Ontario City Council
October 15, 2024

K I Z H N A T I O N R E S O U R C E S M A N A G E M E N T -A Native American Owned and Operated Small Minority Business-

NATIVE AMERICAN MONITORING SERVICE AGREEMENT

This agreement for Native American monitoring services is entered into on September 4, 2024 by and between, KIZH NATION RESOURCES MANAGEMENT (“KNRM”), and City of Ontario (City of Ontario or the “Lead Agency”) (collectively referred to as, the “Parties”), for the compliance of the development project located at Ontario Regional Sports Complex-9373 East Riverside Drive, Ontario California 91761 (the “Project Site”), with the mitigation measures adopted by the Project lead agency, pursuant to the California Environmental Quality Act (“CEQA) (hereinafter, the “Project”).

RECITALS

WHEREAS, the Tribe consulted with the lead agency regarding the adverse impacts the Project will have on tribal cultural resources (“TCR”) at, on, and/or beneath the Project Site, and proposed mitigation measures to reduce those impacts below the threshold of significance as required by the California Environmental Quality Act (“CEQA”);

WHEREAS, the lead agency found that substantial evidence supported the adoption of the Tribe’s proposed TCR mitigation measures and made those mitigations mandatory conditions of the Project approval (collectively, the “Mitigations”);

WHEREAS, the purpose of this Agreement is for the protection and preservation of the Tribe’s TCRs and compliance of the Project with the adopted Mitigations.

Accordingly, KNRM and City of Ontario hereby agree as follows:

[CONTINUED ON THE FOLLOWING PAGE]

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City of Ontario-KNRM – NATIVE AMERICAN MONITORING SERVICE AGREEMENT

MONITORING AGREEMENT

1. SCOPE OF WORK

1.1. KNRM’s Native American monitor will be physically present on the Project Site at all times ground- disturbing Project activities are occurring. To implement the “tribal cultural resource” (“TCR”) Mitigations adopted for this Project, KNRM’s monitor shall:

a) Monitor all “ground disturbing activities,” including but not limited to, demolition, grubbing/clearing, rough grading, precise grading, mass grading, trenching, excavation, boring, augering, and weed abatement on previously disturbed and undisturbed ground; b) Identify uncovered and/or discovered TCRs, including but not limited to Native American artifacts, village sites, trade routes, midden deposits, ceremonial locations, human remains, and grave goods (collectively referred to as, “TCR” or “TCRs”); c) Ensure all TCRs, especially human remains and associated grave goods, are treated with culturally appropriate dignity and respect, and are handled and/or removed from the Project Site in accordance with the Tribe’s ceremonial and cultural practices ; d) Attend and participate in Project meetings, including trainings and conferences, to inform Project personnel about the potential for TCR discoveries and the appropriate courses of action if/when a discovery occurs;
e) Create daily logs of observations made during monitoring, and provide written reports detailing each TCR discovery, including but not limited to, the date and time, location on the Project Site, nature of the soil in the discovery location, facts pertaining to the Project activities in that area, the location of the perimeter around the TCR discovery that the monitor establishes to protect the location, and any cultural findings; and f) Report discoveries to the Tribal Chairman and/or the Tribal Archaeologist, and incorporate their input regarding the treatment of the TCR(s).

1.2. In order to fully and effectively execute the monitoring services identified in Section 1.1 and section

1.2 above, the Parties agree that KNRM’s monitor shall possess all of the following rights, which may be asserted at any time and at any location on the Project Site:

a) To access any/all areas of the Project Site necessary to physically observe the “ground- disturbing activities”, as that phrase is defined in Section 1.1(a) above, as those ground- disturbing activities are occurring;
b) To halt construction activity within the surrounding 50 feet (or more where deemed necessary by KNRM’s monitor) of a discovered TCR;
c) To meet and confer with the Project Supervisor in a timely manner regarding how to re- direct Project activities in the vicinity of a discovered TCR and the time frame for imposing a no-work perimeter around a discovered TCR;
d) To meet and confer with the Project Supervisor in a timely manner regarding issues pertaining to effectively monitoring the Project Site in a manner that ensures compliance with the Mitigations;
e) To be timely notified of all Project meetings, including safety meetings, trainings, scheduling, etc., and permitted to attend any/all meetings; and f) To be treated in a respectful and courteous manner by all Project management, staff, personnel, contractors, and subcontractors.
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2. DISCOVERY OF NATIVE AMERICAN ARTIFACTS, GRAVE GOODS, AND/OR HUMAN REMAINS

2.1. If TCRs are found, the Tribe will retain it/them in the form and/or manner the Tribe deems appropriate, for educational purposes.

2.2. If human remains and/or grave goods are discovered or recognized at the Project Site, all damage or disturbance shall immediately cease, and the county coroner shall be notified per Public Resources Code Section 5097.98, and Health & Safety Code Section 7050.5. Human remains and grave/burial goods shall be treated alike per California Public Resources Code section 5097.98(d)(1) and (2).

2.3. The Lead Agency expressly acknowledges the obligations required of it under governing State and Federal laws, including but not limited to, the California Public Resources Code, California Health & Safety Code, California Government Code, and California Code of Regulations, in the event human remains are discovered on the Project Site, and expressly agrees to comply with all such obligations, and to the extent possible, obtain compliance of the property owner in the event human remains are discovered on the Project Site but on land not owned and/or controlled by the Lead Agency.

2.4. Pursuant to Public Resources Code Section 5097.98, subsections (d) and (e), if human remains or associated burial goods are found on the Project Site and in an area that is under the ownership and/or control of the Lead Agency, the Lead Agency agrees to provide a designated area on the property at which to reinter the remains and/or burial goods with appropriate dignity that is not subject to further disturbance.

2.5. In the event that human remains and/or burial goods are found within the Project Site but in an area that is outside of the ownership and/or control of the Lead Agency, the Lead Agency will make a reasonable effort to secure an agreement with the property owner to reinter the remains and/or burial goods with appropriate dignity in a designated area on the Project Site that is not subject to further disturbance, as is required of the property owner pursuant to Public Resources Code Section 5097.98, subsections (d) and (e). If such an agreement with the property owner cannot be reached, to the extent feasible, the Lead Agency will provide a designated area on the Project Site that is within the Lead Agency’s ownership and/or control, for reinternment of the human remains and/or burial goods.

2.6. If the portion of the Project Site where human remains and/or burial goods are discovered is within the ownership and/or control of the Lead Agency, pursuant to Public Resources Code Section 5097.98(b), the Lead Agency shall ensure that the immediate area surrounding the discovery will be isolated and remain undisturbed until recommendations by the designated most likely descendent (within approximately 48-hours). The grading and excavation may continue outside of the isolated area.

3. FEES AND INVOICES

3.1. The Lead Agency agrees to pay KNRM for the above described monitoring services for the Project at the following rates:
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a) The standard, day-time rate per monitor is one hundred dollars ($105.00) per hour for an eight (8) hour day (“Standard Workday”). A night differential rate of $115.00 per hour will be applied for monitoring performed at or after 6 p.m. The night rate for monitoring that exceeds 8 hours per day, or 40 hours per week is $172.50 per hour b) The rate for monitoring that exceeds 8 hours per day, or 40 hours per week is $ 157.50 per hour.
c) The rate for monitoring performed on a Saturday or Sunday is $172.50 per hour. d) The rate for project management services, including but not limited to, consultant communications, monitor coordination, project documentation, is one hundred and Forty- five dollars ($145) per hour;
e) The rate for Project Director services, including consultation, Project meetings and trainings, and communications, documentation, and coordination pertaining to compliance issues, is two hundred dollars ($200) per hour;
f) The rate for KNRM’s Compliance Officer Specialist (COS) is responsible for ensuring all projects are working in a safe, healthy, and professional work environment. The KNRM compliance officer performs project inspections to assess that project applicants and KNRM monitors are following all safety and environmental laws per Federal and State regulations at a rate of one hundred and Twenty dollars ($120) per hour; g) In the event TCRs are discovered (whether prehistoric or historic), a KNRM Archaeologist (who meets the Secretary of the Interior’s standards for Professional Archaeology), shall be retained in addition to the monitor to assess the TCR, at a rate of one hundred and fifty dollars ($150) per hour;
h) Mileage shall be reimbursed at the Federal Standard Rate for travel to and from the Project Site, to/from KNRM’s office located at 910 N. Citrus Avenue, Covina, California; i) Lodging is required if the monitor must travel 40 miles or more to the Project site, and is reimbursed at the rate of two-hundred dollars ($200) per night; and j) Per diem for meals at the rate of seventy-five dollars ($75) per day.

3.2. If it is unreasonable for one monitor to fulfill their duties because Project Activities are occurring concurrently, at more than one location on the Project Site and at a distance impractical for a single monitor to serve simultaneously, then an additional monitor will be required at identical rates and on identical terms.

3.3. KNRM shall invoice Lead Agency for fees monthly. The Lead Agency shall make payment to KNRM not later than thirty (30) days following the invoice date (Net 30). An advance deposit is required from the Lead Agency, in an amount equal to twenty-five percent (25%) of the estimated cost budgeted for the Project, prior to any work performed by KNRM under this Agreement. Invoices not paid within 30 days of the invoice date are subject to a finance charge equal to ten percent (10%) of the monthly invoice total each additional month payment is not received. Checks shall be made payable to “Kizh Nation Resources Management” and mailed to:

Kizh Nation Resources Management
910 N. Citrus Ave
Covina, CA 91722
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3.4. The Lead Agency’s estimated hours of monitoring services utilized for the Project budget (if any) shall not constitute or be interpreted as a limitation on the monintoring services performed for this Project by KNRM if additional monitoring is necessary to satisfy the Project mitigations and conditions of approval.

4. NOTICE

4.1. To ensure there are no delays and to esure a monitor is present onsite we request a minimum of 72 hours advance notice to assist with scheduling efforts (Although we are sensitive to last minute changes and we will try to accommodate). Please submit your monitor requests to: KNRM Dispatch to [email protected] or text or call (626) 825-8248. For immediate assistance you may contact Andrew Salas (626) 926-4131. For archaeological services you can contact our Tribal Archaeologist John Torres at [email protected] or (909)705-6241.

4.2. In the event a scheduled Standard Workday is canceled entirely or the hours are altered for any reason, the Lead Agency shall promptly notify KNRM no later than 5:00 p.m. PST on the business day prior to the altered day, at the “Contact Information” set forth in Section 5 below. If KNRM has not received timely notice of a schedule cancellation or change, a minimum fee of four hundred twenty dollars ($420.00) shall be applied per late cancellation event.

4.3. All communications pertaining to or that may impact KNRM’s implementation of the services set forth in section 1 of this Agreement shall be made in writing and per the contact information in section 5 below.

5. CONTACT INFORMATION

5.1. Notices to KNRM:

Telephone - (626) 926 -4131
KNRM Office - (626) 521 -5827
Email: admin@knrm -nsn.us

5.2. Lead Agency:

Name: _______________________________

Phone: _______________________________

Email: _______________________________

5.3. On-Site Project Contact (i.e., “Project Supervisor”)

Name: _______________________________

Phone: _______________________________
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Email: _______________________________

5.4 Billing Contact information

Name: _______________________________

Phone: _______________________________

Email: _______________________________

6. LIMITATION OF LIABILITY AND LIQUIDATED DAMAGES

6.1. Despite any language in this Agreement to the contrary, KNRM’s obligations under this Agreement (including any actual or alleged breach or default by KNRM) do not constitute personal obligations of the individual partners, directors, officers, members or shareholders of KNRM or the Tribe, or the partners or members of KNRM or the Tribe. The Lead Agency shall not seek recourse against the individual partners, directors, officers, members or shareholders of KNRM or the Tribe, or any of their personal assets for satisfaction of any liability with respect to this Agreement.

6.2. In consideration of the benefits accruing hereunder to the Lead Agency and notwithstanding anything contained in this Agreement to the contrary, the Lead Agency hereby covenants and agrees for itself and all of its successors and assigns that the liability of KNRM and the Tribe for KNRM’s obligations under this Agreement (including any liability as a result of any actual or alleged failure, breach or default hereunder by KNRM or any alleged tort committed in connection with KNRM’s work), shall be limited solely to KNRM’s insurance coverage as provided in Section 7 of this Agreement.

6.3. In the event the Lead Agency performs (directly or through a contractor, subcontractor, agent, representative or otherwise at the Lead Agency’s direction) or allows to be performed ground- disturbing work without a monitor present in violation of Mitigations and in breach of this Agreement, KNRM will suffer substantial harm for which it is impracticable to fix actual damages. To limit or prevent further harm, the Lead Agency agrees and consents to the immediate issuance of a Stop Work Order by the Project lead agency, which shall stay in full force and effect unless and until the Parties resolve the non-compliance events and resulting damages.

6.4. In an effort to liquidate in advance the sum that should represent such damages and to avoid the additional costs Lead Agency will incur to remedy that breach by redoing all non-compliant ground- disturbing Project activities with a KNRM monitor present, Lead Agency agrees to pay KNRM a “Noncompliance Fee” equal to the cost of redoing all non-compliant ground-disturbing Project activities, plus KNRM’s monitoring fees for monitoring those activities. You acknowledge that you have been given notice of this Noncompliance Fee and agree that such a fee is fair and reasonable.

7. INSURANCE

7.1. A certificate of general liability insurance coverage can be provided upon request.

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7.2. KNRM does not hold an automobile liability policy for the monitors. Vehicles are only used for transportation to and from the Project Site. Each individual monitor is required to carry automobile insurance pursuant to California State law. Proof of a monitor’s automobile insurance can be provided upon request.

8. MISCELLANEOUS

8.1. Governing Law. This Agreement shall be governed by, and construed pursuant to, the laws of the state of California.

8.2. Recitals. All recitals set forth in this Agreement are contractual.

8.3. Terms and Headings. Section headings of this Agreement are for convenience, are merely descriptive, and do not alter the rights of the parties.

8.4. Time. Time is of the essence with respect to performance of every provision of this Agreement in which time or performance is a factor. All references in this Agreement to “days” shall mean calendar days unless specifically modified herein to be “business” days.

8.5. Professional Fees. If either KNRM or Lead Agency should bring suit against the other with respect to this Agreement, then all reasonable costs and expenses incurred by the prevailing party therein (including, without limitation, its accountants’, attorneys’, experts’ and other professional’s fees, expenses and court costs), shall be paid by the other party.

8.6. Waiver. The waiver by either party of any breach by the other party of any term, covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant and condition herein contained, nor shall any custom or practice which may become established between the Parties in the administration of the terms hereof be deemed a waiver of, or in any way affect, the right of any party to insist upon the performance by the other in strict accordance with said terms.

8.7. Prior Agreements; Amendments. This Agreement, contains all of the covenants, provisions, agreements, conditions and understandings between the Parties concerning the Project and any other matter covered or mentioned in this Agreement, and no prior agreement or understanding, oral or written, express or implied, pertaining to the Project or any such other matter shall be effective for any purpose. No provision of this Agreement may be amended or added to except by an agreement in writing signed by the Parties hereto or their respective successors in interest. The Parties acknowledge that all prior agreements, representations and negotiations are deemed superseded by the execution of this Agreement to the extent they are not expressly incorporated herein. The Parties hereto acknowledge and agree that each has participated in the negotiation and drafting of this Agreement; therefore, in the event of an ambiguity in, or dispute regarding the interpretation of, this Agreement, the interpretation of this Agreement shall not be resolved by any rule of interpretation providing for interpretation against the party who caused the uncertainty to exist or against the draftsman. Any deletion of language from this Agreement prior to its execution by the Parties shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the Parties intended thereby to state the converse of the deleted language.

8.8. Separability. The invalidity or unenforceability of any provision of this Agreement shall in no way affect, impair or invalidate any other provision hereof, and such other provisions shall remain valid and in full force and effect to the fullest extent permitted by law.

8.9. Force Majeure. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lock-outs, labor troubles, inability to procure materials, failure of power, governmental moratorium or other governmental action or inaction (including failure, refusal or delay in issuing permits, approvals and/or authorizations), orders/closures/restrictions pertaining to COVID-19, injunction or court order, riots, 743
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insurrection, war, fire, earthquake, flood, inclement weather in excess of average for the San Bernardino County area or other natural disaster or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of this Agreement (herein collectively, "Force Majeure Delays"), then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay, provided the delayed party has notified the other party of the Force Majeure Delay within five (5) business days of learning of the same, such notice specifically describes the Force Majeure Delay and its expected duration, and the delayed party regularly updates the other party of the status of the same and the delayed party takes all commercially reasonable efforts to mitigate the effects and minimize the duration of the delay. The provisions of this Section 7.9 shall not apply to nor operate to excuse Lead Agency (or any third- party contractor operating on behalf of Lead Agency) from the payment of any fees owed to or the reimbursement of costs incurred by KNRM in accordance with the terms of this Agreement, nor extend the date for payment of same to KNRM.

8.10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which shall be one and the same agreement. Facsimile and electronic signatures are valid and binding.

8.11. Lead Agency’s Authority. The agent/representative of the Lead Agency that executes this Agreement represents and warrants that: (a) the Lead Agency is qualified to do business in the state of California; (b) such persons executing this Agreement are duly authorized to execute and deliver this Agreement on the Lead Agency’s behalf, or a duly adopted resolution of the Lead Agency’s board of directors; and (c) this Agreement is binding upon the Lead Agency in accordance with its terms.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of _________,2024.

“LEAD AGENCY” [City of Ontario]

*By: ___________________________________

Print Name: _________________________

Print Title: __________________________

“KNRM” KIZH NATION RESOURCES MANAGEMENT

*By: ___________________________________

Print Name: _________________________

Print Title: _________________________
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46700.00100\33287662.1

BB&K 2020

AM
ENDMENT NO. 1 TO

THE PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND

RMA GROUP

1. P
arties and Date.

Th
is Amendment No. 1 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of On tario (“City”) and RMA Group , a Corporation (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”

2. R
ecitals.

2.1 A greement. T he City and Consultant have entered into an agreement enti tled “On- Call Material Testing & Geotechnical Engineering Services” dated May 2, 2023 (“Agreement”).

2.2 A mendment Purpose. T he City and Consultant desire to amend the A greement to include environmental site assessments, asbestos and lead assessments, construction inspection and testing services for D&C2 3-011 Professional Baseball Stadium and increase the amount by Two Million Two Hundred Forty- Two Thousand Three Hundred Sixty Dollars ( $2,242,360) for a new total not-to-exceed amount of Two Million Four Hundred Forty-Two Thousand Three Hundred Sixty Dollars ($2,442,360).

2.3 A mendment Authority. This Amendment No. 1 is authorized pursuant to Section

3.7.14 of the Agreement.

3. T
erms.

3.1 Amendment . S ections 3.1.1 and 3.2.1 of the Agreement is hereby amended in its entirety to read as follows:
“3. 1. 1 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 t o fully and adequately supply the professional material testing and geotechnical enginee ring 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 Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and 745
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BB&K 2020

federal laws, rules and regulations.”

“3.2.1 Compensation. C onsultant 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 Two Million Four Hundred Forty-Two Thousand Three Hundred Sixty Dollars ($2,442,360) without 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.”

E
xhibit A is hereby amended in its entirety and replaced with Attachment A attached hereto and incorporated herein by reference.

3.2 C
ontinuing Effect of Agreement . Except as amended by this Amendment No. 1, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 1. From and after the date of t his Amendment No. 1, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 1.

3.3 A
dequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 1.

3.4 S
everability. If any portion of this Amendment No. 1 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.5 In
tegration. 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. 1 TO PROFESSIONAL SERVICES

AGREEMENT BETWEEN THE CITY OF ONTARIO

AND RMA GROUP
I
N WITNESS WHEREOF, the Parties have entered into this Amendment No. 1 as of the day and year first above written.

CITY OF ONTARIO RMA Group
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
At
tested By:

City Clerk
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Building Confidence from the Ground Up www.rmagroupinc.com www.rmacompanies.com
Proposal No: 00-243036-P
September 11, 2024
C
ity of Ontario
1425 S Bon View Ave.

Ontario, CA 91761
A
ttention: Daniel Beers
S
ubject: Proposal to Provide Construction Inspection and Testing Services Ontario Sports Park
Riverside Dr and Ontario Ave
Ontario, CA
RMA Group is pleased to present our proposal to provide construction inspection and testing services for the Ontario Sports Park Construction Testing and Inspection project.

PROJECT UNDERSTANDING
We understand that the project will consist of construction of a regional Sport Park to include a baseball stadium, hotel, retail structures, parking structures, sports fields and courts and other related infrastructure . We have provided below a scope of work typical of the proposed construction with testing and inspection requirements in line with the California Building Code, Standard Specifications for Public Works Construction (Greenbook) and the City of Ontario.

SCOPE OF WORK
A detailed description of the tasks required to complete this scope of work and an estimate of the costs associated with our work are detailed herein.

Grading Observation and Testing
Our services will consist of observing rough grading operations, performing soil tests, and submittal of a soil grading report.

Our representative will observe rough grading operations on a fulltime basis. Water content, in place density (compaction), maximum density -optimum moisture, expansion index , organic content and soluble sulfate tests that will be performed at a frequency and at locations selected by the soil engineer. Our laboratory can perform other soils tests, if requested, at an additional charge. During the course of construction we will notify the owner in writing, with copy to the co ntractor if, at any time in our op inion, the work is not in conformity to the plans and specifications.

Exhibit "A"
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Ontario Sports Park Construction Testing and Inspection September 13, 2024 Ontario, CA Page 2 of 31

Upon completion of the work we will prepare a final report for the owner which will summarize our observations and the results of all tests performed. The final report will contain recommendations and opinions regarding the conformance of the completed rough grading to the intent of the plans, soil engineering reports, and specifications. We expect multiple grading reports will be needed and will accommodate these requests.

Due to the proposed import requirements of the site we understand that there may be additional testing requirements for the import. Geotechnical testing requirements of import soil are typically expansion index and corrosion analysis tests to verify that t he soils are compatible with the site soils. Other tests typically included in import analysis are chemical tests for contaminants. The actual type of test is dependent of source location use and amount is based on the volume of soil to be imported to the site. The testing may be done by the soil seller, which we would then review or by us, as directed by the City. It should be noted that the typical time for test results is 5days from delivery to the laboratory. In order to limit delays of import test resu lts supplied by the seller would be acceptable and prudent.

Compaction Testing of Trench Backfill and Street Improvements Our services will consist of compaction testing of the backfill of the utility trenches and subgrade and aggregate base for paved areas on site and within the street right of way.

We will provide a technician to perform in place density tests (compaction tests) by either the sand cone method (ASTM D1556) or the nuclear gauge method (ASTM D6938), water content tests, and maximum density optimum moisture tests per ASTM D1557 at locations selected by <your / our> representative. Testing would be performed after compaction has been completed by the contractors and observation of compaction methods used by the contractor would not be included in the scope of our work.

Trench backfill compaction tests would be taken at locations and frequencies in accordance with guidelines provided by the governing public agency. If the governing public agency does not have established testing guidelines then the following guidelines would be used. Test locations on the main trenches would be spaced no more than 200 linear feet apart. Compaction tests would be taken at mid depth in the backfill zone and in the subgrade zone in trenches with depths of 4 feet or less. One half of the tests shall be taken from each depth. Trenches deeper than 4 feet would be tested in each 4 foot lift and the subgrade zone. No tests would be taken in the bedding or pipe zone. Excavating test holes in excess of 1.0 feet in depth would not be included within the work scope.

Subgrade compaction tests of paved areas on site and within the street right of way would be taken at locations be selected by our technician that represent the surface appearance of the subgrade at the time of testing. Test locations would be spaced no more than 500 linear feet apart.

A written report summarizing the results of all tests performed will be prepared upon completion of the work.

The report will not contain a rendering, opinion, certificate, or warranty, of the compaction of the materials tested. Multiple reports can be completed as requested.

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Compaction Testing for Asphalt Concrete Pavements
This scope of service will consist of materials testing of asphaltic concrete used in the construction of private roadway and parking area improvements. These services will include monitoring the temperature and rolling procedure and the determination of t he in place density testing of asphalt concrete using the nuclear gauge (ASTM D2950). Laboratory testing will be performed to determine the laboratory test maximum density of the asphaltic concrete in accordance with ASTM D2041.

Special Inspection and Testing of Reinforced Concrete Construction This scope of services will include engineering review of concrete mix designs, inspection of concrete batch plant operations (if needed), special inspection of reinforced concrete construction including post tensioned inspections of the parking structures slabs and field sampling and laboratory testing of concrete and reinforcing steel used in concrete construction for the project.

Our materials engineer would review mix designs submitted by the contractor and the results of tests performed on the aggregates. A written report of our review of the concrete mix design submittal will be prepared upon the completion of the work.

This scope of work will include the inspection of concrete batch plant operations, if requested. We will provide an inspector during concrete batch plant operations to monitor the batch weights and provide periodic inspection of the aggregate stockpiles and cement bins. Written reports of all inspections will be provided on a daily basis and at the completion of the work.

We will provide an ICC certified special inspector to perform inspection of the concrete form work, reinforcing steel placement, and concrete placements. He will perform periodic inspection of the formwork for shape, location and dimensions of the concrete member being formed. He will provide periodic inspection to verify the proper size and placement of reinforcing steel and embedded anchors.

Our inspector will provide continuous inspection during the placement of structural concrete to verify proper application techniques. Our inspector will sample fresh concrete and obtain samples for strength testing, perform slump tests and monitor the temperature of the concrete. A set of test cylinders will be made from each 150 cubic yards of concrete or fraction thereof for each class of concrete placed each day. Four test cylinders will be cast for each set.

Strength test cylinders will be cured in our laboratory until they are tested in accordance to ASTM C192.

Compression tests would be performed in accordance to ASTM C39 at 7 and 28 days, respectively. Copies of the results of all compression tests will be provided upon completion of the test.

Samples of the reinforcing steel to be used for production of concrete would be tested in accordance to ASTM A370 and A615 test methods. Written reports of all tests presenting applicable information would be prepared at the completion of testing.

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Ontario Sports Park Construction Testing and Inspection September 13, 2024 Ontario, CA Page 4 of 31

Special Inspection and Testing of Reinforced Masonry Construction This scope of services will include special inspection of reinforced masonry construction and field sampling and laboratory testing of mortar, grout and masonry used for the project.

This scope of work will include the inspection of grout batch plant operations. We will provide an inspector during grout batch plant operations to monitor the batch weights and provide periodic inspection of the aggregate stockpiles and cement bins. Written reports of all inspections will be provided on a daily basis and at the completion of the work.

We will provide an ICC certified special inspector to perform inspection of the masonry work, reinforcing steel placement, and grout placements. He will perform periodic inspection of the masonry work for fit up, jointing and the general details of the work being constructed. He will provide periodic inspection to verify the proper size and placement of reinforcing steel and embedded anchors.

Our inspector will provide continuous inspection during the placement of grout and mortar to verify proper application techniques. Our inspector will sample fresh grout and mortar to obtain samples for strength testing.

Strength test cylinders will be obtained for grout and mortar. The strength test samples will be cured in our laboratory until they are tested in accordance to ASTM C192. Compression tests would be performed on grout samples in accordance to ASTM C1019, and mortar samples will be tested in accordance with ASTM C780.

Samples will be tested at 7 and 28 day ages
Samples of the masonry units delivered to the project will be sampled and tested to verify conformance with the project requirements in accordance with ASTM C90. Written reports of all tests presenting applicable information would be prepared at the completion of testing.

Special Inspection of Structural Steel Construction
This scope of services will consist of inspection of structural steel erection, high strength bolting and field welding procedures and completed welds for conformance to approved plans, specifications, and building codes. Shop inspection may be done upon request. We have assumed that the steel manufacture will be done in an approved shop.

We will provide an inspector that has been certified by AWS as a special inspector for welding. His work would consist of inspection of all welds made in the field for compliance with the approved plans and job specifications. He shall make a systematic record of all welds, including a list of defective welds and a manner of correction of defects. The inspector will check the material, equipment, details of construction and procedures, as well as the welds. He would also check the ability of the welder.

Our inspector will perform periodic inspection during erection of structural steel to verify the materials utilized are properly marked and traceable. He will collect mill certifications for the materials and inspect joint details to verify conformance at each connection. He will also inspect the installation of the high strength bolts for conformance to the job specifications.
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Non-Destructive testing of the completed welds will be performed as required. The inspector may use Ultra Sonic, Magnetic Particle or Dye Penetrants as appropriate to inspect completed welds and assure the adequacy of the welding.

Special Inspection and Testing of Post Installed Anchors This scope of services will include performing special inspection and testing as required of post installed anchors for compliance with the approved plans, job specifications, ICC-ES reports, and building codes.

We will provide an inspector certified by ICC to perform inspection of the installation of post installed anchors.

These inspections typically consist of epoxy dowel, wedge anchor, and hold downs. He shall make a list of defective work and a manner of correction of defects.

This scope of work may also include pull or torque testing of installed anchors as required by the project plans or job specifications. We will provide a technician to perform the required testing on a randomly selected number of anchors based on the frequency of testing specified.

The results of all tests and inspections will be provided to the designated representative in written daily reports of inspection and testing.

Project Administration, Engineering Oversight, and Reporting This scope of work will include all administrative, project management, engineering oversight, and reporting.

This may include, but is not limited to, ensuring RMA Group has all necessary documents and information needed to complete the requested work, reviewing plans and specifications, dispatching services, reviewing both lab and daily reports, distribution, and invoicing time.

Phase II Environmental Site Assessments and Asbestos and Lead Assessments

Our proposed scope of work will consist of asbestos and lead testing of the existing structures on the properties east of Edison Avenue and limited Phase II assessments of the properties east of Edison Avenue and during demolition of the Petersma property.

ASBESTOS AND LEAD BUILDING MATERIAL SURVEY
• Our proposed scope of work will consist of testing of the building materials in the existing building s in preparation for their demolition. The survey and testing of the existing building materials will be completed by Charles Taylor Environmental Technical Services. Their tasks will include a review of the existing buildings and collecting samples of various building materials for possible asbestos. Samples of drywall, wallboard from the ceilings and walls, floor coverings and mastic, roof vapor barrier, insulation, stucco, window putty, asphalt, transite pipe (if visible on the surface or in the structures), brick mortar, acoustic tiles and other materials that may be encountered during the structure surveys. Physical samples will be collected for asbestos tests and the materials will also be tested for lead content at the location with a handheld XRF analyzer. The asbestos samples will be analyzed in their laboratory utilizing polarizing light microscopy to determine percentage of asbestos in the sample.
• A report will be generated detailing the results of their structure survey and testing. 752

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LIMITED PHASE II SITE ASSESSMENTS
Limited Phase II site assessments will be done on each of the separate parcels: the Petersma property along with the 4 properties east of Edison Avenue. Our scope of work will include the following:
• A review of the Phase 1 Reports for the subject properties completed by Converse Consultants. This will be done to develop specific areas of concern based upon the findings of the Phase 1 reports, specifically any environmental concerns that are listed in their Conclusions and Recommendations. We will also review the Phase II ESA report completed for the Petersma property by Converse consultants to determine the condition of the property during that assessment and any follow-on recommendations in that report, if any.
• A site reconnaissance of each property. The purpose of the reconnaissance will be to determine any changes at the sites from the Phase I (and the Petersma Phase II report) and the current conditions and determine if new recognized environment conditions ma y exist at the site that are not discussed in the reports
• Testing of soil and other materials at the sites. Possible anticipated testing includes:
• EPA 8081 Organo-chlorine Pesticides
• EPA 8141 Organo-phosphorous Pesticides
• EPA 8151 Chlorinated Herbicides
• EPA 6010 and 7471 TTLC 17 Metals
• EPA 8015 Total Petroleum Hydrocarbons
• EPA 8021 or 8260 Volatile Organic Compounds
• EPA 8270 semi-Volatile Organic Compounds

The samples will be collected utilizing sterile sampling equipment, placed into sterile glass jars and placed on ice for transport to an EPS and Cal EPA certified testing laboratory. All samples will include a proper chain of custody. Samples collected at the properties east of Edison Avenue will include randomly selected sites and will include the recommended metals, pesticide and herbicide tests along with TPH, VOCs and semiVOC tests for areas of stained soils, if needed . Tests for heavy metals, TPH, VOCs and semiVOCs may be done on demolition debris and questionable soil encountered during demolition and soil within the garage located in the center of the property, where elevated TPH was encountered and documented in Converse’s Phase II. This sampling will include TPH, semiVOCs, VOCs and metals for disposal of soil and to determine extent and verify removal of soil with elevated TPH levels.
• Report preparation. A report will be prepared for each of the five parcels (the Petersma property and the 4 parcels located east of Edison Avenue). The report will include the results of our report reviews, site reconnaissance and laboratory testing and any further recommendations for remediation. 753

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Attachments to the report will include maps showing the conditions observed during the site reconnaissance and sample locations , photographs of the site, aerial photographs, U.S. Geological quadrangle maps or site generated maps , a statement of qualifications of the persons performing the assessment, and a list of references used during preparation of the report.

The findings, opinions , and conclusions contained in the report will be our professional opinion of the condition of the site at the date of the reports and not a warranty, guaranty, or positive assertion as to the presence, absence or extent of contamination at the site or in the vicinity of the site.

In the event of additional significant potential environmental hazards are discovered during the course of our investigation, we will notify you. In addition, current regulations may require that the owner/client of the property report findings of toxic materials to the appropriate agency or agencies.

VINEYARD AVENURE SEWER EXTENSION GEOTECHNICAL REPORT
Based on our review of the project plans, we understand that as part of the Ontario Sports Park project a sewer line is planned that will include sewer line installation along the Vineyard Avenue alignment from Riverside Drive to Eucalyptus Avenue, along Chino Avenue from Ontario Avenue to Vineyard Avenue and a portion of the existing Ontario Avenue. Depths of the proposed sewer line range from about 16 feet to 36 feet. Therefore we have prepared this proposal to outline the scope of work required to provide a geotechnical engineering investigation to support the planned design of the sewer line including open cut and jack and bore construction.

SCOPE OF WORK
Our services will consist of office research, field exploration, laboratory testing, review of the compiled data, and preparation of a written report containing recommendations developed in accordance to generally accepted engineering and geologic principles and practices.

OFFICE RESEARCH
Our office research will consist of the following:
• Review of literature to obtain background information of regional geology, seismicity and groundwater. • Review of State of California Alquist-Priolo Earthquake Fault Zone and Seismic Hazard Zone maps. • Review of Safety Elements of city and county general plans. • Examination of aerial photographs.

FIELD INVESTIGATION
The field exploration will consist of the following:
• Marking proposed points of subsurface exploration with white paint or white stakes and contacting Underground Service Alert for mark-out of underground utilities. • We have assumed that we will no cost encroachment permit from the City of Ontario for the proposed 1-2 borings within the existing improved section of Vineyard Avenue between Chino and Schaefer Avenues. We 754

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will provide a traffic control plan to the City for approval and will provide traffic control for the boring(s) based upon the current version of the MUTCD and our boring operations. • Drilling of approximately 7 exploratory borings to a maximum depth of 45 feet. The proposed borings will be drilled to a depth of 5 feet below the proposed invert elevation at the location of the boring along the alignment which according to the plans is 16 to 36 feet below the ground surface. The location of the sewer line that borders the Sports Park proper will include information for design based upon borings drilled within the property and near the proposed alignment, thereby reducing the total number of borings for the sewer line. 1 to 2 of the borings will be drilled within the existing improved section of Vineyard Avenue and the remaining 5 to 6 will be drilled within unimproved sections of the alignment south of Schaefer Avenue extending to Eucalyptus Avenue. The unapproved section of the alignment crosses existing dairies and agricultural fields and access to those properties would need to be obtained through the City. The exact locations of those borings may be determined based upon available access. • Logging of the borings and identification of the various earth materials encountered during the exploration. • Samples of the major earth units will be obtained and the in-place density of the various strata encountered in the exploration will be determined.

LABORATORY TESTING
Laboratory testing will be performed in accordance to the specifications of ASTM International. The following laboratory tests will be performed on the major soil and bedrock types encountered during the exploration. • Atterberg limits
• Moisture and density of drive tube samples
• Direct shear test
• Expansion index test
• Laboratory moisture determination
• Maximum density - optimum moisture density
• R-value
• Soluble sulfate analysis
• Corrosion analysis (pH and resistivity)
Laboratory testing of any hazardous materials or substances that may be encountered is not included within this scope of services.

GEOTECHNICAL ENGINEERING ANALYSIS AND REPORT PREPARATION A written report will prepared presenting the results of the office research, field exploration, laboratory testing and engineering analysis. It will include information on the nature, distribution and strength of the existing soils, and recommendations for grading procedures and design criteria for corrective measures, when necessary. The report will also include a description of the geology of the site and conclusions and recommendations regarding the effect of geologic conditions on the proposed development.

Specific items that will be addressed in our report will include:
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• Regional geology and seismicity, groundwater, site soil and geologic conditions, and flooding potential. • Recommendations regarding earthwork, grading and fill placement. • Earthwork shrinkage and subsidence.
• Recommendations for removals and over-excavation.
• Anticipated excavation characteristics of earth units. • Stability of cut, fill and temporary slopes.
• Seismic design parameters and evaluation of secondary seismic hazards including the potential for soil liquefaction.
• Preliminary corrosion evaluation.
• Utility trench backfill recommendations.
• Preliminary structural pavement sections.
• Recommendations for grading and post grading geotechnical observation and testing.

The report will also include logs of borings, a map showing the locations of points of subsurface exploration, and other attachments.

Our recommendations will be consistent with sound engineering and geologic practices and shall incorporate federal, state and local laws, codes, ordinances and regulations which, in our professional opinion, are applicable at the time that our professional services are rendered.

TERMS AND CONDITIONS
Fee Proposal
We propose to perform the previously described services on an hourly or test rate basis in accordance with the attached fee schedule. Our estimate is based on information given to RMA Group by City including a construction schedule and project plans and the following assumed construction durations. Our estimate of charges for the proposed services is as follows:

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Construction Activity
Duration and/or
Allocated Hours Estimated Costs
Grading Observation and Testing 1,600 hours $400,075.00 Compaction Testing of Trench Backfill and Street
Improvements
2,400 hours $396,350.00
Compaction Testing for Asphalt Concrete Pavements 320 hours $58,310.00 Special Inspection and Testing of Reinforced Concrete
Construction
2,400 hours $593,450.00
Special Inspection and Testing of Reinforced Masonry
Construction
640 hours $118,125.00
Special Inspection of Structural Steel Construction 2,240 hours $310,000.00 Special Inspection and Testing of Post Installed Anchors 360 hours ea:
inspection and
testing
$105,300.00
Project Administration, Engineering Oversight, and Reporting $117,200.00 Allowance $10,000.00
TOTAL (CONSTRUCTION TESTING AND INSPECTION) $2,108,810.00

Item Lump Sum
Lead and Asbestos Assessment of Existing Structures
Site Assessments and Reports $20,500.00
Asbestos Testing $35,460.00
Subtotal $53,960.00
Phase II Property Assessments
Site Assessment Reports $20,960.00
Soil Testing $22,140.00
Subtotal $43,100.00
TOTAL (PHASE II AND LEAD AND ASBESTOS ASSESSMENTS) $97,060.00

Vineyard Avenue Sewer Extension Geotechnical Report
Geotechnical Office Research and Field Exploration $25,840.00 Geotechnical Laboratory Testing $7,410.00
Geotechnical Engineering Analysis and Report Preparation $3,240.00 TOTAL (VINEYARD AVENUE SEWER EXTENSION GEOTECHNICAL REPORT) $36,490.00

TOTAL $2,242,360.00

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Assumptions
Assumptions made in developing our fee proposal include:
• Due to the proposed schedule overtime and double time charges have been estimated and are included in the attached estimate worksheets.

Added Services
Our base estimate may vary due to unforeseen circumstances that may develop during the work or due to extended construction duration. Under these circumstances, a revision to our scope, schedule, and/or fee will likely be required. RMA Group will notify you if/when we anticipate that it will be necessary for us to provide services in addition to our base scope and will obtain written confirmation that we are authorized to do so.

PROFESSIONAL INSURANCE
We maintain liability and work ers’ compensation insurance coverage and amounts consistent with industry standards for the services being proposed herein. Certificates of insurance will be provided upon request.

CLOSURE
Our services will be performed in a manner consistent with the level of care and skill ordinarily exercised by members of the same profession currently providing the same or similar services under similar circumstances in the same locality and in accordance with applicable standards in effect at the time the services are performed.

This warranty is in lieu of all other warranties, either expressed or implied.

By signing below, you hereby authorize RMA Group to proceed with services outlined in this proposal and agree that all services and anything arising out of or in any way related to this proposal will be governed by RMA Group’s Fee Schedule and General Conditions which are attached hereto and are incorporated herein by reference. This authorization to proceed constitutes an agreement between you and RMA Group and is made in consideration of the mutual promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged.

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Thank you for the opportunity to submit this proposal. We look forward to working with you on this project. If you have any questions regarding this proposal, please contact the undersigned.

Authorized By: Respectfully submitted,
City of Ontario RMA Group

(Signature) Kenneth Dowell, PG, CEG
Project Geologist
(Title)

(Date)

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ESTIMATE WORKSHEET
Grading Observation and Testing
Item Quantity Unit Unit Price Total
Pick-up and Delivery of Test Specimens 40 HR $120.00 $4,800.00 Supervising Soil Technician 80 HR $200.00 $16,000.00
Administrative 120 HR $90.00 $10,800.00
Project Engineer - Office 20 HR $220.00 $4,400.00
Drafting 40 HR $130.00 $5,200.00
Project Geologist - Field 40 HR $200.00 $8,000.00
ASTM D4829 Expansion Index of Soils 5 EA $270.00 $1,350.00 ASTM D1557 Max Density Optimum Moisture 20 EA $395.00 $7,900.00 CT417 Soluble Sulfates 5 EA $155.00 $775.00
CT422 Chloride Content 5 EA $135.00 $675.00
CT643 Resistivity and pH 5 EA $155.00 $775.00
Nuclear Density Test Gauge 180 Unit $50.00 $9,000.00
Project Geologist - Office 40 HR $200.00 $8,000.00
Soils Engineering Technician Double Time 100 HR $260.00 $26,000.00 Soils Technician Rough Grading 1,600 HR $130.00 $208,000.00 Soils Technician Rough Grading Overtime 320 HR $195.00 $62,400.00 ASTM D2974 Moisture, Ash, Organic Matter 50 EA $120.00 $6,000.00 Allowance for Analytical Testing of Soil 1 EA $20,000.00 $20,000.00 Subtotal:

$400,075.00
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ESTIMATE WORKSHEET
Compaction Testing of Trench Backfill and Street Improvements Item Quantity Unit Unit Price Total
Pick-up and Delivery of Test Specimens 40 HR $120.00 $4,800.00 Soils Engineering Technician 2,400 HR $130.00 $312,000.00 Administrative 80 HR $90.00 $7,200.00
ASTM D1557 Max Density Optimum Moisture 20 EA $395.00 $7,900.00 Project Engineer - Office 40 HR $220.00 $8,800.00
Supervising Soil Technician 40 HR $200.00 $8,000.00
ASTM C136 Sieve Analysis, Combined Agg 5 EA $290.00 $1,450.00 Nuclear Density Test Gauge 300 Unit $50.00 $15,000.00
Soils Engineering Technician Overtime 160 HR $195.00 $31,200.00 Subtotal:

$396,350.00
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ESTIMATE WORKSHEET
Compaction Testing for Asphalt Concrete Pavements
Item Quantity Unit Unit Price Total
Public Works Inspector - Asphalt Paving 320 HR $130.00 $41,600.00 Administrative 20 HR $90.00 $1,800.00
Pick-up and Delivery of Test Specimens 8 HR $120.00 $960.00 ASTM D2041 Maximum Theoretical Density 8 EA $350.00 $2,800.00 ASTM D2726 Core Density (SSD) 50 EA $75.00 $3,750.00
Nuclear Density Test Gauge 40 Unit $50.00 $2,000.00
Asphalt Coring 40 HR $135.00 $5,400.00
Subtotal:

$58,310.00
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ESTIMATE WORKSHEET
Special Inspection and Testing of Reinforced Concrete Construction Item Quantity Unit Unit Price Total
Pick-up and Delivery of Test Specimens 300 HR $120.00 $36,000.00 ID Reinforcing or Structural Steel 100 HR $130.00 $13,000.00 Special Inspector Reinforced Concrete 2,400 HR $130.00 $312,000.00 ACI Concrete Technician 1,000 HR $130.00 $130,000.00
ASTM C39 Concrete Cyl Cured or Tested 1,000 EA $55.00 $55,000.00 ASTM A370 Rebar Tension up to #8 25 EA $70.00 $1,750.00 ASTM A370 Bend Test Rebar up to #8 25 EA $60.00 $1,500.00 Administrative 100 HR $90.00 $9,000.00
Project Engineer - Office 160 HR $220.00 $35,200.00
Subtotal:

$593,450.00
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ESTIMATE WORKSHEET
Special Inspection and Testing of Reinforced Masonry Construction Item Quantity Unit Unit Price Total
ID Reinforcing or Structural Steel 40 HR $130.00 $5,200.00 Special Inspector Masonry 640 HR $130.00 $83,200.00
ASTM C780 Mortar Cylinder Compression 90 EA $50.00 $4,500.00 ASTM C1019 Grout Prism Compression 90 EA $55.00 $4,950.00 ASTM E519 Assemblage Comp Str 8" Block 5 EA $155.00 $775.00 ASTM E519 Assemblage Comp Str 12" Block 5 EA $140.00 $700.00 ASTM A370 Rebar Tension up to #8 5 EA $70.00 $350.00
ASTM A370 Bend Test Rebar up to #8 5 EA $60.00 $300.00
Administrative 40 HR $90.00 $3,600.00
Project Engineer - Office 20 HR $220.00 $4,400.00
Pick-up and Delivery of Test Specimens 80 HR $120.00 $9,600.00 ASTM C140 Block Moisture & Absorption 5 SET $110.00 $550.00 Subtotal:

$118,125.00
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ESTIMATE WORKSHEET
Special Inspection of Structural Steel Construction
Item Quantity Unit Unit Price Total
AWS Certified Welding Inspector- Field 2,240 HR $130.00 $291,200.00 Non Destructive Testing ASNT Level II 80 HR $135.00 $10,800.00 Administrative 40 HR $90.00 $3,600.00
Project Engineer - Office 20 HR $220.00 $4,400.00
Subtotal:

$310,000.00
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ESTIMATE WORKSHEET
Project Administration, Engineering Oversight, and Reporting Item Quantity Unit Unit Price Total
Project Manager - Office 160 HR $200.00 $32,000.00
Project Engineer - Office 160 HR $220.00 $35,200.00
Project Geologist - Office 160 HR $200.00 $32,000.00
Administrative 200 HR $90.00 $18,000.00
Subtotal:

$117,200.00
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ESTIMATE WORKSHEET
Special Inspection and Testing of Post Installed Anchors Item Quantity Unit Unit Price Total
Special Inspector Post Installed Anchors 360 HR $130.00 $46,800.00 Pull | Torque Testing Technician 360 HR $130.00 $46,800.00 Administrative 40 HR $90.00 $3,600.00
Proof Load Testing Equipment 45 DAY $180.00 $8,100.00
Subtotal:

$105,300.00
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FEE SCHEDULE

Personnel Charges - Professional Staff
Product Name Units Rate ($)
Project Engineer - Laboratory HR $220.00
Administrative HR $90.00
Principal Engineer - Office HR $250.00
Principal Engineer - Field HR $250.00
Principal Engineer - Consultation HR $250.00
Principal Engineer - Job Conference HR $250.00
Principal Engineer - Expert Witness HR $600.00
Principal Engineer - Court Appearance HR $800.00
Project Engineer - Office HR $220.00
Project Engineer - Field HR $220.00
Project Engineer - Consultation HR $220.00
Project Engineer - Job Conference HR $220.00
Staff Engineer - Office HR $180.00
Staff Engineer - Field HR $180.00
Drafting HR $130.00
Project Manager - Office HR $200.00
Project Manager - Field HR $200.00
Project Manager - Job Conference HR $200.00
Principal Geologist - Office HR $230.00
Principal Geologist - Field HR $230.00
Principal Geologist - Consultation HR $230.00
Principal Geologist - Job Conference HR $230.00
Principal Geologist - Expert Witness HR $500.00
Principal Geologist - Court Appearance HR $700.00
Project Geologist - Office HR $200.00
Project Geologist - Field HR $200.00
Project Geologist - Consultation HR $200.00
Project Geologist - Job Conference HR $200.00
Qualified SWPPP Developer QSD HR $200.00
Staff Geologist - Office HR $170.00
Staff Geologist - Field HR $170.00
Qualified SWPPP Practitioner QSP HR $180.00
Personnel Charges - Field Staff
Product Name Units Rate ($)
Soils Engineering Technician HR $130.00
Soils Technician Compaction Testing HR $130.00
Soils Technician Rough Grading HR $130.00
Soils Technician Retesting HR $130.00
Public Works Inspector HR $130.00
Public Works Technician HR $130.00
Public Works Inspector - Asphalt Paving HR $130.00
Public Works Inspector - Asphalt Plant HR $130.00
Public Works Inspector - Concrete Paving HR $130.00
Public Works Inspector - Concrete Plant HR $130.00
Public Works Technician - Asphalt HR $130.00
Public Works Technician - Concrete HR $130.00
Laboratory Technician - Field Lab HR $120.00
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Lead Roadway and Structures Inspector HR $140.00
Structures Inspector HR $140.00
Roadway Inspector HR $140.00
Civil Inspector HR $140.00
Building Inspector HR $140.00
Special Inspector (ICC) HR $130.00
Mechanical | Electrical Inspector HR $145.00
Special Inspector Reinforced Concrete HR $130.00
Special Inspector Prestressed Concrete HR $130.00
Special Inspector Concrete Batch Plant HR $130.00
ACI Concrete Technician HR $130.00
Pick-up and Delivery of Test Specimens HR $120.00
ID Reinforcing or Structural Steel HR $130.00
Special Inspector Fire Proofing HR $130.00
Special Inspector Post Installed Anchors HR $130.00
Special Inspector Roofing/Waterproofing HR $130.00
Special Inspector Masonry HR $130.00
Special Inspector Masonry (DSA) HR $130.00
Special Inspector Shotcrete HR $130.00
Special Inspector Post Tensioned Concrete HR $130.00
Special Inspector Fire Stopping HR $145.00
AWS Certified Welding Inspector- Field HR $130.00
AWS Certified Welding Inspector- Shop HR $130.00
Special Inspector Structural Steel HR $130.00
Special Inspector High Strength Bolting HR $130.00
Special Inspector Wood Construction HR $130.00
Non Destructive Testing ASNT Level II HR $135.00
Non Destructive Testing ASNT Level III HR $250.00
Coatings Technician HR $145.00
Special Inspector Fiber Wrap HR $130.00
Radiographic Testing Crew HR $500.00
Pull | Torque Testing Technician HR $130.00
Project Inspector (IOR) HR $145.00
Asphalt Coring HR $135.00
Concrete Coring HR $135.00
Horizontal Wall Coring HR $135.00
Assistant Wall Coring HR $130.00
Lead Utility Location Technician HR $150.00
Lead Concrete Scanning Technician HR $150.00
Supervising Soil Technician HR $200.00
Supervising Public Works Inspector HR $200.00
Supervising Special Inspector HR $200.00
Quality Control Manager HR $225.00
Reinforced Polymer Special Inspector HR $150.00
Laboratory Tests - Steel
Product Name Units Rate ($)
ASTM E605 Spray Applied Fireproofing Den EA $135.00
ASTM A370 Rebar Tension up to #8 EA $70.00
ASTM A370 Rebar Tension #9 to #11 EA $85.00
ASTM A370 Rebar Tension #14 EA $125.00
ASTM A370 Rebar Tension #18 EA $180.00
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ASTM A370 Bend Test Rebar up to #8 EA $60.00
ASTM A370 Bend Test Rebar #9 to #11 EA $70.00
ASTM A370 Bend Test Rebar #14 EA $125.00
ASTM A370 Bend Test Rebar # 18 EA $180.00
ASTM A370 Headed Bar Prod. Lot up to #8 LOT $275.00
ASTM A370 Headed Bar Prod. Lot #9 to #11 LOT $335.00
ASTM A370 Headed Bar Prod. Lot #14 LOT $515.00
ASTM A370 Headed Bar Prod. Lot #18 LOT $670.00
ASTM A416 Stress-Strain Analysis EA $250.00
ASTM A416 Tensile Test Only EA $175.00
ASTM A370 Tensile Up to 100K lbs (Each) EA $85.00
ASTM A370 Tensile Up to 200K lbs (Each) EA $100.00
ASTM A370 Tensile Up to 300K lbs (Each) EA $120.00
ASTM A370 Tensile Up to 400K lbs (Each) EA $180.00
ASTM A370 Tensile 400K - 500K lbs (Each) EA $365.00
ASTM A370 Tensile Stress-Strain Percent EA $205.00
AWS Weld: Macroetch EA $120.00
AWS Weld: Fracture EA $95.00
AWS Bend Test EA $85.00
ASTM A370 Rockwell Hardness (Each) EA $120.00
Steel Chemical Analysis EA $255.00
ASTM F606 Bolt Axial Tensile to 7/8” EA $70.00
ASTM F606 Bolt Wedge Tensile to 7/8” EA $100.00
ASTM F606 Bolt: Axial 7/8” - 1 1/2” EA $105.00
ASTM F606 Bolt Wedge Tens 7/8” to 1 1/2" EA $120.00
ASTM F606 Bolt: Proof Load up to 7/8" EA $110.00
ASTM F606 Bolt: Proof Load up to 1 1/2" EA $135.00
ASTM F606 Nut: Proof Load up to 7/8" EA $75.00
ASTM F606 Nut: Proof Load up to 1 1/2" EA $120.00
Laboratory Tests - Soil
Product Name Units Rate ($)
ASTM D4318 Plasticity Index of Soils EA $335.00
ASTM D1883 California Bearing Ratio EA $750.00
ASTM D2435 Consolidation EA $295.00
ASTM D2435 Consolidation with Time Rate EA $355.00
ASTM D3080 Direct Shear, Consol&Drained EA $285.00
ASTM D4829 Expansion Index of Soils EA $270.00
ASTM D2166 Unconfined Comp Strength EA $335.00
ASTM D5333 Hydro Collapse Potential EA $260.00
ASTM D2050 Tri-Axial Shear Strength EA $550.00
ASTM D2937 In-Place Density, Drive Cyl EA $75.00
ASTM D2216 Soil Moisture Content by Mass EA $55.00
ASTM D698 Maximum Density Std Effort EA $350.00
ASTM D1557 Max Density Optimum Moisture EA $395.00
ASTM D2974 Moisture, Ash, Organic Matter EA $120.00
ASTM D4972 pH of Soils EA $125.00
ASTM D2844 R-Value & Expansive Pressures EA $480.00
ASTM D2434 Const Head Permeability Test EA $470.00
ASTM D422 Sieve Analysis of Soil EA $260.00
ASTM D1140 Materials Finer than #200 EA $160.00
ASTM D854 Specific Gravity of Soils EA $295.00
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ASTM D4546 Swell Potential EA $260.00
ASTM D4943 Shrinkage Factor by Resin EA $290.00
ASTM D559 Soil Cement Sample Preparation EA $160.00
ASTM D558 Soil-Cement Maximum Density EA $395.00
ASTM D1633 Compression Test Soil Cement EA $130.00
AASHTO T100 Specific Gravity of Soils EA $295.00
Laboratory Tests - Masonry
Product Name Units Rate ($)
ASTM C140 Block Compressive Strength SET $100.00
ASTM C140 Block Moisture & Absorption SET $110.00
ASTM C426 Block Linear Shrinkage SET $375.00
ASTM C140 Block Unit Wt & Dimensions SET $265.00
ASTM C90 Masonry Block Conformance SET $740.00
ASTM C67 Brick Compressive Strength SET $125.00
ASTM C67 Brick Moisture & Absorption SET $110.00
ASTM C67 Brick 5 Hour Boil EA $135.00
ASTM C67 Brick Modulus of Rupture EA $135.00
ASTM C780 Mortar Cylinder Compression EA $50.00
ASTM C1019 Grout Prism Compression EA $55.00
ASTM C1314 Masonry Core Comp Str 8" Max EA $120.00
ASTM C1314 Masonry Core Shear Str 8" Max EA $130.00
ASTM E519 Assemblage Comp Str 8" Block EA $155.00
ASTM E519 Assemblage Comp Str 12" Block EA $140.00
ASTM E519 Assemblage Comp Str 16" Block EA $175.00
ASTM C109 Compressive Strength 2" Cube EA $75.00
Laboratory Tests - Concrete
Product Name Units Rate ($)
ASTM C39 Concrete Cyl Cured or Tested EA $55.00
ASTM C42 Compressive Strength, Core EA $120.00
ASTM C39 Cyl Tested out of Sequence EA $80.00
ASTM C495 Lightweight Concrete Strength EA $75.00
ASTM C78 Flexural Strength, Beam EA $135.00
ASTM C1140 Shotcrete Panel Test SET $450.00
ASTM C138 Unit Weight of Concrete EA $90.00
ASTM C649 Concrete Modulus of Elasticity EA $275.00
ASTM C157 Concrete Shrinkage (Set of 3) SET $650.00
ASTM C496 Splitting Tensile Test EA $125.00
ASTM C495 Density - Lightweight Concrete EA $240.00
T 336 Coefficient of Thermal Expansion EA $750.00
Laboratory Tests - Caltrans
Product Name Units Rate ($)
CT202 Sieve Analysis, Combined Agg EA $275.00
CT202 Sieve Analysis, Fine Agg EA $210.00
CT202 Sieve Analysis, Coarse Agg EA $195.00
CT235 Flat and Elongated Particles EA $400.00
CT205 Percentage Crushed Particles EA $275.00
CT206 Specific Gravity, Coarse Aggregate EA $195.00
CT207 Specific Gravity, Fine Aggregate EA $295.00
CT208 Apparent Specific Gravity of Fines EA $295.00
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CT229 Durability Index EA $455.00
CT234 Angularity & Voids, Fine Agg EA $295.00
CT211 Abrasion, Los Angeles Rattler EA $375.00
CT227 Cleanness Value EA $420.00
CT213 Organic Impurities in Sand EA $155.00
CT214 Soundness by Sodium Sulfate EA $650.00
CT226 Moisture Content by Oven Drying EA $75.00
CT217 Sand Equivalent EA $190.00
CT308(A) Core Density Paraffin Coated EA $85.00
CT308(C) Core Density SSD EA $75.00
CT303 Approximate Bitumen Ratio EA $335.00
CT304/308(A) LTMD Kneading Compactor EA $480.00
CT305 Swell of Bituminous Mixtures EA $550.00
CT366 Stabilometer Value EA $395.00
CT308(A)/366 Stability and Density EA $490.00
CT308(C)/366 Stability and Density EA $470.00
CT309 Maximum Theoretical Density EA $350.00
CT370 Moisture Content by Microwave EA $110.00
CT379 Asphalt Content Nuclear Gauge EA $275.00
CT382 Ignition Oven Correction Factor EA $650.00
CT382 Asphalt Content by Ignition EA $295.00
CT371 Tensile Strength Ratio EA $1,470.00
CT302 Film Stripping EA $335.00
CT521 Concrete Cyl Compressive Strength EA $55.00
CT523 Concrete Flexural Strength, Beam EA $135.00
CT531 Length of Drilled Concrete Cores EA $75.00
CT550 Surface Abrasion of Concrete EA $535.00
CT534 Water Retention, Liq Curing Cmpnd EA $570.00
CT521 Compressive Strength LCB EA $50.00
CT524 RSC Flexural Strength, Beam EA $135.00
CT515 Relative Mortar Strength, PCC Sand EA $900.00
CT670 Tensile Strength up to #8 EA $95.00
CT670 Tensile Strength #8 - #11 EA $120.00
CT670 Tensile Strength #14 EA $180.00
CT670 Tensile Strength #18 EA $255.00
CT 52-1-08C Slip Test EA $275.00
CT670 Operator Qualification up to #8 LOT $550.00
CT670 Operator Qualification #9 - #11 LOT $655.00
CT670 Operator Qualification #14 LOT $950.00
CT670 Operator Qualification #18 LOT $1,235.00
CT670 Operator Qualification up to #8 EA $550.00
CT670 Operator Qualification #9 - #11 EA $675.00
CT670 Operator Qualification #14 EA $950.00
CT670 Operator Qualification #18 EA $1,235.00
CT670 Production Lot up to #8 (Service) LOT $355.00
CT670 Production Lot #9 to #11 (Service) LOT $475.00
CT670 Production Lot #14 (Service) LOT $635.00
CT670 Production Lot #18 (Service) LOT $825.00
CT670 Production Lot up to #8 (Ultimate) LOT $455.00
CT670 Production Lot #9 to #11(Ultimate) LOT $490.00
CT670 Production Lot #14 (Ultimate) LOT $790.00
CT670 Production Lot #18 (Ultimate) LOT $1,350.00
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CT204 Plasticity Index, Atterberg EA $355.00
CT209 Specific Gravity of Soil EA $295.00
CT216 CA Impact Max Density EA $325.00
CT216 CA Impact, Rock Correction EA $95.00
CT301 Resistance R-Value Stabilometer EA $475.00
CT417 Soluble Sulfates EA $155.00
CT422 Chloride Content EA $135.00
CT643 Resistivity and pH EA $155.00
Laboratory Tests - Asphalt
Product Name Units Rate ($)
ASTM D2726 Core Density (SSD) EA $75.00
ASTM D1188 Core Density Parafilm Coated EA $85.00
ASTM D6926 Lab Max Density Marshall EA $395.00
ASTM D6927 Marshal Stability and Flow EA $480.00
ASTM D1561 LTMD Kneading Compactor EA $395.00
ASTM D1560 Hveem Stability and Density EA $490.00
ASTM D1560 Hveem Stability EA $375.00
ASTM D2041 Maximum Theoretical Density EA $350.00
ASTM D6307 Ignition Oven Calibration EA $650.00
ASTM D6307 Asphalt Content by Ignition EA $295.00
ASTM D2172 Asphalt Content by Solvents EA $475.00
ASTM D4125 Asphalt Content Nuclear Gauge EA $335.00
ASTM D5444 Gradation of Extracted Agg EA $335.00
ASTM D244 Emulsion Residue Evaporation EA $280.00
ASTM D244 Emulsion Sieve Analysis EA $185.00
ASTM D3910 Wet Track Abrasion EA $350.00
AASHTO T324 Hamburg Wheel Tracking Test EA $1,100.00
AASHTO T283 Tensile Strength Ratio EA $1,200.00
AASHTO T275 Core Denisty Paraffin Coated EA $85.00
AASHTO T312/T275 LTMD Gyratory Compactor EA $480.00
AASHTO T308 Asphalt Content by Ignition EA $285.00
AASHTO T209 Theoretical Maximum Density EA $350.00
AASHTO T308A AC Correction Factor EA $550.00
AASHTO T324 Hamburg Wheel Tracking - RHMA EA $1,100.00
AASHTO T283 Tensile Strength Ratio - RHMA EA $1,200.00
AASHTO T312/T275 LTMD Gyratory Comp.- RHMA EA $480.00
Laboratory Tests - Aggregates
Product Name Units Rate ($)
ASTM C131 Abrasion, Los Angeles Rattler EA $375.00
ASTM C40 Organic Impurities in Fine Agg EA $135.00
ASTM C127 Specific Gravity, Coarse Agg EA $255.00
ASTM C128 Specific Gravity, Fine Agg EA $290.00
ASTM C1252 Angularity & Voids, Fine Agg EA $280.00
ASTM C566 Moisture Content by Drying EA $35.00
ASTM C117 Materials Finer than No. 200 EA $160.00
ASTM D2419 Sand Equivalent EA $190.00
ASTM C289 Alkali-Silica Reactivity EA $950.00
ASTM D4791 Flat & Elongated Particles EA $395.00
ASTM D5821 Percent Fractured Particles EA $275.00
ASTM C123 Percent Lightweight Particles EA $295.00
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ASTM C88 Soundness by Sodium Sulfate EA $695.00
ASTM C136 Sieve Analysis, Combined Agg EA $290.00
ASTM C136 Sieve Analysis, Fine Agg EA $265.00
ASTM C136 Sieve Analysis, Coarse Agg EA $255.00
ASTM C142 Clay Lumps & Friable Particles EA $260.00
ASTM C535, Abrasion Large Aggregate EA $465.00
AASHTO T304 Angularity & Voids in Fines EA $255.00
AASHTO T84 Specific Gravity, Fine Agg EA $280.00
AASHTO T85 Specific Gravity, Coarse Agg EA $255.00
AASHTO T96 Abrasion, Los Angeles Rattler EA $375.00
AASHTO T27 Sieve Analysis, Combined Agg EA $290.00
AASHTO T27 Sieve Analysis, Fine Agg EA $285.00
AASHTO T27 Sieve Analysis, Coarse Agg EA $255.00
AASHTO T176 Sand Equivalent EA $190.00
AASHTO T335 Percent Fractured Particles EA $285.00
Equipment Charges
Product Name Units Rate ($)
Portable Drilling Equipment HR $750.00
Mobile Laboratory Trailer Mobilization EA $2,500.00
Mobile Laboratory Trailer & Testing Equipment DAY $700.00 Stationary Laboratory Trailer & Testing Equipment MO $1,500.00 Mileage MILE Quote
Diamond Bit Core Rig and Generator DAY $850.00
Nuclear Density Test Gauge Unit $50.00
Hand Held Turbidity Meter DAY $75.00
Ultrasonic Test Unit and Consumables DAY $100.00
Magnetic Particle Test Unit DAY $100.00
Skidmore DAY $80.00
Schmidt Hammer DAY $100.00
Torque Wrench DAY $100.00
Proof Load Testing Equipment DAY $180.00
Drilling Equip Mobilization / De-Mob EA $800.00
ASTM C1028 Coefficient of Friction DAY $1,000.00
Mini Environmental Quality Meter DAY $400.00
Inertial Profiler DAY $2,000.00
Holiday Tester DAY $250.00
VOC Meter DAY $200.00
Floor Flatness Testing Day $2,900.00
Dutch Cone Penetrometer with Operator HR $875.00
Hollow Stem Auger Drill Rig w/ Operator HR $775.00
Portable Drilling Equipment w/ Operator HR $750.00
Bucket Auger Drill Rig with Operator HR $875.00
Air Rotary Drill Rig with Operator HR $900.00
Rotary Wash Drill Rig with Operator HR $950.00
Per Diem DAY $150.00
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GENERAL CHARGES
RMA Group requires twenty-four (24) hour prior notification for scheduling inspectors and/or technicians.

Inspection charges start at the scheduled show up time at the job site. All inspection hours will be billed in the following increments:

There will be a minimum two (2) hour charge for any RMA Group employee presence on site.

Any time less than four (4) hours of work will be billed as four (4) hours.

Four (4) to eight (8) hours will be billed as eight (8) hours.

When personnel are required to work more than 5 hours without an uninterrupted meal period of 30 minutes, due to project constraints, ½ hour will be charged at double time rates in addition to any applicable hours worked.

Rates are valid through June 30, 2025. Rates for personnel will increase by 5% per year on July 1st of each subsequent year.

Outside services will be billed at cost plus 15% unless billed directly to and paid for by Client.

Requests made by client for management attendance at meetings at the project site will be charged at standard rate.

OVERTIME CHARGES
Work performed more than 8 hours per day and / or up to eight (8) hours on Saturdays will be billed at 1.50 times the unit rate.

Work performed on Sunday, recognized holidays, or more than eight (8) hours on Saturdays will be billed at 2.00 times the unit rate.

A 20% surcharge will be applied for laboratory tests performed on a Saturday or Sunday.

PER DIEM AND TRAVEL CHARGES
The daily per diem charge listed in the fee schedule will be applied when our personnel are required to stay overnight at remote locations.

Time will be billed at the unit rate while traveling to a remote location or if a location requires an overnight stay Mileage for travel outside a 50 mile radius from either the project site or the nearest RMA facility, whichever is closest, will be charged at a rate of $0.77 per mile.

NIGHT WORK
A $5.00 per hour surcharge will be added to all personnel rates for work performed during night shifts. 775

GENERAL CONDITIONS
AGREEMENT. This agreement is made by and between RMA Group (“RMA”) and the party that accepted RMA’s proposal or requested that RMA perform Services (“Client”). RMA shall include said company, its engineers, employees, insurers, or authorized representative. This "Agreement” includes RMA’s proposal and any exhibits or attachments noted in the proposal or incorporated by reference including but not limited to these General Conditions. Requesting Serv ices from RMA shall constitute acceptance of the terms of these General Conditions.

1. SCOPE OF SERVICES. Services means the service(s) performed by RMA for Client or at Client's direction. RMA’s findings, opinions, and recommendations are based upon data and information obtained by and furnished to RMA at the time of the Services. RMA may rely upon information provided by the Client or third parties. Client may request additional work or changes beyond the scope of Services described in RMA’s Proposal. If any alteration or addition of Services are requested by the Client, RMA may provide a w ritten notification detailing the additional scope of work, time extension and associated fees for Client’s review. Client shall provide written acceptance of such. If Client does not follow these procedures, but instead directs, authorizes, or permits RMA to perform the changed or additional work, the Services are changed accordingly and RMA will be paid for this work according to its written notification or current fee schedule.

2. DELAYS. RMA shall be entitled to an equitable adjustment to the project schedule and compensation to compensate RMA for any increase in time or costs necessary to perform the Services under this Agreement due to any cause beyond its reasonable control. All promises of services time are approximations by RMA and are subject to the Client and contractor's schedules, weather conditions, travel conditions, disputes with workmen or parties, accidents, strikes, natural disasters, health emergencies, discovery of hazardous materials, differing or unforeseeable site conditions or project conditions, acts of governmental agencies or authorities, or other causes. In no event shall RMA be responsible for any damage or expense due to delays from any cause, other than to the extent the damage or expense is directly caused by RMA’s own proven negligence after having been warned in writing by the Client of the damage or expense which may result from the delay.

3. RMA RESPONSIBILITIES. Services performed by RMA under this Agreement will be conducted in a manner consistent with the level of care and skill ordinarily exercised by members of the same profession currently providing the same or similar services under similar circumstances in the same locality and in accordance with applicable standards in effect at the time the Services are performed. RMA MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED.

Testing or inspection services may require the destruction of a sample or sample location. Client understands that, in the normal course of performing the Services, some damage may occur, and understands that RMA is not responsible for the correction of any such damage or for replacing samples. Client acknowledges that opinions, data, interpretations and recommendations prepared by RMA are based on limited data and recognizes that subsurface conditions or other actual conditions may vary from those encountered at the location where inspections, tests, borings, surveys, or explorations are made by RMA and may vary from those depicted on logs of discrete borings, test pits, or other exploratory services. There is an inherent risk that samples or observations may not be representative of materials or locations not sampled or seen and that conditions may change over time. Variations between inspected or tested discrete locations may occur and the risk of such occurrence is understood and accepted by Client. Client is responsible for notifying the appropriate party or professional regarding the correction of any deviations or deficiencies noted by RMA and RMA accepts no liability in connection therewith. RMA shall not be responsible for the interpretation by others of information developed by RMA and makes no guarantee that RMA’s recommendations are properly implemented by any party. RMA shall not be held liable for problems that may occur if RMA’s recommendations are not followed.

4. SUBSURFACE EXPLORATIONS. Client understands RMA’s layout of boring and test locations is approximate and that RMA may deviate a reasonable distance from those locations. Client acknowledges that it is impossible for RMA to know the exact composition of a site’s subsurface, even a fter conducting a comprehensive exploratory program. There is a risk that drilling and sampling may result in contamination of certain subsurface areas. Client waives any claim against, and agrees to defend, indemnify and save RMA harmless from any claim or liability for injury or loss which may arise as a result of subsurface contamination caused by drilling, sampling, or monitoring well installation. Client also agrees to adequately compensate RMA for any time spent and expenses incurred in defense of any such claim.

5. CLIENT PARTICIPATION. Client will make available to RMA all information in its possession regarding existing and proposed conditions at the site. Such information shall include, but not be limited to engineering reports, plot plans, topographic surveys, hydrographic data, soil data including borings, field and laboratory tests and written reports. Client shall immediately transmit to RMA any new information concerning site condition which becomes available, and any change in plans or specifications concerning the project. RMA shall not be liable for any inaccurate or incorrect advice, judgment or decision which is based on any inaccurate information furnished by Client and Client shall indemnify RMA against claims, demands, or liability arising out of, or contributed to, by such inaccurate information. In the event Client, the project owner, or other party makes any changes in the plans and specifications, Client agrees to hold RMA harmless from any liability arising out of such changes, and Client assumes full responsibility unless Client has given RMA prior notice and has received RMA’s written consent for such changes. RMA does not assume responsibility for any conditions at the Client's site(s) that may present a danger, either potential or real, to health , safety, or the environment. Client hereby agrees that it is the Client's responsibility to notify any and all appropriate federal, state, or local authorities, as required by law, of the existence of any such potential or real danger and otherwise to disclose to all appropriate or affected individuals or entities, in a timely manner, any information that may be necessary to prevent any danger to health, safety, or the environment. Client assumes sole responsibility for determining whether the quantity and the nature of services ordered by Client is adequate and sufficient for Client’s intended purpose.

6. THIRD PARTIES To the fullest extent permitted by law and to the extent not resulting from RMA’s proven negligence, Client agrees to defend, indemnify and hold RMA harmless from any claims, demands, suits, losses, charges, expense (including attorney fees and costs at trial and appeal), and/or allegations of responsibility by any and all third 776

parties including but not limited to, contractors, subcontractors, agents, employees, assignees transferees, successors, invitees, neighbors, and the public relating in any way to this Agreement, the services, or the project. It is expressly understood and agreed that the enforcement of these terms and conditions shall be reserved to the Client and RMA. Nothing contained in this Agreement shall give or allow any claim or right of action whatsoever by any third person. It is the express intent of the Cli ent and RMA that any such person or entity, other than Client or RMA, receiving services or benefits under this Agreement shall be deemed an incidental beneficiary. Neither party may assign this Agreement or any right or obligation hereunder without the pr ior written consent of the other party, which shall not be unreasonably withheld or delayed; provided, however, that no consent shall be necessary in the event of an assignment to a successor entity resulting from a merger, acquisition or consolidation by or of RMA or an assignment to an affiliate or subsidiary of RMA.

7. SAMPLE DISPOSAL. Samples are consumed in testing or disposed of upon completion of tests or upon report completion (unless stated otherwise in the Services). Client acknowledges that contaminated drill cuttings, sample spoils, wash water, and other materials may be produced as a result of encountering hazardous materials at the site. In such event, Client shall be responsible for their proper transportation and disposal. RMA may be able to arrange for the transportation and disposal of hazardous materials at Client’s reque st. In no event shall RMA be required to sign a hazardous waste manifest or take title to any hazardous materials. Contaminated samples delivered to or taken to RMA’s laboratory for testing shall remain the property of Client and Client is responsible for ultimate disposal of any samples which are found to be contaminated. On request, Client shall retrieve contaminated samples from RMA’s laboratory and dispose of them in an approved manner.

8. DISCOVERY OF UNANTICIPATED HAZARDOUS MATERIALS. Client shall furnish to RMA all documents and information known or available to Client that relate to the identity, location, quantity, nature, or characteristic of any hazardous waste, toxic, radioactive, or contaminated materials prior to commencement of the Services. Client warrants that it has made reasonable efforts to disclose known or suspected hazardous materials on or near the project site. Client agrees that the discovery of such unanticipated hazardous materials constitutes a changed condition which may require either a re- negotiation of the scope of RMA’s Services or termination of such Services or this Agreement. Client recognizes that the discovery of hazardous materials may necessitate immediate protective measures to safeguard the public health and safety and agrees to compensate RMA for measures that in RMA’s professional opinion are justified to preserve and protect the health and safety of site personnel and the public. Client agrees to compe nsate RMA for any equipment decontamination or other costs incident to the discovery of unanticipated hazardous materials. Client agrees that in the event of the discovery of hazardous materials at the site it will report such discovery to the proper authorities as required by federal, state, and local regulations. Client also agrees to inform the project site owner in the event that hazardous materials are encountered at the site. Notwithstanding any other provision of the agreement, Client waives any claim against RMA, and to the maximum extent permitted by law, agrees to defend, indemnify, and save RMA harmless from any claim, liability and/or defense costs for injury or loss arising from the presence of hazardous materials on the project site.

9. SITE CONDITIONS. Client shall secure all necessary approvals, notices, permits, licenses, and consents from all owners, lessees, contractors, and other possessors of the Project, necessary to commence and complete the Services, and will provide RMA access to the project s ite for all equipment and personnel necessary for the performance of the Services. RMA shall be allowed free access to the site. Client understands and agrees that RMA shall only be responsible for losses which directly result from RMA’s negligence. Client is responsible for the accuracy of locations for all subterranean structures and utilities. Client waives any claim against RMA, and agrees to defend, indemnify, and hold RMA harmless from any claim or liability for injury or loss of any p arty, including costs of defense, arising from damage done to subterranean structures and utilities not identified or accurately located. In addition, Client agrees to compensate RMA for any time spent or expenses incurred by RMA in defense of any such claim.

10. ENVIRONMENTAL LIABILITY . Neither this Agreement nor the providing of services will operate to make RMA an owner, operator, generator, transporter, treater, storer, or arranger for disposal or treatment within the meaning of the Resource Conservation Recovery Act, Comprehensive En vironmental Response Compensation and Liability Act, or within the meaning of any other law governing the handling, treatment, storage, or disposal of hazardous materials. Client will indemnify, defend and hold RMA harmless from and against any and all losses, damages, costs and expenses, including attorney’s fees, from third party claims, demands and causes of action arising or claimed to arise from violations by Client of any and all environmental laws, rules and regulations relati ng to the existence, generation of, current or future ownership, storage, transport or disposal of pre -existing hazardous substances and wastes, but this indemnity shall not cover such loss, damage, cost or expense to the extent caused by RMA’s proven negligence in performing the Services under this Agreement. For purposes of this Agreement, a pre -existing hazardous substance is any hazardous substance or hazardous waste having been generated by Client or existing on Client's premises prior to the date of t his Agreement.

11. OWNERSHIP AND LEGAL USE OF DOCUMENTS. All notes, data, reports, original final reproducible drawings, plans, specifications, calculations, and studies memoranda assembled or prepared by RMA are instruments of service with respect to the subject project, and RMA shall retain an ownership and property interest therein, whether or not the project is completed. The Client may make and retain copies for information and reference in connection with the subject project; however, such documents are not intended or represented to be suitable for re-use by the Client or others. Any modification, changes, or reuse without written verification or adaptation by RMA for the specific purpose intended will be at the Client's sole risk and without liability or legal exposure to RMA, and the Client agrees to indemnify and hold harmless RMA against any and all costs, expenses, fees, losses, claims, demands, liabilities, suits, actions, and damages whatsoever arising out of or resulting therefrom.

12. ALLOCATION OF RISK AND LIMITATION OF LIABILITY . The parties have evaluated the respective risks and remedies under this Agreement and agree to allocate the risks and restrict the remedies to reflect that evaluation. Notwithstanding any other provision to the contrary in this Agreement and to the fullest extent permitted by law, Client agrees to restrict its remedies under this Agreement against RMA, its parents, affiliates and subsidiaries (“RMA Covered Parties”), so that the total 777

aggregate liability of RMA Covered Parties shall not exceed $50,000 or the actual paid compensation for the services performed by RMA under this Agreement, whichever is greater. This restriction of remedies shall apply to all suits, claims, actions, losses, costs (including attorney fees) and damages of any nature arising from or related to this Agreement without regard to the legal theory under which such liability is imposed.

Claims must be brought within one calendar year from performance of the Services.

13. LIABILITY FOR OTHERS. RMA shall not be responsible for supervising or overseeing the Client’s contractors or for their means and methods, procedures, performance, or site safety. RMA shall not be responsible for the acts or omissions of the Client, owner, architect, architect’s other consultants, contractor, subcontractors, other third parties or their respective agents, employees, assigns, successors, or any other persons (“Others"). RMA shall have no authority to control Others regarding their work or their safety practices. RMA does not control or guarantee the work of Others. RMA has no duty to inspect or correct health and safety deficiencies of Others. RMA will not be responsible for the failure of Others to perform in accordance with their undertakings and the providing of RMA’s services shall not relieve Others of their responsibilities to the Client or Others. RMA reserves the right to report to the Client any unsafe conditions observed at the Project without altering the foregoing.

14. CONSEQUENTIAL DAMAGES WAIVER. Notwithstanding anything to the contrary in this agreement and to the fullest extent permitted by law, Client and RMA waive against each other any and all claims for or entitlement to special, incidental, indirect, consequential, delay, punitive, or similar losses or damages arising out of, resulting from, or in any way related to the project or this Agreement.

15. INSURANCE. RMA will maintain the following insurance coverages and amounts: (1) Workers Compensation insurance as required by law, (2) Employer’s Liability insurance with coverage of $1,000,000 per each accident/employee, (3) Commercial General Liability insurance w ith coverage of $1,000,000 per occurrence/aggregate, (4) Automobile Liability insurance with coverage of $1,000,000 combined single limit, and (5) If RMA is providing professional services, Professional Liability insurance with coverage of $1,000,000 per claim/aggregate. Client shall name RMA as additional insured on its Builder’s Risk policy. Client shall require any general contractors working on the project site to include RMA in any indemnity that the Client requires such contractors to provide to the Client and as an additional insured under any such contractor’s general liability insurance policy. Client shall provide RMA with a certificate of insurance evidencing the required insurance.

16. RESOLUTION OF DISPUTES. Client shall not be entitled to assert a Claim against RMA based on any theory of professional negligence unless and until Client has obtained the written opinion from an independent and reputable Professional Engineer (P .E.), licensed architect (A.I.A.), or Registered Geologist (R.G.) that RMA has violated the standard of care applicable to RMA’s performance of the Services.

Such party shall be currently practicing in the same discipline as RMA and be licensed in the state where the project is located. This written opinion shall specify the acts or omissions that the independent engineer, architect, or geologist contends are not in conformance with the standard of care for professional services performed by local consultants under similar circumstances; and state in detail the basis for their independent opinion that such acts or omissions do not conform to that standard of care. Client shall provide this opinion to RMA and the parties shall endeavor to resolve the dispute within 30 days. This Agreement shall be governed by and construed in accordance with the laws of the state where the RMA office originating the work or proposal is located. Exclusive of lien claims, any legal action or proceeding brought to enforce or otherwise arising out of or relating to this Agreement shall be brought in the county where the RMA office originating the work or proposal is located. Each party waives its right to a jury trial in any court action arising between the parties, whether under this Agreeme nt or otherwise related to the work being performed under this Agreement.

17. COMPENSATION AND PAYMENT TERMS. Client agrees that an invoice amount is due when received unless otherwise agreed. A service charge of one and one- half percent (1 -½%) per month (but not exceeding the maximum allowable by law) will be added to any account not paid within 30 days after the invoice date. In the event that any portion of the account remains unpaid 30 days after the invoice date, RMA may immediately discontinue Services on any and all projects for Client, or withhold any final report or instrument of service, or demand prepayment of fees at RMA’s option. Client shall pay all costs incurred by RMA in collecting any delinquent amount, including staff time, court costs and attorney fees. Failure to make payment within sixty (60) days of invoice shall constitute a release of RMA from any and all claims which Client may have, either in tort or contract, and whether known or unknown at the time. Should Services based on a fee schedule be performed beyond the end of the calendar year, RMA’s current fee schedule shall apply unless otherwise negotiated in advance.

18. TERMINATION. This Agreement may be terminated without cause by either party upon thirty (30) days written notice, and at any time by either party if the other party defaults in the performance of any material provision of this Agreement and such default continues for a period of seven (7) days after written notice thereof. In the event of termination, RMA will be paid for Services performed through the date of termination, plus reasonable termination expenses, including the cost of completing analyses, demobilization, records and reports necessary to document job status at the time of termination.

19. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties and shall supersede other prior agreements and representations. No amendments to this Agreement shall be valid unless made in writing and signed by the parties. If Client uses its standar d business forms all pre -printed terms and conditions contained in or on such forms shall be deemed stricken and null and void. If the terms and conditions of this Agreement conflict with the terms and conditions of any other agreement or document this Agreement shall govern and control over any such conflict. The invalidity or unenforceability of any portion(s) of this Agreement shall in no way affect the validity or enforceability of any other portion(s) hereof. Any invalid or unenforceable portion shall be severed from the Agreement and the balance of the Agreement shall be construed and enforced as if the Agreement did not contain a particular portion held to be invalid or unenforceable. This Agreement may be executed in several counterparts, each of which shall be deemed an original having identical legal effect. The titles, captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement. RMA shall not be bound by any language incorporating by reference any contract or term of any contract unless the term or terms incorporated by reference are specifically furnished to RMA and are expressly agreed to in a writing signed by RMA.

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RESOLUTION NO. ________

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

CALIFORNIA, REGARDING ITS INTENTION TO ISSUE TAX-EXEMPT

OBLIGATIONS FOR PUBLIC CAPITAL IMPROVEMENTS
WHEREAS, the City of Ontario (the “City”) proposes to undertake the financing of the acquisition and construction of certain public capital improvements (as described in Exhibit A, collectively, the “Project”);
WHEREAS, the City intends to finance the acquisition, construction and installation of the Project or portions of the Project with the proceeds of the sale of obligations the interest upon which is excluded from gross income for federal income tax purposes (the “Obligations”); and
WHEREAS, the City desires to pay certain costs with respect to the Project prior to the issuance of the Obligations from available moneys of the City and to reimburse itself for such costs from a portion of the proceeds of the sale of the Obligations; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:

SECTION 1. The City Council of the City of Ontario (the “City Council”) does hereby find and declare that the above recitals are true and correct.

SECTION 2. The City reasonably expects, and hereby states its intention, to reimburse itself for Project costs incurred prior to the issuance of the Obligations with proceeds of the Obligations. Exhibit A describes either the general character, type, purpose, and function of the Project or the fund or account from which Project costs are to be paid and the general functional purpose of the fund or account.

SECTION 3. The reasonably expected maximum principal amount of the Obligations that is anticipated to be used for such reimbursement is $605,000,000.

SECTION 4. Except as described in Section 8 below, this resolution is being adopted not later than 60 days after the payment of the original expenditures (the “Expenditures Date or Dates”).

SECTION 5. Except as described in Section 8 below, the expected date of issue of the Obligations will be within 18 months of the later of: (a) the Expenditure Date or Dates; or (b) the date that the Project is placed in service; provided that the reimbursement may not be made more than three years after the Expenditure Date or Dates.

SECTION 6. Proceeds of the Obligations to be used to reimburse the City for Project costs are not expected to be used, within one year of reimbursement, directly or 779
indirectly to pay debt service with respect to any obligation (other than to pay current debt service coming due within the next succeeding one year period on any tax-exempt obligation of the City (other than the Obligations)) or to be held as a reasonably required reserve or replacement fund with respect to an obligation of the City or any entity related in any manner to the City, or to reimburse any expenditure that was originally paid with the proceeds of any obligation, or to replace funds that are or will be used in such manner.

SECTION 7. This resolution is consistent with the budgetary and financial circumstances of the City as of the date hereof. No moneys from sources other than the Obligations are, or are reasonably expected to be, reserved, allocated on a long-term basis or otherwise set aside by the City (or any related party) pursuant to their budget or financial policies with respect to the Project costs. To the best of our knowledge, this City Council is not aware of the previous adoption of official intents by the City that have been made as a matter of course for the purpose of reimbursing expenditures and for which tax-exempt obligations have not been issued.

SECTION 8. The limitations described in Sections 4 and 5 above do not apply to: (a) costs of issuance of the Obligations; (b) an amount not in excess of the lesser of $100,000 or five percent (5%) of the proceeds of the Obligations; or (c) any preliminary expenditures, such as architectural, engineering, surveying, soil testing, and similar costs other than land acquisition, site preparation, and similar costs incident to commencement of construction, not in excess of twenty percent (20%) of the aggregate issue price of the Obligations that finances the Project for which the preliminary expenditures were incurred.

SECTION 9. This resolution is adopted as official action of the City in order to comply with Treasury Regulation § 1.150-2 and any other regulations of the Internal Revenue Service relating to the qualification for reimbursement of City expenditures incurred prior to the date of issue of the Obligations, is part of the City’s official proceedings, and will be available for inspection by the general public at the main administrative office of the City.

SECTION 10. This resolution shall take effect immediately.

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

PASSED, APPROVED, AND ADOPTED this 15th day of October, 2024. _____________________________________
PAUL S. LEON, MAYOR
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ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
781

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2024- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held October 15, 2024 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2024- duly passed and adopted by the Ontario City Council at their regular meeting held October 15, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
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EXHIBIT A

DESCRIPTION OF PROJECT
Project Description:

Regional Sports Complex Project & all associated on-site and offsite infrastructure and public art associated within vicinity of project. Project located South of Riverside Drive, East of Vineyard Avenue, West of Archibald Avenue, North of Chino Avenue.

Project Details: Estimated Costs
Baseball Stadium $ 150,000,000
Baseball Stadium Parking Structure 40,000,000 Sports Fields & Other City Related Parks Improvements 218,000,000 Offsite Improvements & Other City Related Facility Improvements 141,000,000 Land Acquistion 50,000,000
Public Art Projects 6,000,000
TOTAL $ 605,000,000
783
Department: Economic Development
Prepared By: Charity Hernandez
Department:

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

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 15
SUBJECT:

A LEASE AGREEMENT BETWEEN THE CITY OF ONTARIO AND THE

INTERNATIONAL AIRPORT AUTHORITY

CITY OF ONTARIO
Agenda Report
October 15, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council approve a Lease Agreement ("Agreement") between the City of Ontario ("City") and the Ontario International Airport Authority ("Authority") for the use of the City-owned property located at 1236 East Airport Drive ("Property") for a five-year term with the option to extend for up to two additional five-year terms.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
FISCAL IMPACT:

The lease rate for the property is proposed at $148,695.83 per month for the initial five-year term with the option to extend for up to two additional five-year terms. On July 1st of each calendar year an Annual Consumer Price Index Adjustment will be performed, and such increase shall be applied to the based rent.

BACKGROUND & ANALYSIS:

In May of 2021, the City acquired the Property to facilitate the construction of a new fueling facility and storage area to support the future expansion and long- term operational needs of the Ontario International Airport. The facility would increase operational efficiency at the Airport by serving non-aircraft related vehicles and equipment that support day-to- day operations.

The Property is currently improved with a 127,000 square foot industrial building (a location map is provided for reference as Exhibit “A”) . Authority staff is working on the long-term development plan for the Property. In the meantime, the Authority identified a need to utilize the Property for the receiving and clearance of international cargo and related activities and services to support such operations at the Airport.

Under the terms of the Agreement, the Authority will be responsible for any required tenant improvements in addition to maintenance of the Property. 784
At any time during the term of the Agreement, but
only after the City and Authority mutually agree
on the purchase price based on the fair market value as determined by an independent MAI- certified appraiser, the A
uthority has the right to exercise the Right of First Option to acquire the Property.

Staff recommends that the City Council approve the Agreement with the Authority to use the City- owned property located at 1236 East Airport Drive for a five-year term, with the option to extend for up to two additional five-year terms.
785

EXHIBIT “A”
1236 East Airport Drive

MISSION BLVD

GROVE AVE
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46700.12001\42620909.2

LEASE AGREEMENT
By and Between The Ontario International Airport
Authority and The City of Ontario

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ONTARIO INTERNATIONAL AIRPORT

LEASE AGREEMENT

1. Lease Agreement. The Ontario International Airport Authority (“ OIAA”) and The City of Ontario, a California municipal corporation (“ City”), as identified in the Basic Information Schedule (Exhibit “A”), agree to be bound by all of the terms and conditions contained in this Lease Agreement (“Agreement”) covering the specified location(s) and improvements at the Premises described in Exhibit “A” and shown on Exhibit “B.” The City and the OIAA are sometimes referred to as “Party” and collectively as “Parties” in this Agreement.

1.1. Term; Options to Extend . The term for use of the Premises (“Term”) shall be for the time period specified in the Basic Information Schedule ( Exhibit “A” ). OIAA shall be entitled to one (1) option to extend the Term for an additional five (5) yea rs, however any such extension shall be in writing and be mutually agreed upon by City and OIAA as set forth in Exhibit “A”.

1.2. Holdover. In the event that OIAA shall holdover the Premises after the expiration or termination of this Agreement, such holding over or use, in the absence of written agreement, shall be deemed to have created a tenancy with respect to the Premises from month to month, terminable on thirty (30) days’ written notice by either Party. Such period of holdover and/or use shall be subject to the same provisions as contained in this Agreement.

1.3. Permitted Uses. OIAA may have, hold, and enjoy the Premises during the Term and any holdover period or extension period, as applicable, without hindrance or interruption by City. Notwithstanding the foregoing and any other provision set forth in this Agreement, OIAA shall use the Premises solely for the specific activities described in the Basic Information Schedule (Exhibit “A” ) (“ Activities”). OIAA may request a change or amendment to the Activities, which City shall approve in writing, but granting of approval by City shall not be unreasonably withheld, conditioned, or delayed.

1.3.1. Use of Roadways. OIAA may create an access or roadway on Airport property to access the Premises. Such right shall be subject to all Laws (as defined in Section 9). OIAA further acknowledges that all of OIAA’s vehicles on Airport property and the Premises shall have valid motor vehicle registration and comply with all applicable vehicle registration requirements.

2. Rent. OIAA agrees to pay City rent for use of the Premises as specified in the Basic Information Schedule (Exhibit “A”) (“Rent”). Rent shall be payable in advance on the first day of each calendar month, without notice, demand, or setoff. If the Rent Commencement Date is not the first day of a calendar month, the Rent shall be prorated on a per diem basis. All payments due to City shall be paid in United States legal tender.
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2.1. Periodic Adjustment of Rent. In addition to the Premises Rent Adjustments set forth in the Basic Information Schedule (Exhibit “A”), OIAA acknowledges that if this Agreement expires, terminates, or if OIAA holds over past the Term of this Agreement, the Rent after the initial five-year Term may be adjusted by good faith negotiation of the Parties to fair market value based upon the rental rates of comparable leased property within a reasonable area as determined by and agreed upon by both Parties, and upon providing OIAA with thirty (30) days prior written notice.

2.2. No Counterclaims. OIAA agrees to pay all monetary obligations without notice, demand, deduction, or offset . If the City is not in an uncured material breach or default of this Agreement, all payments to City shall be final, and OIAA shall not seek to recover any such payment or any part thereof for any reason.

2.3. Payments. All payments shall be paid to the following address:

City of Ontario
Account Receivable
303 East B Street
Ontario, California 91764

City may from time to time designate any other address to which the payments may be made.

Electronic payments may be approved upon request. All payments shall include a reference to this Agreement . No endorsement or statement on any check or any letter accompanying a check shall be deemed an accord and satisfaction or binding upon OIAA.

2.4. Rent Obligation of OIAA. All monetary obligations of OIAA arising from this Agreement or the City /OIAA relationship between the Parties hereto or their successors in interest, shall be considered rent, including, without limitation, Rent (including Premises Rent Adjustments and periodic adjustments thereto), late charges, administration fees, and interest.

3. Condition of Premises.

3.1. OIAA Improvements and Alterations. The OIAA shall have the right or allow others to make additions, alterations, or improvements to the Premises with the approval of the City, which the City shall not unreasonably delay, condition, or deny. In addition to securing City’s prior written consent, OIAA shall also be responsible for securing any necessary permits from the relevant government entities in order to make improvements. Interior, non-structural improvements or alterations, such as shelving and fixtures installations, trade fixtures not permanently affixed to the Premises, and other furniture, furnishings, and other non-fixture equipment constructed or placed on or within the Premises after City’s delivery of the Premises to OIAA, shall not require City’s approval and such improvements 789
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and alterations shall remain the property of OIAA after the end of the Term. Such improvements or alterations shall, however, be subject to any building permit obligations of the City.

3.2. Acceptance of Premises.

3.2.1. Acceptance of “AS IS Parcels.” Without limiting any of City’s obligations under this Agreement, OIAA will accept all Parcels as listed in Exhibit “A” (and all improvements thereon as of the Commencement Date) of the Premises (“AS IS Parcels”) in their “AS IS” condition; provided that the AS IS Parcels are free and clear of all occupants, equipment, and materials . The OIAA shall have the right to inspect the Premises, upon reasonable written notice to the City, before it accepts the Premises.

3.2.2. Acceptance of OIAA Improvements . Without limiting any of City’s obligations under this Agreement, City will accept the OIAA Improvements, provided that: (a) the OIAA’s Improvements are free and clear of all occupants, equipment and materials, and (b) the OIAA has constructed its improvements in compliance with the requirements of the applicable permitting jurisdiction (including a Certificate of Occupancy (“CO”) from the applicable permitting jurisdiction) and, to OIAA’s actual knowledge, in compliance with Laws.

3.2.3. Suitability. OIAA acknowledges that neither City nor City’s employees or representatives have made any representation or warranty, express or impli ed, as to the suitability of the Premises for OIAA’s use except as otherwise stated in this Agreement.

Any agreements, warranties or representations not expressly contained herein shall in no way bind OIAA, and City expressly waives all claims for damages by reason of any statement, representation, warranty, promise or agreement, if any, not contained in this Agreement.

3.3. Condition During Use. OIAA acknowledges that it shall comply with all applicable Laws (as defined in Section 9). OIAA shall not engage, or permit its contractors, vendors, guests or invitees to engage, in any activities at the Premises which may create, cause, or permit any Nuisances , as determined by OIAA in its commercially reasonable discretion, including to neighboring properties, other Airport facility users, occupants, or users of the Premises. Further, OIAA shall not conduct its Activities in such a way that unreasonably interferes with the use of any facility at the Airport; provided, however, as between the Parties hereto, that aircraft operations of OIAA will not be deemed to constitute a factual or legal Nuisance.

3.4. Condition Upon End of Use . Upon expiration or termination of this Agreement, OIAA shall remove all personal property, and leave the Premises, including any OIAA-owned fixtures, in a neat and clean condition with no damage, excepting only reasonable wear and tear.
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4. Use Does Not Create Any Property Right. Title to the Premises is held by the City. Except for rights granted through this Agreement, OIAA’s use of the Premises creates no right to or interest in the real property being used, either by way of occupancy, possession, or otherwise.

5. Option to Purchase. During the Term of this Agreement, OIAA shall have the Right of First Option to purchase the Subject Premises owned by the City (“Purchase Option”). An intent to purchase the Subject Premises may be initiated by the OIAA at any time upon giving notice in writing to C ity (“Purchase Notice”). After the issuance of the Purchase Notice, but prior to the City recording the deed for the Premises, OIAA and City shall mutually agree on a purchase price based on the fair market value of the Premises as determined by an indepen dent appraisal commissioned separately by each party or by mutually agreeing on an appraisal firm that shall undertake the appraisal report assignment. If OIAA and City agree on a purchase price, and OIAA exercises this Purchase Option, a Purchase and Sale Agreement (“Purchase Agreement”) shall be taken to the City Council for approval. Upon the recordation of the Grant Deed, this Agreement shall terminate and end.

6. 7. Reserved.

8. OIAA Maintenance Obligations.

8.1. OIAA, at its sole cost and expense, shall keep and maintain all exterior and interior portions and areas of the Premises (including, without limitation, all fixtures, equipment or appurtenances) in good working order, condition and repair, in a clean, sanitary, safe, and working condition in accordance with all applicable Laws of all governmental agencies having jurisdiction over the Premises. All repairs and/or replacements shall be of a quality equal to or exceeding the original. OIAA shall permit no waste, damage, or injury to the Premises. If, following the later of (i) fifteen (15) days prior written notice to OIAA by City, or (ii) any applicable notice and cure period set forth in , OIAA fails to maintain the Premises as required, City shall have the right, but not the obligation, to make the repair and/or replacement and all sums expended by City shall be immediately payable to City upon demand, plus an administrative fee of 15% of City’s cost to make such repair or replacement. For all obligations of OIAA in this , OIAA, except as otherwise set forth herein, waives the right to make repairs and/or replacements at City’s expense under Sections 1941 and 1942 of the California Civil Code and all other similar Laws, now or hereafter in effect.

9. No Liens or Encumbrances. OIAA shall not allow any lien, deed of trust, mortgage or any other encumbrance to affect the Premises. OIAA shall not mortgage, pledge, hypothecate or encumber the Premises, whether voluntarily, involuntarily or by operation of law.

9.1. Mechanic’s Liens. OIAA shall keep the Premises free and clear of all mechanics' liens resulting from any work performed, materials furnished, or obligations incurred by or for 791
46700.12001\42620909.2

OIAA or any person or entity claiming by, through or under OIAA . OIAA further agrees to defend, indemnify and hold the City harmless from the imposition of any mechanics’, materialmen’s or other similar liens imposed against the Premises or OIAA’s interest therein as a result of any action or inaction by OIAA or OIAA’s employees, agents, or contractors. If any lien is placed on the Premises as a result of work performed at OIAA’s direction and/or control, OIAA shall have the right to contest the correctness or the validity of any such lien if, immediately on demand by City, OIAA procures and records a lien release bond issued by a corporation authorized to issue surety bonds in California in an amount equal to 125% of the amount of the claim of lien. The bond shall meet the requirements of Civil Code Section 8424 and shall provide for the payment of any sum that the claimant may recover on the claim (together with costs of suit, if the claimant recovers in the action).

9.2. Encumbrances. If the OIAA does not remove any encumbrance placed on the Premises as contemplated in Section 10.1 herein, City shall have, in addition to all other remedies provided by law, the right, but not the obligation, to cause the encumbrance to be released.

All sums paid by City and all expenses incurred by City in connection with the release of the encumbrance, including attorneys ’ fees and costs, shall be paid by the OIAA to City immediately upon demand.

10. Compliance with All Laws, Rules, and Regulations . OIAA shall follow and comply with all applicable federal, state and local laws, statutes, orders, ordinances, codes, rules and regulations , including City Rules, in effect during the Term (collectively, " Laws"). OIAA shall not use or allow the Premises to be used, for any unlawful purpose. OIAA agrees to comply with the regulations, requirements and recommendations of any insurance underwriter, inspection bureau or similar agency, pertaining to the Premises. OIAA shall, upon written notice from City , discontinue any use or operation of the Premises, which is declared by any governmental authority, including the City, to be a violation of any Laws.

10.1. Civil/Criminal Penalties. OIAA shall be solely responsible for any and all civil and/or criminal penalties assessed as a result of it s failure to comply with any applicable rules, regulations, restrictions, ordinances, statutes, Laws, orders, directives and/or conditions.

10.2. Rights Limited by Law. If any term or provision of this Agreement is invalid or rendered unenforceable, the remainder of this Agreement shall be unaffected.

11. Inspection by Certified Access Specialist . City discloses that the Premises have not undergone inspection by a Certified Access Specialist as referenced in California Civil Code Section 1938 subsection (e) which provides: "A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of 792
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the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction -related accessibility standards within the premises." Pursuant to the foregoing Section 1938(e), OIAA acknowledges and agrees that, if OIAA wishes to have the Premises inspected by a CASp: (i) OIAA must notify City on or before the date when OIAA executes this Lease pursuant to the election below; (ii) the inspection will be at OIAA's sole cost and expense; (iii) the inspection must be scheduled through Ci ty and in coordination with the Building’s property manager; (iv) any repairs or modifications necessary to correct any violation of construction-related accessibility standards that is noted in the CASp report shall be OIAA’s responsibility; and (v) OIAA must provide a copy of the CASp report to City on completion.

By initialing below, OIAA represents that:

OIAA wishes to have a CASp inspection Initials: ______________

OIAA hereby waives its right to have a CASp inspection Initials: _____________

12. OIAA Indemnity and Hold Harmless . To the fullest extent permitted by law, OIAA shall indemnify, defend, keep, and hold City, the City Council, each member of the Council, the City’s officers, directors, agents, servants, volunteers, employees , directors, successors and assigns (“Indemnitees”), harmless from any and all claims, demands, costs, liabilities, fines, damages, losses, penalties, actions, proceedings, costs, and expenses (including costs of suit and fees, consultant fees, expert fees, executive and administrative expenses, and reasonable fees and costs of legal services) claimed by anyone, in law or equity, arising out of or related to OIAA’s activities at the Premises, including without limitation, by reason of injury to or death of persons, including OIAA, or damage to or destruction of property, including property of OIAA , sustained in, on, or about the Premises arising out of OIAA’s use of the Premises , or arising out of the acts or omissions of OIAA, its agents, servants, or employees, acting within the scope of their agency or employment, even if such claims are without merit, false, or fraudulent.

12.1. It is the express intent of the P arties hereto that the defense and indemnity obligations imposed in this Agreement are binding and valid with one exception: OIAA shall not be obligated to defend, indemnify or hold the Indemnitees harmless under the terms of this provision for claims, damages, injury, loss liability and/or expense caused by the sole negligence or willful misconduct of the Indemnitees. OIAA ’s indemnity agreement shall be covered by its general liability insurance policies referred to herein; provided however, OIAA’s obligation to defend and indemnify Indemnitees shall not be restricted to insurance proceeds, if any received by the Indemnitees. The provisions of this Section 11 shall survive the expiration and/or termination of this Agreement.

12.2. The duty to defend Indemnitees shall require OIAA to provide the Indemnitees with separate counsel reasonably acceptable to Indemnitees. If OIAA fails to timely perform its 793
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obligations, the Indemnitees shall have the right to pursue a claim against OIAA for any resulting compensatory damages, as well as for interest on defense and indemnity costs, from the date incurred, and for the Indemnitees’ reasonable attorneys' fees incurred to recover these amounts.

13. Insurance. OIAA shall procure at its sole cost and expense and maintain in effect at all times the types and amounts of insurance specified on Exhibit “C.” The specified insurance shall also, either by provisions in the policies, by City’s own endorsement form, or by other endorsement attached to such policies, include and insure City , the City Council, and the City ’s officers, directors, members, employees, volunteers, agents, successors and assigns, as additional insureds, against the areas of risk identified on Exhibit “C” with respect to OIAA ’s acts or omissions in its operations, the Premises, and other related functions performed by or on behalf of OIAA in, on or about the Premises.

13.1. Severability. Each specified insurance policy (other than workers’ compensation and employers’ liability and fire and extended coverages) shall contain a severability of interest (cross liability) clause which has language similar to: “It is agreed that the insurance afforded by this policy shall apply separately to each insured against whom claim is made or suit is brought except with respect to the limits of the company’s liability,” and provide that the insurance afforded by OIAA ’s policy applies to liability assumed by the insured under this Agreement.

13.2. Primary Insurance. All such insurance shall be primary and noncontributing with any other insurance held by OIAA or for the benefit of OIAA where liability arises out of or results from the acts or omissions of OIAA, its agents, employees, officers, assigns, or any person or entity acting for or on behalf of OIAA. Such policies may provide for reasonable deductibles and/or retentions acceptable to the City based upon the nature of OIAA operations and the type of insurance involved.

13.3. Premiums. OIAA shall have no liability for any premiums charged for such coverage(s).

The inclusion of OIAA, OIAA’s Commission, and all of OIAA’s officers, directors, members, employees, volunteers, agents, successors and assigns, as additional insureds is not intended to, and shall not, make any of them a partner or joint venture with OIAA in OIAA’s operations at the Premises. In the event the OIAA fails to furnish City evidence of insurance and maintain the insurance as required, City , upon ten (10) days ’ prior written notice to comply, may (but shall not be required to) procure such insurance at the sole cost and expense of OIAA , and OIAA agrees to promptly reimburse City for the cost thereof plus fifteen percent (15%) for administrative overhead. Payment shall be made within thirty (30) days of an invoice date.

13.4. Documentation. At least ten (10) days prior to the expiration date of the insurance policies, documentation showing that the insurance coverage has been renewed or extended shall be filed with the City. If such coverage is canceled or reduced below the coverage required 794
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under this Agreement , OIAA shall, within fifteen (15) days of such cancellation of coverage, file with the City evidence that the required insurance has been reinstated or provided through another insurance company or companies.

13.5. Form and Content. OIAA shall provide proof of all specified insurance and related requirements to the City in both form and content acceptable to the City . The documents evidencing all specified coverages shall be filed with the City in duplicate. The documents shall contain the applicable policy number, the inclusive dates of policy coverages, and the insurance carrier’s name, shall bear an original signature of an authorized representative of said carrier, and shall provide that suc h insurance shall not be subject to canc ellation, reduction in coverage, or nonrenewal except after written notice by certified mail, return receipt requested, to the City at least thirty (30) days prior to the effective date thereof.

13.6. Policy Limits. OIAA and City agree that the insurance policy limits specified herein shall be reviewed for adequacy annually by the CEO who may, at his or her reasonable discretion, thereafter require OIAA, on thirty (30) days’ prior written notice, to adjust the amounts of insurance coverage to whatever reasonable amount the CEO deems appropriate.

13.7. Self-Insurance upon Approval. Subject to review and written approval of the City and at City’s sole and absolute discretion, the City may allow OIAA to elect to self-insure some or all of the risks covered by the insurance that it is otherwise obligated to maintain under the terms of this Agreement, and upon the City’s written approval, OIAA will be excused from its obligation to obtain third-party insurance for the self-insured risks set forth above.

If OIAA elects to self-insure, OIAA’s obligations to indemnify, protect, defend and hold harmless the City and all other Indemnitees as defined from and against any and all risks as provided in this Agreement remain the same regardless of any self-insurance.

14. Damage or Destruction due to OIAA Use of Premises; Waiver of Subrogation

14.1. Damage or Destruction Of Improvements . OIAA shall be responsible for any damage , destruction by fire, or other cause of loss (“Loss”) to the Premises, including where caused by OIAA or OIAA’s aircraft, equipment, employees, agents, visitors or suppliers to the Premises and whether by OIAA’s fault, neglect or otherwise. Should such damage require immediate repairs or replacement and OIAA is unable to respond immediately to complete said repairs or replacement, the City may cause to be made or make any necessary repairs or replacements and the cost thereof shall be paid by OIAA. Said cost shall include all labor, materials, equipment and an administrative fee equal to fifteen percent (15%) of the sum of those items. Said cost shall be paid by OIAA within fifteen (15) days of receipt of an invoice for costs from the City.

In the event of damage to or destruction of OIAA-owned or leased buildings, facilities, or improvements located within the Premises , or in the event OIAA -owned or leased 795
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buildings, facilities, or improvements located within the Leased Premises are declared unsafe or unfit for use or occupancy by a public entity with the authority to make and enforce such declaration, OIAA shall, within thirty (30) days, commence and diligently pursue to completion of the repair, replacement, or reconstruction of improvements to the same size and floor area as they existed immediately prior to the event causing the damage or destruction, as necessary to permit full use and occupancy of the P remises for the purposes required by the Lease. Repair, replacement, or reconstruction or improvements within the Premises shall be accomplished in a manner and according to plans approved by City. Except as otherwise provided herein, termination of this Lease shall not reduce or nullify OIAA’s obligation under this paragraph. With respect to damage or destruction to be repaired by OIAA or which OIAA elects to repair, the City waives and releases its rights under California Civil Code Sections 1932(2) and 1933(4).

In the event the Loss is covered by insurance carried by City under this Agreement, City shall timely reimburse OIAA for repair, replacement, or reconstruction of improvements from the proceeds received from those insurance policies. City shall not , however, be obligated to expend an amount which is more than the insurance proceeds received by City, nor shall City be obligated to repair, restore or replace any personal property or OIAA Improvements installed or contained in or on the Premises , including without limitation, inventory, fixtures, equipment, furnishings, or other personal property of OIAA or OIAA’s employees, agents, servants, contractors, or invitees. If a Loss is due to the fault or neglect of City or City’s agents, servants, or employees acting within the scope of their agency or employment, a proportionate abatement (based on square footage) of the Rent shall be applied from the date when the damage occurred until the date the repairs or restoration reasonably may be completed . If the Loss will not permit OIAA to repair, replace, or reconstruct the Premises (including fixtures, equipment or appurtenances) such that the Premises cannot reasonably be used for the Activities, OIAA or City may terminate this Agreement upon written notice. In such an event, OIAA will not be liable for payment of the Termination Payment but will remain liable for any other amounts due to City . OIAA and the City agree that their respective rights upon any damage or destruction of the Premises shall be those specifically set forth herein.

14.2. Waiver of Subrogation for Property Damage Casualty Only. OIAA agrees to waive rights of subrogation for property damages only which any insurer of OIAA may acquire from OIAA by virtue of the payment of any Loss suffered to the Premises. For clarity, OIAA’s waiver of subrogation in this Section 13 .2 does not extend to any bodily injury claims or losses. Notwithstanding the foregoing, if any Loss is caused by the fault or neglect of OIAA or anyone under OIAA’s direction or control (a “Tenant Caused Loss”), then OIAA shall: (i) within thirty (30) days of written demand by OIAA, pay to OIAA an amount equal to any deductible(s) or self -insured retention(s) required to be paid by City for such Tenant Caused Loss, not to exceed $100,000; and, if applicable, (ii) pay to City for the remainder of OIAA’s occupancy of the Premises, an amount equal to any resulting increase in insurance premium incurred by OIAA, to the extent such insurance premium is 796
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for coverages required to be carried by OIAA under this Agreement, and such insurance premium increase was the direct result of a Tenant Caused Loss.

15. Assignment or Subletting. OIAA may sublet the Premises to any company or organization it deems necessary to operate on the Premises for or related to the Permitted Use as allowed under Exhibit “A” (“Transfer”) . If any prohibited Transfer occurs, OIAA shall not be relieved of its obligation to perform all obligations under this Agreement and any purported transferee shall also be subject to the same terms and conditions of this Agreement. Further, the acceptance of payment by City from any other person shall not be deemed either a waiver by City of any provisions of this Agreement or consent of any Transfer.

Each permitted assignment or sublet of this Agreement shall be evidenced by a written instrument executed by OIAA and the assignee or sublessee (“Transferee”), under which the Transferee shall agree in writing to assume, to perform, and to abide by all of the terms, provisions, covenants and conditions of this Agreement to be done, kept and performed by OIAA, including the payment of all amounts due or to become due under this Agreement directly to City, the obligation to use the Premises only for Activities , the obligation to provide insurance, and to indemnify and hold the City harmless as set forth in this Agreement . OIAA and Transferee shall remain jointly and severally liable for all of the terms, provisions, covenants and conditions of this Agreement.

16. Utilities.

16.1. OIAA Responsible. OIAA shall pay for all costs associated with utilities supplied to the Premises (including for water, gas, electricity, heat, telephone, and all other utility services), including deposits, connection fees and meter installation and rentals required by the supplier of any utility service. The OIAA shall also be responsible for the payment of any and all taxes and assessments that may be levied or charged upon the Premises for providing utilities.

16.2. City Not Liable. City shall not be liable to the OIAA for any failure, defect, impairment or deficiency in the supply of any utility service supplied to the Premises or in any system supplying the service unless such failure, defect, impairment or deficiency is due solely to the negligence or willful misconduct of City, its employees, or contractors.

17. Access to Facilities.

17.1. City’s Right to Access the Premises. Subject to agreeing to OIAA’s reasonable security protocols, City, its officers, directors, employees, agents and contractors may enter the Premises upon forty-eight (48) hours’ notice, to: (i) inspect the Premises and make repairs, restorations, or alterations; and/or (ii) enforce City’s rights under this Agreement.

17.2. Emergency Access to Premises . City, its officers, directors, employees, agents and contractors, reserve the right to enter the Premises during any fire or other emergency 797
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without liability to City , if reasonable care is given under the circumstances. City will notify the OIAA of any emergency entry as soon thereafter as practicable.

18. Environmental Matters.

18.1. "Environmental Laws" shall mean any federal, state or local law, statute, ordinance, code, judgment, order, rule, or regulation pertaining to the environment and/or human health, Hazardous Materials, Pollutants, occupational safety and health, industrial hygiene or the environmental conditions on, at, under or about the Premises, and includes, without limitation the following: (i) the CLEAN AIR ACT, 42 USC §§ 7401, et seq.; (ii) CLEAN WATER ACT, 33 USC §§ 1251, et seq.; (iii) the COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, as amended by the SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986 (" CERCLA"), 42 U.S.C. §§9601 et seq.; (iv) 49 CFR Subchapter C (Transportation of Hazardous Materials); (v) the SOLID WASTE DISPOSAL ACT, as amended by the RESOURCE CONSERVATION AND RECOVERY ACT OF 1986 and HAZARDOUS and SOLID WASTE amendments of 1984 ("RCRA"), 42 U.S.C. §§6901, et seq.; (vi) the OIL POLLUTION ACT of 1990, 33 USC §§ 2701, et seq.; (vii) the FEDERAL WATER POLLUTION CONTROL ACT, 33 U.S.C. §§1317, et seq.; (viii) the SAFE DRINKING WATER AND TOXIC ENFORCEMENT ACT OF 1986, CALIFORNIA HEALTH AND SAFETY CODE §§25249 .5 et seq.; (ix) the CALIFORNIA HEALTH AND SAFETY CODE §§25100, 25395.7, 25915, et seq.; (x) the

PORTER-COLOGNE WATER QUALITY CONTROL ACT (CALIFORNIA WATER CODE) §§13000, et seq.; (xi) the CALIFORNIA CIVIL CODE §§3479, et seq.; (xii) Storm Water Discharge Rules, 40 C.F.R. §§ 122.26, 122.30- 37; (xiii) the CARPENTER - PRESLEY-TANNER HAZARDOUS SUBSTANCES ACCOUNT ACT §§25300, et seq.; (xiv) TOXIC SUBSTANCES CONTROL ACT, 15 USC §§2601, et seq.; (xv) the SAFE DRINKING WATER ACT, 24 USC §§300f, et seq.; (xvi) the NATIONAL ENVIRONMENTAL POLICY ACT, 42 USC §§4321, et seq.; (xvii) the CALIFORNIA

ENVIRONMENTAL QUALITY ACT (CEQA), CALIFORNIA PUBLIC RESOURCES CODE, §§21000, et seq., & CEQA GUIDELINES, CAL. CODE REGS., TIT. 14, §15000 et seq.; (xviii) compliance with the terms and conditions of any applicable National Pollutant Discharge Elimination System (NPDES) permits, General Stormwater permits, site-specific Stormwater Pollution Prevention Plans (SWPPP), site -specific Facility Response Plans (FRP), or Spill Prevention Control and Countermeasure (SPCC) Plans; Business Emergency Plans, and (xix ) all other state Laws , rules, orders, directives, and codes, regulations, judgments, and orders relating to (a) emissions, discharges, releases, and/or threatened releases of Hazardous Materials into the environment (including, but not limited to, ambient air, surface water, groundwater, land surface, or subsurface strata); and (b) the manufacture, processing, distribution, use, generation, treatment, storage, disposal, transport or handling of Hazardous Materials, as such Laws are amended, and the regulations and administrative codes applicable thereto.

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18.2. "Hazardous Materials" shall mean any Pollutant, contaminant, chemical, compound, substance, hazardous or toxic substance, material, waste, and/or any other matter which is or shall become regulated by any governmental entity, including, but not limited to City acting in its governmental capacity, the State of California, and/or the United States Government. The term "Hazardous Materials" includes, without limitation, any material or substance which is: (i) defined or listed as a "hazardous waste," "extremel y hazardous waste," "restrictive hazardous waste" or "hazardous substance" or considered a waste, condition of pollution, nuisance, and/or is controlled or governed under any Environmental Law; (ii) petroleum or a petroleum product or fraction thereof; (ii i) asbestos or asbestos- containing materials; (iv) flammable or explosive substances; (v) mold, mold spores or fractions thereof; and/or (vi) substances designated by any governmental entity to cause cancer and/or reproductive toxicity.

18.3. “Pollutant” means any chemical, compound, substance, liquid, solid or semi -solid substances, or combination thereof, including but not limited to: (a) artificial materials (such as floatable plastics, wood products or metal shavings); (b) household waste (such as trash, paper, and plastics; cleaning chemicals, yard wastes, animal fecal materials, used oil and fluids from vehicles, lawn mowers and other common household equipment); (c) metals and nonmetals, including compounds of metals and nonmetals (such a s cadmium, lead, zinc, copper, silver, nickel, chromium, cyanide, phosphorus and arsenic) with characteristics which cause an adverse effect on living organisms; (d) petroleum and related hydrocarbons (such as fuels, lubricants, surfactants, waste oils, so lvents, coolants and grease.); (e) substances having a pH less than 6.5 or greater than 8.6, or unusual coloration, turbidity or odor; (f) materials causing an increase in biochemical oxygen demand, chemical oxygen demand or total organic carbon; (g) mater ials which contain base/neutral or acid extractable organic compounds; (h) those pollutants defined in Section 1362(6) of the Federal Clean Water Act; (i) any other constituent or material, including but not limited to pesticides, herbicides, fertilizers, fecal coliform, fecal streptococcus, or enterococcus, or eroded soils, sediment and particulate materials, in quantities that will interfere with or adversely affect the beneficial use of the receiving waters, flora or fauna of the State; and (j) any substance listed under Health and Safety Code, §25316.

18.4. Environmental Representation. At all times OIAA shall comply with all Environmental Laws, which compliance includes, but is not limited to, the possession by OIAA of all permits and other governmental authorizations required under the Environmental Laws.

18.5. Storm Water Pollution Prevention. The OIAA shall abide by all regulations pertinent to storm water pollution prevention, including using Best Management Practices (BMPs) to protect storm water inlets from contaminated discharges, and promptly mitigating any discharges generated by OIAA to the satisfaction of the regulatory agencies and City.

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18.6. Air Quality Management . The OIAA shall obtain and abide by all permit conditions related to the use of stationary or mobile equipment that require permitting pursuant to the California Air Resources Board, the South Coast Air Quality Management District, or other local, state and/or federal requirements.

18.7. Environmental Indemnity. Except for Hazardous Materials or conditions existing prior to OIAA’s use of the Premises or placed on, in or bene ath the Premises during the Term by OIAA or any party acting on behalf of or at the direction of OIAA , OIAA agrees to accept sole responsibility for full compliance with Environmental Laws. OIAA shall indemnify, defend (by counsel reasonably acceptable to City ), protect, and hold City and Indemnitees (as defined above) free and harmless from and against any and all claims, liabilities, penalties, forfeitures, losses or expenses (including costs of suit and fees, consultant fees, expert fees, executive and administrative expenses, and reas onable fees and costs of legal services), or death of or injury to any person or damage to any property whatsoever, arising from or caused in whole or in part, directly or indirectly, by: (i) the presence in, on, under or about the Premises, or discharge in or from the Premises of any Hazardous Materials caused or generated by OIAA; or (ii) OIAA’s use, analysis, storage, disposal, release, threatened release, discharge or generation of Hazardous Materials to, in, on, under, about or from the Premises; or (i ii) OIAA’s failure to comply with any Environmental Law. OIAA’s obligations under this Agreement shall include, without limitation and whether foreseeable or unforeseeable, all costs of any required or necessary repair, cleanup or detoxification or decontamination of the Premises, or the preparation and implementation of any closure, remedial action or other required plans in connection therewith attributable to OIAA and shall survive the expiration or earlier termination of this Agreement. For purposes of the release and indemnity provisions of this Agreement, any acts or omissions of OIAA, or by employees, agents, assignees, subtenants, contractors or subcontractors of OIAA or others acting for or on behalf of OIAA (whether or not they are negligent, intentional, willful or unlawful) shall be strictly attributable to OIAA.

18.8. Notice; Reporting.

OIAA shall notify City in writing within five (5) days after any of the following: (i) OIAA has knowledge, or has reasonable cause to believe, that any Hazardous Material has been released, discharged or is located on, under or about the Premises, in quantities that would be reportable to a public agency; (ii) OIAA receives any order of a governmental agency requiring any remedial work pursuant to any Environmental Laws; (iii) OIAA receives any warning, notice of violation or alleged violation, or OIAA receives written notice of any proceeding, investigation of enforcement action, pursuant to any Environmental Laws; or (iii) OIAA receives notice or knowledge of any claims made or threatened by any third party against OIAA or the Premises relating to any loss or injury resulting from Hazardous Materials. If the potential risk of any of the foregoing events is material, OIAA shall deliver immediate verbal notice to City, in addition to written notice as set forth above. Upon request, OIAA shall deliver to City copies of all test results, reports and business or management plans required to be filed w ith any governmental agency pursuant to any Environmental Laws.
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18.9. Corrective Actions. In the case of any Hazardous Materials spill, leak, discharge, release or contamination by OIAA or its employees, servants, agents, contractors, or subcontractors on the Premises or as may be discharged or released by OIAA or its employees, servants, agents, contractors, or subcontractors in, on or under adjacent property which affects other property of City or its tenants, OIAA agrees to make or cause to be made any necessary corrective actions to clean up and remove any such spill, leakage, discharge, release or contamination. If OIAA fails to repair, clean up, properly dispose of, or take any other corrective actions as required herein, City may (but shall not be required to) take all steps it deems necessary to properly repair, clean up, or otherwise correct the conditions resulting from the spill, leak, discharge, release or contamination. Any such repair, cleanup, or corrective actions taken by City shall be at OIAA's sole cost and expense and OIAA shall indemnify and pay for and/or reimburse City for any and all costs (including any administrative costs) OIAA incurs as a result of any repair, cleanup, or corrective action it takes; provided that the foregoing OIAA obligations shall not apply to any Hazardous Materials on the Premises that pre-date OIAA’s use of the Premises.

18.10. Environmental Documents. OIAA shall promptly provide City complete copies of all notices, reports, correspondence, and other doc uments sent to or received by OIAA from any governmental entity regarding any Hazardous Materials. Such written materials include, without limitation, all documents relating to any threatened or actual Hazardous Materials spill, leak, or discharge, or to any investigations into or cleanup of any actual or threatened Hazardous Materials spill, leak, or discharge including all test results.

18.11. Survival of Obligations . OIAA’s environmental obligations herein shall survive the expiration or earlier termination of this Agreement.

19. Taxes, Permits, and Licenses. During OIAA’s use, it shall keep and maintain (at its expense) all permits, licenses or other governmental authorizations required for its use at the Premises . The OIAA shall pay any and all taxes of whatever character, if any, that may be levied or charged upon the Premises, or upon the OIAA ’s improvements, fixtures, equipment, or other property thereon or upon the OIAA’s use thereof.

19.1. Right to Contest Taxes. OIAA shall have the right to contest in its own name, or, to the extent reasonably necessary, in City’s name, in good faith and by all appropriate proceedings, the amount, applicability, or validity of any tax assessment pertaining to the sur face of the Premises and OIAA’s operations thereon.

19.2. In the eve nt OIAA initiates such co ntest, City shall re asonably co operate with OIAA, provided that such contest will not subject any part of the Premises to forfeiture or loss; and provided, further, that if OIAA contests any assessment made by the San Bernardino County Tax Assessor of OIAA, such contest shall not be initiated in the name of OIAA, and OIAA shall not be obligated to cooperate therewith.

19.3. If, at any time, payment of any tax or assessment becomes necessary to prevent any 801
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forfeiture or loss, OIAA shall timely pay such tax or assessment to prevent such forfeiture or loss.

20. Federal Nondiscrimination. OIAA shall comply with all nondiscrimination requirements as set forth in Exhibit “F,” and as set forth in this Section 29.

20.1. 49 C.F.R. Part 21. OIAA for itself, its personal representatives, successors, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that in the event facilities are constructed, maintained, or otherwise operated at the Premises described in this Agreement , for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, OIAA shall maintain and operate such facilitie s and services in compliance with all other requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, and as said Regulations may be amended.

20.2. Covenants and Representations. OIAA for itself, its personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree that:

20.2.1. No person on the grounds of race, creed, color, national origin, sex, age, or disability shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities;

20.2.2. This Agreement is subject to the requirements of the U.S. Department of Transportation's (“DOT”) regulations, 49 CFR Part 23, Subpart F, and 49 CFR Part 26. OIAA agrees that it will not discriminate against any business owner because of the owner's race, color, national origin or sex in connection with the award or performance of any agreement covered by 49 CFR Parts 23 and 26;

20.2.3. In the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, creed, color, national origin, sex, age, or disability shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination;

20.2.4. In the event facilities are constructed, maintained or otherwise operated on the Premises for a purpose for which a DOT program or activity is extended or for another purpose involving the provision of similar services or benefits, OIAA shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to 49 CFR, Part 21, Subtitle A, Nondiscrimination in Federally -Assisted Programs of the Department of Transportation-Effectuation of Title V I of the CIVIL RIGHT S ACT OF 1964, and as said Regulations may be amended.
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20.3. Breach. In the event of breach of any of the nondiscrimination covenants herein, City shall have the right to terminate OIAA’s right to use the Premises or impose other sanctions as it or the FAA may determine to be appropriate . This provision does not become effective until the procedures of 49 CFR, Part 21, are followed and completed, including expiration of appeal rights.

20.4. Accommodations. OIAA shall furnish its accommodations and/or services on a fair, equal and not unjustly discriminatory basis to all users thereof and it shall charge fair, reasonable and not unjustly discriminatory prices for each unit or service.

20.5. Noncompliance. Noncompliance with the nondiscrimination provisions shall constitute a material breach of the Agreement and in the event of such noncompliance which is not cured within ten (10) days following written notice of such noncompliance from City to OIAA, City shall have the right to terminate its right to use the Premises without liability therefor; or at the election of the City or the United States either or both said Governments shall have the right to judicially enforce the nondiscrimination provisions.

21. Other Government Agreements . This Agreement shall be and remain subordinate to the provisions of any existing or future agreements between OIAA and the United States Government or other governmental authority, or any lawful requirement of the United States relative to the operation or maintenance of the Premises.

22. Federal Government's Emergency Clause. All provisions of this Agreement shall be subordinate to the rights of the United States to operate the Airport or any portion thereof during time of war or declared national emergency in accordance with established lawful procedures.

Such rights shall supersede any provision of this Agreement that is inconsistent with the operation of the Airport by the United States during a time of war or national emergency.

23. Disadvantaged Enterprises. OIAA acknowledges that the provisions of 49 CFR Part 23 ("Airport Concessions Disadvantaged Business Enterprises' ') and Part 26 ("Participation by
Disadvantaged Enterprises in Department of Transportation Financial Assistance Programs") as said regulations may be amended, and such other similar regulations that may be enacted governing Disadvantaged Business Enterprises, may be applicable to the activities of OIAA under the terms of this Agreement, unless exempted by said regulations, and hereby agrees to comply with the applicable regulations. These requirements may include, without limitation, compliance with Disadvantaged Business Enterprise or Minority Business Enterprise, as such terms are defined in 49 U.S.C. §§ 47107, 47113 and 47123, 49 CFR Parts 23 and 26, or such other statutes or regulations as may be enacted governing minority or disadvantaged business enterprises, participation goals, the keeping of certain records of good faith compliance efforts, which would be subject to review by the various agencies, the submissions of various reports and, if so directed, the contracting of specified percentages of goods and services contracts to Minority and Disadvantaged Business Enterprises.
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24. Default Event. If any one or more of the following events occur (“ Default Event”), the OIAA shall be in violation of this Agreement and may be removed from the Premises (or any portion thereof):

24.1. Failure to pay any monetary obligation required under this Agreement on the date it is due and the failure continues for ten (10) days after written notice by City to OIAA;

24.2. Failure to perform or comply with any of OIAA’s material maintenance obligations and the failure continues for more than the number of days specified in City ’s notice to cure; provided that no notice to cure shall be less than the later of: (a) thirty (30) days or (b) the commercially reasonable amount of time to remedy such maintenance default;

24.3. Failure to procure and maintain all required insurance coverages , provided such failure is not cured within fifteen (15) days after written notice by City to OIAA;

24.4. Failure to comply with any term or provision in this Agreement (except for the failures identified in Sections 34.1 through 34.3) and the failure continues for thirty (30) days; provided that where any such failure cannot reasonably be cured within a thirty (30) day period, a Default Event will not occur if OIAA commences to cure the failure within the thirty (30) day period, and thereafter diligently pursues the cure;

24.5. OIAA: (i) files a petition commencing a voluntary case under any chapter of the Bankruptcy Code, or is adjudicated an insolvent, or file s a petition seeking for itself any reorganization, composition, readjustment, liquidation, dissolution or similar arrangement under the Bankruptcy Code or any other present or future similar law, or file s an answer admitting the material allegations of a petition filed against it in any such proceeding, consent to the filing of such a petition or acquiesce in the appointment of a trustee, receiver ,
custodian or other similar official for it or of all or any substantial par t of its assets or properties, or take any action looking to its dissolution or liquidation; (ii) make s an assignment for the benefit of its creditors, or admits in writing its inability to pay its debts when due; (iii) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers of itself or of any material part of its properties; (iv) is adjudicated insolvent or be liquidated; or (v) take s corporate action for the purpose of any of the foregoing;

24.6. Abandonment or vacation of the Premises (failure to occupy and operate the Premises for sixty (60) consecutive days after written notice from City to OIAA shall be deemed an abandonment), whether or not OIAA pays Rent or other charges in a timely manner;

24.7. Any Transfer or attempted assignment without the prior written approval of City;

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24.8. The material violation or breach by OIAA of any provision of City Rules, provided such breach is not timely cured upon thirty (30) days written notice to OIAA or such longer period as may be reasonably be necessary to cure such default considering the nature thereof, at the City Council’s discretion;

24.9. The material violation by OIAA of any written directions of the City Council, provided such violation is not cured within thirty (30) days after written notice by City to OIAA or such longer period as may be reasonably be necessary to cure such violation considering the nature thereof, at the City Council’s discretion;

24.10. A material breach by OIAA of the terms of any other tariff imposed by the City or any lease, license, permit, or contract to which OIAA is a party , provided such breach is not cured within fifteen (15) days after written notice by City to OIAA or such longer period as may be reasonably be necessary to cure such violation considering the nature thereof, at the City Council’s discretion;

25. City’s Remedies. Upon the occurrence of an Event of Default by OIAA , City, in addition to any other rights or remedies available to City at law or in equity, which shall be cumulative, the City shall have the right to terminate this Agreement (“Default Termination”) and recover from the OIAA:

(i) The worth at the time of award of the unpaid Rent which had been earned at the time of the Default Termination;

(ii) The worth at the time of award of the amount by which (A) the unpaid Rent which would have been earned after the Default T ermination until the time of award exceeds (B) the amount of such rental loss that the OIAA proves could have been reasonably avoided;

(iii) The worth at the time of award of the amount by which (A) the unpaid Rent for the balance of the term after the time of award exceeds (B) the amount of such rental loss that the OIAA proves could be reasonably avoided;

(iv) Subject the provisions of Section 28.8, a ny other amount reasonably necessary to compensate City for all the detriment proximately caused by the OIAA’s failure to perform its obligations under the Agreement or which in the ordinary course of things, would be likely to result from OIAA’s failure.

(v) All other amounts in addition to or in lieu of those previously set out as may be permitted from time to time by applicable California law.

(vi) As used in Subsections (i) through (ii) of this Section, the “worth at the time of award” is computed by allowing interest at the rate of ten percent (10%) per annum. As used in Subsection (iii) of this Section, the “worth at the time of award” is computed by discounting 805
46700.12001\42620909.2

that amount at the rate of the Federal Reserve Bank of San Francisco at the time of the award plus one percent (1%). As used in this Section, the term Rent shall mean as defined in this Agreement any and all other payments required by OIAA under this Agreement.

26. Cumulative Remedies. City shall also have the right to continue this Agreement, and from time to time, without terminating this Agreement, either:

(i) Recover all Rent and other amounts payable as they become due; or

(ii) Relet the Premises to any party on terms and at the Rent City, in its sole discretion, may deem advisable, all with the right to make necessary and commercially reasonable alterations and repairs to the Premises, at OIAA’ s sole cost, and apply the proceeds of reletting to the Facility Rent and other amounts payable by OIAA . To the extent that the Facility Rent and other amounts payable by OIAA under this Agreement exceed the amount of the proceeds from reletting, the City may recover the excess from OIAA as and when due.

27. Waiver of Redemption. In the event of the lawful exercise by of any one or more of its rights and remedies, City waives any and all rights of redemption or relief from forfeiture under California Civil Code 3275 or the California Code of Civil Procedure Section 1174 or 1179 or granted by or under any present or future Laws , and further releases OIAA, from any and all claims, demands and liabilities by reason of such exercise by the City.

28. Notices.

28.1. Notice to OIAA. Written notices to OIAA shall be sent to the following address:

Ontario International Airport
Attn: Revenue Management, Airline Affairs & Properties
1923 E. Avion Street
Ontario, CA 91761

with a copy to:

Ontario International Airport Authority
Attn: General Counsel
Gatzke Dillon & Ballance LLP
2762 Gateway Road
Carlsbad, CA 92009

with an electronic copy to: [email protected]

28.2. Notice to the City. Written notices to the City, at the following address:
806
46700.12001\42620909.2

City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: City Manager

28.3. Delivery of Notices . OIAA or the City may from time to time, by notice, designate a different or additional address within the United States for communications. All notices, except as otherwise provided, may either be delivered personally to CEO with a copy to the General Counsel of OIAA, in the one case, or to City in the other case, or may be deposited in the United States mail, properly addressed with prepaid postage by certified mail, return receipt requested, and shall be effective five (5) days after deposit in the mail.

Such notice may also be delivered by a nationally recognized overnight commercial courier service that requires the recipient's signature for delivery and shall be effective one (1) business day after delivery or refusal of service. Any notice or other communication may be given on behalf of OIAA or the City by their respective attorneys, provided that the attorneys represent their capacity as such in the notice or other communication.

29. Miscellaneous.

29.1. Entire Agreement. This Agreement constitutes the entire agreement between the Parties.

All prior or contemporaneous agreements, understandings, representations, and statements, whether oral or written, are integrated into this Agreement. No modification, waiver, amendment, or change of this Agreement shall be valid unless it is in writing and signed by the Parties. This Agreement applies only to the Premises and shall not modify the rights or obligations of OIAA or the City under any other contract between them. Except as expressly provided, no third-party is intended to be a beneficiary of the provisions of this Agreement.

29.2. Approvals. All approvals required of City under this Agreement shall not constitute a waiver of or otherwise affect the rights of City and shall not be binding on the City unless approved in writing.

29.3. Waiver of Trial by Jury. OIAA and the City each waive trial by jury in any action, proceeding or counterclaim against the other Party relating to any matters arising out of or in any way connected with this Agreement, the relationship of the City and the OIAA, the OIAA’s use of the Premises, or any other claims or any other statutory remedy.

29.4. Survival of Obligations . Those provisions in this Agreement that by their nature are intended to survive expiration or earlier termination of this Agreement, shall so survive.

29.5. Governing Law and Venue . This Agreement shall be construed and enforced in accordance with the Laws of the State of California. The San Bernardino County Superior Court shall have jurisdiction, and shall be the primary venue; however, secondary venues 807
46700.12001\42620909.2

may also be Los Angeles, Riverside, and Orange Counties for the resolution of any disputes in connection with this Agreement.

29.6. Authority of City. The powers of City under this Agreement, including the power to interpret and implement the provisions of this Agreement, have been delegated to and may be exercised by the City Council, and any notice, election, approval or consent required by City in this Agreement may be given by the Council.

29.7. Authority of OIAA. If OIAA is a corporation, each individual executing this LEASE on behalf of said corporation represents and warrants that he or she is duly authorized to execute and deliver this LEASE on behalf of said corporation, in accordance with the by- laws of said corporation, and that this LEASE is binding upon said corporation.

29.8. Consequential Damages . Neither City or OIAA shall be liable to the other for any consequential damages, such as lost profits or interruption of either Party’s business.

29.9. Confidentiality and Public Records . City will make no voluntary announcements or statements to third-parties regarding OIAA’s proposed or actual occupancy of the Premises without OIAA’s prior written consent, which OIAA may withhold in its sole discretion, and City and its agents and representatives will maintain the confidentiality of all non - public information, if any, that is learned by or disclosed to City with respect to OIAA’s business. OIAA acknowledges that all or portions of this Agreement and the materials, communications, data and information related to this Agreement may constitute public records subject to disclosure under the applicable public records Laws, including California Government Code section 6250 et seq. , and agrees that City will disclose all or such portions of this Agreement and the materials, communications, data and information related to this Agreement as required by law, provided that City will use its reasonable efforts to (a) give OIAA prior written notice sufficient to allow OIAA to seek a protective order or other appropriate remedy (although City shall fully comply with its obligations under the law to disclose any public records in the absence of timely physical receipt of any valid protective order) , (b) disclose only such information as is required under the applicable law as determined under City ’s sole judgment and discretion, (c) reasonably cooperate with OIAA in responding to any such records request, and (d) limit disclosure, refuse to disclose, and redact and/or omit portions of materials to the maximum extent permitted by applicable law as determined under City’s sole judgment and discretion.

29.10. Relationship Of Parties. The relationship of the parties hereto is that of OIAA and City , and it is expressly understood and agreed that City does not in any way or for any purpose become a partner of the OIAA in the conduct of the OIAA ’s business or otherwise, or a joint venturer with the City ; and the provisions of this Agreement and the agreements relating to rent payable hereunder are included solely for the purpose of providing a method by which rental payments are to be measured and ascertained. This Agreement is intended for the sole benefit of the parties hereto, and, unless otherwise provided herein, or by law, 808
46700.12001\42620909.2

no rights are created, or are intended to be created, for the benefit of, or enforceable by, any third parties.

[SIGNATURES FOLLOW ON NEXT PAGE]

809
46700.12001\42620909.2

ONTARIO INTERNATIONAL

AIRPORT AUTHORITY, A CALIFORNIA

JOINT POWERS AUTHORITY

By:

Atif Elkadi
Chief Executive Officer

Date:

CITY OF ONTARIO,

A CALIFORNIA MUNICIPAL CORPORATION

By:

Print Name:

Title:

Date:

810
Exhibit “A”
Basic Information Schedule

Tenant:

Ontario International Airport Authority (OIAA), hereby representing as Tenant is an existing entity duly qualified to do business in the State of California.

Premises Location:

The Premises is comprised of an industrial building which is generally identified by the City of Ontario as the Oakmont Building, located at 1236 Airport Drive, Ontario, CA 91761, as shown on Exhibit B.

Location and Description Square feet
Landside Cost Center
Cargo Operations Building 127,000

Term:

The Effective Date of this Agreement is October 15, 2024.

The Commencement Date of the Term of this Agreement the Date the City issues the Certificate of Occupancy.

The Rent Commencement Date of this Agreement is the Date the City issues the Certificate of Occupancy

The Ending Date is Five (5) year from the Commencement Date.

The Agreement is a binding obligation of the parties hereto as of the Effective Date; however, t he Term of this Agreement will commence on the Commencement Date and shall extend until the Ending Date unless sooner terminated as provided in the Agreement.

The Parties shall have the option to extend the Term with one, five-year extension options. Landlord may grant Tenant such extension option(s), however any such extension shall be in writing and be mutually agreed upon by Landlord and Tenant.

Tenant Improvements:

Tenant improvements to be approved prior with Landlord consent and paid by the Tenant for their intended use.

Premises Rent for Fiscal Year ending June 30th, 2025:
811

Tenant agrees to pay to Landlord Rent for use of the Premises during the Term , as set forth in the Rent tables below for the applicable agreement years. The Premises Rent shall be adjusted in accordance with the Premises Rent Adjustment as set forth below.

Location and Description Square Feet Annual Rate Annual Rent (US$)
Monthly Rent
(US$)
Landside Cost Center
Cargo Operations Building 127,000 $14.05 $1,784,350.00 $148,695.83 Total Rent $1,784,350.00 $148,695.83

Premises Rent Adjustments:

Consumer Price Index (“CPI”) Adjustment. On July 1 of each calendar year during the Term of this Agreement (“Annual CPI Adjustment Date”), City may perform an adjustment calculation and adjust the Rent set forth herein based on the Consumer Price Index formula set forth below in this Exhibit A (“Annual CPI Adjustment”). Tenant agrees to pay such increased Rent based on such Annual CPI Adjustment as of July 1 of such calendar year (“New Rent”).

Consumer Price Index Annual Adjustment Formula:

The Annual CPI Adjustment will be based on the percentage increase over the prior year, if any, in the Consumer Price Index, All Items in Riverside- San Bernardino- Ontatio, CA, 1982-84=100 – CUUR0000SA0(the "CPI-U"), as published by the U.S. Department of Labor, Bureau of Labor Statistics ("B.L.S."), or its successor as follows:

The Rent shall be multiplied by the CPI-U for the month of March immediately preceding the Annual CPI Adjustment Date (called the "Adjustment Index"), divided by the said CPI -U as it stood in that month of the prior year (called the "Base Index") and the result shall be the “Annual CPI Adjustment” to be applied effective on the Annual CPI Adjustment Date. The Annual CPI Adjustment shall not be less than the preceding year’s Rent, but shall not exceed an increase of three percent (3%).

The formula for calculation of Annual CPI Adjustment commencing on each Annual CPI Adjustment Date shall be as follows:

Adjusted Monthly Rent = Monthly Rent X Adjustment Index Base Index

If the B.L.S. should discontinue the preparation or publication of the CPI-U, and if no transposition table is available, then OIAA shall adopt an alternative basis at its sole discretion for adjusting and revising the Rent each year to adjust the Rent according to any increase in commodity consumer prices over the prior year.

In the event adjustment of the Rent is not completed prior to an Annual CPI Adjustment Date, Tenant shall continue to pay the Rent set for the preceding period, at the intervals and in the manner fixed for 812
such preceding period, and if such Rent is thereafter fixed in a different amount, such New Rent shall take effect retroactively to the Annual CPI Adjustment Date. Tenant shall immediately pay to City that sum, if any, which has accrued as a result of such retroactive application.

Rent Obligation of Tenant:

All monetary obligations of Tenant arising from this Agreement or the City/OIAA relationship between the parties hereto or their successors in interest, shall be considered as Rent, including, without limitation, Premises Rent (including periodic adjustments thereto), taxes, insurance costs, maintenance costs, utilities, late charges, and interest.

Permitted Use (“Activities”):

The Activities include receiving and clearance of international cargo and related activities and services to support such operations at the Airport , or any other uses permitted under the zoning applicable for the Premises related to aviation/aeronautical, international cargo processing, and those activities necessary to support it.

Tenant Address for Notices:

Ontario International Airport Authority
Attn: Airline Affairs & Properties
1923 E. Avion Street
Ontario, CA 91761

Email: [email protected]

813
Exhibit “B”
Layout on Following Page
814
-=-4-----k---j __ _j ___ j ___ '
I I __,I - - i__ - 1 .. _ �•
smrmrYfBKil'l'antRS

LEASED PREMISES
815
Non-AOA Rev. April 2019 1 of 2 Pages
Exhibit "C"

INSURANCE REQUIREMENTS
Tenant shall, at a minimum, provide, pay for at its sole cost and expense, and maintain in force at all times during the term of this Agreement (unless otherwise provided), at minimum, the insurance coverages se t forth below. Such policy or policies shall be issued by companies authorized to do business in the State of California. The limits established herein are minimums and Tenant m a y carry higher limits at its option. The City does not warrant that the limits set herein will fully protect Tenant in all events and for all occurrences.

1. 1RQ$iUIiHOG CRYHUDJH

1.1. Commercial General Liability. Commercial General Liability insurance policy with minimum limits of Two Million Dollars ($2,000,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability and Four Million Dollars ($4,000,000.00) aggregate with a carrier having an A.M. Best rating of no less than A -VII. Coverage must be afforded on a form no more restrictive than the latest edition of the Comprehensive General Liability policy, without restrictive endorsements, as filed by the Insurance Services Office and must include:
a. Premises and/or Operations.
b. Independent Contractors or Owners and Contractors Protective Liability coverage, which includes liability coverage for operations performed for the named insured by independent and/or subcontractors hired and acts or omissions of the named insured in connection with their general supervision of suchoperations.
c. Products and/or Completed Operations for Construction Projects. Tenant shall maintain in force until at least two (2) years after completion of all work required under the Contract, coverage for Products and Completed operations, including Broad Form Property Damage. Tenant shall provide s uch certificates o f i nsurance or e ndorsements evidencing this insurance coverage to City for two (2) years after completion of all work required under a Contract.
d. Broad Form Property Damage.
e. Broad Form Contractual Coverage applicable to this specific contract, including any hold harmless and/or indemnification agreement.
f. Personal Injury Coverage with Employee and Contractual Exclusions removed with minimum limits of coverage equal to those required for Bodily Injury Liability and Property Damage Liability.

1.2. Commercial Automobile Liability Insurance. If applicable, shall be provided with minimum limits of One Million Dollars ($1,000,000.00) for non -airside circulation per occurrence, combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the latest edition of 816
2 of 2 Pages 1oQAOA Rev. April 2019
the Business Automobile Liability Policy, as filed by the Insurance Services Office and must include:
a. Owned vehicles.
b. Hired and Non-owned vehicles.
c. Employers' Non-ownership.

2. Workers' Compensation Insurance. Workers' Compensation Insurance shall be provided to apply for all employees in compliance with the "Workers' Compensation Law" of the State of California and all Applicable Laws and Regulations. In addition, the policy(ies) must include: Employers' Liability with a limit of Five Hundred Thousand Dollars ($1,000,000.00) each accident and if any operations are to be undertaken on or about navigable waters, coverage must be included for the U.S. Longshoremen & Harbor Workers Act and Jones Act. A waiver ofsubrogation in favor of City shall apply.

3. All-Risk Property Insurance shall be provided for physical damage to the property of Tenant and to the Assigned Areas and other improvements, with coverage for a minimum of one hundred percent (100%) of the replacement value of the property. For All Other Perils, the deductible may not exceed Ten Thousand Dollars ($10,000.00) per occurrence except Wind and Flood. For Wind and Flood, the deductible should not exceed five percent (5%) of property value. Any deviations from this will be reviewed and approved by the City. The City shall be a loss payee or an additional insured for this coverage and shall be provided with a thirty (30) days prior written notice of cancellation and/or expiration provision.

4. All Coverages.

4.1. TKe City is to be expressly included as an "Additional Insured" ZitK UeVSeFt tR OiaEiOity arising out of operations performed for City by or on behalf of Tenant or acts or omissions of Tenant in connection with general supervision of such operation.

Separate endorsements must be provided and state the following:

Additional Insured Clause. "It is further agreed such insurance as is afforded by this policy shall also apply to the City, its officers, directors, agents, employees, affiliates, partners, volunteers, representatives, and the Commission; as additional insureds but only with respect to legal liability or claims caused by, arising o ut of, or resulting directly, or indirectly from the operations of the named insured."
Primary Insurance Clause. "It is further agreed that such insurance as is afforded by this policy for the benefit of the City, its officers, directors, agents, employees, affiliates, partners, volunteers, representatives, and Commission, shall be primary insurance as respects any claim, loss or liability arising directly or indirectly from the named insured's operations, and any other insurance shall be excess and non-contributory with the insurance provided hereunder."
817
F-1
Exhibit “D”
If applicable, the provisions of this Exhibit shall apply to Tenant’s performance hereunder.

D.1. Nondiscrimination Requirements; Title VI List of Pertinent Nondiscrimination Acts and Authorities.

During the performance of this contract, the Tenant, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to:
• Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin); • 49 CFR part 21 (Non-discrimination in Federally-assisted programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act of 1964); • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 USC § 4601) (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); • Section 504 of the Rehabilitation Act of 1973 (29 USC § 794 et seq.), as amended (prohibits discrimination on the basis of disability); and 49 CFR part 27; • The Age Discrimination Act of 1975, as amended (42 USC § 6101 et seq.) (prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982 (49 USC § 471, Section 47123), as amended (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987 (PL 100 -209) (broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal- aid recipients, subrecipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act of 1990, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 USC §§ 12131 – 12189) as implemented by U.S. Department of Transportation regulations at 49 CFR parts 37 and 38;
• The Federal Aviation Administration’s Nondiscrimination statute (49 USC § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations;
• Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with 818
F-2
Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 USC 1681 et seq).

D.2. General Civil Rights Provision . Tenant agrees to comply with pertinent statutes, Executive Orders and such rules as are promulgated to ensure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance. If the Tenant transfers its obligation to another, the transferee is obligated in the same manner as the Tenant. This provision obligates Tenant for the period during which the property is owned, used or possessed by Tenant and the airport remains obligated to the Federal Aviation Administration. This provision is in addition to that required by Title VI of the Civil Rights Act of 1964.

D.3. Compliance with Nondiscrimination Requirements.

During the performance of this contract, the Tenant, for itself, its assignees, and successors in interest, agrees as follows:

1. Compliance with Regulations: The Tenant (hereinafter includes consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts and Authorities, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract.

2. Nondiscrimination: The Tenant, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Tenant will not participate directly or indirectly in the discrimination prohibited by the Nondiscrimination Acts and Authorities, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR part 21.

3. Solicitations for Subcontracts, including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding or negotiation made by the Tenant for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Tenant of the contractor’s obligations regarding Nondiscrimination Acts and Authorities on the grounds of race, color, or national origin.

4. Information and Reports: The Tenant will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the sponsor or the Federal Aviation Administration to be pertinent to ascertain compliance with such Nondiscrimination Acts and Authorities and instructions.

Where any information required of a contractor is in the exclusive possession of another 819
F-3
who fails or refuses to furnish the information, the Tenant will so certify to the sponsor or the Federal Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain the information.

5. Sanctions for Noncompliance: In the event of a Tenant’s noncompliance with the non-discrimination provisions of this contract, the sponsor will impose such contract sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to:
a. Withholding payments to the Tenant under the contract until the it complies; and/or
b. Cancelling, terminating, or suspending the contract, in whole or in part.

6. Incorporation of Provisions: The Tenant will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations, and directives issued pursuant thereto. The Tenant will take action with respect to any subcontract or procurement as the sponsor or the Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Tenant becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Tenant may request the sponsor to enter into any litigation to protect the interests of the sponsor. In addition, the Tenant may request the United States to enter into the litigation to protect the interests of the United States.

D.4. Title VI of the Civil Rights Act - Construction/Use/Access to Real Property.

Tenant for itself, its personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that (A) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (B) that in the construction of any improvements on, over, or under such land, and the furnishing of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (C) that Tenant will use the premises in compliance with all other requirements imposed by or pursuant to the List of discrimination Acts And Authorities.

With respect to the Agreement, in the event of breach of any of the above nondiscrimination covenants, Authority will have the right to terminate the Agreement and to enter or re -enter and repossess said land and the facilities thereon, and hold the same as if said the Agreement had never been made or issued.
820
Department: Broadband Operations
Prepared By: Judy Witrago
Staff Member Presenting: Jimmy Chang,
Broadband General Manager
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 16
SUBJECT:

PRE-AUTHORIZED LIST OF VENDORS TO PROVIDE SPECIALIZED PARTS AND

EQUIPMENT FOR CITY FIBER OPTICS NETWORK

CITY OF ONTARIO
Agenda Report
October 15, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council approve a pre-authorized vendor list to provide specialized parts and equipment for the construction and maintenance of the City Fiber Optics Network, OntarioNet.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT:

There is no direct fiscal impact with the approval of this vendor list. The designation of pre-authorized vendors to provide parts and equipment does not affect appropriations and does not commit the City to any specific level of future expenditures with these vendors. Expenditures for each vendor, and in total for each fiscal year, will not exceed the Broadband Department’s appropriations limit established by the City Council.

BACKGROUND & ANALYSIS:

The City Council adopted the Fiber Optics Master Plan in 2013 to develop a citywide fiber optics network. Construction began aggressively in 2015, resulting in the installation of over 250 miles of fiber optic cable throughout the Ontario Ranch Community and along key corridors within the City. OntarioNet, the City-owned internet service provider, now delivers fiber-optic internet services to more than 1,700 residential and commercial customers.

Additionally, over 25 City facilities, 120 traffic signal cabinets, and a large segment of Real Time Information Center cameras are connected to the City's fiber-based broadband services, enabling connectivity across the City's advanced infrastructure.

The City has standardized the use of many directly sold specialized parts, materials, and equipment to support OntarioNet's 24x7 operations. The electronics and materials procured through Calix, Clearfield, Myers Power Products, Newbasis West LLC, and MSI Tec, Inc. provide compatibility and continuity for network architecture and maintenance. Without such uniformity in infrastructure equipment, OntarioNet is at risk of impacting the network health and performance and, ultimately, the reliability of services for its residential and business customers. Furthermore, purchasing equipment directly eliminates costly third-party markups and reduces shipping delivery schedules. 821

Since the inception of OntarioNet, specific vendors, such as Communication Supply Corporation, Power & Telephone Supply Company, Sidepath, Inc., and NTT America, Inc., have consistently provided competitive pricing and quality of service, prompt turnaround times, and responsive customer support. When direct procurement is not possible, the City's standard purchasing process is followed.

The maximum spending limit over five years coincides with the City of Ontario's purchasing policy, which requires Council approval for procurement from a single vendor over $150,000. The thresholds are not expected to be exceeded as various contingencies were factored into the calculation. Due to the specialized nature of these parts and equipment, as well as the lead time required to sustain OntarioNet's operations as the premier internet service provider in Ontario, it is recommended that the City establish a list of pre-authorized vendors.

Sole Source Vendor
Pre-Approval Requested
AFL
$100,000
Calix
$3,500,000
Clearfield
$100,000
Communication Supply Corporation
$3,000,000
Myers Power Products
$50,000
Newbasis West, LLC
$600,000
NTT America, Inc.
$500,000
Sidepath
$1,000,000
Essential Services Vendor
Pre-Approval Requested
Power & Telephone Supply Company
$100,000
MSI Tec, Inc.
$400,000
822
Department: Police Department
Prepared By: Celeste Owens
Staff Member Presenting: Mike Lorenz, Chief of
Police
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 17
SUBJECT:

A SPECIAL SERVICES AGREEMENT WITH SAN BERNARDINO COUNTY FOR WIDE

AREA NETWORK AND GENERAL INNOVATION AND TECHNOLOGY DEPARTMENT SERVICES.

CITY OF ONTARIO
Agenda Report
October 15, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council authorize the City Manager or his designee to execute a Special Services Agreement with San Bernardino County, with its principal place of business in San Bernardino, California, for Wide Area Network and General Innovation and Technology Department Services for a total contract not-to-exceed amount of $9,969,488.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
FISCAL IMPACT:

The contract has a not to exceed amount of $9,969,488 over five years.

Appropriations of $1,339,697 are included in the fiscal year 2024-25 Adopted Budget in the Information Technology Fund for annual services with San Bernardino County for Wide Area Network and General Innovation and Technology Department Services. Appropriations for future fiscal years will be included in the respective fiscal years' budgets for City Council consideration and approval. The not-to-exceed threshold includes a yearly 2% increase to mitigate the need for a contract revision due to increased rates over the life of the agreement and the needs for services.

BACKGROUND & ANALYSIS:

San Bernardino County provides online access to specific County managed computer systems it possesses through a Wide Area Network (WAN), an integrated electronic network that provides countywide data, voice, and video communications. WAN provides County departments the ability to communicate with each other and furnishes reliable access to data housed in County managed information systems. Services include WAN connection, as well as equipment and configuration of customer sites, overall circuit maintenance including routers, 24 hours per day, seven days per week, with a two-hour response time. WAN Services are a crucial element in Police telecommunications and Law Enforcement operations.

City Staff recommends entering into a new five-year agreement with San Bernardino County for Wide Area Network and General Innovation and Technology Department Services to maintain the current high level of Public Safety.
823
Standard Contract Page 1 of 13

THE INFORMATION IN THIS BOX IS NOT A PART OF THE CONTRACT AND IS FOR COUNTY USE ONLY

Innovation and Technology Department

Department Contract Representative Jeremiah Thomas
Telephone Number (909) 388-0641

Customer City of Ontario Police Department
(6000-00DY)
Customer Representative Melissa Sowizdrzal-Morgan
Telephone Number (909) 395-2000
Contract Term 8/1/2024 – 7/31/2029
Original Contract Amount Based on Actual Usage
Amendment Amount N/A
Total Contract Amount Based on Actual Usage
Cost Center Varies

INFORMATION TECHNOLOGY SERVICE REVENUE CONTRACT

This CONTRACT is entered into in the State of California by and between San Bernardino County, hereinafter called, “County”, and City of Ontario Police Department, hereinafter called “Customer”.

Name
City of Ontario Police Department

Address
2500 S. Archibald Avenue

Ontario, CA 91761

Telephone
(909) 395 -2000
Federal ID No. or Social Security No.

IT IS HEREBY AGREED AS FOLLOWS:

Contract Number

ITD-24031

SAP Number
N/A
824
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A. CONTRACTED SERVICES (Select all that apply):

General ITD Services (Attachment A)
Defined as all services contained in Attachment A “ITD Rate Sheet – External Customers” with exception to Public Safety Communication Services.

Public Safety Communications Services (Attachment B)
Defined under Public Safety Communication Services in Attachment B “ITD Rate Sheet – External Customers”.

Wide Area Network (WAN) Services (Attachment C)
Defined in Attachment C “Wide Area Network Services”.

B. PROVISION OF SERVICES
This is the County standard revenue contract to provide information technology services, hereinafter, “Services,” to Customer by the County Innovation and Technology Department, hereinafter, “ITD”.

Customer understands that County may elect to have other vendors provide similar professional services under other contracts.

All Services available under this Contract are listed in full in the Attachments and are detailed by Service name, Service description, rate, and charge measurement as applicable and as identified in the Attachments.

Services are initiated at Customer’s request, subject to ITD’s acceptance, and consist of the following types of charges, as further set forth in the Attachments:

B.1 Per item; one-time charge as requested.

B.2 Per month; per unit charge ongoing until Customer submits a request to cancel.

B.3 Per hour; per work order, project, or quote.

C. CUSTOMER RESPONSIBILITIES
Customer will:

C.1 Determine the Services needed, including any adjustments to ongoing Services.

C.2 Initiate or cancel any Services via submission of a Help Desk Ticket. Contact County Help Desk by calling: 909-884-4884 or [email protected] (email for non-urgent requests only).

C.3 Promptly inform County, in writing, of any pending changes in programs/funding applicable to Services provided herein.

D. COUNTY RESPONSIBILITIES
County will:

D.1 Provide the Services requested by Customer, subject to ITD’s approval, and in accordance with established work schedules and County Board of Supervisor (Board) approved service rates in effect at the time Service is provided.

D.2 Perform the Services in a workmanlike manner, but County assumes no liability for failure to provide or delay in providing Services under this Contract.

D.3 Furnish the necessary equipment and personnel to perform the Services, but County assumes no liability for equipment failure or adverse consequences cause by such failed equipment.

E. GENERAL CONTRACT REQUIREMENTS
E.1 Contract Amendments
Both parties agree that any alterations, variations, modifications, or waivers of the provisions of the Contract, shall be valid only when reduced to writing, executed and attached to the original Contract and approved by the person(s) authorized to do so on behalf of Customer and County.

E.2 Contract Assignability
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Without the prior written consent of the County, the Contract is not assignable by Customer either in whole or in part.

E.3 Permits
Customer is responsible for obtaining and paying any costs of all permits, licenses or approvals by any regulatory bodies having jurisdiction over the uses authorized herein, as appropriate.

E.4 Attorney’s Fees and Costs
If any legal action is instituted to enforce any party’s rights hereunder, each party shall bear its own costs and attorney fees, regardless of who is the prevailing party. This paragraph shall not apply to those costs and attorney fees directly arising from a third -party legal action against a party hereto and payable under Indemnification and Insurance Requirements.

E.5 Change of Address
Customer shall notify the County, in writing, of any change in mailing address within ten (10) business days of the change.

E.6 Choice of Law
This Contract shall be governed by and construed according to the laws of the State of California.

E.7 Confidentiality
To the extent applicable, if Customer is a business that collects the personal information of a consumer(s) in performing Services pursuant to this Contract, Contractor must comply with the provisions of the California Consumer Privacy Act (CCPA). (Cal. Civil Code §§1798.100, et seq.).

For purposes of this provision, “business,” “consumer,” and “personal information” shall have the same meanings as set forth at Civil Code section 1798.140. Customer must contact the County immediately upon receipt of any req uest by a consumer submitted pursuant to the CCPA that requires any action on the part of the County, including but not limited to, providing a list of disclosures or deleting personal information. Customer must not sell, market or otherwise disclose personal information of a consumer provided by the County unless specifically authorized pursuant to terms of this Contract. Customer must immediately provide to the County any notice provided by a consumer to Customer pursuant to Civil Code section 1798.150(b) alleging a violation of the CCPA, that involves personal information received or maintained pursuant to this Contract. Customer must immediately notify the County if it receives a notice of violation from the California Attorney General pursuant to Civil Code section 1798.155(b).

Customer shall hold as confidential and use reasonable care to prevent unauthorized access by, storage, disclosure, publication, dissemination to and/or use by third parties of, confidential information that is either: (1) provided by the County to Customer or an agent of Customer or otherwise made available to Customer or Customer’s agent in connection with this Contract; or, (2) information and/or data acquired, obtained, or learned by Customer or an agent of Customer regarding this Contract.

For the purposes of this provision and consistent with California Civil Code Section 1798.29, PII, is any information that can be used to distinguish or trace an individual’s identity, for example, any combination of name, social security number, date and place of birth, mother’s maiden name, or biometric records; and any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information.

E.8 Primary Point of Contact
Customer will designate an individual to serve as the primary point of contact for the Contract.

Customer s hall not change the primary contact without prior written notice to the County.

Customer will also designate a back-up point of contact in the event the primary contact is not available.

E.9 Contract Authorization
Customer warrants and represents that the individual signing this Contract is a properly authorized representative of the Customer and has the full power and authority to enter into this Contract on the Customer’s behalf.

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E.10 County Representative
The County Chief Information Officer or his/her designee shall represent the County in all matters pertaining to the Services to be rendered under this Contract, including termination and assignment of this Contract, and shall be the final authority in all matters pertaining to the Services/Scope of Work by County.

E.11 Duration of Terms
This Contract, and all of its terms and conditions, shall be binding upon and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the respective parties, provided no such assignment is made in violation of the provisions of this Contract.

E.12 Legality and Severability
The parties’ actions under the Contract shall comply with all applicable laws, rules, regulations, court orders and governmental agency orders. The provisions of this Contract are specifically made severable. If a provision of the Contract is terminated or held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full effect.

E.13 Mutual Covenants
The parties to this Contract mutually covenant to perform all of their obligations hereunder, to exercise all discretion and rights granted hereunder, and to give all consents in a reasonable manner consistent with the standards of “good faith” and “fair dealing”.

E.14 Relationship of the Parties
Nothing contained in this Contract shall be construed as creating a joint venture, partnership, or employment arrangement between the parties hereto, nor shall either party have the right, power or authority to create an obligation or duty, expressed or implied, on behalf of the other Party hereto.

E.15 Release of Information
No news releases, advertisements, public announcements, or photographs arising out of the performance of the Contract or Customer’s relationship with County may be made or used without prior written approval of the County, as applicable.

E.16 Strict Performance
Failure by a party to insist upon the strict performance of any of the provisions of this Contract 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 Contract thereafter.

E.17 Subpoena
In the event that a subpoena or other legal process commenced by a third party in any way concerning the Services provided under this Contract is served upon Customer or County, such party agrees to notify the other party in the most expeditious fashion possible following receipt of such subpoena or other legal process. Customer and County further agree to cooperate with the other party in any lawful effort by such other party to contest the legal validity of such subpoena or other legal process commenced by a third party as may be reasonably required and at the expense of the party to whom the legal process is directed.

E.18 Termination for Convenience
The County and the Customer each reserve the right to terminate the Contract, for any reason, with a thirty (30) day written notice of termination. Such termination may include all or part of the Services provided hereunder. Upon such termination, payment will be made to the County for Services rendered and expenses reasonably incurred prior to the effective date of termination. Upon receipt of termination notice County shall promptly discontinue Services unless the notice directs otherwise.

E.19 Contract Exclusivity
This is not an exclusive Contract. Customer reserves the right to enter into a contract with other contractors for the same or similar services. The Customer does not guarantee or represent that 827
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the County will be permitted to perform any minimum amount of work, or receive compensation other than on a per order basis, under the terms of this Contract.

E.20 Information Dispute Resolution
In the event the Customer determines that Service in unsatisfactory, or in the event of any other dispute, claim, question or disagreement arising from or relating to this Contract or breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question or disagreement.

To this effect, they shall consult and negotiate with each other in good faith, and recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.

E.21 Venue
The parties acknowledge and agree that this Contract was entered into and intended to be performed in San Bernardino County, California. The parties agree that the venue of any action or claim brought by any party to this Contract will be the Superior Court o f California, San Bernardino County, San Bernardino District. Each party hereby waives any law or rule of the court which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party and filed in another venue, the parties hereto agree to use their best efforts to obtain a change of venue to the Superior Court of California, San Bernardino County, and San Bernardino District.

F. TERM OF CONTRACT
This Contract is effective as of August 1, 2024 (Effective Date) and remains in effect for a period of five (5) years (July 31, 2029), unless terminated earlier in accordance with provisions of this Contract.

G. TERMINATION OR SUSPENSION OF SERVICES
G.1 Immediate Suspension, Uncured Termination
The County may, in its sole discretion and upon reasonable notice, immediately suspend all or part of the Services for material breach of any of the conditions identified below. The County will provide Customer a written notice of material breach and allow the Customer 30 days to correct the condition giving rise to such material breach. If the Customer fails to remedy the breach within the 30-day cure period, the County may immediately terminate the Services upon reasonable notice.

G.1.1 Customer shall comply with all applicable laws, statutes, ordinances, administrative orders, rules or regulations relating to its duties, obligations and performance under the terms of the Contract. Customer shall ensure that it has all necessary licenses and permits required by the laws of the United States, State of California, County, and all other appropriate governmental agencies, and agrees to maintain these licenses and permits in effect for the duration of the Agreement. Customer shall notify County immediately of loss or suspension of any such required licenses and permits.

G.1.2 Customer represents and warrants to County that (i) the information Customer provides in connection with registration for the Services is accurate and complete; (ii) Customer’s use of the System is not illegal, defamatory, malicious, harmful, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iii) Customer’s use of the Services complies with all applicable laws, rules and regulations; (iv) Customer has obtained all consents and licenses required to legally access and use the System; (v) the execution and delivery of this Agreement will not conflict with, or violate any provision of, Customer’s charter, by-laws or other governing documents; and (vi) Customer has otherwise taken all necessary steps to legally execute this Agreement.

G.1.3 Customer agrees to abide by all existing and future security practices, policies and protocols established by the County, which the County has established to ensure the integrity of the System. Customer understands that the County closely monitors the System and may perform periodic security audits to provide insight into any potential abnormalities that may impact ensuring confidentiality, integrity, and availability.

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G.1.4 Customer agrees to implement measures that are reasonable for Customer’s use of the System to prevent interference with the operation of the System. NEITHER COUNTY

NOR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES, SERVICE

SUPPLIERS OR LICENSORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO, MISUSE OF, CUSTOMER’S INABILITY TO ACCESS, OR DAMAGE TO THE SYSTEM OR CUSTOMER’S FIELD EQUIPMENT, EXCEPT TO THE EXTENT CAUSED BY COUNTY’S NEGLIGENCE OR INTENTIONAL MISCONDUCT, UNLESS AND ONLY TO THE EXTENT THAT THIS DISCLAIMER IS PROHIBITED BY APPLICABLE LAW.

G.2 Immediate Termination
The County may, in its sole discretion and upon reasonable notice, immediately suspend or terminate all or part of the Services for any of the conditions identified below. The County will promptly provide Customer a written notice of termination or suspension of Services to Customer.

G.2.1 County discovers that Customer provided false registration information, or that Customer lacked the capacity to enter into this Agreement at the time of its consummation;

G.2.2 County determines, in its sole and reasonable discretion, that Customer’s use of the Services poses a threat or an adverse effect to the security, privacy, or performance of the System or to any of County’s other users or suppliers;

G.2.3 County determines, in its sole and reasonable discretion, that Customer’s use of the Services is illegal;

G.2.4 County reasonably believes that Customer’s use of the Services has or will subject County to civil or criminal liability;

G.2.5 Customer fails to make any payment when due and fails to make payment ten (10) days after being provided written notice thereof; or

G.2.6 Customer materially breaches any of the other material terms and conditions in this Agreement.

H. FISCAL PROVISIONS
H.1 There is no minimum or maximum amount of payment under this Contract.

H.2 Services are charged equitably to all customers in accordance with State Controller's Handbook of Cost Plan Procedures for California Counties.

H.3 Charges will be based on actual usage at the rates effective at the time Services are rendered (see Attachment A “ITD Rate Sheet – External Customers” and Attachment C “Wide Area Network Services”, if applicable). Rates are reviewed and subject to change annually based on the cost to provide services to Customers and are effective July 1st of each year. Rates are also subject to change throughout the year via a mid -year rate change, if deemed appropriate based on the cost to provide services to Customers being significantly higher or lower than anticipated during the annual review. County will not amend this Contract due to rate changes or changes in usage amounts by Customer. Attachment A includes the list of County service rates effective at the time this Contract is entered into. County will attempt to provide at least thirty (30) days advance written notice of any rate change, which will be sent to Customer at the following address:

Melissa Sowizdrzal-Morgan
ATTN: Office Specialist
2500 S. Archibald Avenue, Ontario, CA 91761

H.4 Services will be billed on a monthly basis for actual expenses incurred and claimed by ITD for the preceding month.

H.4.1 For Customers that use the County’s Enterprise Financial Management System:

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Monthly charges will be handled by an automated transfer processed by ITD via the County’s Enterprise Financial Management System. A copy of the billing statement can be accessed via the ITD Billing System by Customer, provided that Customer has the necessary permission on the County’s network.

H.4.2 For Customers that do not use the County’s Enterprise Finance Management System:

County will mail a n invoice on a monthly basis starting on the Effective Date of this Contract, or starting on the installation or implementation date, if applicable. Payment shall be due sixty (60) days from date of invoice.

Payment can be made by check or electronic funds transfer (EFT). Checks shall be made payable to San Bernardino County. Customers requesting to make payments to County via electronic funds transfer (EFT) directly deposited into the C ounty’s designated bank account shall provide County with instructions to process EFT payments.

Payment address is:

Innovation and Technology Department
670 E. Gilbert Street, First Floor
San Bernardino, CA 92415-0915
Attn: Administration Services

I. DEFAULT
If the Customer does not make timely payment of amounts due under this Contract or materially breaches any term or condition of this Contract, County may declare immediately due and payable the entire unpaid amount, plus all other amounts due hereunder, less any unearned charges.

J. INDEMNIFICATION
The County agrees to defend and indemnify the Customer and its authorized officers, employees, agents and volunteers from any and all claims, actions, losses, damages, and/or liability arising solely out of the acts, errors or omissions of County in the pe rformance of this Agreement, except where such indemnification is prohibited by law. At its sole discretion, Customer may participate at its own expense in the defense of any claim, action or proceeding, but such participation shall not relieve County of any obligation imposed by this Contract. Customer shall notify County promptly of any claim, action or proceeding and cooperate fully in the defense. Customer hereby agrees to defend and indemnify the County, its agents, officers and employees from any claim, action, or proceeding against County, arising solely out of the acts or omissions of Customer in the performance of this Agreement. At its sole discretion, County may participate at its own expense in the defense of any such claim, action or proceeding, but such participation shall not relieve Customer of any obligation imposed by this Contract.

County shall notify Customer promptly of any claim, action or proceeding and cooperate fully in the defense. In the event that County and/or Customer are determined to be comparatively at fault for any claim, action, loss or damage that results from their respective obligations under this Agreement, County and/or Customer shall indemnify the other to the extent of its comparative fault.

K. INSURANCE
County is an authorized self -insured public entity for purposes of General Liability and warrants that through its program of self-insurance, it has adequate coverage or resources to protect against liabilities arising out of the performance of the terms, conditions or obligations of this Agreement.

L. NOTICES
All written notices provided for in this Contract or which either party desires to give to the other shall be deemed fully given, when made in writing and either served personally, or by facsimile, or deposited in the United States mail, postage prepaid, and addressed to the other party as follows:

San Bernardino County
Innovation and Technology Department
City of Ontario Police Department
670 E. Gilbert Street, First Floor
San Bernardino, CA 92415-0915
2500 S. Archibald Avenue
Ontario, CA 91761
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Attn: Administration Services Attn: Melissa Sowizdrzal -Morgan, Office Specialist

Notice shall be deemed communicated two (2) County working days from the time of mailing if mailed as provided in this paragraph.

M. FORCE MAJEURE
Except for payment obligations and as otherwise provided herein, when either party has knowledge that any actual or potential situation is delaying or threatens to delay the timely performance of this Contract, that party shall, within twenty-four (24) hours, give notice thereof, including all relevant information with respect thereto, to the other party. County shall not be held liable for any delay or failure in performance of any part of this Contract from any cause beyond its control and without its fault or negligence, such as acts of God, acts of civil or military authority, government regulations, strikes, labor disputes, embargoes, epidemics, war, terrorist acts, riots, insurrections, fire, explosions, earthquakes, nuclear accidents, floods, power bl ackouts, brownouts, or surges, volcanic action, other major environmental disturbances, unusually severe weather conditions, inability to secure product or services of other persons or transportation facilities, or acts or omissions of transportation common carriers.

N. ENTIRE AGREEMENT
This Contract, including all Attachments, which are attached hereto and incorporated by reference, and other documents incorporated herein, represents the final, complete and exclusive agreement between the parties hereto. Any prior agreement, promises, negotiations or representations relating to the subject matter of this Contract not expressly set forth herein are of no force or effect. This Contract is executed without reliance upon any promise, warranty or representation by any party or any representative of any party other than those expressly contained herein. Each party has carefully read this Contract and signs the same of its own free will. This Contract may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute one and the same Contract. The parties shall be entitled to sign and transmit an elect ronic signature of this Contract (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party wh ose name is contained therein. Each party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed Contract upon request.

IN WITNESS WHEREOF , San Bernardino County and Customer have each caused this Contract to be subscribed by its respective duly authorized officers, on its behalf.

SAN BERNARDINO COUNTY

(Print or type name of Customer)

By

Lynn Fyhrlund, Chief Information Officer (Authorized signature - sign in blue ink) Dated: ____________________

Name

(Print or type name of person signing contract)

Title
(Print or Type)
Dated:

Address

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FOR COUNTY USE ONLY
Approved as to Legal Form

County Counsel
Date
832

ATTACHMENT A
ITD RATE SHEET – EXTERNAL CUSTOMERS
2023-24 Approved Rates

Service Service Description
Business Solutions Development
Business Solutions Labor
Services
Hourly labor programming services for the development, enhancement and maintenance of business solutions on a variety of hardware and software platforms.

Computer Operations
CPU Usage Access to applications and processing of data on the enterprise server.

Network Labor Services Hourly labor services for Local Area Network and Wi-Fi services. Includes labor services to connect a location to the Wide Area Network (WAN) via the Internet and to connect a site to the County’s WAN.

Customer is responsible for all costs related to circ uit installation, ongoing circuit charges, and office cabling.

Payroll System Services (EMACS) Maintenance, support, and enhancements of the EMACS system and infrastructure.

Virtual Private Network (VPN) Access for a single user to remotely connect to the wide area network.

Geographic Information System
Aerial Imagery Augments and enhances GIS data visualization tools, applications and solutions developed for County departments and the public.

Telecommunication Services
Public Safety Communications Services:

Dispatch Console Access,
Maintenance, and Replacement
Repair, maintenance, programming, and replacement of Motorola radio dispatch console equipment.

Pager Access Access for a single pager to connect to the County's Digital Paging System.

Radio Access and Maintenance Access for a single radio connected to the County's Public Safety Radio frequencies and repair and maintenance of that radio or radio's accessories, excluding batteries; covers normal wear and tear.

Radio Labor Services Hourly labor services for installation and repair of radio and other related equipment in vehicles, not including materials; or escort of other government agencies to County communication sites to access their equipment.

Radio Mobile Data Access Access and maintenance for radio modems in vehicles.

Telephone Services:

Dial Tone Single line telephone services. Includes voicemail, local, long distance, Telephone Service Specialist consulting services, and software changes.

Telecommunication Labor
Services – Normal Hours
Hourly labor services for telephone, data, cabling, repair, and other specialized services – Normal Hours (Monday through Friday, 7:00 am – 5:00 pm, excluding weekends and holidays).

Telecommunication Labor
Services – After Hours
Hourly labor services for telephone, data, cabling, repair, and other specialized services – After Hours (Monday through Friday, 5:00 pm – 7:00 am, and all weekends and holidays).

All Funds
Parts and Materials Parts and Materials provided per customer request.

Service 2023-24 Rate Charge Measurement
Business Solutions Development
Business Solutions Labor Services $128.21 Per hour
Computer Operations
CPU Usage $99.63 Per CPU hour
Network Labor Services $96.84 Per hour
Payroll System Services (EMACS) $6.99 Per payroll warrant Virtual Private Network (VPN) $3.46 Per VPN/month
Geographic Information System
Aerial Imagery Cost Pass Through Per customer
Telecommunication Services
Public Safety Communications Services:

Dispatch Console Access, Maintenance, and Replacement $639.48 Per console/month Pager Access $16.22 Per pager/month
Radio Access and Maintenance $53.58 Per radio/month
Radio Labor Services $88.97 Per hour
Radio Mobile Data Access $103.58 Per modem/month
Telephone Services:

Dial Tone $31.23 Per phone/month
Telecommunication Labor Services – Normal Hours $95.56 Per hour Telecommunication Labor Services – After Hours $110.52 Per hour All Funds
Parts and Materials
Actual cost plus 15%
processing and
handling Per order
833

ATTACHMENT C

WIDE AREA NETWORK SERVICES

I. SERVICES UNDER THIS ATTACHMENT
This Attachment C is applicable for Wide Area Network (WAN) services which consist of the following services as further defined in this Attachment C:

WAN Access
• Includes WAN monitoring and threat detection
WAN Setup
Circuit/s

II. SERVICES TO BE PROVIDED
The County agrees to provide Customer WAN connectivity to the County’s telecommunication network for the purpose of accessing computer information systems managed by the County as authorized by the data owner department, including WAN connection, configuration, installation of a router at the Customer location and overall circuit and router maintenance including monitoring of network communication and cyber threat detection with a two-hour response time from the County if notified of a problem or incident affecting services. Specific charges are set forth in this Attachment C.

The connection will be located at:
2500 S. Archibald Avenue, Ontario CA 91761

III. SERVICE CONDITIONS
a) ITD reserves the right to subcontract for all or part of Services.

b) Authorized applications under this Contract are on file with ITD and are subject to change during the term of this Contract. ITD and the Customer will work together to ensure the Customer has access to authorized applications as needed.

c) ITD assumes no liability for failure to provide or delay in providing Services under this Contract.

d) Customer is responsible for the costs of the data circuit. County owns the data circuit. The County will order the circuit, monitor it, and will work with the vendor providing the circuit to resolve any problems. The costs for the circuit are included in this Attachment C and will be billed monthly by ITD.

There is no billable data circuit associated with this/these connection(s). The location(s), identified in Section II above, has/have cabling (i.e., fiber or copper) that can be used for the connectivity eliminating the need for a data circuit.
e) ITD will provide coordination for data communications problems, including problem isolation and resolution from the County Central Computer or County’s WAN to the last component of ITD-supplied equipment. Coordination includes working with all necessary v endors in an effort to restore normal data communications in a timely manner. Reporting, tracking, and diagnosing of problems related to Customer supplied equipment and software is the responsibility of the Customer.

f) Customer is responsible for the coordination of the isolation and resolution of all problems involving hardware and software not supplied by ITD.

g) ITD will coordinate a pre -installation site survey identifying all necessary pre -installation site requirements. This service will be limited to the definition of those requirements and the ordering of the data communications or WAN circuits, modems, and WAN equipment (e.g., routers). The Customer will be responsible for making all site preparations prior to the installation of data 834

communications or WAN service.

IV. RATES AND PAYMENT TERMS
The payment terms for WAN services are outlined in Section H “Fiscal Provisions” of the Contract.

Additionally, the following rates apply to WAN services:

a) WAN Access, including WAN monitoring and threat detection, is provided to Customer at no monthly cost.

b) WAN Setup is a one -time cost to connect to the WAN and is provided to Customer at time and materials, at the current Network Services Labor rate (see Attachment A “ITD Rate Sheet – External Customers”) and for the actual cost of the network equipment.

c) Circuits are provided to Customer, if applicable, at the monthly cost as identified by the telephone company at the time this Contract is executed. Section III.d. “Service Conditions” of this Attachment identifies if this service and cost is applicable.

If applicable, the cost for your Circuit/s are listed as follows:

Serial Number:[#] Cost:N/A

V. CUSTOMER RESPONSIBILITIES
a) Except to the extent caused by County’s breach of the Contract, (a) Customer is responsible for all activities that occur through Customer’s WAN access, regardless of whether the activities are authorized by Customer or undertaken by Customer, Customer’s employees or a third party (including Customer’s contractors, agents, or end users), and County is not responsible for unauthorized access to Customer’s account.

b) Customer is responsible for taking appropriate action to secure, protect and backup Customer information and data.

c) Customer is responsible for its account information, passwords and other login credentials and must notify County immediately of any known unauthorized possession or use of Customer’s credentials.

d) Customer shall not: (i) make WAN access available to any third party not authorized or as otherwise contemplated by the Contract; (ii) send or store code that can harm or result in damage to the WAN (including but not limited to malicious code and malware) ; (iii) willfully interfere with or disrupt the integrity of the WAN or the data contained therein; (iv) attempt to gain unauthorized access to the WAN or its related system or networks; (v) use the WAN to provide services to third parties except as expressly permitted by the Contract; (vi) use the WAN in order to cause harm such as overload or create multiple agents for the purpose of disrupting operations of a third party; or (vii) perform or disclose any security testing of the WAN.

835
Department: Records Management
Prepared By: Peak Approver
Staff Member Presenting: Claudia Y. Isbell,
Assistant City Clerk
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 18
SUBJECT:

ADOPTION OF AN ORDINANCE AMENDING SECTION 2-1.203 OF THE ONTARIO

MUNICIPAL CODE RELATING TO SALARY COMPENSATION FOR THE CITY

COUNCIL

CITY OF ONTARIO
Agenda Report
October 15, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council adopt an Ordinance amending Section 2-1.203 of the Ontario Municipal Code relating to Salary Compensation for the Mayor and the City Council.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
FISCAL IMPACT:

The compensation adjustments for the City Council members will be effective after the November 5, 2024 election, and will increase General Fund personnel appropriations by approximately $6,760 per Councilmember, for a total of $27,040 for the remainder of Fiscal Year 2024-25. Additional appropriations will be added to the General Fund at a future quarterly budget update, as necessary.

BACKGROUND & ANALYSIS:

Senate Bill 329 amends Government Code Section 36516 and authorizes a City Council to enact an ordinance to provide each member of the City Council a salary based upon the population of the city, as specified. The bill allows for an increase up to $2,550 per month for cities with a population from 150,000 to 250,000.

The bill authorizes the salary of council members to be increased beyond the specified maximums to an amount not exceeding the greater of either 5% for each calendar year from the operative date of the last adjustment of the salary in effect when the Ordinance or amendment is enacted, or an amount equal to inflation since January 1, 2024, based upon the California Consumer Price Index, which shall not exceed 10% for each calendar year. The bill requires the City Council to consider the adoption of an ordinance to increase council member compensation in open session during at least two regular meetings of the City Council.

On October 1, 2024, the City Council introduced the Ordinance and waived further reading of the Ordinance to bring City Council compensation to the amount of $2,550 per month. 836
ORDINANCE NO. _________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, AMENDING SECTION 2-1.203 OF THE ONTARIO

MUNICIPAL CODE RELATING TO SALARY COMPENSATION FOR THE
CITY COUNCIL.

WHEREAS, the California State Governor signed SB 329 into law on June 29, 2023, and
WHEREAS, the new law amends Government Code Section 36516, allowing general law cities to adjust council member salaries for inflation, and WHEREAS, the new law allows for cities over 150,000 up to and including 250,000 in population, up to and including [a salary of] two thousand five hundred and fifty dollars ($2,550) per month, and
WHEREAS, the City Council’s current salary is below the newly established salary, and
WHEREAS, the new salary for City Council would be effective on November 5, 2024, and
WHEREAS, the City Council desires to modify the salary compensation for all City Council Members.

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

SECTION 1. Findings. The above recitals are true and correct and are incorporated herein by this reference.

SECTION 2. Section 2-1.203 of Chapter 1 to Title 2 of the Ontario Municipal Code is hereby amended in its entirety to read as follows:

Sec. 2-1.203. Payment.
(a) Each member of the Council shall receive as salary the sum of Two-Thousand-Five-Hundred-Fifty and Dollars ($2,550) per month. (b) Said salaries shall be payable from and after the operative date of this section at the same time and in the same manner as salaries are paid to other officers and employees of the City.

SECTION 3. Pursuant to Section 36516.5 of the California Government Code, the adjustments to City Council Member salary set forth herein shall become effective 837
upon the completion and installation of the new members of the City Council subsequent to November 5, 2024, pursuant to California Elections Code Section 10262.

SECTION 4. CEQA. The City Council hereby finds that adoption of this Ordinance is not a "project" under the California Environmental Quality Act because the Ordinance does not involve any commitment to a specific project which may result in a potentially significant physical impact on the environment, as contemplated by Title 14, California Code of Regulations, Section 15378(b)(4).

SECTION 5. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings and this Ordinance are based are located at the City Clerk's office located at 303 East "B" Street, Ontario, CA 91764. The custodian of these records is the City Clerk.

SECTION 6. 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 7. Effective Date. This Ordinance shall become effective thirty (30) days following its adoption.

SECTION 8. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within fifteen (15) days of the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this 15th day of October 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
838
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
839

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 October 1, 2024 and adopted at the regular meeting held October 15, 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 October 15, 2024 and that Summaries of the Ordinance were published on ___________ and _____________, in the Inland Valley Daily Bulletin newspaper. __________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
840
Department: Economic Development
Prepared By: Charity Hernandez
Department:

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

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 19
SUBJECT:

A PUBLIC HEARING TO CONSIDER THE SALE OF ONTARIO INDUSTRIAL

DEVELOPMENT AUTHORITY OWNED PROPERTY IN ACCORDANCE WITH GOVERNMENT CODE SECTION 52201; MAKING CERTAIN FINDINGS; AND

ADOPTION OF A RESOLUTION APPROVING A PURCHASE AND SALE AGREEMENT

BETWEEN THE ONTARIO INDUSTRIAL DEVELOPMENT AUTHORITY AND RICHARD

FERNANDO BARBA

CITY OF ONTARIO
Agenda Report
October 15, 2024
SECTION:

PUBLIC HEARING

RECOMMENDATION:

That the Ontario Industrial Development Authority conduct a public hearing to consider the sale of Authority-owned property; and adopt a resolution approving a Purchase and Sale Agreement (“Agreement”) between the Ontario Industrial Development Authority (“Authority”) and Richard Fernando Barba (“Developer”) (on file in the Records Management Department); and authorize the Executive Director to execute the Agreement and all other documents required for implementation of the Agreement.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
FISCAL IMPACT:

The Authority will convey the property for a purchase price of $1,689,690. The revenue from the land sale proceeds will be deposited into the Industrial Development Authority Fund.

BACKGROUND & ANALYSIS:

From 1994-2014,
the City of Ontario used Airport Improvement
Program funds to acquire over 220 properties that were adversely impacted by noise from operations at Ontario International Airport. This program was known as the Federal Aviation Administration Part 150 – Quiet Home Program.

The property
located at
928 East California Street, 960 East California Street, 1042 East California Street, 807 South Greenwood Avenue, 814 South Greenwood Avenue, and 815 South Greenwood Avenue and
("Property) was acquired as part of the Quiet Home Program.

841
In June of this year, the City sold the Property to the Ontario Industrial Development Authority (a location map is provided for reference as Exhibit “A”) for the purpose of improving the underutilized Property.

In connection with the sale of the Property, a requirement was that the Grant Deed included Covenants, Conditions and Restrictions that ensured that future development of the Property is compatible with operations of the Ontario International Airport.

The sales price of $1,689,690 is supported by the current fair market valu e as determined by Beth
Finestone, MAI, AI-GRS, FRICS, CRE, of

CBRE
Valuation and Advisory Services, Inc., an independent
certified general appraiser.

The Developer is proposing to construct a business park building and office space ("Project"). The Developer will be required to build all associated on-site and off-site improvements, including but not limited to all hardscape, landscaping, and public street improvements.

The proposed Project will provide for the elimination of blighting conditions, redevelop the site into its highest and best use, generate property tax revenue, produce new jobs (both permanent and temporary), stimulate economic vitality, and continue to inspire additional investment within the area. As a result, Staff recommends approval of the Agreement. 842

EXHIBIT “A”

928 East California Street, 960 East California Street, 1042 East California Street, 807 South Greenwood Avenue, 814 South Greenwood Avenue, and 815 South Greenwood Avenue

GREENWOOD AVE
814
843
RESOLUTION NO. _______

A RESOLUTION OF THE ONTARIO INDUSTRIAL DEVELOPMENT

AUTHORITY, OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING A

PURCHASE AND SALE AGREEMENT BETWEEN THE ONTARIO

INDUSTRIAL DEVELOPMENT AUTHORITY AND RICHARD FERNANDO

BARBA FOR THE PURCHASE AND SALE OF CERTAIN REAL
PROPERTY LOCATED AT 928 EAST CALIFORNIA STREET, 960 EAST CALIFORNIA STREET, 1042 EAST CALIFORNIA STREET, 807 SOUTH GREENWOOD AVENUE, 814 SOUTH GREENWOOD AVENUE, AND 815
SOUTH GREENWOOD AVENUE, ONTARIO.

WHEREAS, the Ontario Industrial Development Authority ("Authority"), currently owns certain real property generally located at 928, 960, 1042 East California Street and 807, 814, 815 South Greenwood Avenue, Ontario (APN 1049-371,06, 1049-372-01, 1049- 372-03, 1049-372-04, 1049-372,06, 1049-392-11) and more specifically described in Exhibit A attached to this Resolution and incorporated herein by this reference (“Property”); and WHEREAS, the Authority opts to sell the Property to Richard Fernando Babra (“Purchaser”) under the Economic Opportunity statutes (Government Code sections 52200 et seq.) (the “EO Statutes”); and
WHEREAS, the Authority and Purchaser have negotiated a Purchase and Sale Agreement (the “Agreement”). The Agreement provides for the sale of the Property at a fair market value price of $1,689,690; and
WHEREAS, on September 30, 2024, and October 7, 2024, the Authority published notice of the public hearing to consider the disposition of the Property pursuant to the Agreement; and
WHEREAS, Purchaser’s proposed acquisition of the Property is in the best interest of the Authority and of the health, safety and welfare of its residents, and is in accordance with the public purposes set forth in applicable law. Approval of the Agreement will further the goals and objectives of the City’s general plan and the goals and objectives of the Authority by selling land that is not being used by the Authority for potential development and economic opportunity by Purchaser.

NOW, THEREFORE, BE IT RESOLVED BY THE AUTHORITY BOARD OF THE ONTARIO INDUSTRIAL DEVELOPMENT AUTHORITY AS FOLLOWS:

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

SECTION 2. Findings. The Authority intends to sell the Property to Purchaser and, based on the Recitals and all other information and testimony provided, the Authority Board finds that the sale of the Property pursuant to the Agreement will further the goals and purposes of the Authority, by putting land that is not being used by the Authority into the 844
hands of Purchaser for potential future development and economic opportunity. The sale of the Property will create economic opportunity by assisting in the elimination of blighting conditions, encouraging private investment, increasing availability of housing stock, and expanding the community’s tax base and economic vitality.

SECTION 3. Hearing. In accordance with Government Code Section 52201, a duly noticed public hearing was held by the Authority Board on October 15, 2024.

SECTION 4. CEQA. The Authority’s approval of the Agreement does not constitute approval by the Authority of any development of the Property or of other activity on the Property that would have a direct or reasonably foreseeable indirect environmental impact pursuant to CEQA. (See 14 C.C.R. §§ 15060(c); 15378(b).) Moreover, the Agreement and Purchaser’s future use or development of the Property is expressly conditioned on CEQA compliance.

SECTION 5. Approval of Agreement. The Authority Board hereby approves the Agreement in substantially the form presented, subject to any non-substantive revisions which do not increase the Authority ’s liability and are approved by the Authority Counsel, and authorizes the Authority Executive Director to sign and enter into the Agreement and perform the obligations of the Authority under the Agreement.

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

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

The Secretary of the Ontario Industrial Development Authority shall certify as to the adoption of this Resolution.

PASSED, APPROVED AND ADOPTED this 15th day of October, 2024 _____________________________________
PAUL S. LEON, PRESIDENT
ATTEST:
____________________________________

SHEILA MAUTZ, SECRETARY
845
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
846

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, Secretary of the Ontario Industrial Development Authority, DO HEREBY CERTIFY that foregoing Resolution No. 2024- was duly adopted by the Board of Directors of said Authority and was approved by the President of said Authority at a regular meeting of said Board held October 15, 2024 by the following roll call vote, to wit:

AYES: BOARD MEMBERS:

NOES: BOARD MEMBERS:

ABSENT: BOARD MEMBERS:
____________________________________

SHEILA MAUTZ, SECRETARY
(SEAL)
The foregoing is the original of Resolution No. 2024- duly passed and adopted by the Ontario Industrial Development Authority at their regular board meeting held October 15, 2024.
_____________________________________

SHEILA MAUTZ, SECRETARY
(SEAL)
847
EXHIBIT “A”
Description of the Property
LOT 28, BLOCK "B", EVERGREEN TRACT, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 16, PAGE 57 OF MAPS, RECORDS OF SAID COUNTY.

APN: 1049-371-06
LOT 4, IN BLOCK C OF EVERGREEN TRACT, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 16, PAGE 57 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.

APN: 1049-372-01
LOT 2, BLOCK “C” OF THE EVERGREEN TRACT, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 16, PAGE 57 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.

APN: 1049-372-03
LOT 1 IN BLOCK C OF EVERGREEN TRACT, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 16, PAGE 57 OF MAPS, RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA.

APN: 1049-372-04
THE EAST 100 FEET OF THE WEST 165 FEET OF LOT 203, OF VILLA PLOTS SOUTH SIDE TRACT, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 6, PAGE 11 OF MAPS, RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA, LYING NORTH OF THAT PORTION OF SAID LOT DEEDED OF STATE OF CALIFORNIA BY DEED RECORDED OCTOBER 14, 1944, IN BOOK 1713, PAGE 405 OF OFFICIAL RECORDS, FOR FREEWAY PURPOSES.

APN: 1049-372-06
THE EAST 113 FEET 4 INCHES OF THAT PORTION OF BLOCK 203, ACCORDING TO MAP OF VILLA PLOTS

SOUTH SIDE TRACT, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECODED IN BOOK 6, PAGE 11 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING

NORTH OF THAT PARCEL OF LAND DEEDED TO THE STATE OF CALIFORNIA FOR HIGHWAY PURPOSES, BY DEED RECORDED OCTOBER 14, 1944, IN BOOK 1714, PAGE 285 OF OFFICIAL RECORDS. EXCEPTING THEREFROM THE WEST

58.17 FEET.

APN: 1049-372-11
848
Department: Economic Development
Prepared By: Charity Hernandez
Department:

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

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 20
SUBJECT:

A PUBLIC HEARING TO CONSIDER THE SALE OF ONTARIO INDUSTRIAL

DEVELOPMENT AUTHORITY OWNED PROPERTY IN ACCORDANCE WITH GOVERNMENT CODE SECTION 52201; MAKING CERTAIN FINDINGS; AND

ADOPTION OF A RESOLUTION APPROVING A PURCHASE AND SALE AGREEMENT

BETWEEN THE ONTARIO INDUSTRIAL DEVELOPMENT AUTHORITY AND

ANADALUSIA DEVELOPMENT COMPANY

CITY OF ONTARIO
Agenda Report
October 15, 2024
SECTION:

PUBLIC HEARING

RECOMMENDATION:

That the Ontario Industrial Development Authority conduct a public hearing to consider the sale of Authority-owned property; and adopt a resolution approving a Purchase and Sale Agreement (“Agreement”) between the Ontario Industrial Development Authority (“Authority”) and Anadalusia Development Company (“Developer”) (on file in the Records Management Department); and authorize the Executive Director to execute the Agreement and all other documents required for implementation of the Agreement.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT:

The Authority will convey the Property for a purchase price of $670,000. The revenue from the land sale proceeds will be deposited into the Industrial Development Authority Fund.

BACKGROUND & ANALYSIS:

From 1994-2014,
the City of Ontario used Airport Improvement
Program funds to acquire over 220 properties that were adversely impacted by noise from operations at Ontario International Airport also known as the Federal Aviation Administration Part 150 – Quiet Home Program. The property
located at 936 South Grove Avenue ("Property) was
acquired as part of the Quiet Home Program.

In June of this year, the City sold the Property to the Ontario Industrial Development Authority (a location map is provided for reference as Exhibit “A”) for the purpose of redeveloping the vacant 849
and underutilized Property.

In connection with the sale of the Property, a requirement was that the Grant Deed included Covenants, Conditions, Restrictions that ensured that future development of the Property is compatible with operations of the Ontario International Airport.

The sales price of $670,000 is supported by the current fair market valu e as determined by Beth
Finestone, MAI, AI-GRS, FRICS, CRE, of

CBRE
Valuation and Advisory Services, Inc., an independent
certified general appraiser.

The Developer is the fee owner of the parcels directly to the north and south of the Property and is proposing to construct a business park building estimated to be 33,000 square feet with 5,000 square feet of office space ("Project"). The Developer will be required to build all associated on-site and off-site improvements, including but not limited to all hardscape, landscaping, and public street improvements.

The proposed Project will provide for elimination of blighting conditions, redevelop the site into its highest and best use, generate property tax revenue, produce new jobs (both permanent and temporary), stimulate economic vitality, and continue to inspire additional investment within the area. As a result, Staff recommends approval of the Agreement. 850

EXHIBIT “A”
936 SOUTH GROVE AVENUE

MISSION BLVD

GROVE AVE
851
RESOLUTION NO. _______

A RESOLUTION OF THE ONTARIO INDUSTRIAL DEVELOPMENT

AUTHORITY, OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING A

PURCHASE AND SALE AGREEMENT BETWEEN THE ONTARIO

INDUSTRIAL DEVELOPMENT AUTHORITY AND ANADALUSIA

DEVELOPMENT COMPANY FOR THE PURCHASE AND SALE OF
CERTAIN REAL PROPERTY LOCATED AT 936 SOUTH GROVE
AVENUE, ONTARIO.

WHEREAS, the Ontario Industrial Development Authority ("Authority"), currently owns certain real property generally located at 936 South Grove Avenue, Ontario (APN 1049-392-01) and more specifically described in Exhibit A attached to this Resolution and incorporated herein by this reference (“Property”); and WHEREAS, the Authority opts to sell the Property to the Purchaser under the Economic Opportunity statutes (Government Code sections 52200 et seq. ) (the “EO Statutes”); and
WHEREAS, the Authority and Purchaser have negotiated a Purchase and Sale Agreement (the “Agreement”). The Agreement provides for the sale of the Property at a fair market value price of $670,000; and
WHEREAS, on September 30, 2024, and October 7, 2024, the Authority published notice of the public hearing to consider the disposition of the Property pursuant to the Agreement; and
WHEREAS, Purchaser’s proposed acquisition of the Property is in the best interest of the Authority and of the health, safety and welfare of its residents, and is in accordance with the public purposes set forth in applicable law. Approval of the Agreement will further the goals and objectives of the Authority ’s general plan and the goals and objectives of the Authority by selling land that is not being used by the Authority for potential development and economic opportunity by Purchaser.

NOW, THEREFORE, BE IT RESOLVED BY THE AUTHORITY BOARD OF THE ONTARIO INDUSTRIAL DEVELOPMENT AUTHORITY AS FOLLOWS:

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

SECTION 2. Findings. The Authority intends to sell the Property to Purchaser and, based on the Recitals and all other information and testimony provided, the Authority Board finds that the sale of the Property pursuant to the Agreement will further the goals and purposes of the Authority, by putting land that is not being used by the Authority into the hands of Purchaser for potential future development and economic opportunity. The sale of the Property will create economic opportunity by assisting in the elimination of blighting conditions, encouraging private investment, increasing availability of housing stock, and expanding the community’s tax base and economic vitality. 852
SECTION 3. Hearing. In accordance with Government Code Section 52201, a duly noticed public hearing was held by the Authority Board on October 15, 2024.

SECTION 4. CEQA. The Authority’s approval of the Agreement does not constitute approval by the Authority of any development of the Property or of other activity on the Property that would have a direct or reasonably foreseeable indirect environmental impact pursuant to CEQA. (See 14 C.C.R. §§ 15060(c); 15378(b).) Moreover, the Agreement and Purchaser’s future use or development of the Property is expressly conditioned on CEQA compliance.

SECTION 5. Approval of Agreement. The Authority Board hereby approves the Agreement in substantially the form presented, subject to any non-substantive revisions which do not increase the Authority ’s liability and are approved by the Authority Counsel, and authorizes the Authority Executive Director to sign and enter into the Agreement and perform the obligations of the Authority under the Agreement.

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

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

The Secretary of the Ontario Industrial Development Authority shall certify as to the adoption of this Resolution.

PASSED, APPROVED AND ADOPTED this 15th day of October, 2024 _____________________________________
PAUL S. LEON, PRESIDENT
ATTEST:
____________________________________

SHEILA MAUTZ, SECRETARY
853
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
854

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, Secretary of the Ontario Industrial Development Authority, DO HEREBY CERTIFY that foregoing Resolution No. 2024- was duly adopted by the Board of Directors of said Authority and was approved by the President of said Authority at a regular meeting of said Board held October 15, 2024 by the following roll call vote, to wit:

AYES: BOARD MEMBERS:

NOES: BOARD MEMBERS:

ABSENT: BOARD MEMBERS:
____________________________________

SHEILA MAUTZ, SECRETARY
(SEAL)
The foregoing is the original of Resolution No. 2024- duly passed and adopted by the Ontario Industrial Development Authority at their regular board meeting held October 15, 2024.
_____________________________________

SHEILA MAUTZ, SECRETARY
(SEAL)
855
EXHIBIT “A”
Description of the Property
936 South Grove Avenue
Assessor Parcel No: 1049-392-01
856
Department: Planning
Prepared By: Thomas Grahn
Department:

Prepared By: Thomas Grahn
Staff Member Presenting: Scott Murphy,
Executive Director Community Development
Reviewed By: Kimberly Ruddins, Henry
Noh, Rudy Zeledon
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 21
SUBJECT:

AN APPEAL OF THE PLANNING COMMISSION DECISION APPROVING FILE NOS.

PMTT23-008 AND PDEV23-037

CITY OF ONTARIO
Agenda Report
October 15, 2024
SECTION:

PUBLIC HEARING

RECOMMENDATION:

That the City Council conduct a public hearing on the appeal and after receiving all public testimony, uphold the Planning Commission's decision to approve Tentative Tract Map No. 20659 (File No. PMTT23-008) and a Development Plan (File No. PDEV23-037) and deny the appeal.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT:

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

BACKGROUND & ANALYSIS:

On June 2, 2023, Warmington Residential, the Project applicant, submitted a Preliminary Review application under Senate Bill (SB) 330. On October 2, 2023, the applicant submitted Tentative Tract Map No. 20659 (File No. PMTT23-008) and Development Plan (File No. PDEV23-037), thereby vesting their Preliminary Application under SB330 and memorializing the ordinances, policies, and standards applicable to the Project site. The Project proposes the demolition of all buildings and improvements on-site and the development of 70 multiple-family units, including 7 moderate income affordable units, as well as all parking areas, landscaping, and improvements to support the proposed residential development.

On July 15, 2024, the Development Advisory Board (DAB) held a public hearing to consider the application, and recommended approval of the Project to the Planning Commission.

On July 17, 2024, the Planning Department held a community meeting at the Anthony Muñoz Community Center. The intent of the meeting was to review the Tentative Tract Map and Development Plan with the surrounding residents, answer any questions, and receive comments on the proposed Project. A total of 857
18 people attended the meeting representing 16 of the surrounding properties.

On August 27, 2024, the Planning Commission held a public hearing to consider the application and the Development Advisory Board’s recommendation. Following a presentation of staff’s findings and after receipt of all public testimony, the Planning Commission addressed the applications, and approved the project by a vote of 5-0, adopting Resolution Nos. PC24-042 and PC24-043 (see attached PC Back-up).

APPEAL:

On September 6, 2024, Greg Gomez (“Appellant”) submitted an appeal of the Planning Commission’s decision to approve File Nos. PMTT23-008 and PDEV23-037. A copy of the Appeal application and Appellant statement is included as Exhibit A to this report. The basis of the Appellant’s appeal lies in their belief that the Project was not properly noticed, that traffic and health concerns will be impacted by the proposed Project, and that the Project is inconsistent with the General Plan and Zoning.

Staff has reviewed the appeal letter and provided a response for each issue raised by the Appellant:

Appellant Issue No. 1: "The notice was sent in English and the city sign outside the property with the Notice of Filing was only in English leaving the Spanish community without properly understanding what the notice of filing was about."
Staff response
: Public notice for the Project was provided pursuant to Development Code Section

2.03.010 (A) and (C)(1)(3) & (4). These requirements pertain to the information to be provided, newspaper publication, and the minimum boundary for notification requirements, respectively. The Development Code does not require that public notices be provided in multiple languages. Additionally, the public notice for both the Community Meeting and the Planning Commission meeting extended beyond the minimum 300-foot boundary and provided notice to 193 property owners for both meetings. Notice of the Planning Commission meeting was also published in the Inland Valley Daily Bulletin newspaper.

Projects that are proposed to be developed at a higher density or intensity than the existing surrounding neighborhood require supplemental public notice through the placement of a large public notification sign consisting of a 6-foot-tall freestanding sign, having a sign face measuring 4 feet tall by 8 feet wide posted on the project site. This sign allows for the applicant to attach information regarding scheduled public hearings regarding the Project. This public notification sign was posted on the site prior to the Community Meeting and notice for the Planning Commission meeting was posted 10-days prior to the public hearing.

Appellant Issue No. 2: "Resident are concerned on several safety factors:
a. Traffic
Not only do the residents, school and churches from the immediate site project oppose this project, but also a Community Volunteer Group by the name of "Safety Routes Ontario-Montclair'' that has been advocating for this zone in Ontario since 2012. They had been a key on keeping the surrounded streets of the project that is surrounded by 4 schools as safe as possible working with the City of Ontario, Ontario Police, Schools and families of the importance of walking and biking to school. To prevent as much as possible more vehicles in the area. Please see attach document that was presented at the Planning Commission on August 27, 2024. The project has the potential for significant air pollution impacts. 5th St. in between Mountain Ave and Benson St. is a single lane both ways that is already impacted by Super Walmart, condominiums, apartment complex, Anthony Munoz Park, 3 Churches, Sunrise Park, El Camino School 858
and houses. Bringing this project will only bring more traffic, not enough street parking to all the people that live, work, attend local churches, play sports during the weekends with the AYSO 66 and Sunday Soccer League, these groups had practiced every day of the week at both of the parks. Also, the families that attend the school on that street will be very affected as there will be no parking to drop, pic and attend their children's school evening events. The safety of the locals is already at risk of accidents and speeding at any time of the day making it unsafe for the Ontario families that walk and bike to the 4 schools around." Staff Response
:

Traffic along West 5th Street is experiencing increases of traffic locally by vehicles from the community accessing local commercial, residential, educational, and public areas and regionally due to cut-through traffic and its proximity to the 10 freeway. A traffic volume analysis was prepared to evaluate the Project's impact on the local street system. The Trip Generation and Vehicle Miles Traveled (VMT) Screening analysis determined that the proposed 70 residential unit project is projected to generate 472 daily trips, with 28 AM and 36 PM peak hour trips. Per the City's Engineering Department Traffic Division, the projected number of trips generated by the Project site would not warrant conditioning the Project for any traffic related improvements. To address public safety concerns the City will be requiring the project to install a rectangular rapid flashing beacon (RRFB) at the intersection of 5th Street and Elderberry Avenue to enhance the existing crosswalk crossing at the intersection, to be consistent with other existing enhanced crosswalks on 5th Street between Benson Avenue and Mountain Avenue.

"b. Health
Residents are concerned with the air quality and pollution that more vehicles will bring to the area. There are many community residents who live within the 300/500 feet site radius who have adults and children who are asthmatic, with medical respiratory conditions.

Also, the residents whose houses are around the project will lose their backyards privacy. This will affect them enormously on their emotionally health as they will feel that they are being seen all the time by the people living on the 3rd floor condominiums right outside their back yard. Some have backyard pools that will limit them to use them freely as they will be observed all the time.

We the residents believe on our Healthy Ontario Initiative Mission which is to empower the community of Ontario to take ownership of its health and to make Ontario a model for healthy communities by improving physical, social, environmental, and economic health and well-being. We feel this housing project will be a hardship for the already residents with health issues. The project has the potential for significant air pollution impacts."
Staff Response
:

An Air Quality and Greenhouse Gas (GHG) analysis was prepared for the project to evaluate both construction and operational Air Quality and GHG impacts. The analysis evaluated the project impacts using the South Coast Air Quality Management District (SCAQMD) thresholds for significance and found that operational and construction impacts for both Air Quality and GHG were below the SCAQMD thresholds of significance. Conditions of approval require the project to comply with SCAQMD emission requirements for construction equipment and fugitive dust to minimize impacts to the surrounding community.

Conditions of approval were added to provide additional privacy to the existing residences south of the project site. These conditions include the installation of frosted view obscuring glass to the south facing 859
windows of those units in the southwest and southeast corners of the project site. Additionally, additional tree plantings are required adjacent to the south property line, at a reduced spacing and increased tree size, so that as those trees mature additional privacy would be provided.

Appellant Issue No. 3. "Land Zoning -Residents know that 5th St. it is a Low-Density Residential Zone that has been changed according to the Ontario Plan 2050 several times from Low to medium back and forth. On November 21, 2023, at the City of Ontario City Council meeting the council approved unanimously to keep the zoning PGPA23-001 low density. We the community do not understand why a 2, 3 or 4 floor houses are being approved to be built on this low-density area.

On the Planning Commission meeting on August 27, 2024 it was brought to us that one of the Consideration for denial Under SB330 of a housing development project: has to comply with the general plan and zoning ordinance, and 1 of the 5 reasons for denial it is that if there is an impact to objective public health & safety standards that cannot be mitigated it might not be approved."

Staff Response
:

The applicant vested development rights under SB330 to develop the site utilizing development standards of the Medium Density Residential general plan designation. The project was designed to meet the development standards of the Medium Density Residential zoning district. The project proposes the construction of 3-story townhome units at a maximum height of 39 feet. Although higher than the surrounding neighborhood, the height of the proposed units is 4 feet higher than the 35-foot height limit allowed for the surrounding Low Density Residential (LDR-5) zoning.

Senate Bill 330, the Housing Crisis Act of 2019, and specifically The Housing Accountability Act ("HAA") prohibits a local agency from disapproving, or conditioning approval in a manner that renders infeasible, a housing development project for very low, low-, or moderate-income households unless the local agency makes specified written findings based on a preponderance of the evidence in the record that either: 1) the local government has already met its Regional Housing Needs Assessment (RHNA) requirement, 2) there is an impact to the public health and safety and this impact cannot be mitigated, 3) the property is agricultural land, 4) the approval of the project would violate State or federal law and this violation cannot be mitigated, or 5) the project is inconsistent with the zoning and land use designation and not identified in the general plan housing element RHNA inventory.

The applicant is correct that the project is not consistent with the General Plan land use designation of Low Density Residential (0 - 2du/ac); however, HAA states that in the event of an inconsistency between a general plan and zoning district land uses with submittal of the Preliminary SB 330 Application, and if a local agency has complied with certain timing requirements, it can still require a project to comply with the objective standards and criteria of another zoning district that would be consistent with the general plan.

The Project, which consists of residential units only, is a "housing development project" and entitled to protection under the HAA. The Applicant submitted a SB 330 Preliminary Application for the Project following the City Council action on April 18, 2023, resulting in inconsistency between TOP 2050 Land Use Plan designation of MDR (Medium Density Residential), and the Zoning Map designation of LDR-5 (Low Density Residential – 2.1 to 5.0 DU/Acre) zoning district until such time the City completes the subsequent General Plan Amendment. As a result of this inconsistency between the General Plan Land Use Designation and Zoning District, the City cannot find the Project inconsistent with the LDR-5 (Low Density Residential – 2.1 to 5.0 DU/Acre) zoning district standards and criteria and cannot require a rezoning, where the Project is consistent with applicable, objective General Plan standards and criteria. The TOP 2050 MDR land use designation that was vested on October 2, 2023 as part of the Applicant’s SB 330 860
Preliminary Review Application allows the applicant to develop the project site utilizing the MDR-25 (Medium Density Residential 18.1 to 25.0 DU/Acre) zoning district at a proposed Project density of 22.6 dwelling units per acre.

None of the preceding five requirements could be established for denial, therefore the Planning Commission approved the project.
861
Case Planner: Tom Grahn Hearing Body Date Decision Action Planning Director
Approval:

DAB 7/15/2024 Approval Recommend
PC 8/27/2024 Final
Submittal Date: October 2, 2023 CC
F
ILE NOS: PMTT23-008 (TTM 20659) and PDEV23-037
SU
BJECT: A public hearing to consider Tentative Tract Map No. 20659 (File No. PMTT23-008), subdividing 3.1 acres of land into one parcel for condominium purposes, in conjunction with a Development Plan (File No. PDEV23-037) to construct 70 multiple-family residential condominium units on the project site, including 7 moderate affordable dwellings, located at 1355 West 5th Street, within the LDR -5 (Low Density Residential – 2.1 to 5.0 du/ac) zoning district. ( APN: 1008 -551-12); submitted by Warmington Residential, LLC.

P
ROPERTY OWNER: Sunrise Church
R
ECOMMENDED ACTION: That the Planning Commission consider and adopt Resolutions approving File Nos. PMTT23 -008 and PDEV23-037 , pursuant to the facts and reasons contained in the staff report and attached Resolutions, and subject to the conditions of approval appended to the attached Resolutions as "Attachment A." B
ACKGROUND: The Applicant submitted Tentative Tract Map No. 20659 (File No. PMTT23- 008) a
nd a Development Plan (File No. PDEV23-037) on October 2, 2023, for th e d
evelopment of a 70 unit multiple-family residential condominium project consistent with The Ontario Plan ("TOP") 2050 (August 2022) MDR (Medium Density Residential) land use designation. Although the current TOP 2050 land use designation for the Project site is LDR (Low Density Residential) , the Applicant designed the Project consistent with the MD R (
Medium Density Residential) land use designation. The following summary provides an explanation of why the MDR designation is applicable to the Project site. • A
s part of TOP 2050 Policy Plan (general plan) update the Land Use Plan (Exhibi t L
U-01) land use designation for the Project site and adjacent church properties were changed from LDR (Low Density Residential) to MDR (Medium Density Residential). The TOP 2050 land use designation change became effective upon adoption of TOP 2050 on August 22, 2022.
• F
ollowing the TOP 2050, the City initiated a City-wide zoning consistency program (File No. PZC22-001) to update the Zoning Map consistent with the land use designation changes of TOP 2050. On March 28, 2023, the Planning Commission recommended approval of the zoning consistency program to change the zoning 303 East B Street, Ontario, California 91764 / Phone: 909.395.2036 / Email: [email protected]

PLANNING COMMISSION

AGENDA REPORT
August 27, 2024
Approved
862
Planning Commission Agenda Report
File Nos. PMTT23-008 (TTM 20659) and PDEV23-037
August 27, 2024

designation on the Project site from L DR-5 (Low Density Residential - 2.1 to 5.0 DU/Acre) to MDR-18 (Medium Density Residential – 11.1 to 18.0 DU/Acre).

• On April 18, 2023, the City Council approved the zoning consistency program, but excluded the Project site and adjacent church properties, requiring a General Plan Amendment to change back the TOP 2050 land use designation for the Project site and adjacent church properties from MDR (Medium Density Residential) back to LDR (Low Density Residential).

• On June 2, 2023, Warmington Residential submitted a Preliminary Review application (File No. PPRE23-002) that included plans, a project description, and the State of California' s Senate Bill (SB 330) Preliminary Application form for a proposed 70 unit multiple -family condominium development on the Project site.

The City reviewed that submittal for consistency with Government Code Section 65941.1 and on June 30, 2023, communicated to Warmington Residential that information was missing from their submittal.

• On October 2, 2023, Warmington Residential submitted Tentative Tract Map No. 20659 (File No. PMTT23-008) and a Development Plan (File No. PDEV23-037), deeming the submittal complete, thereby vesting their Preliminary Application (File No. PPRE23-002) and memorializing the ordinances, policies, and standards of the Medium Density Residential land use designation and the MDR -25 (Medium Density Residential - 18.1 to 25.0 DU/Acre) zoning district.

• On October 23, 2023, the Planning Commission recommended approval of a General Plan Amendment (File No. PGPA23-001) to change the TOP 2050 land use designation for the Project site and adjacent church properties from MDR (Medium Density Residential) back to LDR (Low Density Residential). On November 21, 2023, the City Council approved PGPA23-001.

Senate Bill 330, the Housing Crisis Act of 2019, and specifically The Housing Accountability Act ("HAA") prohibits a local agency from disapproving, or conditioning approval in a manner that renders infeasible, a housing development project for very low, low -, or moderate-income households unless the local agency makes specified written findings based on a preponderance of the evidence in the record. The HAA protects housing development projects that are consistent with applicable, objective, general plan, zoning and subdivision standards and criteria from denial or being conditioned on a lower density. Further, under the HAA, in the event of an inconsistency between a general plan and zoning district land uses with submittal of the Preliminary Application, and if a local agency has complied with certain timing requirements, it can still require a project to comply with the objective standards and criteria of another zoning district that would be consistent with the general plan.

The Project, which consists of residential units only, is a "housing development project" and entitled to protection under the HAA. The Applicant submitted a SB 330 Preliminary Application for the Project following the City Council action on April 18, 2023, resulting in 863
Planning Commission Agenda Report
File Nos. PMTT23-008 (TTM 20659) and PDEV23-037
August 27, 2024

inconsistency between TOP 2050 Land Use Plan designation of MDR (Medium Density Residential), and the Zoning Map designation of LDR-5 (Low Density Residential – 2.1 to

5.0 DU/Acre) zoning district until such time the City completes the subsequent General Plan Amendment. As a result of this inconsistency between the General Plan Land Use Designation and Zoning District, the City cannot find the Project inconsistent with the LDR- 5 (Low Density Residential – 2.1 to 5.0 DU/Acre) zoning district standards and criteria and cannot require a rezoning, where the Project is consistent with applicable, objective General Plan standards and criteria. The TOP 2050 MDR land use designation that was vested on October 2, 2023 as part of the Applicant’s SB 330 Preliminary Review Application allows the applicant to develop the project site utilizing the MDR-25 (Medium Density Residential 18.1 to 25.0 DU/Acre) zoning district at a proposed Project density of

22.6 dwelling units per acre.

On July 15, 2024 , the Development Advisory Board ("DAB") conducted a hearing to consider the Tentative Tract Map and Development Plan applications, and recommended the Planning Commission approve the applications subject to conditions of approval, which are appended to the Resolutions as Attachment A.

PROJECT SETTING: The Project site is comprised of 3.1 acres of land located at 1355 West 5th Street, (see Exhibit A: Project Location Map ). The Project site contains the existing Sunrise Church building, parking and landscape improvements. The site is one of 3 churches located on the south side of West 5th Street, which includes the First Church of the Nazarene to the east and The Church of God to the west. Existing land uses, Policy Plan (general plan) and zoning designations, and specific plan land designations on and surrounding the project site are provided in the Technical Appendix Table 1: Surrounding Zoning and Land Uses.

PROJECT ANALYSIS:

(1) Te
ntative Tract Map No. 20659 (File No. PMTT23-008) — The proposed Tentative Tract Map will subdivide the Project site into one numbered lot for condominium purposes, to facilitate the construction of 70 multiple -family dwellings, along with associated recreation, landscape, and common interest amenities and facilities. The Tentative Tract Map is consistent with the project area requirements of the MDR -25 (Medium Density Residential — 18.1 to 25.0 DUs/Acre) zoning distric t. (see Exhibit B:

Tentative Tract Map).

Co
venants, Conditions and Restrictions ( "CC&Rs") are required for the proposed subdivision as a condition of project approval. The CC&Rs must be submitted, reviewed, and approved by the City and will be recorded with the final map to ensure ongoing maintenance of the driveway, reciprocal access, parking lot maintenance, common landscaping areas, amenities, and common drainage/easement areas.

(2) D
evelopment Plan (File No. PDEV23-037)

864
Planning Commission Agenda Report
File Nos. PMTT23-008 (TTM 20659) and PDEV23-037
August 27, 2024