community Commercial zoning district; and
W
HEREAS, on April 30, 2021, Executive Director of Finance A rmen Harkalyan ("License Official") sitting as the Transient Occupancy Tax License Official under Chapter 6 of Title 3 of the Ontario Municipal Code, held a hearing for the operator of the Hotel Hacienda. The purpose of the hearing was to allow the operators the opportunity to rebut the amount of tax assessed by the License Official and offer evidence why the specified tax, interest, and penalties are incorrect; and
WHEREAS, on April 30, 2021, the License Official issued a Stay of Decision and referred the matter to the Zoning Administrator to provide an interpretation or determination regarding the applicability and enforceability of Section 5.03.250(E)(l) as to Hotel Hacienda; and
W
HEREAS, the Hotel Hacienda was approved (File No. 3472- S) by the City of Ontario in 1986 as a 55-unit Motel (known in 1986 as the Knice Inn); and W
HEREAS, on November 6, 1987, the Building Department approved the construction plans for a the 55-unit motel, located at 2425 South Archibald Avenue; and W
HEREAS, in 1988, the Motel was constructed; and
458
Planning Commission Resolution
File No. PDET23-005 (APPEAL)
May 28, 2024

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WHEREAS, Division 9.01 (Definitions) of the Ontario Development Code (ODC) defines a Motel as a lodging facility that offers transient accommodations at a daily rate, to the general public, which are predominantly accessed from parking lots or exterior walkways consistent with the City approval and design layout for the Hotel Hacienda; and

WHEREAS, ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days; and

WHEREAS, guestrooms that are being rented longer than 30 days is in violation of ODC Division 5.03, Section 5.03.250(E)(1) and not consistent with the intent of Motel or Hotel to provide transient accommodations at a daily rate; and

WHEREAS, Section 3- 6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days; and

WHEREAS, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g); and

WHEREAS, Ontario Development Code Table 2.01-1 (Review Matrix) establishes that the Zoning Administrator has the responsibility and authority to review and act upon Interpretations and Land Use Determinations; and

WHEREAS, in response to the Appellants basis for the appeal staff has prepared a response to each of the items. Below is the Appellants statement and staff’s response:

1. Appellants’ Issue No. 1: Subject hotels never received notice of the zoning change and adoption of Ontario Development Code (“ODC”) Division 5.03 Section

5.03.250(E)(1) and were entitled to an individualized hearing under the First Amendment Petition Clause, Fourth Amendment Search and Seizure Clause, the Fifth Amendment Takings Clause, the Fourteenth Amendment Due Process Clause (Substantive and Procedural) and Equal Protection of the United States Constitution.

Staff Response: Appellant’s arguments introduce irrelevant issues that go beyond the limited scope of the Zoning Administrator’s decisions.

The Zoning Administrator has acted within his limited authority to interpret the Ontario Development Code (“ODC”). The Zoning Administrator, under Section l.02.015(A)(l) of the ODC, has jurisdiction of, and is responsible for, the administration and application of the regulations and provisions of the Development Code. The Zoning 459
Planning Commission Resolution
File No. PDET23-005 (APPEAL)
May 28, 2024

Page 3 ends

Administrator’s power is limited to interpretation of the Code as applied to a particular case. ODC § 1.02.010(B)(1). Thus, the Zoning Administrator’s power is limited to interpretation of the code and its application to a particular set of facts.

Appellants’ arguments introduce irrelevant legal arguments that do not challenge the underlying factual findings and analysis of each of the decisions by the Zoning Administrator. Issues like the adoption and amendment of zoning ordinances are legislative acts rather than administrative or quasi -judicial acts. Arnel Dev. Co. v City of Costa Mesa (1980) 28 C3d 511, 514. Appellants take issue with the implementation of legislation of the Ontario Development Code. For reference, Ordinance No. 1569, which imposed the TOT was passed in 1965 – fifty-nine years ago. These issues are beyond the scope of the Zoning Administrator’s role. For the Zoning Administrator to consider these legal issues would exceed the power granted by the Development Code.

The Zoning Administrator has acted within his limited authority to interpret the Development Code as to Appellants’ claims and found that their hotels are subject to ODC chapter 5.03.250(E)(1). Appellants do not challenge the factual findings made by the Z oning Administrator. Thus, the appeal should be denied, and the Zoning Administrator’s decisions upheld.

2. Appellants’ Issue No. 2: Ontario Development Code chapter 5.03.250(E)(1) which prohibits hotels from having a guestroom rented for longer than 30 days is inapplicable because Ontario Municipal Code chapter 3-06.02(g) states than an occupant can have an occupancy for longer than 30 days (with a written agreement).

Staff Response: The Zoning Administrator’s application of ODC § 5.03.250(E)(1) as to Appellants’ hotels was proper. Where the Development Code imposes a greater restriction than is imposed or required by an existing law, the provisions of the Development Code shall prevail. ODC § 1.02.005. To the extent that there is an external inconsistency between the provisions of the Ontario Development Code and the provisions of the Ontario Municipal Code, the more restrictive provisions shall apply. ODC § 1.01.015(D). Thus, if there is a conflict between the Ontario Municipal Cod e and the Ontario Development Code, the Zoning Administrator must make a decision pursuant to the Development Code.

Here, Appellants argue that because OMC § 3-06.02(g) states than a person can have an occupancy of longer than 30 days (with an agreement in writing), that Appellants can rent their hotels to occupants for longer than 30 days and be exempt from the TOT.

However, under the Development Code, “no guestroom shall be rented for a period exceeding 30 consecutive calendar days for a hotel or motel. ODC § 5.03.250(E)(1). This is an explicit restriction on hotels. To the extent that there exists any conflict by inference with OMC section 3-602(g), the ODC’s restriction on hotels applies. ODC § 1.01.015(D). 460
Planning Commission Resolution
File No. PDET23-005 (APPEAL)
May 28, 2024

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Ontario City CouncilSeptember 3, 2024

Ontario City Council
September 3, 2024