4. Maintenance. All signs, together with their supports and appurtenances, shall be kept neatly painted and posted. The Zoning Administrator, Building Official, or Code Enforcement Director may order the removal of any sign that is not maintained in accordance with the provisions of this Division.
K. Political Signs.
1. Purpose.
a. The purpose of these political sign regulations is to identify the compatibility between the utilization of political signs, the protection of the right to privacy of individuals, and the quiet and undisturbed enjoyment of property.
b. It is recognized that there have been abuses in the placement of political signs within the City, including: [i] trespassing upon private property; [ii] placement of political signs without permission from the property owner; [iii] placement of political signs in such a fashion as to make it difficult to remove them; [iv] littering caused by dislodged political signs; [v] sight distance hazards to traffic due to sign size and location; [vi] distracting appearance; [vii] aesthetically displeasing impact; [viii] unnecessary proliferation; and [ix] other reasons, all of which are determined to be contrary to the best interests of the community, and in opposition to the public health, safety and welfare. c. The reasonable regulation of political signs will obviate many of the objections that have been raised to the unregulated placement of such signs. d. It is recognized that to the extent that placement of political signs is not contrary to the purposes stated herein, it is in the best interests of the City and its inhabitants to allow political expression, and, for that reason, it is but to avoid the total prohibition of such signs. e. It is believed that responsibility for the placement of political signs should lie with the candidate for public office, the proponents and opponents of ballot measures, and the various political committees connected therewith. It is recognized that political signs are printed by, or at the direction of, those listed herein, and that the ultimate responsibility for the distribution of such signs and their placement lies with them.
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Ontario Development Code Page 8.01-33 (Rev. 01.16.202412.03.2024)
2. Definition. The term "political sign," as used herein, means any election or nonelection sign, advertising structure, or display, which communicate any message or idea identifying, supporting, opposing, promoting, or conveying a position upon, or relating to, any political cause or issue, or candidate for public office, or proposition or issue connected with any local, special, state, or national election.
3. Political Sign Registration. Pursuant to BPC Section 5405.3, any candidate (or their designee) or the proponents of a ballot measure who seek to utilize political signs, shall first file a Statement of Responsibility with the Code Enforcement Department, on a City registration form. The registrant shall be responsible for removing the temporary political sign and may be required to reimburse the City for any cost incurred for temporary political sign removal.
4. Permitted Signs. Political signs, as herein defined, shall be permitted within any zoning district subject to compliance with all of the rules and regulations set forth in Paragraph K.5 (Regulations) herein.
5. Regulations.
a. No provision in this Development Code shall be so construed as to prohibit the placing of temporary political signs.
b. No political sign shall be installed or displayed sooner than 45 days preceding the election for which the sign is intended.
c. No political sign shall exceed 16 SF in total area, except that a double-faced sign, not exceeding 16 SF on each side, shall be permitted. d. No political sign shall exceed an overall height of 8 FT, except if such sign shall be within an enclosed building or structure.
e. No candidate for public office, proponent or opponent of ballot measures, and/or any political committees connected therewith, shall post more than one political sign per lot or parcel.
f. No political sign shall be lighted either directly or indirectly. g. No political sign shall be placed on private property, vacant or otherwise, without the permission of the owner of the property.
h. No political sign shall be placed or affixed to a tree, fence, post, utility pole, or any structure, by glue, nails, or screws.
i. No political sign shall be posted on any public property or in the public right-ofway. j. No political sign shall be placed within the right-of-way of any highway, or with 660 FT of the edge of, and visible from, the right-of-way of a landscaped freeway. k. No political signs shall be posted in violation of any other provisions of this Development Code.
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Division 8.01—Sign Regulations
(Rev. 01.16.202412.03.2024) Page 8.01-34 Ontario Development Code l. All political signs shall be removed within 10 days following the date of the election for which the sign was intended.
6. Removal of Illegally Placed Political Signs. The Building Official or Community Improvement Manager may cause the removal of any sign placed contrary to any provision of the Political Sign provisions contained herein (commencing with Subsection K (Political Signs) of this Section).
8.01.025: Design Guidelines
A. Introduction.
1. The following design guidelines are intended as a reference to assist the designer in understanding the city's goals and objectives for high quality sign design, construction, and placement throughout the city. These guidelines are intended to complement the mandatory standards contained in Section 8.01.020 (Sign Standards) of this Division, by providing good examples of potential design solutions and by providing design interpretations of the various mandatory requirements.
2. The design guidelines are general and may be interpreted with some flexibility in their application to specific projects. The guidelines will be utilized during the city's review of a sign program or sign plan to encourage the highest level of design quality, while at the same time providing the flexibility necessary to encourage creativity on the part of the designer. Nonetheless, unless there is a compelling reason, these design guidelines shall be observed.
B. General Guidelines.
1. Use a Brief Message. The fewer words used, the more effective the sign. A sign with a brief message is quicker and easier to read, looks cleaner and is more attractive. A sign should only include the name and/or nature of the business, and in addition to the name, may contain a maximum of three words describing the business or service provided.
2. Avoid Overly Intricate Fonts. Signs utilizing very intricate font styles are generally difficult to read and reduce a sign's ability to communicate effectively.
3. Avoid Faddish and Peculiar Fonts. Signs utilizing faddish or peculiar fonts may look good today, but soon go out of style. The image conveyed may quickly become that of a dated and unfashionable business.
4. Sign Colors and Materials. The colors and materials of a sign should be selected so that they contribute to sign legibility and design integrity. Even the most carefully thought out sign may be unattractive and a poor communicator because of poor color selection. Dayglow, fluorescent, and overly bright or loud colors should not be used.
5. Provide Contrast Between Background and Letters/Symbols. Use significant contrast between the sign's letter/symbol color and its background color. If there is little contrast in the hue (shade or tint) and intensity (brightness) between the background and letter/symbol colors, it will be difficult to read.
6. Avoid Too Many Different Colors. The use of too many different colors will overwhelm the basic function of communication. The colors compete with sign content for the 5497
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Ontario Development Code Page 8.01-35 (Rev. 01.16.202412.03.2024) viewer's attention. The limited use of accent colors can increase legibility, while large areas of competing colors tend to confuse and annoy.
7. Sign Placement. Generally, building wall and fascia signs should be located within the middle 75 percent of the building frontage, measured from tenant line to tenant line for multiple tenant buildings, and measured across the full width of the building elevation for single tenant buildings. The Zoning Administrator shall have the authority to modify this requirement where it can be shown that:
a. The directed placement would severely limit proper sign placement; or b. The directed placement would be contrary to the sign placement approved by a Development Plan.
8. Proportion, Scale and Rhythm of Sign Placement. Signs should be placed consistent with the proportions and scale of building elements within a building's facade:
a. A particular sign may fit well on a large, plain wall area, but would overpower the finer scale and proportion of the lower storefront. b. Signs can be used to establish facade rhythm, scale, and proportion where such elements are weak in the building design. On buildings having a monolithic or plain facade, signs can be used to establish or continue appropriate design rhythm, proportion, and scale. c. The proportion of letter area to sign background area should be carefully considered. If the letters take up too much of the background area, they may be harder to read — large letters are not necessarily more legible than smaller ones. d. Generally, the characters that comprise a sign should not occupy more than 70 percent of the area of a sign's background.
9. Pedestrian Signs. Signs oriented to pedestrians should be smaller in scale. The pedestrian -oriented sign is usually read from a distance of 15 to 20 feet, whereas the vehicle-oriented sign is designed to be viewed from a much greater distance. The closer the sign's viewing distance, the smaller the sign needs to be.
10. Freestanding Signs. Freestanding signs should incorporate the materials and architectural features used in the building(s) they serve.
C. Building Wall and Fascia Signs.
1. Building wall and fascia signs should be compatible with the predominant visual elements of the building. Commercial centers and offices, industrial parks, business parks, and other similar facilities, are required to be part of a sign program in accordance with the provisions of Section
4.02.080 (Sign Programs) of this Development Code.
2. Where there is more than one sign for a business (e.g., single tenant buildings) or group of businesses (e.g., multiple tenant buildings, commercial centers, or business or industrial parks), all signs should be complementary to one another in the following ways:
a. Type of construction materials (sign copy, supports, etc.); 5498
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(Rev. 01.16.202412.03.2024) Page 8.01-36 Ontario Development Code b. Letter size and style of copy;
c. Method and design of sign support (wall mounting or monument base); d. Configuration of sign area; and
e. Proportion of sign copy area to background.
3. Lighted signs, whether internally or externally illuminated, are permitted; provided, they are not harsh or overly bright. Can-type box signs with translucent backlit panels should not be used.
4. Signs with backlit or internally illuminated individual channel letters are strongly encouraged.
D. Freestanding Signs.
1. Freestanding signs are intended to provide identification for single-tenant buildings, multiple-tenant buildings, commercial offices and centers, and business and industrial parks. Signs for single-tenant buildings should include the street address of the business.
2. Signs for multiple-tenant buildings, commercial offices and centers, and business and industrial parks should display the range of business addresses for that development. The business address shall not be included in the sign area calculation.
3. Lighted signs, whether internally or externally illuminated, are permitted, provided they are not harsh or overly bright. Signs should consist of individual affixed to an opaque, matte finished background. The use of backlit (halo lighting) letters is strongly encouraged.
4. Freestanding signs should be placed perpendicular to approaching vehicular traffic.
5. Freestanding signs should be placed in landscaped planters of sufficient area, shape and design that will provide a compatible setting and ground definition to the signs.
6. Monument signs should be provided with a base, which measures from 12 to 18 inches in height, to accommodate the growth of landscaping around the sign base, without interrupting view of the sign face.
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Chapter 9.0:
Definitions and Glossary
Division 9.01—Definitions
Division 9.02—Glossary
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Ontario Development Code Page 9.01-1 (Rev. 05.02.202312.03.2024) Division 9.01—Definitions
Sections:
9.01.000: Purpose
9.01.005: Applicability
9.01.010: Terms and Phrases
9.01.015: Acronyms and Abbreviations
9.01.000: Purpose
The purpose of this Division is to establish definitions for terms and phrases used in this Development Code that are technical or specialized, or that may not reflect common usage.
9.01.005: Applicability
A. Unless otherwise apparent from the context, certain words, terms, phrases, abbreviations, and acronyms used in this Development Code are defined in this Division and are listed herein, in correct alphabetical order.
B. If any of the definitions in this Division conflict with definitions in other City codes and ordinances, such as the Ontario Municipal Code, or an adopted specific plan or planned unit development, these definitions shall control for the purposes of this Development Code. If a word is not defined in this Division, the Zoning Administrator shall be responsible for determining the correct definition.
C. Words used in the present tense include the future, words in the singular number also include the plural, and words in the plural number include the singular, unless the natural construction of the wording indicates otherwise.
D. The word "shall," indicates a mandatory requirement, except as when used in connection with an action or decision of the City Council, or any City commission, board, or official; in which case, the word "shall" is directory only.
E. The word "may," is a permissive term, similar in context as the terms "might," "can," or "could." F. Whenever used in this Development Code, the word "day" shall mean a calendar day.
9.01.010: Terms and Phrases
A. Definitions of Words Beginning with the Letter "A."
Abandonment of Use. The cessation of a land use by the owner without intent to transfer the land use to another or resume the land use within the time limitations specified in Division 3.01 (Nonconforming Lots, Land Uses, and Structures) of this Development Code.
Abatement. Reducing or eliminating the degree or intensity of a nuisance or other property-related problem.
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Division 9.01—Definitions
(Rev. 05.02.202312.03.2024) Page 9.01-2 Ontario Development Code Abutting. Having property line or zoning district boundaries in common; for example, two lots are abutting if they have property lines in common.
Access. A way of approaching or entering a property. "Access" includes ingress (the right to enter) and egress (the right to leave). In zoning and subdivision regulations, recorded lots are required to have direct access to a public street or highway, or to a private street meeting public standards. This guarantees entry by owners and emergency vehicles.
Accessory (Ancillary) Structure. A structure which is incidental or subordinate to the principal structure on the same site, or the use of which is incidental or subordinate to the use of the principal structure of the site. An accessory structure that is attached or joined to a principal structure and shares a common wall therewith or is attached by a roof, which extends the full width of the structure, creating a covered breezeway (a roofed, open passage connecting two buildings, such as a house and garage), shall be deemed a part of the principal structure.
Accessory (Ancillary) Use. The use of a structure or site, or a portion of a structure or site, which is incidental or subordinate to the principal (primary) use and is located on the same property as the principle use. An accessory use shall generally be considered less intensive as it relates to area, activity, and traffic generation.
Adult Business. A business in the form of an adult arcade, adult bookstore, adult minimotion picture theater, class "D" cabaret, escort agency, massage establishment, nude model/figure studio, sexual encounter/rap studio or sexual novelty store, as defined in this section.
This definition of adult business does not include those uses, businesses, or activities of licensed professionals who are otherwise exempt from classifications as a "massage establishment" pursuant to Section 5.03.275 (Massage Services) of this Development Code. For the purposes of the adult business regulations contained in Section 5.03.015 (Adult-Oriented Businesses) of this Development Code, the following definitions shall apply:
1) Adult Arcade. An establishment having coin-operated or slug operated or electronically or mechanically controlled still or motion picture machines, projectors, or other image producing devices that show images to one person per machine at any one time, and where the images so displayed are distinguished or characterized by depicting or describing "specified sexual activities," or "specified anatomical areas," as defined in this section. 2) Adult Bookstore. An establishment which has a substantial portion of its stock-in-trade (a minimum of 30 percent) and offers for sale for any form of consideration, any one or more of the following:
a) Books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, video cassettes, slides or other visual representations which are characterized by an emphasis on "specified sexual activities" or "specified anatomical areas"; or b) Instruments, devices or paraphernalia which are designed for use in connection with "specified sexual activities," as defined in this section. This definition does not include such items customarily sold by a bona fide pharmacy.
3) Adult Motion Picture Theater. An establishment where, for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions are shown to an audience and in which a substantial portion of the total presentation time is devoted to the 5503
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Ontario Development Code Page 9.01-3 (Rev. 05.02.202312.03.2024) showing of material which is characterized by an emphasis on the depiction or description of "specified sexual activities" or "specified anatomical areas." 4) Adult Mini-Motion Picture Theater. An enclosed building with a capacity of less than 50 persons, used for presenting material distinguished or characterized by an emphasis on matter depicting, describing, or related to "specified sexual activities" or "specific anatomical areas," as defined in this section, for observation by patrons therein. 5) Adult Theater. A theater, concert hall, auditorium or other similar establishment, which, for any form of consideration, regularly features live performances which are characterized by the exposure of "specified anatomical areas" or by an emphasis upon the depiction of "specified sexual activities," as defined in this section.
6) Adult Video Store. An establishment having up to 20 percent or more of its floor area trade in films, motion pictures, video cassettes or video reproduction or other visual representations which are distinguished or characterized by their emphasis on matter depicting or relating to "specified sexual activities" or "specified anatomical areas," as defined in this section, or any establishment devoted to the sale or display of such material. 7) Class 'D' Cabaret. A cabaret that features topless dancers, bottomless dancers, go-go dancers, strippers, male or female impersonators or similar entertainment. 8) Nude Model/Figure Studio. Any place where a person, who appears in a state of nudity or displays "specified anatomical areas," is provided to be observed, sketched, drawn, painted, sculpted, photographed, or similarly depicted by other persons who pay money or any other form of consideration.
9) Sexual Encounter/Rap Studio. Any business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:
a) Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
b) Activities between male and female persons and/or persons of the same sex when "specified anatomical areas" of one or more of the persons are exposed or "specified sexual activities" as defined in this section occur.
10) Sexual Novelty Store. An establishment having as a portion of its stock-in-trade goods which are replicas of, or which simulate, "specified anatomical areas," as defined in this article, or goods which are designed to be placed on "specified anatomical areas," as defined in this article, to cause sexual excitement.
11) Specified Anatomical Areas. Any of the following:
a) Less than completely and opaquely covered:
i) Human genitals, pubic region;
ii) Buttocks;
iii) Female breasts below a point immediately above the top of the areola; 5504
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(Rev. 05.02.202312.03.2024) Page 9.01-4 Ontario Development Code b) Human male genitalia in a discernible turgid state, even if completely and opaquely covered.
12) Specified Sexual Activities. Any of the following:
a) Human genitals in a state of sexual stimulation or arousal; b) Acts of human masturbation, sexual intercourse, oral copulation, or sodomy; c) Fondling or other erotic touching of human genitals, pubic region, buttock or female breasts.
Advertising Display Manufacture. A business establishment engaged in the commercial preparation, fabrication, construction or manufacture of a sign of any type.
Advisory Authority. A body, commission, committee, board or position listed in Table 2.02- 1 (Review Matrix) of this Development Code, which is responsible for advising the Approving Authority on the appropriate action to take on [i] a land use or development entitlement, permit, or license; or [ii] other planning, zoning, or development action or decision, pursuant to Division
2.02 (Application Filing and Processing) of this Development Code.
Aesthetics. A term dealing with form, design, and/or quality of construction of a particular sign, building, site or structure, which presents a judgmental statement concerning the level of beauty or artistic value.
Affordable Housing. Housing that is economically feasible for persons whose income level is categorized as very low, low, or moderate within standards set by the California Department of Housing and Community Development or the United States Department of Housing and Urban Development.
Agenda. A document that specifies what will be discussed at a meeting of an Advisory, Approving or Appeal Authority (Reviewing Authorities). Agendas contain a brief, general description of each item the Reviewing Authority will be addressing. Members of the public may request that an agenda be mailed to them. Local agencies generally cannot discuss and make decisions on items that are not on the agenda (see GC Section 54950).
Alcoholic Beverage. Includes alcohol, spirits, liquor, wine, beer, brandy, and every liquid or solid containing alcohol, spirits, wine, or beer, and which contains one-half of one percent or more of alcohol by volume and which is fit for beverage purposes either alone or when diluted, mixed, or combined with other substances.
Alcoholic Beverage Manufacturing. The manufacture or production of alcoholic beverages within the City of Ontario, by any person or entity properly licensed by the Department of Alcoholic Beverage Control of the State of California, which may include the sale or distribution of said products. Typical uses include breweries, distilleries, and wineries. Tasting rooms may be included in conjunction with the manufacturing activity.
Alcoholic Beverage Manufacturer. Any person or entity within the City of Ontario that is properly licensed by the Department of Alcoholic Beverage Control of the State of California, or any officer, director, employee, or agent of any such person or entity, which manufactures or produces alcoholic beverages.
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Ontario Development Code Page 9.01-5 (Rev. 05.02.202312.03.2024) Alcoholic Beverage Sales, Off-Sale. Establishments properly licensed by the Department of Alcoholic Beverage Control of the State of California (ABC), which sell alcoholic beverages of varying types, as allowed by the type of ABC license held by the establishment, for consumption off the premises in which they are sold. Typical uses include convenience markets, grocery stores, and liquor stores.
Alcoholic Beverage Sales, On-Sale. Establishments properly licensed by the Department of Alcoholic Beverage Control of the State of California (ABC), which sell alcoholic beverages of varying types, as allowed by the type of ABC license held by the establishment, for consumption on the premises in which they are sold. Typical uses include bars, brew pubs, nightclubs, wine bars, and restaurants that serve alcoholic beverages.
Alley. A public right-of-way that is permanently reserved as a secondary means of vehicular access to abutting property, which is improved by means of asphalt, concrete, decorative laid brick or block pavers, or other similar material providing all-weather access, and excluding loose materials, such as gravel, stone or slag.
Alter. To change, add to, or modify construction, use or occupancy.
Amortization. The process by which nonconforming uses and structures must be discontinued or made to conform to requirements of the current zoning ordinance at the end of a specified period of time.
Ancillary Use, Activity or Facility. A use, activity or facility that is incidental, supplementary, or otherwise subordinate to a primary permitted or conditionally permitted use, activity or facility.
Animal Hospital. A facility in which animals or pets are given medical or surgical treatment and care during the time of such treatment, and in which the boarding of such animals or pets is permitted incidental to their medical or surgical treatment and care.
Antenna. Any exterior transmitting or receiving device mounted on a tower, building structure, or alternative tower structure and used in communications, that radiate or capture electromagnetic waves, digital signals, analog signals, radio frequencies, wireless telecommunication signals or other communication signals which transmit or receive radio signals.
Antennas typically are either dish, panel or whip type structures.
Apartment. A residential dwelling unit within a multiple-family dwelling, which is available for lease for an extended period.
Appeal. When a person believes a decision was made in error, an appeal may be filed so that a higher decision-making body may be allowed to review the case.
Appeal Authority. A body, commission, committee, board, or position listed in Table 2.02-1 (Review Matrix) of this Development Code, which is responsible for acting on an appeal filed pursuant to Division 2.04 (Appeals) of this Development Code, regarding an action made on [i] a land use or development entitlement, permit, or license; or [ii] other planning, zoning, or development action or decision, pursuant to Division 2.02 (Application Filing and Processing) of this Development Code.
Approving Authority. A body, commission, committee, board, or position listed in Table
2.02-1 (Review Matrix) of this Development Code, which is responsible for approving, approving with conditions, or denying [i] a land use or development entitlement, permit, or license; or 5506
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(Rev. 05.02.202312.03.2024) Page 9.01-6 Ontario Development Code [ii] other planning, zoning, or development action or decision pursuant to the provisions of Chapter 2.0 (Administration and Procedures) and Chapter 4.0 (Permits, Actions and Decisions) of this Development Code.
Architectural Element. The unique details and component parts that, together, form the architectural style of a building or structure.
Architectural Projection. A building feature that is mounted on, and/or extends from the surface of the building wall or façade, typically above ground level. Examples of architectural projections include balconies, bay windows, lighting fixtures, marquees, canopies, and other similar projections of a building.
Artisan, Small-Scale, and Micro Manufacturing. A facility where shared or individual tools, equipment, equipment, or machinery are used to manufacture specialty products on a small scale or in limited quantities (a single product or small batches of product). Products are typically manufactured by hand or with a restricted level of automation. Artisan small-scale and micro manufacturing activities include design, production, processing, printing, assembly, treatment, testing, repair, and packaging, as-well-as any incidental storage, retail, or wholesale sales and distribution. Typical small-scale and micro manufacturing activities include, but are not limited to, electronics, food products, nonalcoholic beverages, leather products, clocks and watches, jewelry, clothing/apparel, metal work, furniture and fine woodworking, glass, ceramics, paper and paper products, soaps, perfumes, and lotions, together with ancillary training and/or educational program activities. Artisan small-scale and micro manufacturing facilities are small in scale and utilize production methods using limited quantities of hazardous materials and hazardous waste production. Furthermore, artisan small-scale and micro manufacturing does not involve the use of large assembly lines, rather relying upon single workplaces or production cells that carry out production steps, until specific components or the whole product is completed. Artisan small-scale and micro manufacturing does not include agriculture, alcoholic beverage production or sales, restaurants and other eating places, or industrial activities deemed "heavy" in nature.
Automated Teller Machine (ATM). An electronic banking device, either freestanding or attached to a building, which dispenses and collects money from or to individual bank accounts.
The terms "Automated Teller Machine" and "ATM" may be used interchangeably.
B. Definitions of Words Beginning with the Letter "B."
Base Zoning District. The principal zoning district in which a lot or area is classified at the same time it is classified in a combined or overlay zoning district.
Bed and Breakfast Inn. A structure in which paying guests are lodged on an overnight basis, with breakfast served in connection with their lodging.
Beer. Any alcoholic beverage obtained by the fermentation of any infusion or decoction of barley, malt, hops, or any other similar product, or any combination thereof in water, and includes ale, porter, brown, stout, lager beer, small beer, and strong beer, but does not include sake (also known as Japanese rice wine). Beer aged in an empty wooden barrel previously used to contain wine or distilled spirits, shall be defined exclusively as "beer," and shall not be considered a dilution or mixture of any other alcoholic beverage.
Beer Manufacturer. Any establishment properly licensed by the Department of Alcoholic Beverage Control of the State of California, which has facilities and equipment for the purposes of, and is engaged in, the commercial manufacture of beer. 5507
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Ontario Development Code Page 9.01-7 (Rev. 05.02.202312.03.2024) Brandy Manufacturer. Any establishment properly licensed by the Department of Alcoholic Beverage Control of the State of California, which is engaged in the manufacture of brandy only, and not in engaged in the manufacture of any other distilled spirits.
Billboard. An outdoor advertising sign supported by posts or standards and braces set into the ground or attached to a building or other structure and containing advertising copy on the sign face not related to a use, structure or activity located on the same site.
Billiard Parlor. An establishment that provides more than 2 billiard or pool tables or has 50 percent or more of the public floor area devoted to the use of billiard or pool tables by the public for compensation, whether or not the use of billiard or pool tables constitute the primary use or an accessory or incidental use. The terms "Billiard Parlor" "Pool Hall" may be used interchangeably.
Block Face. The properties abutting on one side of a street and lying between the 2 nearest intersecting streets or nearest the intersecting street and railroad right-of-way, unsubdivided land, watercourse, or City boundary.
Boarding House (Lodging House or Rooming House). A dwelling, other than a hotel, motel, residence inn, or other similar traveler accommodation, wherein one or more rooms, with or without individual or group cooking facilities, are rented to individuals under separate rental or lease agreements, either written or oral, whether or not an owner, agent or manager is in residence. The terms "boarding house," lodging house," and "rooming house" may be used interchangeably.
Bona Fide Eating Place. A place which is regularly and in a bona fide manner used and kept open for the serving of meals to guests for compensation, and which has suitable kitchen facilities connected therewith, containing conveniences for cooking an assortment of foods that may be required for ordinary meals, the kitchen of which must be kept in a sanitary condition with the proper amount of refrigeration for keeping of food on said premises and must comply with all the regulations of the local department of health. For the purpose of this definition, the term "meals" means the usual assortment of foods commonly ordered at various hours of the day; the service of such food and victuals only as sandwiches or salads shall not be deemed a compliance with this requirement. Furthermore, the term "guests" means persons who, during the hours when meals are regularly served therein, come to a bona fide public eating place for the purpose of obtaining, and actually order and obtain at such time, in good faith, a meal therein. Nothing in this definition, however, shall be construed to require that any food be sold or purchased with any beverage.
Building. Any structure having a roof supported by columns or walls and intended for the shelter, housing, or enclosure of any individual, animal, process, equipment, goods, or materials of any kind.
Building Foundation. All dwellings and accessory structures shall be affixed to a permanent, continuous concrete or masonry foundation. The exterior building finish shall extend over the foundation, to within 6 inches of the adjacent finished grade.
Building Height. See "Height (of a building or structure)." Building Official. The Building Official of the City of Ontario. 5508
Division 9.01—Definitions
(Rev. 05.02.202312.03.2024) Page 9.01-8 Ontario Development Code Bus. Any vehicle designed, used, or maintained: [i] to carry more than 15 persons, including the driver, or [ii] to carry more than 10 persons, including the driver, when it is used to transport persons for compensation or profit, or is used by a nonprofit organization (CVC Section 233).
Business Services. Services that are provided to business establishments in a support capacity, such as but not limited to duplicating, stenographic and messenger services.
C. Definitions of Words Beginning with the Letter "C."
Carport. An accessory structure or portion of a main structure, open on at least 2 sides, designed for the storage of motor vehicles.
Cattery. A place in which 4 or more cats over 4 months in age are kept.
Central Business District. The area of the City bounded by "H" Street on the north, Sultana Avenue on the east, Main Street on the south and Vine Avenue on the west.
Charitable Institution. An establishment engaged in the giving of foods, goods, financial assistance, or grants or offering services or other socially useful programs on a benevolent, nonprofit basis.
City. The City of Ontario, a California municipal corporation.
City Attorney. The City Attorney of the City of Ontario, or his/her designee.
City Council. The City Council of the City of Ontario.
City Engineer. The City Engineer of the City of Ontario, or his/her designee.
City Manager. The City Manager of the City of Ontario, or his/her designee.
Clinic. An establishment where patients are admitted for outpatient examination and treatment by one or more physicians, dentists, psychologists, or social workers and where patients are not lodged overnight, excluding chemical dependency clinics.
Code Enforcement Director. The Code Enforcement Director of the City of Ontario, or his/her designee.
College (University). Establishments primarily engaged in furnishing academic courses and granting degrees at baccalaureate or graduate levels. The requirement for admission is at least a high school diploma or equivalent general academic training. Instruction may be provided in diverse settings, such as the establishments or client's training facilities, educational institutions, the workplace, or the home, and through diverse means, such as correspondence, television, the internet, or other electronic and distance-learning methods. The training provided by these establishments may include the use of simulators and simulation methods.
The term "College" or "University" may include ancillary support services and facilities, which include, but are not limited to, student and/or faculty housing, bookstores and student stores, food services, healthcare services, social assistance services, performing arts facilities, and athletic facilities.
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Ontario Development Code Page 9.01-9 (Rev. 05.02.202312.03.2024) Collocate. Locating wireless telecommunications antennas and related equipment from more than one provider on a single site.
Commercial Center (Commercial Complex). A development within a commercial or mixed-use zoning or land use district, which consists of 2 or more buildings or a single building divided into 5 or more tenant spaces, constructed by a single developer or group of developers and designed to function as a single cohesive unit in terms of access, parking, landscaping, property and landscape maintenance, and architecture, regardless of the subsequent parcelization. The terms "commercial center" and "commercial complex" may be used interchangeably.
Commercial Recreation. An establishment, activity or use of a site or structure in which a fee is charged to provide space, services, or facilities for individual or group use in the pursuit of any recreational purpose.
Commercial Speech. Any message, the prevailing thrust of which is to propose a commercial transaction.
Commercial Vehicle. A vehicle that is used or maintained for the transportation of persons for hire, compensation, or profit (i.e., taxi or limousine), or is designed, used, or maintained primarily for the transportation of property (CVC Section 260).
Community Apartment. A development in which an undivided interest in land is coupled with the right of exclusive occupancy of any apartment located thereon.
Community Care Facility. Any facility place or building that is maintained and operated to provide nonmedical residential care, day treatment adult day care or foster family agency services for children, adults, or children and adults, including but not limited to, the physically handicapped, mentally impaired incompetent persons and abused or neglected children, and includes the following, as defined by the California Community Care Facilities Act (HSC Section 1500 et seq.):
1) Residential care facility;
2) Adult day program;
3) Therapeutic day services facility;
4) Foster family agency;
5) Foster family home;
6) Small family home;
7) Social rehabilitation facility;
8) Community treatment facility;
9) Full-service adoption agency;
10) Noncustodial adoption agency;
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(Rev. 05.02.202312.03.2024) Page 9.01-10 Ontario Development Code 11) Transitional shelter care facility; and
12) Transitional housing placement facility.
The term "Community Care Facility" is limited to those facilities places or buildings that are both subject to regulation by the State of California and actually licensed by the State of California. No facility place or building that may otherwise be regulated by the State of California, but which is not actually licensed by the State of California, shall be deemed a "Community Care Facility" for purposes of this title.
Community Noise Equivalent Level (CNEL). A scale for measuring noise activities that takes into account the sounds received at a point from all noise events causing noise levels above a prescribed value. Weighing factors are included which accord greater significance to noise events occurring during evening hours (7:00 PM to 10:00 PM), and even greater significance to noise events occurring at night (10:00 PM to 7:00 AM), than to noise events occurring during daytime hours (7:00 AM to 7:00 PM).
Compatibility. The characteristics of different uses or activities that permit them to be located near each other in harmony and without conflict. The designation of permitted and conditionally permitted uses in a zoning district is intended to achieve compatibility. Some elements affecting compatibility include intensity of occupancy, as measured by dwelling units per acre; pedestrian or vehicular traffic generated; volume of goods handled; and environmental effects, such as noise, vibration, glare, air pollution, or radiation.
Conditionally Permitted Use. A land use that is allowed within a specified zoning district, subject to the approval of a Conditional Use Permit.
Conditional Use Permit. A zoning instrument used primarily to review the location, site development or operation of certain land uses. A Conditional Use Permit is granted at the discretion of the Planning Commission or Zoning Administrator and is not the automatic right of the applicant or landowner.
Condominium. A development consisting of an undivided common interest in a portion of real property, coupled with a separate interest in space within a residential, commercial or industrial building, called a unit, the boundaries of which area described on a recorded final map, parcel map, or condominium plan, in sufficient detail to locate the boundaries thereof. The area of these boundaries may be filed with air, earth, water, or any combination thereof, and need not physically be attached to land, except by easements for access and, if necessary, support.
Congregate Care Facility. A facility that provides communal dining facilities and services, such as housekeeping, organized social and recreational activities, transportation services and other support services appropriate for the residents. A "Congregate Care Facility" is subject to regulation by the State of California as a "Community Care Facility." Convalescent Home (Convalescent Hospital). See "Nursing Home." Convenience Store (Convenience Market or Mini-Market). A retail establishment, limited to a maximum size of 10,000 SF, offering for sale, prepackaged food products, household items, newspapers and magazines, and sandwiches/salads and other freshly prepared foods for off-site consumption. The terms "convenience store," "convenience market" and "mini-market" may be used interchangeably.
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Ontario Development Code Page 9.01-11 (Rev. 05.02.202312.03.2024) County. The County of San Bernardino.
County Recorder. The recorder for the County of San Bernardino.
Covenant. A private legal restriction that places a burden on a parcel of land in favor of another parcel, which is recorded in the deed. Covenants are commonly used in the establishment of a subdivision to restrict the use of lots within the development, guarantee views and solar access, and guarantee access and maintenance of designated areas.
D. Definitions of Words Beginning with the Letter "D."
Day. A calendar day.
Day Care Facilities. Day care facilities shall be defined as follows:
1) Adult Day Care Facilities. Facilities of any capacity that provide programs for frail, elderly and developmentally disabled and/or mentally disabled adults (persons 18 years of age and older) in a day care setting.
2) Child Day Care Center. A facility, other than an adult and family day care facility, providing non-medical care for children (persons less than 18 years of age) on less than a 24 hour per day basis, including infant care, pre-schools, and extended day care for school-aged children.
3) Family Child Day Care. A home that regularly provides family day care, protection and supervision for 14 or fewer children (persons less than 18 years of age) in the provider's own home, for periods of less than 24 hours per day while parents or guardians are away, and includes the following:
a) Small Family Day Care. Provides family day care to 8 or fewer children, including those children under the age of 10 years who reside at the provider's residence; and b) Large Family Day Care. Provides family day care for 7 to 14 children, inclusive, including those children under the age of 10 who reside at the provider's residence.
Day Spa. A facility that provides personal care and wellness services employing licensed trained professionals where visitors can receive a variety of spa treatments during day hours, and overnight accommodations are not available. Examples of typical spa services include, but are not limited to exfoliation, dermabrasion, dry brushing, body composition (fat to lean muscle ratio) analysis, chemical peel, clay or mud wrap, and facial rejuvenation. Day Spas exclude massage unless the facility also meets Massage Establishment requirements of the Development Code. dBA. A number in decibels which is read from a sound level meter with the meter switched to its weighting scale labeled "A." The number is an approximate measurement of the relative noisiness or annoyance level of common sounds.
Deck. An outdoor living area on a floor or platform that extends from a building, or may be freestanding, and which is no more than 2.5 FT above finished grade at any point. A deck is typically made of wood, or a composite wood material or vinyl. 5512
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(Rev. 05.02.202312.03.2024) Page 9.01-12 Ontario Development Code Dedication. Property that is transferred from an owner to a public agency to be used for roads, parks, school sites or other public uses or facilities. Dedication requirements are typically imposed as a condition of a tentative map, parcel map or as a condition of development.
Deed Restriction. A private legal restriction on the use of land recorded in the deed. The restriction burdens or limits the use of the property in some way.
Density (Residential Density). A quantitative measure of the intensity with which residentially zoned land may be developed in terms of the minimum and maximum number of allowed dwelling units for each net acre of land. In calculating the allowed minimum residential density of a lot, if a fractional number results from calculations performed, the number shall be rounded up, to the higher whole number. In calculating the allowed maximum residential density of a lot, if a fractional number results from calculations performed, the number shall be rounded down, to the lower whole number.
Department Store. A retail store offering a full line of general merchandise items.
Development Advisory Board (DAB). A City panel, whose membership is established by resolution of the City Council, which is charged with the responsibility for the review and approval of certain classifications of development plans.
Development Agreement. An agreement duly entered into pursuant to GC Section 65864 et seq. of the State of California.
Development Code. The Development Code of the City of Ontario, including all text and maps, as may be amended from time to time.
Direct Access. Having unimpaired access to a public street over a front, side or rear property line adjoining a street.
Discount Store. A retail establishment that offers continually changing merchandise for sale at below market price, and has no regular stock, constant inventory, or standard supplier.
Merchandise typically consists of discontinued items, stock over-runs, out of season merchandise, and one-time, large-lot purchases.
Discretionary Project. An activity that requires a public agency to exercise judgment in deciding whether or not to approve, conditionally approve, or deny a project.
Dish Antenna. A dish-like antenna used to link communications sites together by wireless transmission of voice or data. Also called microwave antenna or microwave dish antenna.
Distilled Spirits. An alcoholic beverage obtained by the distillation of fermented agricultural products, and includes alcohol for beverage use, spirits of wine, whiskey, rum, brandy, and gin, including all dilutions and mixtures thereof.
Distilled Spirits Manufacturer. Any establishment licensed by the Department of Alcoholic Beverage Control of the State of California, who produces distilled spirits from naturally fermented materials or in any other manner.
Drive-Through (Drive-Thru). Outdoor service provided by a business establishment by means of a window counter for the purpose of accommodating persons in motor vehicles. 5513
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Ontario Development Code Page 9.01-13 (Rev. 05.02.202312.03.2024) Drive Aisle. A privately owned vehicular access, 26 FT or less in width (excluding adjoining off-street parking spaces), which is improved by means of asphalt, concrete, laid brick or block pavers, or other similar material providing all-weather access, and excluding loose materials, such as gravel, stone or slag, which is needed for vehicular access to off-street parking facilities required by this Development Code, and may include emergency vehicle accesses provided pursuant to the Ontario Fire Code (Ontario Municipal Code Title 4, Chapter 4 (Fire Code)).
Drive, Private. The principal means of vehicular access through a master planned development project, minimum 24 FT in width (excluding adjacent off-street parking spaces), which is privately owned and improved by means of asphalt, concrete, laid brick or block pavers, or other similar material providing all-weather access, and excluding loose materials, such as gravel, stone or slag, and may include emergency vehicle accesses provided pursuant to the Ontario Fire Code (Ontario Municipal Code Title 4, Chapter 4 (Fire Code)).
Driveway. The necessary hard-surfaced area, improved by means of asphalt, concrete, laid brick or block pavers, or other similar material providing all-weather access, excluding loose materials, such as gravel, stone or slag, which is needed for vehicular ingress and egress to a garage, carport or other off-street parking designed pursuant to Division 6.03 (Off-street Parking and Loading) of this Development Code.
Dwelling. Any building, or any portion thereof, which is not an apartment hotel, hotel, motel and which contains one or more dwelling units or guest rooms used, intended, or designed to be built, used, rented, leased, let or hired out to be occupied or which are occupied for living purposes. The classifications of "dwelling" are as follows:
1) Accessory Dwelling Unit (ADU). Refer to Section 5.03.010 (Accessory Residential StructuresDwelling Units) of this Development Code.
2) Multiple-Family Dwellings. Two or more attached dwelling units, with each dwelling designed for occupancy by independent households. Multiple-family dwellings shall not include accessory dwelling units.
3) Single-Family Dwellings. A single detached dwelling unit designed and intended exclusively for occupancy by a single household. Single-family dwellings may be designed or arranged in a traditional development consisting of a single detached dwelling unit on a residentially zoned lot of record, or small lot and cluster developments consisting of two or more detached dwelling units, regardless of the number or configuration of lots. In either case, there may be some portion of the development owned in common by all residents. 4) Studio Dwellings. An apartment or condominium unit containing no more than one room and bath, and cooking facilities.
Dwelling Unit. One or more habitable rooms, which are designed, occupied, or intended for occupancy as separate living quarters, with cooking, sleeping and sanitary facilities, and containing no more than one kitchen, provided within the same unit for the exclusive use of the household.
E. Definitions of Words Beginning with the Letter "E."
Electronic Message Center. An advertising display where the message is changed more than once every two minutes, but no more than once every four seconds (BPC Section 5216.4). 5514
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(Rev. 05.02.202312.03.2024) Page 9.01-14 Ontario Development Code Eligible Facilities Request. Has meaning as set forth in 47 CFR Section 1.6100(b)(3), or any successor provision.
Emergency Shelter. As defined in HSC Section 50801(e), "emergency shelter" means housing with minimal supportive services for homeless persons, which is limited to an occupancy of 6 months or less by a homeless person. No individual or household may be denied emergency shelter because of an inability to pay.
Employee (Farmworker) Housing. Has the same meaning as defined in HSC Section 17008.
Equestrian Trail. A trail which is a segment of a planned trail system designed, improved, and intended to be used for horseback riding purposes and on which use by vehicles of any type, except for maintenance and service vehicles directly related to equestrian activities and public safety vehicles, is prohibited.
Escort Agency. A person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip or other consideration.
Exotic Pet. Any warm-blooded or cold-blooded animal of the biological kingdom Animalia, generally considered as wild, exotic, dangerous, or not normally domesticated. The term "exotic animal" does not include venomous reptiles.
F. Definitions of Words Beginning with the Letter "F."
Façade. The exterior walls of a building exposed to public view or that wall viewed by persons not within the building. The primary facade is the exterior building face that is parallel to the front property line.
Family. One or more persons living together in a dwelling unit, with common access to, and common use of all living, kitchen, and eating areas within the dwelling unit.
Final Map. A map showing a subdivision of 5 or more parcels for which a tentative and final map are required by the Subdivision Map Act and this Development Code, prepared in accordance with the provisions of the Subdivision Map Act and this Development Code, and designed to be filed for recordation in the office of the County Recorder.
Flophouse. A flophouse offers very inexpensive lodging, generally by providing minimal services. Flophouse occupants generally share bathroom facilities and reside in quarters that are typically very small and may resemble office cubicles more than a room in a hotel or apartment building. Persons making use of this type of lodging are often transients.
Floor Area, Gross (GFA). The total area calculation of all floors and mezzanines of a building, measured to the outside face of the exterior walls, including hallways, stairways, elevator shafts at each floor level, service and mechanical equipment rooms, and basement or attic areas having a clear height of at least 7 FT, but excluding area used exclusively for vehicle parking or loading. The GFA calculation also includes any usable area not provided with surrounding walls, which is under the horizontal projection of a roof or canopy, or floor above. A GFA calculation shall not include mezzanine areas used as catwalks and platforms for conveyers, equipment, and related workstations.
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Ontario Development Code Page 9.01-15 (Rev. 05.02.202312.03.2024) Floor Area, Net. The total area calculation of all floor areas and mezzanines of a building, measured to the inside face of the exterior walls, excluding stairwells, elevator shafts, equipment rooms, and all floors below the ground floor, except when used or intended to be used for human habitation or service to the public, and area used exclusively for vehicle parking or loading. A net floor area calculation shall not include mezzanine areas used as catwalks and platforms for conveyers, equipment, and related workstations.
Floor Area Ratio (FAR). Floor area ratio is used as a measure of the intensity of a site being developed, represented by the mathematical formula of dividing the gross floor area of the building (measured in SF) by the lot area of the same lot on which the building is located, to generate a ratio of building area to land area.
Frontage. The edge of a property that is adjacent to a public or private street, or main drive aisle through a common interest subdivision.
Fueling Stations. See "Gasoline Service Station."
Funeral Director Services. The occupation or function of organizing funerals and funeral activities and managing funeral establishments.
Funeral Establishment. A business with assembly facilities for the purpose of conducting observances for dead persons, such as viewing bodies, funerals, and memorial services. A funeral establishment does not include facilities for the preparation of the dead for burial or cremation.
Funeral Parlors (Mortuaries). Establishments with facilities for the preparation of the dead for burial or cremation, excluding establishments with facilities for viewing bodies and for funerals.
G. Definitions of Words Beginning with the Letter "G."
Game Arcade. An establishment that has 50 percent or more of the public floor area devoted to the use of video games, pinball machines, computers, or other similar devices, which are available to the public for compensation. The devices may be used for gaming, internet access, e-mail, access to computer software programs, and other similar activities. "Game arcades" includes cyber cafes, on-line internet gaming, and other similar facilities.
Garage. An accessory structure or portion of a main structure that is fully enclosed on all sides and specifically designed for the shelter or storage of motor vehicles.
Gasoline Service Station (Fueling Station, Gasoline (Gas) Station, or Service Station). A retail business engaged primarily in the sale of motor fuels, but also supplying goods and services generally required in the operation and maintenance of automotive vehicles and fulfilling motorist needs, including the sale of petroleum products; sale and servicing of tires, batteries, automotive accessories and replacement items; lubrication services; washing of automobiles as an incidental part of the business; performance of minor automotive repair, including engine tune ups, tire and battery replacement and brake replacement, but excluding painting, body work, steam cleaning or major repairs; and the supplying of other such incidental customer services, including limited food and sundry items. The terms "fueling station," "gasoline station," "gas station," and "service station," may be used interchangeably.
General Plan. The Policy Plan (General Plan) component of The Ontario Plan, which includes all adopted elements and maps, as it may be amended from time to time. The General Plan is the foundation for local land use planning, providing a vision for the foreseeable planning 5516
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(Rev. 05.02.202312.03.2024) Page 9.01-16 Ontario Development Code horizon—usually 10 to 20 years—and translates it into goals and policies for the physical development of the community.
Geologically Hazardous Area. An area that may be affected by one or more of the geologic hazards discussed in the General Plan of the City.
Government Code. The Government Code of the State of California. If at any time any of the sections of the Government Code referred to in this Development Code are redesignated by a new number, such new number shall thereupon be deemed substituted for such old number wherever the same appears in this Development Code.
Grocery Store. A retail establishment with at least 12,000 SF of floor area devoted to the sale of prepackaged food products, household items, newspapers and magazines, and sandwiches/salads and other freshly prepared foods for off-site consumption.
Gross Vehicle Weight Rating. The weight that equals the total unladen weight of the vehicle, plus the weight of the heaviest load that can be safely transported on the vehicle, according to the vehicle manufacturer.
Group Home. A residential facility for 6 or fewer occupants, which serves children or adults with chronic disabilities (mental or physical) and is staffed 24 hours a day by trained caregivers.
Guesthouse. Living quarters within a residential structure, which may be attached to, or detached from, the main dwelling, and is for the sole use of occupants of the main dwelling and persons employed on the premises, or for temporary use by non-paying guests for a period not to exceed 90 days within any 120-day period. A guesthouse has no kitchen facilities and cannot be rented or otherwise used as a separate residence.
H. Definitions of Words Beginning with the Letter "H."
Hardscape. A hard-surfaced area (e.g., driveways, patios, sidewalks, streets, walkways, water features, etc.), improved by means of asphalt, concrete, decomposed granite, laid block and/or brick, gravel, rock, slag, stone, and other similar materials, but excludes mulch.
Hazardous Waste. A waste, or combination of wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may either cause, or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or pose a substantial present or potential hazard to human health or environment when improperly treated, stored, transported or disposed of, or otherwise managed. Unless expressly provided otherwise, the term "hazardous waste" shall be undersold to also include "extremely hazardous waste" (HSC Section 25117). The EPA has established four characteristics of hazardous waste that can be determined by tests:
▪ Ignitability: The ability to catch fire, or to burst into flame spontaneously or by interaction with another substance or material;
▪ Corrosivity: The ability to wear away or destroy other materials, including human issue;
▪ Reactivity: The ability to enter into a violent chemical reaction, which may involve explosion or flumes; and
▪ Toxicity: The ability to release certain toxic constituents when leached with a mild acid (33 USC Section 1321 (b)(2)(A)).
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Ontario Development Code Page 9.01-17 (Rev. 05.02.202312.03.2024) For the purposes of the hazardous waste regulations contained in this Development Code, the following definitions shall apply:
1) Cement Kiln Incineration. The burning of organic wastes as a supplementary fuel at very high temperature during the production of cement.
2) Class "I" Land Disposal Facility. A land disposal facility which must conform to the requirements of the State Water Resources Control Board for Class "I" units, and which must be located where natural geologic features provide optimum conditions for isolation of wastes from waters of the state. Currently, these facilities may accept solid and dry hazardous waste. After 1990, they will be precluded from accepting any untreated hazardous wastes. 3) Class "II" Land Disposal Facility. A land disposal facility that must be located where site characteristics and containment structures isolate wastes from the waters of the State. Class "II" land disposal facilities are suitable for wastes which have been granted a variance from Hazardous Waste Management requirements pursuant to 22 CCR Section 66310. 4) Class "III" Land Disposal Facility. A land disposal facility for nonhazardous waste, including garbage, trash, refuse, paper, ashes. etc., provided such wastes do not contain hazardous or designated wastes. Class "III" facilities must conform to the requirements of the State Water Resources Control Board as specified in CCR, Title 23, Division 3, Chapter 15, commencing with Section 2510, and must be located where site characteristics provided adequate separation between the waste and the waters of the State (also called municipal or sanitary landfill.) 5) Deep Well Injection. Subsurface emplacement of fluids through a bored, drilled or driven well; or through a dug well, where the depth of the dug well is greater than the largest surface dimension (22 CCR Section 66224).
6) Disposal, Hazardous Waste. Hazardous waste disposal shall be defined as follows:
a) The discharge, deposit, injection, dumping, spilling, leaking or placing of any waste so that the waste or any constituent of the waste is or may be emitted into the air or discharged into or on any land or waters, including groundwater, or may otherwise enter the environment; and
b) The abandonment of any waste (HSC Section 25113).
7) Hazardous Material. A substance or combination of substances which, because of its facility, concentration, or physical, chemical or infectious characteristics, may either:
a) Cause, or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or
b) Pose a substantial present or potential hazard to human health or environment when improperly treated, stored, transported or disposed of or otherwise managed. Unless expressly provided otherwise, the term "hazardous malarial" shall be understood to also include extremely hazardous malarial (22 CCR Section 66084).
8) Hazardous Substance. Hazardous substances shall be defined as follows:
a) Any substance designated pursuant to Slates Environmental Protection Agency has taken action pursuant to 15 USC Section 2606;
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(Rev. 05.02.202312.03.2024) Page 9.01-18 Ontario Development Code b) Any element, compound, mixture, solution or substance designated pursuant to Section 102 of the Federal Act, 42 USC Section 9602;
c) Any hazardous waste having the characteristics identified under or listed pursuant to 42 USC Section 6921, but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by act of Congress;
d) Any toxic pollutant listed under 33 USC Section 1317(a); e) Any hazardous air pollutant listed under 42 USC Section 7412; f) Any imminently hazardous chemical substance or mixture with respect to which the Administrator of the United Procedure or Waste Extraction Test), or demonstrate toxicity in animal studies (22 CCR Section 66696 et seq.); and
g) Any hazardous waste or extremely hazardous waste as defined by HSC Section 25117 and HSC Section 25115, respectively, unless expressly excluded (HSC Section 25316). 9) Hazardous Waste Facility. Hazardous waste facility or facilities means all contiguous land and structures, other appurtenances, and improvements on the land used for the treatment, transfer, storage, resource recovery, or recycling of hazardous waste. A hazardous waste facility may consist of one or more treatment, transfer storage, resource recovery, or recycling hazardous waste management units, or combinations of these units (HSC Section 25117.1). 10) Hazardous Waste Landfill. A disposal facility, or part of a facility, where hazardous waste is placed in or on land that is not a land treatment facility, a surface impoundment, or an injection well (22 CCR Section 66123). After 1990, the disposal of untreated hazardous waste, except solid clean up waste from existing contaminated sites in a landfill will be illegal (HSC Section 15179.6).
11) Hazardous Waste Collection. Establishments engaged in collecting and/or hauling hazardous waste within a local area.
12) Household Hazardous Waste Collection Center. A collection center that accepts household hazardous waste from residents, which consist of but not limited to, paint, waste oil, thinners. household cleansers, etc., with a capacity of less than 55 drums (equal to 3025 gallons) of waste.
13) Incinerator. An enclosed device using controlled flame combustion, the primary purpose of which is to thermally break down hazardous waste, examples are a rotary kiln, fluidized bed liquid injection and a cement kiln.
14) Land Disposal Facility. Where hazardous waste is disposed in, on, under or to the land. 15) Land Farming (Land Application, Land Spreading). A treatment technique that involves spreading the waste on land and utilizing evaporation and microbial action to degrade the wastes. Used primarily for crude oil wastes.
16) Off-Site Hazardous Waste Facility. An operation involving handling, treatment, storage or disposal of hazardous waste at a site physically separate from the site where the waste was generated; at a site not owned by, or leased to the producer of the waste; or at a site which 5519
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Ontario Development Code Page 9.01-19 (Rev. 05.02.202312.03.2024) receives hazardous waste from more than one generator. Also see "specified hazardous waste facility."
17) On-Site Hazardous Waste Facility. An operation involving treatment and storage of hazardous waste on land owned by the waste producer, contiguous to the site of waste generation, which receives hazardous waste produced only by the generator. 18) Residuals Repository. A hazardous waste facility which accepts for disposal only treated hazardous waste, meets all applicable federal and state regulations, and holds a hazardous waste facility permit.
19) Specified Hazardous Waste Facility. An off-site hazardous waste facility that accepts disposal wastes from more than one producer of hazardous waste (HSC Section 25199.1(m)). For purposes of this Development Code, a household hazardous waste collection center with a capacity of less than 50 drums of waste is not considered a specified hazardous waste facility. 20) Storage Facility/Hazardous Waste. A hazardous waste facility at which hazardous waste is contained for a period greater than 96 hours at an off-site facility or for periods greater than 90 days at an on-site facility (HSC Section 25123.3). 21) Surface Impoundment. A facility or part of a facility that is a natural topographic depression, man-made excavation, or diked area, formed primarily of earthen materials (although it may be lined with man-made materials), which is designed to hold an accumulation of liquid wastes containing free liquids, and which is not an injection well. Examples of surface impoundments are holding, storage, settling, and aeration pits, ponds and lagoons (HSC Section 66200).
22) Transfer Stations. Any hazardous waste facility where hazardous wastes are located, unloaded, pumped or packaged (22 CCR Section 66212).
23) Transportable Treatment Unit. Hazardous waste treatment works which are designed to be moved either intact or in modules and which are intended to be operated at a given location for a limited period of time;.
24) Treatment Facility. A facility at which hazardous waste generated in the City of Ontario is subjected to treatment or where a resource is recovered from a hazardous waste. 25) Waste Pile. Any non-containerized accumulation of solid, non-flowing hazardous waste that is used for treatment or storage (22 CCR Section 66160).
Height (of a Building or Structure). The vertical dimension of a building or any other type of structure measured from the lower of existing grade or finished grade elevation to the highest point of the roof, not including chimneys, antennas, or other appurtenant structures. The height of structures shall be measured vertically, from a line representing a horizontal plane drawn through either the base of the structure at the lowest elevation of the existing grade prior to development or finished grade of the structure, whichever is lower, to a line representing a horizontal plane drawn through the highest point of the roof or through the coping of a flat roof, the deck line of a mansard roof or the highest ridge of a sloping roof.
Historic Preservation. "Historic Preservation" refers to the treatment of historic places and sites. For the purposes of the historic preservation regulations contained in this Development Code, the following definitions shall apply:
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(Rev. 05.02.202312.03.2024) Page 9.01-20 Ontario Development Code 1) Alteration. Any exterior change or modification, through public or private action, to the character-defining or significant physical features of properties affected by this Development Code, such as changes to or modification of a structure, architectural details or characteristics, rock curbs, the addition of new structures, cutting or removal of trees, and the placement or removal of significant objects, including but not limited to signs, plaques, light fixtures, street furniture, walls, fences, or steps, which affect the significant historical qualities of the property. This may also include any identified significant interior features of historic property. 2) Certificate of Appropriateness. A certificate issued by the Approving Authority approving plans, specifications, statements of work, and any other information that are reasonably required by the Approving Authority to make a decision on any proposed alteration, restoration, rehabilitation, construction, removal, relocation, or demolition, in whole or in part, or to an historic resource.
3) Certificate of Economic Hardship. A certificate authorizing work described in the accompanying Certificate of Appropriateness granted by the Approving Authority because of extreme financial privation or adversity.
4) Certified Local Government. A local government certified under a federal program by the State office of Historic Preservation for the purpose of more direct participation in federal and state historic preservation programs.
5) Character-Defining Feature. The man-made elements embodying style or components of an improvement, including but not limited to the kind and texture of the building materials, roof pitches, exterior wall finishes, and the type and style of all windows, doors, lights, signs, and other fixtures appurtenant to such improvement.
6) Contributing Resource. Any improvement, building, structure, sign, feature, tree, or other object adding to the historical, architectural or cultural significance of an historic district. 7) Demolition. Any act or process that destroys in part or in whole an individual historic resource or a structure within an historic district.
8) Design Guidelines. The principles contained in a document, which illustrate appropriate and inappropriate methods of rehabilitation and construction. The purpose of using design guidelines is to aid design and decision-making with regard to retaining the integrity of scale, design, intent, materials, feelings, patterns of development, and historic character of an historic resource.
9) Designated Site. A parcel or part thereof on which an historic resource is situated, and any abutting parcel or part thereof constituting part of the premises on which the Historical Resource is situated, and which has been designated a historic landmark or district. 10) Historic Context. A framework for interpreting history that groups information about historical resources sharing a common theme, geographical area, or chronology. The development of "historic context" is a foundation for decisions regarding the planning, identification, evaluation, registration, and treatment of historical resources based upon comparative historic significance.
11) Historic District. Any defined contiguous or noncontiguous grouping of properties that share a common theme and/or period of significance containing a concentration of 5521
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Ontario Development Code Page 9.01-21 (Rev. 05.02.202312.03.2024) improvements which have a special historical interest or value, which possess integrity of location, design, setting, materials, workmanship, feeling, and association, or which represent one or more architectural periods or styles typical to the history of the City, and that has been nominated or designated a Historic District, or placed on the National Register of Historic Places or the California Register of Historical Resources.
12) Historic Integrity. The authenticity of a property's historic identity evidenced by the survival of physical characteristics that existed during the property's prehistoric or historic period.
Historic integrity is the composite of seven qualities which include location, design, setting, materials, workmanship, feeling, and association.
13) Historic Landmark. Any singular Historical Resource that has been nominated or designated, or placed on the National Register of Historic Places, or the California Register of Historical Resources.
14) Historic Resources. Improvements, buildings, structures, signs, features, Historic Districts, conservation zones, trees, or other objects of cultural, architectural, or historical significance to the City, State, Region, or the Nation, which have been determined to be eligible for nomination or designation and determined to be appropriate for historic preservation by the Approving Authority.
15) Historic Resources Survey. A survey conducted to identify, record, and evaluate historic properties within a community, neighborhood, project area, or region. A reconnaissance level survey involves the preparation of a Primary Record form (or DPR523A) pursuant to standards established by the California Office of Historic Preservation. A Primary Record documents the location and physical description of a building, structure, object, or site. An intensive level survey involves the preparation of a Building, Structure, and Object (BSO) Record form (or DPR523B) pursuant to the standards established by the California Office of Historic Preservation. A BSO Record is used to evaluate and present detailed information about buildings, structures and objects. The intensive level survey will also evaluate areas or neighborhoods for historic significance and a DPR523D form will be prepared.
16) Improvement. Any building, structure, fence, gate, tree, wall or other specified object constituting a historical physical feature of real property, or any part of such feature. 17) Local Historic Status Codes. A classification system that identifies historic resources based on the level of evaluation and designation for which the property has been approved. 18) Mills Act Contract. A property contract entered into between the City and a property owner that provides a potential for lower property taxes in return for the rehabilitation, restoration and preservation of a qualified historical property pursuant to GC Section 50280, et seq. 19) Noncontributing Resource. Any improvement, building, structure, sign, feature, tree or other object that does not add to the historical, architectural or cultural significance of a district. 20) Object. A material thing of historical, cultural or architectural value. 21) Ontario Register. A list that includes historic resources that have been surveyed at the intensive level (DPR523A and DPR523B) and determined to be eligible for local, state, or national through a regulatory process. This includes "determined eligible," "designated," and "nominated" properties. Historic Preservation Subcommittee maintains the Ontario Register. 5522
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(Rev. 05.02.202312.03.2024) Page 9.01-22 Ontario Development Code 22) Ordinary Maintenance and Repair. Any work, for which a building permit is not required by law, where the purpose and effect of such work is to correct any deterioration of or damage to a structure or any part thereof and to restore the same, to its condition prior to the occurrence of such deterioration or damage.
23) Period of Significance. The length of time when a property was associated with important events, activities, or persons, or attained the characteristics which qualify it for listing in the Local, State, and/or National Register.
24) Preservation. The identification, study, protection, restoration, rehabilitation, or acquisition of Historical Resources.
25) Secretary of the Interior Standards for Rehabilitation. The guidelines prepared by the National Park Service for Rehabilitating Historic Buildings and the Standards for Historic Preservation Projects prepared by the National Park Service with Guidelines for Applying the Standards. 26) Statement of Significance. An organizational format which groups information about related historical resources based on theme, geographic units, and chronological period. The information should describe why the resource is significant within a relevant historic context. 27) Significant Feature. The man-made elements embodying style or components of an improvement, including but not limited to the kind and texture of the building materials, and the type and style of all windows, doors, lights, signs, and other fixtures appurtenant to such improvement.
28) State Historic Building Code. HSC Part 2.7 (commencing with HSC Section 18950), and the regulations promulgated thereunder, as they may be amended from time to time (24 CCR, Part 8).
Home Occupation. An occupation conducted by the occupant of a dwelling as a secondary use in which there is no display, no stock-in-trade, no commodity sold on the premises, no person employed other than residents of the dwelling, and no mechanical equipment used, except for that necessary for housekeeping purposes.
Hotel. A lodging facility, which offers transient accommodations at a daily rate, to the general public, and which may provide additional services, such as restaurants, meeting rooms and recreational facilities.
Household. One or more individuals occupying a single dwelling, with common access to and use of all living, eating, and kitchen facilities within the dwelling.
Household Pet. A small, domesticated animal, normally allowed access to the house or yard, kept for company, security or pleasure, limited to any combination of dogs, cats, potbellied pigs, rabbits, chinchillas, and other small, domesticated animals that are maintained for nonbreeding purposes only.
Human Signs. A sign held by, or attached to, a human for the purpose of advertising or otherwise attracting attention to an individual, or a business, commodity, service, or product, and includes the use of a person dressed in costume for the purpose of advertising or attracting attention to an individual, business, commodity, service, or product. A "human sign" may also be referred to as a human billboard, human directional, sign walker, sign waver, or sign twirler. 5523
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Ontario Development Code Page 9.01-23 (Rev. 05.02.202312.03.2024) I. Definitions of Words Beginning with the Letter "I."
Immediate Neighborhood. The block in which the subject property is located, as well as the opposite block face along the same street.
Improvement. Any street work and utilities to be installed, or agreed to be installed, by the subdivider on land to be used for public or private streets, highways, driveways, drive aisles and easements, as are necessary for the general use of the lot owners in the subdivision and local neighborhood traffic, and drainage needs as a condition precedent to the approval and acceptance of the final tract map. Furthermore, the term shall mean any other specific improvement or type of improvement, whether public or private, the installation of which, either by the subdivider, public agencies, private utilities, any other entity approved by the local agency, or by a combination of such, which is necessary to ensure consistency with or implementation of the general plan or any applicable specific plan.
Industrial Clinic. Establishments of independent healthcare practitioners providing services to businesses and their employees, which are engaged in: [i] providing physical therapy services to patients with impairments, functional limitations, disabilities, or changes in physical functions and health status, which are a result of injury, disease or other causes received while on-the-job, or who require prevention, wellness or fitness services; [ii] planning and administering educational, recreational, and social activities designed to help patients or individuals with disabilities, regain physical or mental functioning or to adapt to their disabilities; and [iii] diagnosing and treating speech, language, or hearing problems.
Industrial Park (Industrial Complex). A development within an industrial zone or land use district, which consists of 2 or more buildings constructed by a single developer or group of developers and designed to function as a single cohesive unit in terms of access, parking, landscaping, property and landscape maintenance, and architecture, regardless of the subsequent parcelization. The terms "industrial park" and "industrial complex" may be used interchangeably.
In-Lieu Fee. A cash payment that may be required of an owner or developer as a substitute for the dedication of land or the construction of public improvements.
Interim Use. A use of land or a structure that is less than permanent, with the duration of the use subject to City approval.
Institutional Use. A privately operated use of a semi-public type, such as a church, convent, monastery, day care facility or hospital, nursing home, hospice facility, club, or lodge, philanthropic or charitable foundation, nonprofit library, art gallery, museum, or similar type of establishment.
Intensification of Use. The use of a property, site, or defined area of land, or a structure or portion of a structure, at a higher density (residential) or intensity (nonresidential) than previously recognized and/or approved by the City, either through development, redevelopment, infill, addition, or expansion.
J. Definitions of Words Beginning with the Letter "J."
Junior College. Establishments primarily engaged in furnishing academic, or academic and technical, courses and granting associate degrees, certificates, or diplomas below the baccalaureate level. The requirement for admission to an associate or equivalent degree 5524
Division 9.01—Definitions
(Rev. 05.02.202312.03.2024) Page 9.01-24 Ontario Development Code program is at least a high school diploma or equivalent general academic training. Instruction may be provided in diverse settings, such as the establishments or client's training facilities, educational institutions, the workplace, or the home, and through diverse means, such as correspondence, television, the internet, or other electronic and distance-learning methods. The training provided by these establishments may include the use of simulators and simulation methods.
K. Definitions of Words Beginning with the Letter "K."
Kennel. A place in which 4 or more dogs over 4 months in age are kept.
Kiosk. A small, freestanding lightweight structure less than 150 SF in area, sometimes open on one or more sides. Kiosks are often used as a newsstand or for small-scale merchandising.
Kitchen. A room or portion of a room in a structure, which is used for the purposes of preparing meals and contains the necessary cooking or food preparation facilities (and may include a microwave oven or hot plate) and shall also be equipped with a sink and hot and cold running water.
L. Definitions of Words Beginning with the Letter "L."
Lane (Alleyway). The principal means of vehicular access to one or more abutting dwellings within a townhouse, rowhouse, or cluster development, which is not intended for through access and is privately owned and improved by means of asphalt, concrete, laid brick or block pavers, or other similar material providing all-weather access, excluding loose materials, such as gravel, stone or slag. The terms "lane" and "alleyway" may be used interchangeably.
Landscaped Area. The unpaved portion of a site containing planted areas and plant materials, including trees, shrubs, lawns and flowers and ground cover, together with such decorative elements as walkways, benches, patios, terraces, water features, and the like, suitable for ornamenting a site or structure, or use on the site. Landscaping may also include non-plant decorative material as an intended complementary aspect of a landscape design, such as:
1) Public art installed pursuant to Division 6.07 (Public Art) of this Development Code; 2) Decorative fountains, reflecting pools, and ponds;
3) Decorative rock, stone, bark, mulch, and other similar decorative materials installed for the purpose of reducing the need for the watering of plant material, and which does not cover more than 5 percent of the total landscaped area; and
4) Trellises, porticos, arbors, and other similar garden structures, which do not exceed 6 FT in width, 3 FT in depth, and 8 FT in height.
Live Entertainment. Any live performance, including, but not limited to, all forms of music, theatrical or comedic performance, song, dance, karaoke, or vocal entertainment by a disc jockey (DJ) or announcer, in which one or more employees, independent contractors, guests, customers, or any other individual participates. Live entertainment shall also include dancing by patrons to live or recorded music.
Live entertainment shall not include ambient or incidental music provided for guests or patrons by one nonamplified musician, or the use of a radio, television, or other electronic 5525
Division 9.01—Definitions
Ontario Development Code Page 9.01-25 (Rev. 05.02.202312.03.2024) playback device in any establishment, except when utilized by an announcer, DJ, master of ceremony (MC), or presenter, who at any time provides any form of vocal or visual entertainment for the purpose of gaining the attention and interest of, or diverting or amusing, guests or patrons, including the announcing of song titles or artists' names.
Living Area. The interior habitable area of a dwelling unit, including improved basements and attics, but does not include a garage or accessory structure.
Loading Area. The portion of a site developed for the loading or unloading of motor vehicles or trailers, including loading spaces, drive aisles and driveways.
Lodging Facility. An establishment that provides transient sleeping accommodations for rent.
Lodging House. See "Boarding House."
Lot. A unit or portion of land, separate from other units or portions by description, as shown on a final map or by other such map or instrument approved by the City or applicable government entity under the provisions of the Subdivision Map Act (commencing with GC Section 66410) and City ordinances in effect at the time of such approval, for the purpose of sale, lease, or financing. The classifications of "lot" are described as follows (see examples below):
1) Corner. A lot located at the intersection of 2 or more streets. 2) Cul-De-Sac. A lot located on the turning end of a dead-end street. 3) Flag. A lot having access to a street by means of a private driveway access easement, or parcel of land not meeting the requirements of this Code for lot width but having a dimension of at least 20 FT at its narrowest point.
4) Interior. A lot other than a corner lot.
Lot Types
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(Rev. 05.02.202312.03.2024) Page 9.01-26 Ontario Development Code 5) Key. The first interior lot to the rear of a reversed corner lot. 6) Reverse corner. A corner lot, the side of which on a street side is substantially a continuation of the front property line of the first lot to its rear. 7) Through. An interior lot having frontage on 2 parallel or approximately parallel streets.
Lot Area. The area within the property lines of a lot or parcel, exclusive of any dedications for public rights-of-way, parks, school sites or other public dedications.
Lot Area, Adjusted Gross. The gross lot area, excluding public highways, streets, alleys, and other public rights-of-way, and non-buildable easements for public utilities, railroads, and private streets.
Lot Area, Gross. The entire area within the boundaries of a lot or parcel, measured to the centerline of adjoining alleys, highways, or streets or to the underlying fee ownership of such adjoining alleys, highways or streets, whichever is applicable.
Lot Area, Net. A unit of land measure, not including the area within the established rightof-way of a public or private street or railroad, or any other area dedicated or required to be dedicated in the future for a public use.
Lot Coverage. The area devoted to principal and accessory structures on a lot, including patios enclosed on 3 sides, garages, and covered parking.
Lot Depth. The horizontal distance between the front and rear property lines of a site measured along a line midway between the side property lines.
Lot Line. The lines bounding a lot (also see "Property Line"). The classifications of "Lot Line" are as follows:
1) Front. The line separating the narrowest street frontage of a lot from a public or private street right-of-way.
2) Interior side. Any lot line that is not a front or rear lot line, and that does not border a public or private street right-of-way.
3) Rear. The lot line opposite and most distant from the front lot line. In the case of an irregularly-shaped lot, a straight line shall be drawn within the lot most nearly parallel to and the maximum distance from the front lot line
4) Street side. Any lot line that is not a front or rear lot line, and which abuts a public or private street right-of-way.
Lot Line Adjustment. A boundary realignment between 2 or more adjoining lots that are legally recognized and under the same or different ownership, where land taken from one lot is added to an adjacent lot, and where a greater number of lots other than originally existed is not thereby created. A lot line adjustment shall not result in the adjustment (moving) of more than 4 lot lines.
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Ontario Development Code Page 9.01-27 (Rev. 05.02.202312.03.2024) Lot Width. The horizontal distance between the side property lines of a lot, measured in a straight line in the mean direction of the front property line, at the minimum front yard setback line of a lot.
M. Definitions of Words Beginning with the Letter "M."
Maintenance. Repair work or upkeep on a structure, including painting, carpentry, glazing, and the reinforcement or replacement of defective parts, including roofs, foundations, structural members, and the like, but not including an addition, enlargement, or replacement of the structure.
Manufactured Home. A structure designed for single-family residential use that is factory made and is fully or partially assembled on the site of ultimate use, as permitted by Federal laws and the State of California.
Manufacturing. A use engaged in the manufacture, primarily from previously prepared materials, of finished products or parts, including processing, fabrication, assembly, treatment and packaging of such products, and incidental processing of extracted raw materials.
Marijuana. All parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include:
1) Industrial hemp, as defined in Section 11018.5 of the California Health & Safety Code; or
2) The weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other product.
Marijuana Cultivation. Any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana.
Marijuana Dispensary. Any association, cooperative, club, coop, delivery service, collective and any other similar use involved in the sale, exchange, bartering, giving away for any form of compensation whatsoever, possession, cultivation, use and/or distribution of marijuana.
Massage. Any method of treating the external parts of the body for remedial, health or hygienic purposes, by means of pressure on or friction against; or stroking, kneading, rubbing, tapping, pounding; or stimulating the external parts of the body with the hands or other parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances; or with or without supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly used in this practice and shall include herbal body wraps.
For the purposes of the Massage regulations contained in the Development Code, the following definitions shall also apply:
1) Chair Massage. Any massage of the neck, arms, shoulders, hands, feet and back area above the waist, where the client is fully clothed, sitting upright in a chair, and done without the use of supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations.
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(Rev. 05.02.202312.03.2024) Page 9.01-28 Ontario Development Code 2) Massage Establishment. An establishment having a fixed place of business where any person, association, firm, partnership, or corporation engages in, conducts, or carries on, or permits to be engaged in, conducted, or carried on, any business of giving massage, baths, administration of fomentation, electric or magnetic treatments, alcohol rubs, or any other type of system for treatment or manipulation of the human body, with or without any character of bath, such as Turkish, Russian, Swedish, Japanese, vapor, shower, electric tub, sponge, mineral, fomentation, or any other type of bath.
Master Plans. A term used to describe a process that determines community goals and aspirations in terms of community development. The outcome of comprehensive planning is the Master Plan (also referred to as the "comprehensive plan"), which dictates public policy in terms of transportation, utilities, land use, recreation, public safety, and housing. Master plans typically encompass large geographical areas, a broad range of topics, and cover a long-term timeframe.
Material Recovery Facility. A facility that receives, processes, and recycles municipal mixed solid wastes, commercial high-grade wastes (such as corrugated cardboard, newspaper, mixed papers, etc.), construction debris, commingled recyclable materials, and green waste, and ships recovered recyclables and residual solid waste to market or disposal destinations. These facilities typically include:
1) Materials handling, sorting, processing and compacting equipment and facilities; 2) Shipping/hauling of sorted materials, either by truck or rail; 3) Administrative functions, such as office, employee and training areas; 4) Weighing of vehicles and collection of fees; and
5) Maintenance of vehicles and equipment used in conjunction with the facility.
Medical Marijuana Dispensary. Any association, cooperative, club, coop, delivery service, collective and any other similar use involved in the sale, possession, cultivation, use and/or distribution of marijuana for medicinal purposes.
Menu Board. A permanently mounted sign displaying the bill of fare of a drive-in, drivethrough or walk-up restaurant.
Metal Salvage Yards. An establishment that collects and utilizes scrap metal for use as salable products.
Mezzanine. A second level, internal to a building or unit, composed of permanent or modular construction that adds usable square footage to a unit.
Mixed-Use Development. The development of a tract of land, building, or structure, which includes residential land uses in conjunction with a variety of complementary uses, such as, but not limited to, office, manufacturing, retail, public, or entertainment, in an integrated development project with significant functional interrelationships and a coherent and cohesive physical design.
Mobile Home. Same as "Manufactured Home," but subject to the National Manufactured Housing Construction and Safety Standards Act of 1974.
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Division 9.01—Definitions
Ontario Development Code Page 9.01-29 (Rev. 05.02.202312.03.2024) Mobile Home Park. A development designed exclusively for the placement of mobile homes on spaces or lots offered for sale, lease, rent or condominium ownership, including all improvements, buildings, structures, recreational areas, or other facilities for the use of the residents of such development, but not including any sites or spaces available on a transient basis.
Mobile Recycling Unit. An automobile, truck, trailer, or van, licensed by the California Department of Motor Vehicles, which is used for the collection of recyclable materials. This definition encompasses bins, boxes or containers transported by trucks, vans or trailers and used for the collection of recyclable materials. Mobile units shall not be visible from Euclid Avenue.
Monopole. A structure composed of a single spire used to support communications equipment.
Motel. A lodging facility that offers transient accommodations at a daily rate, to the general public, which are predominantly accessed from parking lots or exterior walkways.
Motorhome. A motor vehicle originally designed or permanently altered and equipped for human habitation.
Motor Truck. A motor vehicle designed, used, or maintained primarily for the transportation of property, which has two or more axles and a gross vehicle weight rating (GVWR) of more than 10,000 pounds (CVC Section 410).
Mortuaries. See "Funeral Parlors."
Mulch. A layer of organic material derived from plants (e.g., compost, leaf mold, peat, shredded bark, wood chips, etc.), which is applied to the surface of an area of soil to conserve moisture, improve the fertility and health of the soil, reduce weed growth, and enhance the visual appeal of the area. Nonstabilized decomposed granite or gravel may be used with appropriate California native landscapes.
Multiple Tenant Building. A building wherein two or more separate and independently owned, rented, leased, or operated commercial occupancies are contained.
Municipal Utility. A utility owned and operated by an agency of local government.
Mural. An original, noncommercial work of art that is displayed by being painted directly on, or being affixed directly to, the exterior wall of a building or structure, and which is clearly intended as a decorative or ornamental feature. Murals do not contain text, numbers, registered trademarks, registered logos, or business or service advertising or identification.
N. Definitions of Words Beginning with the Letter "N."
Neighborhood Convenience Facility. A retail establishment offering for sale, any prepackaged food products or household items, newspapers or magazines, salads or sandwiches, or other freshly prepared foods, for consumption off the premises.
Noncommercial Speech. Any message that is not determined to be commercial speech as defined in this Division.
Nonconforming Structure. A structure or building, the size, dimensions, or location of which was lawful prior to the adoption, revision, or amendment to a zoning ordinance, but which fails, 5530
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(Rev. 05.02.202312.03.2024) Page 9.01-30 Ontario Development Code by reason of such adoption, revision, or amendment, to conform to the present requirements of the zoning district.
Nonconforming Use. A use or activity which was lawful prior to the adoption, revision, or amendment to a zoning ordinance, but which fails, by reason of such adoption, revision or amendment, to conform to the present requirements of the zoning district.
Nonprofit Social Service Organization. An organization that is incorporated under State law and has an unpaid board of directors, and which provides social services on a non-resident basis to the public, on an ability-to-pay or non-fee basis.
Nuisance. Anything that is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use in the customary manner of any public park, street, sidewalk, alleyway, highway or other public easement is a nuisance. The classifications of nuisance are as follows:
1) Private Nuisance. A private nuisance is an interference with a person's enjoyment and use of their land, recognizing that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.
2) Public Nuisance. A public nuisance interferes with the public as a class, not merely one person or a group of citizens; however, some nuisances can be both public and private in certain circumstances where the public nuisance substantially interferes with the use of an individual's land.
3) Attractive Nuisance. An attractive nuisance is alluring or fascinating to those persons, who, because of their age, inexperience, and/or mental capability, are unable to recognize its dangerous quality.
Nuisance Vegetation. Weeds and wild grasses, such as those commonly known as foxtails, tumbleweeds, devil thorns, puncture vines, horehound gourd vines, and other similar grasses and weeds.
Nursery School. See "Child Day Care Facility."
Nursing Home (Convalescent Home (Hospital), Rest Home, or Rehab (Rehabilitation) Facility). A lodging and care facility for convalescents, invalids, or aged persons, not including persons suffering from contagious or mental diseases, alcoholism, or drug addiction, and in which surgery is not performed and primary treatment, as given in hospitals or sanitariums, is not provided. The terms "Nursing Home," "Convalescent Home," "Convalescent Hospital," "Rest Home," or "Rehab Facility" may be used interchangeably.
O. Definitions of Words Beginning with the Letter "O."
Office Building. A building containing two or more separate, independently owned, rented, leased, or operated commercial, administrative or support services, or professional tenants, in which the primary access to the lease area of each occupant is from the interior of the building (from a lobby or foyer), as opposed to direct access from a street or parking lot. 5531
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Ontario Development Code Page 9.01-31 (Rev. 05.02.202312.03.2024) Open Space. Any lot or area of land or water essentially unimproved and set aside, dedicated, designated, or reserved for public or private use or enjoyment, or for the use and enjoyment of owners and occupants of land adjoining or neighboring the open space. Open space does not include area covered by buildings or accessory structures (except recreational structures), paved areas (except recreational facilities), proposed and existing private and public streets, drive aisles, or driveways. The classifications of open space are as follows:
1) Common. Open space within an area owned, designed, and set aside for use by all occupants of a development, or the occupants of a designated portion of a development.
Common open space is not dedicated to the public and is owned or maintained by a private organization made up of the open space users. Common open space includes common recreation facilities, open landscaped areas, and greenbelts, and excludes streets, drive aisles, driveways, parking lots and other similar pavement areas, parkways, and landscaping within a public right-of-way.
2) Private. Open space directly adjoining a dwelling, which is intended for the private enjoyment of the occupants of the dwelling. For multiple-family dwellings, private open space includes area within private patios or balconies. For single-family dwellings, private open space includes front, rear, and side yard areas of individual lots.
Overlay District. A zoning district established by this Development Code that may be applied to an area or vicinity only in combination with a base zoning district.
Owner. Any person in possession, or any person(s) shown as owner(s) on the last equalized property tax assessment rolls.
P. Definitions of Words Beginning with the Letter "P."
Passenger Vehicle. Any motor vehicle, unless the vehicle is used for the transportation of persons for hire, compensation, or profit.
Patio. An outdoor living area constructed at ground level, which may extend from a building or may be freestanding. Patios may or may not have covers or roofs, can take on any shape, and may be constructed of a variety of materials, including concrete, brick, stone, gravel, pavers, flagstone, or other similar materials.
Patio, Covered. A patio with a shade structure, consisting of a roof and structural supports.
Patio, Enclosed. A patio area, consisting of a roof and vertical walls on up to 3 sides which are a minimum of 65 percent open. For the purpose of this definition, the term "open" may include the use of screen material and/or plexiglass, or other similar material. An enclosed patio shall not include any portion of a building that is habitable, as defined in the Uniform Building Code.
Parcel Map. A map that is designated to be placed on record with the office of the County Recorder for any subdivision creating 4 or fewer lots, or 5 or more lots if the subdivision complies with the provisions of GC Section 66426.
Parking Area. A site, or a portion of a site, devoted to the off-street parking of motor vehicles, including parking spaces, aisles, access drives, and related landscape and screening areas.
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Division 9.01—Definitions
(Rev. 05.02.202312.03.2024) Page 9.01-32 Ontario Development Code Parolee, Federal. An individual convicted of a federal crime, sentenced to a United States federal prison, and received conditional and revocable release in the community under the supervision of a Federal parole officer.
Parolee, State Adult. An individual who is serving a period of supervised community custody, as defined in PC Section 3000, following a term of imprisonment in a state prison and is under the jurisdiction of the California Department of Correction, Parole and Community Services Division.
Parolee, Youth Authority. An adult or juvenile individual sentenced to a term in the California Youth Authority and received conditional and revocable release in the community under the supervision of a Youth Authority parole officer.
Pavement (Paving). An area improved by the laying or covering with a material, such as asphalt, concrete, laid brick, or concrete block, so as to form a substantially flat, hard, and level all-weather surface. The terms "pavement" and "paving" may be used interchangeably.
Personal Property Donation Bin. An unattended canister, bin, box, receptacle, or similar device used for soliciting and collecting donations of personal property.
Personal Services. Services of a household or personal nature, such as dry cleaning, apparel repair, beauty and barbershops, but not including adult businesses as defined in this article.
Philanthropic Institution. See "Charitable Institution." Pickup Truck. A motor truck with a manufacturer's gross vehicle weight rating (GVWR) of less than 11,500 pounds and an unladen weight of less than 8,001 pounds, which is equipped with an open box-type bed less than nine feet in length. The term "pickup truck" does not include a motor vehicle otherwise meeting the aforementioned definition, which is equipped with a bedmounted storage compartment commonly called a "utility body" (CVC Section 471).
Place of Worship. See "Religious Assembly."
Planned Development. A development, other than a condominium or stock cooperative, having a common area owned by a property owner association, or in common by the owners of the separate interests who possess appurtenant rights to the beneficial use and enjoyment of the common area.
Planned Residential Development. A residential development on a site under one ownership or under the legally incorporated control of the individual owner-members, approved in conjunction with a subdivision, developed as a single entity, allowing a mix of dwelling types and individual parcels, and containing commonly owned open space and recreation areas.
Planning Commission. The Planning Commission of the City of Ontario.
Planning Director. The Planning Director of the City of Ontario, or his/her designee.
Political Sign. Any election or non-election sign, advertising structure, or display that communicate any message or idea identifying, supporting, opposing, promoting, or conveying a position upon or relating to any political cause or issue, or candidate for public office, or proposition or issue connected with any local, special, state, or national election. 5533
Division 9.01—Definitions
Ontario Development Code Page 9.01-33 (Rev. 05.02.202312.03.2024) Pool Hall. See "Billiard Parlor."
Prezoning. The classification of unincorporated territory adjoining a City into one or more City zoning districts.
Primary Use, Activity, or Facility. The principal or main use, activity, or facility of land, buildings, or other structures.
Primary Business Activity. The principal concern or interest of a business, based upon volume of business activity, gross receipts, and gross floor area devoted to business activity, in order of rank or importance.
Property Line. A line of record, which bounds a lot, and which divides a lot from another lot, a public or private street, or from any other public or private space (also see "Lot Line").
Public Nuisance. A nuisance that affects at the same time, an entire community or neighborhood, or any large number of persons, although the extent of the annoyance of damage inflicted upon individuals may be unequal.
Public Service Installation. Buildings and other structures and equipment owned and/or operated by an agency of local, state or federal government.
Public Storage. See "Mini Warehouse."
Public Right-of-Way. Any public street, alley, sidewalk, street island, median, or parkway that is owned or granted by easement, operated, or controlled by the City.
Public Utility Installation. Buildings and other structures and equipment owned and operated by a public utility or private utility company subject to the regulation of the Public Utility Commission of the State.
Public View. Observable or likely to be observed by a person positioned on publicly or privately owned property, at a location to which the public have unfettered access.
Q. Definitions of Words Beginning with the Letter "Q."
Reserved
R. Definitions of Words Beginning with the Letter "R."
Recognized Lot. Any lot that was a separate lot of record on November 5, 1947, as shown in the official records of the County Recorder, or any lot that was created after July 21, 1977, in accordance with State law or any applicable City law, or any lot that, at the time of annexation of the City, was a separate lot of record, as shown in the official records of the County Recorder.
Recreational Vehicle. A vehicle towed or self-propelled on its own chassis or attached to the chassis of another vehicle and designed or used for recreational or sporting purposes. The term recreational vehicle includes, but is not limited to, travel trailers, pick-up campers, camping trailers, motor homes, converted trucks or buses, boats and boat trailers, all-terrain vehicles, truck campers, personal water craft and trailers for their transport, off-road vehicles, fifth-wheel trailers, utility trailers and horse trailers. All-terrain and off-road vehicles licensed for use on the public street 5534
Division 9.01—Definitions
(Rev. 05.02.202312.03.2024) Page 9.01-34 Ontario Development Code shall not be considered a recreational vehicle, such as 4-wheel drive pick-up trucks, sport utility vehicles, and 4-wheel drive passenger vehicles.
Recreational Vehicle Park. A facility for the accommodation of recreational vehicles for short-term periods, generally for not less than one night and not used as a place of residence by persons, other than a manager or other employee and their families.
Recycling Center. A center for the collection and/or processing of recyclable materials certified by the California Department of Conservation as meeting the requirements of the California Beverage Container Recycling and Litter Reduction Act of 1986 (commencing with PRC Section 14500). A recycling facility does not include storage containers or processing activity on the premises of a residential, commercial, or industrial use, and used solely for the recycling of material generated by the residential property, business, or industry. For the purposes of these provisions, recyclable material shall mean reusable material, including, but not limited to metals, glass, plastic, and paper intended for reuse, remanufacture, or reconstitution for use in an altered form. Recyclable material may include used motor oil collected and transported in accordance with the California Health and Safety Code. Recycling facility is further defined as follows:
1) Large Collection Facility. A center for the acceptance by donation, redemption, or purchase, of recyclable materials from the public, that occupies an area of more than 500 SF, is not appurtenant to a host use and may use a permanent building. In addition, large collection facilities may have the capacity for aggregating and storing large amounts of material on-site. 2) Processing Facility. A facility certified by the California Department of Conservation, which purchases empty aluminum beverage containers, bimetal beverage containers, glass beverage containers, plastic beverage containers, or any other beverage containers, including any one or more of those beverage containers that have a refund value established pursuant to the California Beverage Container Recycling and Litter Reduction Act, from recycling centers within the state of California, for recycling. Processing facilities are limited to baling, briquetting, crushing, compacting, grinding, shredding, and sorting of source-separated recyclable materials, and repairing of reusable materials sufficient to qualify as a certified processing facility. A processing facility shall not shred, compact, or bale ferrous metals, other than food and beverage containers.
3) Reverse Vending Machine. An automated mechanical device that accepts one or more types of empty beverage containers, including, but not limited to, aluminum cans, glass, and plastic bottles, and issues a cash refund or a redeemable voucher. A reverse vending machine may sort and process containers mechanically if the entire process is enclosed within the machine.
4) Small Collection Facility. A center of not more than 500 SF in area for the acceptance by donation, redemption, or purchase, of recyclable materials from the public, and consisting of one or more of the following:
a) Mobile Recycling Unit. An automobile, truck, trailer, or van that is licensed by the Department of Motor Vehicles, which is used for the collection of recyclable materials. A mobile recycling unit also means bins, boxes or containers transported by trucks, vans, or trailers, and used for the collection of recyclable materials.
b) Bulk Reverse Vending Machine. A reverse vending machine that is larger than 50 SF in area, is designed to accept more than one container at a time and will pay by weight rather than by individual container.
5535
Division 9.01—Definitions
Ontario Development Code Page 9.01-35 (Rev. 05.02.202312.03.2024) c) Kiosk Type Unit. Portable recycling units but may include small permanent structures.
d) Unattended Containers. Any unattended container placed for the donation of recyclable material.
Rehab (Rehabilitation) Facility. See "Nursing Home."
Religious Assembly (Place of Worship). A facility operated for worship or recurring organized religious services, or activities, including churches, temples, mosques, synagogues, and other similar facilities of religious instruction. Such facilities may include a variety of traditional accessory uses, amenities and activities, such as offices, classrooms, multi-purpose rooms, play fields and gymnasiums, rectory, group living quarters, child and adult daycare facilities, and incidental retail activities that support the primary religious activity, limited to the sale religious books and paraphernalia. "Religious assembly" within commercial, mixed-use, and specialized use zoning districts may also include nontraditional accessory uses, amenities, and activities, such as general retail sales, entertainment facilities, sports and recreation centers, and broadcasting and recording studios. "Religious assembly" shall not include dwellings periodically used for religious activities that are clearly incidental to the primary residential use of the dwelling and do not create a nuisance.
Residence Inn. A lodging facility consisting of one or more buildings containing individual guest rooms or suites of rooms and/or dwelling units, which may provide kitchen facilities, amenities, recreational facilities, and/or meals. "Residence inn" shall not include residential, group, or community care facilities, as defined in this Division.
Residential Complex. Multiple-family residential developments, mobile home parks, and common interest developments, each consisting of 5 or more dwelling units constructed by a single developer or group of developers, and designed to function as a single cohesive unit in terms of access, parking, landscaping, property and landscape maintenance, and architecture, regardless of the subsequent parcelization.
Residential, Group, or Community Care Facility. Any facility, place or building that is maintained and operated to provide residential care as defined by State law and including, but not limited to, the physically handicapped, mentally impaired, incompetent persons, abused or neglected children and the elderly. Community Care Facilities include, but are not limited to, the following: residential facility, adult day care facility, therapeutic day services facility, foster family agency, foster family home, small family home, social rehabilitation facility, community treatment facility, full service adoption agency, noncustodial adoption agency, and transitional shelter care facility. Any of these facilities with 6 or fewer people in residence shall be viewed as a single-family residence.
Residential Project. Conditional Use Permit, Development Plan, Subdivision Map, or other discretionary or ministerial land use approval that authorizes the development of one or more dwellings and/or residential lots.
Rest Home. See "Nursing Home."
Restaurant. A business establishment that prepares and serves food and drinks to customers in exchange for money. The classifications of restaurant are described as follows:
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Division 9.01—Definitions
(Rev. 05.02.202312.03.2024) Page 9.01-36 Ontario Development Code 1) Full-Service Restaurant. A sit-down eatery where food is served directly to the customers' table. These establishments may sell alcoholic beverages. Food and drink may be consumed on the premises, taken out, or delivered to customers' locations. 2) Limited Service Restaurants. An establishment whose patrons generally order or select items and pay prior to eating. Food and drink may be consumed on the premises, taken out, or delivered to customers' locations.
3) Cafeterias. A restaurant or dining room in a school or a business in which customers serve themselves or are served from a counter and pay before eating.
Reviewing Authority. Advisory Authorities, Approving Authorities, and Appeal Authorities of the City, which are responsible for acting on [i] land use or development entitlements, permits, and licenses; and [ii] other planning, zoning, and/or development actions and decisions, as established by Division 2.02 (Application Filing and Processing) of this Development Code.
Rooming House. See "Boarding House."
S. Definitions of Words Beginning with the Letter "S."
Salvage Facility. Any place of outdoor storage or deposit for the storing, keeping, processing, buying, or selling of junk motor vehicles and/or scrap metal, or an outdoor area used for the operation of a motor vehicle graveyard. A salvage facility does not include a garage where wrecked or disabled motor vehicles are stored for less than 90 days, for repairs.
As used in this definition, the following terms shall apply:
1) Motor Vehicle Graveyard. A yard, field, or other outdoor area used or maintained for storing or depositing more than one junk motor vehicle on a property owned or controlled by the owner of the Junk Motor Vehicle. A Motor Vehicle Graveyard does not include the following:
a) An area used by a motor vehicle hobbyist to store, organize, restore, or display motor vehicles, or parts of such vehicles, provided that the hobbyist's activities comply with all applicable federal, State, and local laws;
b) An area used by a motor vehicle dealership for the storage of new or used operational motor vehicles; and/or
c) An area used or maintained for the temporary parking or storage of operational commercial motor vehicles, which are temporarily out of service and/or unregistered but are expected to be used in the future by the motor vehicle owner or operator. For the purpose of this definition, "temporarily out of service and/or unregistered" shall mean a period of 90 days from the date of placement or discovery.
2) Junk Motor Vehicle. A discarded, dismantled, wrecked, scrapped, or ruined motor vehicle, or parts thereof, or a motor vehicle, other than an on-premise utility vehicle, which is allowed to remain unregistered for a period of 90 or more days from the date of placement or discovery.
School, Private. A school owned and operated by a private entity.
School, Public. A school owned and operated by a public school district. 5537
Division 9.01—Definitions
Ontario Development Code Page 9.01-37 (Rev. 05.02.202312.03.2024) Self-Storage Facility. A structure or group of structures containing separate storage spaces of varying sizes to be leased or rented on an individual basis.
Senior Citizen. As set forth in CC Section 51.3, as said section may be hereinafter amended.
Senior Citizen Housing Development. A housing development consistent with the California Fair Employment and Housing Act, which has been designed to meet the physical and social needs of senior citizens, and which otherwise, qualifies as housing for senior citizens pursuant to CC Section 51.1. Senior Citizen Housing Developments shall not include Congregate Care Facilities, as defined in this Division.
Service Station. See "Gasoline Service Station."
Setback Area. A required open space area on a parcel of land, unobstructed and unoccupied from the ground upward, except as permitted by this Development Code. The classifications of setback area are described as follows:
1) Front. An area that abuts a public or private street, or access easement, which extends across the full width of a lot, the depth of which is the minimum required horizontal distance specified for the zoning district, measured in a straight line perpendicular to the front lot line and extending from the front lot line (measured from face-of-curb in the case of an access easement) toward the interior of the lot, to a line parallel to the front lot line. 2) Interior Side. An area that abuts another lot or lots, extending across the full depth of a lot, the width of which is the minimum required horizontal distance specified for the zoning district, measured in a straight line perpendicular to the interior side lot line, and extending from the interior side lot line, toward the interior of the lot, to a line parallel to the interior side lot line. 3) Rear. An area extending across the full width of a lot, the depth of which is the minimum required horizontal distance specified for the zoning district, measured in a straight line perpendicular to the rear lot line and extending from the rear lot line toward the interior of the lot, to a line parallel to the rear lot line.
4) Street Side. An area that abuts a public or private street, or access easement, which extends across the full depth of a lot, the width of which is the minimum required horizontal distance specified for the zoning district, measured in a straight line, perpendicular to the street side lot line and extending from the street side lot line (measured from face of curb in the case of an access easement), toward the interior of the lot, to a line parallel to the street side lot line.
Shopping Center. A group of retail stores and similar complementary establishments on a site that is planned and built as a coordinated unit, with shared pedestrian and vehicular circulation and off-street parking.
Single Room Occupancy Hotel. A cluster of 5 or more dwelling units on one property for weekly or longer tenancy and providing sleeping and living facilities for one or 2 persons within the unit, in which sanitary facilities are also normally provided and cooking facilities may be provided within each unit or shared by multiple units.
Single Tenant Building. A building in which no more than one owned, rented, leased or operated commercial occupancy is contained.
5538
Division 9.01—Definitions
(Rev. 05.02.202312.03.2024) Page 9.01-38 Ontario Development Code Sign. Any writing (including letter, word, or numeral), pictorial presentation (including illustration or decoration), emblem (including device, symbol, or trademark), flag (including banner or pennant), or any other device, figure, or similar character that: [i] is a structure or any part thereof, or is attached to, painted on, or in any other manner represented on a building, other structure or device; and [ii] is used to announce, direct attention to, or advertise; and [iii] is visible from the outside of a building.
The classifications of "sign," and definitions specifically related to the establishment of a sign, are as follows:
1) Backlit Awnings and/or Canopies. Awnings and/or canopies that are illuminated from behind so as to permit the transmission of light through a covering material, which thereby serves to attract attention to the building or structure upon which the awnings and/or canopies are affixed.
2) Banner Signs. A Temporary sign of lightweight flexible plastic, nylon, fabric, or similar material. Banner signs are further classified as follows:
a) Promotional or Special Event Banners. A sign attached to a building, wall or fence, or otherwise suspended down or across its face for the purpose of advertising a promotion or special event for an interim period, as specified by this Development Code. b) Street Banners. A sign that is mounted on City light standards within the right-of-way of arterial public streets, for the purpose of [i] promoting economic development messages to the general public, or [ii] for honoring the men and women of the City that are actively serving with the United States armed forces, or have died while serving. 3) Billboard Sign. A sign located in an area distant, and on a separate parcel of land from the place where the product, business, or premises being advertise is located. 4) Building Identification Sign. A sign that identifies the name of a building, or the primary use, establishment, activity, owner, or occupant of a building. 5) Center (Complex) Identification Sign. A sign that identifies a shopping center, office complex, industrial complex, or other use of a site containing more than one establishment. 6) Construction Sign. Signage that identifies contractors, lenders, designers, realtors, and other similar parties involved in the construction of a building or site. 7) Content Neutral Sign. Consistently applicable non-discriminatory sign regulations that specify, without reference to the content of the message, when, how, and where a sign can be displayed, with physical standards, such as, but not limited to, height, size and location, that allow the sign to be readable.
8) Descriptor Sign. Secondary signage that is intended to illustrate the products or services sold or offered by a business at the site on which the business is located. 9) Directional Sign. Signage intended to lead pedestrian and/or vehicular traffic to a predetermined location or destination.
10) Double-Faced Sign. A sign with two parallel opposing (back-to-back) faces. 5539
Division 9.01—Definitions
Ontario Development Code Page 9.01-39 (Rev. 05.02.202312.03.2024) 11) Electronic Message Display. An LED, LCD, or plasma advertising display containing a changing text message or pictorial presentation.
12) Electronic Text Display. A sign with electronically controlled changeable copy and/or message containing internally illuminated letters whose function is primarily to scroll text. Such signs are intended for use with those retail, entertainment, and assembly uses that typically necessitate signs with easily changeable copy, such as fuel pricing signs, marquee-type signs for public or private schools, public facilities and services, theaters, convention centers, arenas, places of worship, and other similar assembly uses.
13) Fascia Sign. A sign on the exterior of a building that is attached to a wooden board or other flat piece of material that covers the ends of joists or rafters. 14) Freestanding Sign. A sign structure that is permanently affixed to the ground, and includes: [i] complex identification monument signs, which identify a commercial, professional or industrial complex or center, which consists of 2 or more separate buildings, or 5 or more uses within one or more buildings; [ii] building or tenant (business) identification monument signs, which identify a single building or specific use or uses within an individual building; and [iii] freeway oriented signs.
15) Freeway Sign. A freestanding sign, including a sign incorporated into garden and screen wall, that is located within 600 FT of a roadway that is declared to be a freeway in compliance with the California Streets and Highways Code, and which complies with the minimum "freeway sign" requirements established by Division 8.01 (Signs) of this Development Code.
16) Fuel Island Canopy Sign. Signage placed on the fascia of a canopy structure located over pump (fuel dispenser) islands.
17) Historical Marker. An indicator, such as a plaque or sign, to commemorate an event or person of historic interest, and to associate that point of interest with a specific locale one can visit.
18) Human Sign. An advertisement that is applied to, worn, or held by a person. Most commonly, this means holding or wearing a sign, but may also include wearing advertising as clothing. A person holding a sign is known in the advertising industry as a "human directional," but may also be referred to as a "sign walker," "sign waver," or "sign twirler." Frequently, a "human directional" will spin or dance, or wear a costume with the promotional sign in order to attract attention.
19) Menu Board. A board on which a food menu is written. 20) Monument Sign. A freestanding sign with a solid base that is in close contact with the ground, which is equal to or larger than the width of the sign face and incorporates the architectural theme and building materials of the building(s) located on the property in which the sign serves.
21) Off-Site Subdivision Sign. A sign that is located off-site, which contains the name of and the direction of travel to a residential subdivision project in the City. 5540
Division 9.01—Definitions
(Rev. 05.02.202312.03.2024) Page 9.01-40 Ontario Development Code 22) Permanent Sign. A sign attached to a building, structure, or the ground in a manner that enables the sign to resist environmental loads, such as wind, and precludes ready removal or movement of the sign.
23) Pole Sign. A freestanding sign with visible support structure. 24) Political Sign. Any display utilized for the purpose of proposing or opposing the election of a candidate, or ballot measure or proposition.
25) Portable Sign. A sign not permanently attached to the ground or building, with a power-cord for connection to an electrical source, and readily removable using ordinary hand tools.
26) Real Estate Sign. A temporary sign advertising the sale, rental, or lease of the premises upon which the sign is maintained.
27) Roof Sign. A sign mounted on or above the roof of a building, but not including a sign mounted on a parapet.
28) Single-Face Sign. A sign with only one face plane.
29) Supergraphics. A large-scale painted or applied sign, typically in bold colors and containing simple geometric or typographic designs, placed over exterior walls of buildings, and sometimes roofs.
30) Swooper Sign. A sign that is longer than it is wide, which is made of a flexible material (typically cloth, nylon, or vinyl), and mounted to a pole that allows it to fly freely, and is commonly used to attract attention to a business or event, or to advertise goods and/or services. 31) Temporary Sign. Any sign not intended for permanent installation, which is incidental or secondary in nature, and is subject to a time limitation, such as banner signs, construction signs, political signs, and real estate signs.
32) Tenant (Business) Identification Sign. A sign displaying the name of the business to which it pertains and/or the name or description of the products or services sold or offered by the business at the site on which the business is located. A business identification sign may be an attached or freestanding sign.
33) Vehicle-Mounted Billboard (moving or stationary). An automobile, truck, trailer, semitrailer, or other vehicle to which a business identification sign is mounted, painted, or otherwise affixed.
34) Wall Sign. A sign attached to the exterior wall of a building or structure. 35) Way-Finding Signs. Signage, including maps and other graphic or audible methods, which is used to convey location and directions to pedestrian and/or vehicular traffic. 36) Window Sign. A sign that is posted, painted, placed, or affixed to, or suspended or placed within 5 FT feet of the interior side of, a window or glass door of a building, which is intended for viewing from the exterior of the building.
5541
Division 9.01—Definitions
Ontario Development Code Page 9.01-41 (Rev. 05.02.202312.03.2024) Sign Area. The entire face of a sign, including the surface of any framing, projections or molding, but not including the support structure. The area of a sign consisting of individual channel letters mounted on a building wall or freestanding structure shall be calculated by including the entire area within a single, continuous perimeter enclosing the extreme limits of lettering, representation, emblem, or other display.
Sign Copy. Any words, letters, numbers, figures, designs, or any other symbolic representations incorporated onto the face of a sign, excluding building addresses.
Sign Face. The exterior surface of a sign, exclusive of structural supports, on which is placed the sign copy.
Site. A parcel of land or combination of contiguous parcels of land.
Site Area. The net horizontal area included within the boundary lines of a site, not including the area of any easement within which the right of use has been relinquished, and not including the area within the established right-of-way of a public street, future public street, railroad, or any other area dedicated or to be dedicated for a public use.
Small Cell Facility. Has the same meaning as "small wireless facility" in 47 CFR 1.6002(l), or any successor provision, which is a personal wireless services facility that meets the conditions that, solely for convenience, have been set forth below.
1) The facility:
a) is mounted on a structure 50 FT or less in height, including antennas, as defined in 47 CFR Section 1.1320(d), or
b) is mounted on a structure no more than 10 percent taller than other adjacent structures, or
c) does not extend an existing structure on which it is located, to a height of more than 50 FT or by more than 10 percent, whichever is greater; 2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in 47 CFR Section 1.1320(d)), is no more than 3 cubic feet in volume;
3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;
4) The facility does not require antenna structure registration under 47 CFR Part 17; 5) The facility is not located on Tribal lands, as defined under 36 CFR Section 800.16(x); and
6) The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 CFR Section 1.1307(b).
Special District. An agency of the State for the local performance of governmental or proprietary functions within limited boundaries including a county service area, a maintenance 5542
Division 9.01—Definitions
(Rev. 05.02.202312.03.2024) Page 9.01-42 Ontario Development Code district or area, an improvement district, or any other area or district formed for the purpose of designating an area within which a tax or charge will be levied to pay for a service or improvement benefiting that area, but not including a school district or community college district.
State. The State of California.
State Density Bonus Law. The laws, rules and regulations contained in GC Section 65915, as said section may be hereinafter amended.
State Freeway. Any section of a State highway that has been declared to be a freeway by resolution of the Highway Commission of the State, pursuant to the provisions of SHC Section 100.3, and/or any section of State highway that has been fenced by a State agency between intersecting streets, for the purpose of limiting or restricting access thereto.
Stealth Facility. Any wireless telecommunications facility that is designed to blend into the surrounding environment. Examples of stealth facilities may include architecturally screened roofmounted antennas, building-mounted antennas painted to match the existing structure, antennas integrated into architectural elements and details, and antenna structures designed to look like light poles, trees, and flagpoles. Stealth facilities are also referred to as concealed antennas.
Street. Any public or private thoroughfare, other than an alley, that provides the principal means of access to abutting property and has been designed and/or constructed pursuant to the City's minimum established standards for public streets. The classifications of "street" are as follows:
1) Arterial Street. A street with signals at important intersections and stop signs on the side streets that collect and distribute traffic to and from collector streets. 2) Collector Street. A street that collects traffic from local streets and connects with arterial streets.
3) Local Street. A street designed to provide vehicular access to abutting property and to discourage through traffic.
4) Private Street. A street in private ownership, which complies with all of the following:
a) The street is built to the standards for public streets established by the City of Ontario;
b) The street has not been accepted for dedication as a public street; and c) The street is the principal means of vehicular access to properties that do not have access to a public street.
5) Public Street. A street that has been accepted for dedication by the City, the County, or the State.
Stock Cooperative. A development in which a corporation is formed to hold title to improved real property, and in which all of the shareholders of the corporation receive a right of exclusive occupancy in a portion of the real property, title to which is held by the corporation. 5543
Division 9.01—Definitions
Ontario Development Code Page 9.01-43 (Rev. 05.02.202312.03.2024) Story. That portion of a building included between the surface of any floor and the surface of the floor next above it. If there is no floor above it, then the space between the floor and the ceiling above it, and including basements used for primary use.
Structure. Anything that is built or constructed, whether installed on, above, or below the surface of land or water, an edifice or building of any kind, or any piece of work artificially built up or composed of parts joined together in some definite manner, but not including light standards, poles, lines, cables, or other transmission or distribution facilities of a public utility.
Subdivider. A person, firm, corporation, partnership, or association who proposes to divide, divides, or causes to be divided, real property into a subdivision for oneself or others. The term shall not include employees or consultants of such persons or entities, acting in such capacity.
Subdivision. The division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, shown on the latest equalized county assessment roll as a unit or as contiguous units, for the purpose of sale, lease, or financing, whether immediate or future. Property shall be considered as contiguous units, even if it is separated by roads, streets, utility easement or railroad rights-of-way. "Subdivision" includes a condominium project, as defined in CC Section 1351(f), a community apartment project, as defined in CC Section 1351(d), or the conversion of 5 or more existing dwelling units to a stock cooperative, as defined in CC Section 1351(m).
Subdivision Map Act. The provisions of GC Title 7, Division 2, commencing with Section 66410, and such amendments thereto as may be made from time to time.
Substandard Lot. Any lot that does not meet the minimum dimension or area requirement of the zoning district in which it is located and for which no variance has been obtained. In determining the minimum lot area or dimensions, the area of any easement that restricts the normal usage of the lot may be excluded.
Supermarket. See "Grocery Store."
Supportive Housing. As defined in HSC Section 50675.14(b)(2), "supportive housing" means housing with no limit on length of stay, that is occupied by the target population, and that is linked to onsite or offsite services that assist the supportive housing resident in retaining the housing, improving his or her health status, and maximizing his or her ability to live and, when possible, work in the community. For the purposes of this definition, the term "target population" means persons, including persons with disabilities, and families who are "homeless," as that term is defined by USC 42 Section 11302, or who are "homeless youth," as that term is defined by GC 11139.3(e)(2).
Furthermore, individuals and families currently residing in supportive housing meet the definition of "target population" if the individual or family was homeless when approved for tenancy in the supportive housing project in which they currently reside.
Swap Meet (Concession Mall). The retail sales of a variety of unrelated merchandise within a single enclosed establishment or marketplace by 5 or more independent persons, merchants and/or businesses, that individually occupy or make use of floor area or wall space, for which a fee, commission, rent, or lease is charged. The terms "swap meet" and "concession mall" may be used interchangeably.
T. Definitions of Words Beginning with the Letter "T."
Tasting Room. A separate area of the alcoholic beverage manufacturer's licensed premises, maintained and operated by and for an alcoholic beverage manufacturer, wherein 5544
Division 9.01—Definitions
(Rev. 05.02.202312.03.2024) Page 9.01-44 Ontario Development Code alcoholic beverages may be sold and served by an employee or designated representative of the alcoholic beverage manufacturer, to consumers of legal drinking age for consumption on the alcoholic beverage manufacturer's licensed premises. The alcoholic beverages served shall be limited to the products that are authorized to be sold by the alcoholic beverage manufacturer under its license issued by the California Department of Alcoholic Beverage Control. Alcoholic beverages manufactured elsewhere may not be sold in the tasting room or on the alcoholic beverage manufacturer1s licensed premises. A tasting room is, and at all limes shall remain, an incidental use to the primary alcoholic beverage manufacturing use.
Temporary Use, Activity or Facility. A use, activity, or facility established pursuant to the requirements of this Development Code, for a specific period of time, with the intent to discontinue the use, activity, or facility at the end of the designated time period.
Tentative Map. A map prepared for showing the design of a proposed subdivision and the existing conditions in and around it. The classifications of "tentative map" are as follows:
1) Tentative Parcel Map. A tentative map for a proposed subdivision creating 5 or more lots, 5 or more condominiums as defined in CC Section 783, a community apartment project containing 5 or more parcels, or for the conversion of a dwelling to a stock cooperative containing 5 or more dwelling units, excepting those subdivisions that comply with the provisions of GC Section 66426(a) through (d).
2) Tentative Parcel Map. A tentative map for a proposed subdivision creating 4 or fewer lots or 5 or more proposed lots that comply with the provisions of GC Section 66426(a) through (d). 3) Vesting Tentative Map. A tentative map prepared in accordance with the provisions of this Title that shall have printed conspicuously on its face the words "Vesting Tentative Map" at the time it is filed.
Tow Truck. Pursuant to CVC Section 615A motor vehicle that has been altered or designed and equipped for, and primarily used in the business of, transporting vehicles by means of a crane, hoist, tow bar, tow line, or dolly, or is otherwise primarily used to render assistance to other vehicles.
The term "tow truck" also includes a "roll-back carrier" designed to carry up to 2 vehicles, and excludes an automobile dismantler's tow vehicle or a tow vehicle used for the repossession of vehicles, defined as follows:
1) Automobile Dismantlers' Tow Vehicle. A tow vehicle that is registered by an automobile dismantler licensed pursuant to BPC Division 5, Chapter 3 (commencing with Section 11500), and is used exclusively to tow vehicles owned by the automobile dismantler in the course of the automobile dismantling business.
2) Repossessor's Tow Vehicle. A tow vehicle that is registered to a repossessor licensed or registered pursuant to BPC Division 3, Chapter 11 (commencing with Section 7500), which is used exclusively in the course of the repossession business.
Tract Map. See "Final Map."
Trailer Coach. A trailer designed primarily for human habitation or human occupancy.
Transient. Any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement, for a period of 30 days or less, 5545
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Transitional Housing. Intended as a middle point between "emergency shelter" and permanent housing, "transitional housing" provides shelter for homeless individuals and families for up to 2 years, in an environment of security and support, which is designed to help residents progress toward self-sufficiency.
Transitional Living Centers. A facility for homeless persons, which varies by program and facility. The length of stay and services provided vary by program. Some transitional living facilities are simply shared houses with minimal supervision, while others may provide meals, medical care, employment assistance, case management, and other similar homeless services.
Transportation Terminal. A station or passenger terminal for any type of transportation system.
Trash Containers. Any container such as trash bags, boxes, or bins used to store trash, rubbish, or other such refuse matter that meets the requirements of OMC Section 6-3.302 (Placement of Refuse, Recycling and Green Waste in Receptacles) and is placed at a collection point.
Travel Trailer. A non-motorized vehicle designed to be towed by a motor vehicle, used for recreation purposes, including human habitation while parked or at rest, but not as a permanent place of residence.
Tree. A plant having a permanently woody main, erect stem or trunk, with a circumference of at least 9.5 inches (or a diameter of 3 inches) at a height of 54 inches above natural grade at maturity, having a rather distinct and elevated head (crown), and usually developing branches at some distance from the ground.
Truck Camper. A recreation vehicle in which the part containing the living and sleeping accommodations is separate from the vehicle and may be removed from the bed of the truck.
Truck Tractor. A motor vehicle designed and used primarily for drawing other vehicles and not so constructed as to carry a load other than a part of the vehicle weight and load that is drawn. As used herein, the term "load" does not include items carried on the truck tractor in conjunction with the vehicle operation if the load carrying space for these items does not exceed 34 SF (CVC Section 655).
U. Definitions of Words Beginning with the Letter "U."
Unladen Vehicle Weight. The weight of a vehicle equipped and ready for operation on the road, including body, fenders, permanently attached boxes, and body parts, oil in the motor, radiator full of water, weight of 5 gallons of fuel, and any machinery, equipment, or attachment that functions as a part of the body or vehicle in its normal operation.
University. See "College."
Urban Farm. The growing of plants and products derived from them, which are grown and sold on the same lot, or sold off-site.
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(Rev. 05.02.202312.03.2024) Page 9.01-46 Ontario Development Code Use. The purpose for which land, buildings or other structures are arranged, designed, intended, constructed, erected, moved, altered, or enlarged, or for which either land, buildings or other structures may be occupied or maintained.
Used Merchandise Stores. Retail establishments primarily engaged in the sale of vintage goods, antique furniture and home furnishings, antique glassware, rare books and manuscripts, and other antique objects of art, and previously owned goods. "Used merchandise stores" does not include the retail sales of used motor vehicles and parts, such as automobiles, recreational vehicles, motorcycles, boats, motor vehicle parts, tires, and mobile homes, and pawn shops, which sell a variety of used merchandise but generate most of their revenue from interest and fees on loans.
The classifications of "used merchandise stores" are as follows:
1) Antique Shops/Dealers. A retail establishment offering objects for sale that are 100 or more years old, such as works of art, furniture or decorative items, that are collected or desirable because of age, rarity, condition, utility, craftsmanship or other unique feature, and which represent a previous era in human society.
2) Collectibles Shops. A retail establishment offering new or used objects for sale, typically mass produced, which are less than 100 years old and are designed for people to collect or have value due to their rarity and/or desirability.
3) Consignment Shops. A retail establishment offering objects for sale that are owned by others and derives their profit by collecting a set fee for the objects that are sold or retaining a portion of their purchase price.
4) Flea Markets and Swap Meets. A single enclosed retail establishment offering a variety of unrelated objects for sale, within which individual sales booths, or stall or wall spaces are available for use, for which a fee, commission or lease is charged, for the display and/or sale of new, antique, vintage, or collectible objects or merchandise, or for the display and/or sale of services, by 5 or more vendors possessing a valid City business license. 5) Thrift and Secondhand Stores. A retail establishment operated by a charitable organization for the purpose of fundraising, offering objects for sale that are used, typically at reduced prices.
6) Used Goods Stores. A retail establishment offering objects for sale that that are used or previously owned, such as clothing, shoes, furniture, home furnishings, appliances, electronic equipment and devices, books, musical instruments, compact discs (CDs), tapes, records, and specialty building materials architectural elements.
7) Vintage Shops. A retail establishment offering objects for sale that are more than 20 years old, and which exhibit the best of a certain quality, or qualities, associated with, or belonging to, a specific era, and is representational and recognizable as belonging to the era in which it was made.
V. Definitions of Words Beginning with the Letter "V."
Vanpool Vehicle. Any motor vehicle, other than a motor truck or truck tractor, which is designed for carrying more than 10, but not more than 15 persons (including the driver), which is 5547
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Variance. A zoning instrument which allows deviation from development standards required in the Code when, because of special circumstances applicable to the property, strict application of Code requirements deprives a property the privileges enjoyed by other properties in the vicinity and under identical zoning. Any variance granted will assure that the adjustment granted will not constitute a special privilege.
Variety Store. An establishment primarily engaged in retailing new goods in general merchandise stores (except department stores, discount stores, warehouse clubs, superstores, and supercenters). These establishments retail a general line of new merchandise, such as apparel, automotive parts, dry goods, hardware, groceries, housewares or home furnishings, and other lines in limited amounts, with none of the lines predominating.
Veterinary Hospital. See "Animal Hospital."
W. Definitions of Words Beginning with the Letter "W."
Wellness Center. An establishment that offers health services for the body and mind, including but not limited to fitness, personal training, nutrition consulting, skin care services, massage, holistic and herbal therapies, and therapeutic application and retail sales of medicinal cannabis products containing cannabidiol (CBD), but excluding all products containing tetrahydrocannabinol (THC).
Whip (Omnidirectional, Stick or Pipe) Antenna. An antenna that transmits signals in 360 degrees. Whip antennae are typically cylindrical in shape and are less than 6 inches in diameter and measure up to 18 FT in height.
Wine. The product obtained from normal alcoholic fermentation of the juice of sound ripe grapes or other agricultural products containing natural or added sugar, or any such alcoholic beverage to which is added grape brandy, fruit brandy, or spirits of wine, which is distilled from the particular agricultural product or products of which the wine is made and other rectified wine products and by whatever name, and which does not contain more than 15 percent added flavoring, coloring, and blending material, and which contains not more than 24 percent of alcohol by volume, and includes vermouth and sake (also known as Japanese rice wine).
Wine Grower. Any establishment licensed by the Department of Alcoholic Beverage Control of the State of California, which has facilities and equipment for the conversion of grapes, berries, or other fruit into wine, and is engaged in the production of wine within the City.
Wireless Telecommunications Facility. The transmitters, antenna structures and other types of installations used for the provision of wireless services at a fixed location, including, without limitation, any associated tower(s), support structure(s), and base station(s).
X. Definitions of Words Beginning with the Letter "X."
Reserved
Y. Definitions of Words Beginning with the Letter "Y."
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Division 9.01—Definitions
(Rev. 05.02.202312.03.2024) Page 9.01-48 Ontario Development Code Yard. An open space unoccupied by and unobstructed from the natural ground upward, except as otherwise provided for in this Development Code. Required yards shall be measured parallel with the front, side or rear property line, as appropriate, in a line perpendicular to the nearest point of a structure on the site; provided, however, where a future right-of-way of a street, highway, freeway or railroad has been established, required yards shall be measured from the established right-of-way line.
Where a site abuts on a street having only a portion of its required width dedicated or a reserved for street purposes, the required yard shall be measured from the line establishing the additional width required for street purposes abutting the line.
On a site that is so irregularly shaped that the locations of the required front, side, and rear yards cannot clearly be identified, the locations and the manner of measurements shall be prescribed by the Zoning Administrator.
The classifications of "yard" are described as follows:
1) Front. A yard that extends across the full width of a lot, between the primary (front) façade of the forward-most building on the lot and the front property line, the depth of which is the horizontal distance between the front property line and the structure. 2) Interior Side. A yard that abuts another lot or lots, extending between the front and rear yards, the depth of which is the horizontal distance between the side property line and a structure on the site.
3) Rear. A yard extending across the full width of a site, between the rear-most building and the rear property line, the depth of which is the horizontal distance between the rear property line the structure.
4) Street Side. A yard that abuts a public or private street, or access easement, extending between the front and rear yards, the depth of which is the horizontal distance between the side property line and a structure on the site.
Z. Definitions of Words Beginning with the Letter "Z."
Zoning District (Zone). A specifically delineated area, district, or zone within the City, in which regulations and requirements uniformly govern the use, placement, spacing and size of land and buildings. The terms "zoning district" and "zone" may be used interchangeably.
Zoning Administrator. The Zoning Administrator of the City of Ontario, or their designee.
9.01.015: Acronyms and Abbreviations
For the purposes of this Development Code, the following abbreviations and acronyms shall have the meanings listed below:
<—Less than
<—Less than or equal to
>—Greater than
>—Greater than or equal to
ABC—Department of Alcoholic Beverage Control of the State of California 5549
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ADA—Americans with Disabilities Act of 1990
ADT—Average Daily Trips made by vehicles or persons within a 24-hour period ALUC—Airport Land Use Commission of the City of Ontario ALUCP—Airport Land Use Compatibility Plan
AQMD—Air Quality Management District
ARB—California Air Resources Board
BLM—United States Bureau of Land Management
BMP—Best Management Practices
BMR—Below Market Rate
BPC—Business and Professions Code of the State of California BTH—Brown trunk height
CAC—California Administrative Code
CalEPA—California Environmental Protection Agency
CalGreen—California Green Building Standards Code
CBD—Central Business District
CC—Civil Code of the State of California
CCP—Code of Civil Procedure
CC&Rs—Covenants, conditions, and restrictions
CCR—California Code of Regulations
CDBG—Community Development Block Grant
CEQA—California Environmental Quality Act of 1970, as amended CESA—California Endangered Species Act
CF—Cubic feet (foot)
CFD—Community Facilities District
CFR—Code of Federal Regulations
CHBC—California Historical Building Code
CIP—Capital Improvement Program
CLG—Certified Local Government
CMP—Congestion Management Plan
CNEL—Community Noise Equivalent Level
CNO—Chino Airport
CNO ALUCP—Chino Airport Land Use Compatibility Plan
COG—Council of Governments
CPI—Consumer Price Index
CSA—Community Service District
CUP—Conditional Use Permit
CVC—California Vehicle Code
CWA—Federal Clean Water Act
CY—Cubic yard
DAB—Development Advisory Board of the City of Ontario
dB—Decibels
DFG—California Department of Fish and Game
DG—Decomposed Granite
DMV—Department of Motor Vehicles of the State of California DOE—United States Department of Energy
DOT—United States Department of Transportation
du/ac—Residential dwelling unit per acre
DU—Residential dwelling unit
EC—Education Code of the State of California
EIR—Environmental Impact Report
EIS—Environmental Impact Statement
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(Rev. 05.02.202312.03.2024) Page 9.01-50 Ontario Development Code EPA—Federal Environmental Protection Agency
ESA—Federal Endangered Species Act
FAA—Federal Aviation Administration
FAR—Floor area ratio
FEIR—Final Environmental Impact Report
FEMA—Federal Emergency Management Agency
FHA—Federal Housing Administration
FHWA—Federal Highway Administration
FIA—Fiscal Impact Analysis
FIFRA—Federal Insecticide, Fungicide and Rodenticide Act FIR—Fiscal Impact Report
FT—Feet (foot)
GC—Government Code of the State of California
GFA—Gross floor area
GLA—Gross leasable area
HCD—California Department of Housing and Community Development HDR—High Density Residential
HPC—Historic Preservation Commission of the City of Ontario HSC—Health and Safety Code of the State of California
HUD—United States Department of Housing and Urban Development JPA—Joint Powers Authority
LAB—Labor Code of the State of California
LAC—Local Assistance Committee
LAFCO—Local Agency Formation Commission
LDR—Low Density Residential
LOS—Level of Service
MDR—Medium Density Residential
MOU—Memorandum of Understanding
NEPA—National Environmental Policy Act
NOC—Notice of Completion
NOD—Notice of Determination
NOP—Notice of Preparation
NPDES—National Pollution Discharge Elimination System
ODC—Ontario Development Code
ONT—Ontario International Airport
ONT ALUCP— Ontario International Airport Land Use Compatibility Plan OPA—Office of Permit Assistance of the State of California OPR—Governor's Office of Planning and Research of the State of California OMC—Ontario Municipal Code
PC—[i] Penal Code of the State of California; or [ii] Planning Commission PRC—Public Resources Code of the State of California
PUC—Public Utilities Code of the State of California
PUD—Planned Unit Development
Ref—Reference
RFP—Request for Proposal
RFQ—Request for Qualifications
RLUIPA—Religious Land Use and Institutionalized Persons Act R-O-W—Right-of-Way
RWQCB—Regional Water Quality Control Board
SCAQMD—South Coast Air Quality Management District
SF—Square Feet (Foot)
SFR—Single-Family Residential
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TOD—Transit Oriented Development
TOT—Transient Occupancy Tax
USC—United States Code
WQMP—Water Quality Management Plan
WRCB—Water Resources Control Board
WUCOLS—Water Use Classifications of Landscape Species
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Ontario Development Code Page 9.02-1 (Rev. 05.02.2023)
Division 9.02—Glossary
Sections:
9.02.000: Purpose
9.02.005: Applicability
9.02.010: Glossary of Terms and Phrases
9.02.000: Purpose
The purpose of this Division is to define common nomenclature used in explaining, depicting, expressing, illustrating, or portraying urban planning and architectural design concepts and elements.
9.02.005: Applicability
A. Unless otherwise apparent from the context, the urban planning and architectural design nomenclature stated in this Division may be used in the implementation of the development and design standards of this Development Code.
B. The words, terms, phrases, abbreviations, and acronyms defined in this Division shall be maintained in correct alphabetical order.
9.02.010: Glossary of Terms and Phrases
A. Definition of Words Beginning with the Letter "A."
Acoustical Separation. An area or component provided for the purpose of restricting sound transmission between abutting areas or building modules.
Arcades. Covered walkways attached to buildings and supported on one side by columns.
Arcades provide pedestrians with shelter and can serve to provide large buildings with a more human scale.
Articulation. The visible expression of architectural or landscape elements through form, structure or materiality. Articulation provides a method for reducing the scale and breaking up the mass of buildings and plazas.
Awnings. Roof-like shelters, generally of canvas, that project from the wall of a building.
Awnings serve to provide protection for buildings and pedestrians against the harsh elements of sunlight and weather.
B. Definition of Words Beginning with the Letter "B."
Bank. A sloping surface often used to create separation. See also "Berm." Base. The bottom portion of a building, which generally supports its upper portions, both structurally and visually.
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Bays. The term "bays" may be used when referring to the structural design of a building or when referring to parking lot design, as follows:
1) Bays of a Building. Structural modules occurring
between the vertical means of support. Structural bays generally occur between columns or load-bearing walls.
2) Parking Bays. Bays in parking lots are a "complete"
parking module consisting of a drive aisle with perpendicular or diagonal parking on one side (single-loaded parking bays) or both sides (double-loaded parking bays) (see figure, right).
Bay Windows. Window assemblies that protrude beyond
the wall plane of a building. Bay windows may be semi-circular, faceted, or rectangular, and often have their own roof. They are used to provide a wider view, bring in more light, and contribute to the articulation of a building's exterior.
Berm. An artificial bank of earth usually located along roadsides and off-street parking areas. Berms serve to physically and visually separate areas by raising the level of plants and other landscape elements.
Bollard Light. A short post, generally not more than 3 feet in height, with a built-in light fixture at its uppermost portion (see example, right).
Build-Out. Development of land to its full potential or theoretical capacity as permitted under current or proposed planning or zoning designations.
Build-To Lines. Building edges that are required to be placed at given locations, as established by the development standards of the City. Build-to lines are generally defined as a given distance from a property line, and can be used to encourage building fronts, entrances and windows to line and spatially define streets, parks, or plazas.
C. Definition of Words Beginning with the Letter "C."
Can Sign. A sign that is internally or externally illuminated, which is generally formed into a square or rectangular-shaped box.
Canopy. A structure or architectural projection of rigid construction over which a covering is attached that provides weather protection, identity, or decoration, and may be structurally independent or supported by attachment to a building.
Cantilever. A horizontal projection without external bracing. Cantilevers may appear visually awkward, as they typically appear to have no apparent source of support.
Cap. The crowning feature of a wall. Caps protect walls from the weather and provide architectural detailing that contributes to the wall's visual interest.
Parking Bays
Bollard Light
Double-Loaded
Parking Bay
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Cobrahead Light. A streetlight whose luminaire is
supported on a cantilevered arm, which extends over the street, having a profile vaguely resembling that of a cobra snake (see example, right).
Clapboard Siding. A building sheathing made up of
overlapping horizontal boards.
Clerestory Windows. Windows with high sills that are often used to bring in light when lower windows are undesirable because of privacy concerns.
Common Open Space. Semi-public areas intended for the
use of residents or workers within a project. Common open spaces may include gardens, plazas, or recreational spaces.
Connecting Walkways. Pedestrian paths that connect
buildings or open spaces directly to the street and are not overly circuitous. See also "Pedestrian Connections."
Cornice. Horizontal ornamentation on a building's façade, which is generally located near the top of a building's façade and is often located near the floor line of upper stories (see example, right).
Cupola. A small hat-like projection occurring the ridgeline of a roof. Cupolas traditionally covered the place where large structures, like barns, were vented.
D. Definition of Words Beginning with the Letter "D."
Detailing. The manner in which separate building elements are assembled. Careful detailing will minimize the effects of weather on buildings and promote an attractive and longlasting appearance.
Dormers. Upright windows built out from a sloping roof.
Downspouts. Pipes that carry rainwater from a roof gutter to the ground or sewer.
E. Definition of Words Beginning with the Letter "E."
Eaves. The portion of a sloping roof that extends beyond the exterior wall of a building. See also "Overhang."
Egress. The point of exit.
Emulate. To represent or re-create the qualities of something else, without duplicating it literally. For example, historic styles may be emulated without copying an historic building.
Entry. The doorway into a building, along with the architectural treatments that accompany it.
Cobrahead Light
Cornice
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F. Definition of Words Beginning with the Letter "F."
Fast Food. Those food service establishments offering relatively immediate service of preprepared food in disposable containers.
Fenestration. The arrangement of windows in a building.
Finishes. The materials applied to the surface of buildings or landscape elements. Properly applied finishes contribute to an attractive appearance and long-lasting wear.
Freestanding. To be supported at the ground and without support from a building or other structure.
G. Definition of Words Beginning with the Letter "G."
Gable Roof. A type of roof that slopes upward on two sides from the eaves to the ridge (see example, right).
Gateway. Generally, a major entry into a district or area, which is often emphasized through landscaping.
Gazebo. A small, free-standing structure with a roof, which is open on all sides. Traditionally, gazebos are used as an outdoor room within gardens, or to cover musicians performing in community concerts.
Glazing. The glass within a window.
Grade. The surface of a building site or its vertical elevation (often measured as feet above sea level).
Grasscrete. A paving material that supports the weight of an occasional vehicle, while also permitting groundcover to grow. Also referred to as "turf block".
H. Definition of Words Beginning with the Letter "H."
Hip Roof. A type of roof that slopes upward on all sides, from the eaves to the ridge (see example, right).
I. Definition of Words Beginning with the Letter "I."
Ingress. A point of entry.
J. Definition of Words Beginning with the Letter "J."
Reserved
K. Definition of Words Beginning with the Letter "K."
Reserved
L. Definition of Words Beginning with the Letter "L."
Gable Roof
Hip Roof
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Landscape Architectural Feature. Decorative structural elements in a landscaped area, such as walks, benches, patios, terraces, water features, and the like.
Landscaped Buffer. An attractive arrangement of trees, shrubs, and other vegetation that acts as a divider between incompatible uses or activities.
Lattice. An open framework of wood or other members that is often used to partly block views or support vines.
Loggia. A roofed deck that is integrated within an upper level of a building.
Lotting Pattern. A recognizable arrangement of residential lots, which are of the same or varying sizes and widths.
M. Definition of Words Beginning with the Letter "M."
Major Entry. The most common point or points of ingress for a development project or building.
Mansard Roofs. Extremely steep as they slope
up from the eaves; this steeply sloped roof may end
in a roof with a shallow roof or a parapet. Mansard
roofs are a popular way of decorating tall parapets,
such as are used to screen the rooftop equipment
above fast food restaurants (see example, right).
Mass. The overall volume or form of a building
or building element.
Median. An area dividing opposing travel lanes at or near the middle of a road, which is often landscaped.
Metal Standing Seam Roof. A sheet metal roof that has its joints folded together and raised above the roof surface in order to attach metal sheets and prevent leaks.
Modules. Similar units or subcomponents that are combined to create a total building system.
Mullion. The outer structural vertical and horizontal members of a glazing system, which forms a division between the glazing units.
Muntin. The nonstructural vertical and horizontal members of a window that divides the window into individual lites and holds (or appears to hold) the individual panes of glass.
Muted. A softened or less-vivid color tone.
N. Definition of Words Beginning with the Letter "N."
Neotraditional. A form of design that attempts to recreate positive features of neighborhoods from an earlier generation.
O. Definition of Words Beginning with the Letter "O."
Mansard Roof
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Oblique View. A view at an angle that allows one
to see more than one side of a building.
On-Site Parking. Parking stalls and aisles that occur
on parcels outside of a street right-of-way.
On-Street Parking. Parking stalls provided within the
street right-of-way. On-street parking is often in a parallel configuration, along the edge of curbs.
Opaque. Not transparent or semi-transparent.
Overhang. [1] The portion of a building that
extends horizontally beyond the building's exterior wall (also referred to as the "eaves"); or [2] the portion of a motor vehicle that extends beyond the tires, to the front or back of a car (see examples, right).
P. Definition of Words Beginning with the Letter "P."
Parapet. A wall that extends above the roof, which
is often used to protect the edge of the roof, hide roofmounted equipment, and express ornamentation.
Park. A place for public recreation that generally contains landscaped ground surfaces, such as lawns and gardens.
Pavers. Units of pavement assembled to form the "floor" of a plaza or street. Pavers are often made of concrete or terra cotta (brick).
Pavilion. A small, lightweight structure, often with a roof, used for recreation or shelter in a garden, park or plaza.
Pedestrian Connections. Sidewalks that provide convenient routes between destinations.
Pedestrian connections are generally lined by landscape and building features for the pedestrian's comfort and visual interest. See also "Connecting Walkways." Pedestrian Oriented. Designing to make a building or structure inviting to pedestrian traffic.
Pilaster. A vertical architectural member that is integrated within a wall but is architecturally treated as a column and usually projects one-third or less of its width from the wall.
Place Making. The creation of pleasant and memorable spaces.
Plaza. A place for public recreation that generally contains hard surfaces, such as seating areas and ornate pavement.
Podium Apartments. A ground floor parking structure with one or more levels of residential units above.
Motor Vehicle Overhang
Roof Overhang
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Porte Cochere. A roofed extension of a building over a driveway that shelters passengers getting into and out of vehicles.
Portico. A roofed porch that may be open or partly enclosed.
Prefab. A construction method in which shop-manufactured pieces undergo final assembly on-site.
Primary Building Entry. A publicly accessible and commonly used place of building ingress.
Public Way. A path or road that is accessible by, and generally maintained, by the public.
Q. Definition of Words Beginning with the Letter "Q."
Reserved
R. Definition of Words Beginning with the Letter "R."
Recessed Panel. An indentation within a building facade, such as occurs between pilasters or within other framed openings.
Reveals. Depressions or notches, primarily at an edge or corner, used to provide architectural detail by showing depth and enriching character.
Ridge. The line of intersection between opposing sides or slopes of a roof.
S. Definition of Words Beginning With the Letter "S."
Scale. The proportion of one thing relative to the size of another. Something that is "human" in scale has elements that are comparable to the size of a person. Scale of a building is the proportional system that relates the various-sized building elements to each other and to people.
Setback. The required distance that a building, structure, parking space, drive aisle, or other designated item must be located from a lot line or other designated location. Setback requirements provide a way of encouraging the spatial definition of open space; the separation of uses, activities or facilities; or the provision of yards and landscaping.
Staggered Walls. Sections of walls placed in shifted planes.
Structural Podium. See "Podium Apartments."
T. Definition of Words Beginning with the Letter "T."
Tandem. An arrangement of things placed one behind the other. Tandem parking places one car behind another.
Terrace. An outdoor paved platform extending from a building that complements the use or activities located within the building.
Tops. The uppermost portions of a building and often include cornice treatments, roof overhangs, or parapets.
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(Rev. 05.02.2023) Page 9.02-8 Ontario Development Code
Transformers. Electrical switching equipment used for converting electricity from highvoltage to common current. They are often located in ground-mounted boxes.
Trellis. A light framework of horizontal and/or vertical members, often used to support climbing plants.
U. Definition of Words Beginning with the Letter "U."
Unit. One of many similar or identical components that comprise a greater whole. Unit is also a single dwelling, either on its own lot (in the case of single-family homes) or grouped as part of a multi-family complex.
V. Definition of Words Beginning with the Letter "V."
Value. A color's relative lightness or darkness.
Vehicular Access. An entrance or exit for cars or trucks.
Vestibule. An entrance hall or lobby of a building.
W. Definition of Words Beginning with the Letter "W."
Wainscot. An area of facing or paneling on the lower portion of the walls of a room.
Wall Footings. Structural foundation elements that carry the weight of a structure to the ground.
Window Stem Walls. Low walls that support a large window, generally on a storefront.
X. Definition of Words Beginning with the Letter "X."
Reserved
Y. Definition of Words Beginning with the Letter "Y."
Reserved
Z. Definition of Words Beginning with the Letter "Z."
Zero Lot Line. A development approach in which a building is sited on a lot in such a manner that one or more of the structure's sides rest directly (to the extent possible) on a lot line.
The intent is to allow more flexibility in site design and to increase the amount of usable open space on a lot.
Zone Division Walls. Walls constructed for the purpose of buffering adjacent incompatible land uses.
Zoning Map. The official zoning map of the City, which delineates the location of the zoning districts of the City, governing the use, placement, spacing, and size of land and buildings. 5561
Department: Economic Development
Prepared By: Charity Hernandez
Staff Member Presenting: Jennifer McLain
Hiramoto, Economic Development Director
Reviewed By: Doreen Nunes
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 12
SUBJECT: A RESOLUTION REGARDING A LOAN AGREEMENT BETWEEN THE CITY OF
ONTARIO AND OTC LOT A OWNER, LLC AND AN ECONOMIC SUBSIDY REPORT PURSUANT TO GOVERNMENT CODE SECTION 53083
CITY OF ONTARIO
Agenda Report
November 19, 2024
SECTION:
PUBLIC HEARINGS
RECOMMENDATION: That the City Council consider and adopt a Resolution authorizing the execution of a Loan Agreement and other related documents in connection with providing a loan to OTC Lot A Owner, LLC and accepting the Economic Development Subsidy Report prepared pursuant to Government Code Section 53083.
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 City will issue a loan to OTC Lot A Owner, LLC in an amount not-to-exceed $6,600,000. Interest shall be equal to the California Asset Management Program ("CAMP") rate on the date of the issuance and execution of the Loan. The Loan will be funded from available City funds excluding General Fund and will be repaid within eight years from the initial draw. The budget will be included in the next quarterly budget update for Fiscal Year 2024-25.
BACKGROUND & ANALYSIS: In July of 2022, the City of Ontario ("City") and OTC Lot A Owner, LLC ("OTC") entered into a Development Agreement and Lease Agreement for the development of a mixed-use project adjacent to the Toyota Arena ("Project"). Phase I of the Project includes 384 luxury apartments and 25,000 square feet of commercial/retail uses.
OTC has requested a loan from the City to provide temporary funding for third-party pass-through fees. These pass-through fees are collected by the Inland Empire Utilities Agency and School Districts and must be paid at the time the building permit/s are issued.
The City has established criteria to provide for such loans ("Program"). The Program criteria require 5562
that the loan be reasonably related to a legitimate governmental purpose and expenditures must be for a public purpose. In addition, the City shall receive consideration in the transaction and interest shall be payable on the loan.
An analysis of financial feasibility and community necessity has been performed and a determination has been made that the OTC has met all required Program criteria to qualify for a fifteen (15) year Loan Agreement ("Loan Agreement") with the City.
The Loan Agreement requires that OTC shall make interest only payments for the first (5) years after the earlier of (a) issuance of the temporary certificate of occupancy for the residential units on the leased property or (b) thirty six (36) months after the closing of the Developer's construction loan for the leased property. For ten (10) years following the interest only payments and no later than fifteen (15) years from the date the interest only payments became due, OTC shall pay in full the entire principal amount of the loan plus accrued but unpaid and capitalized interest.
The City finds and determines that the allocation of funds to OTC Lot A Owner, LLC pursuant to the Loan Agreement is reasonably related to a legitimate governmental purpose in that the Project will provide numerous public benefits to the City. The benefits include increased property taxes, the creation of temporary construction and permanent jobs, and increased sales taxes from retail operations and other related business activities, strengthening the City's economic base. Pursuant to Government Code Section 53083, the City has prepared an Economic Development Subsidy Report. The report will remain available to the public and posted on the City's website until the end of the term of economic development subsidy.
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RESOLUTION NO. __________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, AUTHORIZING THE LOAN AGREEMENT BETWEEN THE
CITY OF ONTARIO AND OTC LOT A OWNER, LLC AND EXECUTION
THEREOF; ACCEPTING THE ECONOMIC DEVELOPMENT SUBSIDY
REPORT PREPARED PURSUANT TO GOVERNMENT CODE SECTION
53083; FINDING THAT SUCH LOAN AGREEMENT APPROVAL IS
EXEMPT FROM ENVIRONMENTAL REVIEW UNDER THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT (CEQA) PURSUANT TO STATE CEQA GUIDELINES SECTIONS 15061(b)(3) AND 15378(b)(4) AND DIRECTING
STAFF TO ISSUE A NOTICE OF EXEMPTION
WHEREAS, the City of Ontario (“City”) collects Inland Empire Utilities Agency Fees (“IEUA Fees”) from businesses and for development within the City’s jurisdiction that connect to the City’s utility infrastructure, and passes along the IEUA Fees collected to the Inland Empire Utilities Agency; and
WHEREAS, IEUA Fees have become increasingly costly to developers and businesses, and City desires to assist developers and businesses by mitigating this burden to promote economic development within the City of Ontario; and WHEREAS, the City collects the Ontario-Montclair School District (K-12) Fees, Cucamonga School District Fees and Chaffey Joint Union High School Fees (collectively, hereinafter referred to as the “School District Fees”) and passes along the School District Fees to the respective aforementioned “School Districts”; and WHEREAS, the City has established policies and criteria for providing loans and other economic assistance to external public and private entities which may be necessary in order to facilitate an economic, community or public safety benefit to the City; provided such assistance is consistent with Article XI, Section 7 of the California Constitution, complies with the requirements of California Government Code Sections 53083 through 53085 and is not in conflict with general laws; and
WHEREAS, the City of Ontario ("City") owns that certain real property and operates a community events center, known as the Toyota Arena, located at 4000 Ontario Center, Ontario, California, 91764, thereon (“City Property”); and WHEREAS, the City and OTC Lot A Owner, LLC, a Delaware limited liability company (“OTC”), (the “Tenant”) have entered into that certain Ground Lease for a portion of the City Property located on the eastern side, known as Lot A, (the “Leased Property”) whereby the Tenant plans to develop the property for residential, commercial, retail and entertainment purposes; and
WHEREAS, as part of the costs and fees associated with the improvements and development of its Leased Property, OTC will need to pay the IEUA Fees and the School District Fees and has requested a loan from City to assist it with the payment of these IEUA Fees and School District Fees; and
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WHEREAS, the City wishes to provide a loan subject to OTC, subject to the terms and conditions set forth in the Loan Agreement for payment of the IEUA Fees and the School District Fees, related to the development of the Leased Property, and consistent with the established criteria for the City to provide such loans which include that:
Such loan shall be reasonably related to a legitimate governmental purpose;
Such loan shall have a reasonable tendency to promote public health, morals, safety or general welfare;
Expenditure must be for a public purpose;
The City must receive consideration in the transaction; Provisions of Section 53083 through 53085 of the California Government Code shall be complied with;
There shall have been an analysis of financial feasibility and community necessity to proceed prepared;
Interest shall be payable on the loan;
Repayment of principal with interest;
Not a burden on the unrestricted assets of the City;
Such other usual, customary and reasonable requirements of the City shall be met; and
WHEREAS, based on information provided by City staff, and other such written and oral evidence, as presented to the City, the City finds and determines that the allocation of funds to OTC pursuant to the Loan Agreement is reasonably related to a legitimate governmental purpose in that development of the Leased Property will provide numerous public benefits to the City, including:
Generating substantial revenue for the City through additional local sales tax revenue which may be used by the City for the funding of necessary public services and facilities, including but not limited to, public safety services and facilities, public improvements and recreational opportunities that otherwise may not be available to the community for many years; and The City will benefit from the interest accrued on the loan; Creation of employment opportunities during the construction and improvements made to the Property and for permanent jobs for the operations of the Property;
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Project is expected to generate substantial revenue through increased ad valorem property and possessory interest taxes;
Increased taxes from commercial operations and related business activities, strengthening the City's economic base;
The development of this Property within the City will create jobs, maintain economic diversity in the community and stimulate the economic recovery of the Inland Empire by generating new opportunities for economic growth within the region;
Establishing OTC operations within the City will generate substantial revenue for the City, allow for the retention of jobs, and result in community and public improvements that might not otherwise be available to the community for many years; and
Will not cause an undue burden on the operations and finances of the City; Enhancement of the Toyota Arena’s profile and support of the City Property and Toyota Arena; and
WHEREAS, in accordance with Government Code Section 53083, the City provided certain information in written form to the public and on its website, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference, and held a noticed public hearing on November 19, 2024 to consider all written and oral comments on the Economic Development Subsidy Report; and
WHEREAS, OTC has met all qualifications for City for the Program, as determined in City’s sole discretion, and has reviewed and is willing to enter this Loan Agreement with the City to borrow Six Million Six Hundred Thousand and No/100 Dollars ($6,600,000) (“Loan”); and
WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:
SECTION 1. Incorporation of Recitals. The foregoing recitals are true and correct, and are incorporated herein and made an operative part of this Resolution.
SECTION 2. Findings. The City Council additionally finds and determines that (a) there are identifiable public purposes fulfilled by the Agreement, as set forth in the Recitals, that outweigh the benefit to private persons; and (b) the findings set forth in this Resolution are based upon substantial written and oral evidence presented to the City Council.
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SECTION 3. Approval of Financing Documents. The City Council hereby approves the Loan Agreement and Promissory Note, secured by a Leasehold Deed of Trust by third party trustors, attached thereto substantially in the respective forms on file with the City Clerk, together with and subject to any non-substantive revisions which do not increase the City’s liability and such additions thereto and changes therein as legal counsel shall deem necessary, desirable, or appropriate, the execution by which the Mayor, City Manager or Executive Director of Finance shall be conclusive evidence of the approval of any such additions or changes. The Mayor, City Manager or Executive Director of Finance are hereby authorized and directed to execute, and the City Clerk is hereby authorized and directed to attest to the final form of each of the foregoing documents and agreements for and in the name and on behalf of the City. The City Council hereby authorizes the delivery and performance of the documents and agreements.
SECTION 4. Financing Terms: The City shall disburse to IEUA and the aforementioned School District on behalf of OTC a total amount not to exceed Six Million Six Hundred Thousand Dollars ($6,600,000) when such fees become due and payable.
The interest rate on the Six Million Six Hundred Thousand Dollars ($6,600,000) shall be equal to the California Asset Management Program (“CAMP”) rate on the date of approval by the City Council and shall begin accruing upon the date of disbursement by the City to pay the IEUA Fees and School District Fees. Loan Term is 15 years. OTC shall make interest only payments (”Interest Payments”) for the first five (5) years after the earlier date of (a) issuance of the temporary certificate of occupancy for the residential units on the Leased Property or the that is thirty six (36) months after the closing of the initial construction loan for the project on the Property. OTC shall make principal and interest payments, with principal amortized over a thirty (30) year period and as provided in the repayment schedule, for the next ten (10) years, commencing upon the date that is five (5) years after the Interest Payments became due and payable and OTC shall pay in full the entire principal amount of the Loan plus accrued but unpaid and capitalized interest on or before the date that is fifteen (15) years from the date that the Interest Payments had become due and payable (“Maturity Date”). OTC may request a 180 day deferment of payments in the event it may anticipate it cannot make the payments due. In the event of actual default, City will defer payments up to 180 days and if OTC cannot pay the loan at the Maturity Date or defaults again, City will extend the Loan Term by 10 years and no additional deferments will be granted. During this Term extension, if OTC defaults, City may accelerate all payments and pursue all remedies and rights it may have available to it under the Loan Agreement, Promissory Note and Leasehold Deed of Trust.
SECTION 5. Acceptance of Economic Development Subsidy Report. The City Council finds and determines that this Economic Development Subsidy Report is in compliance with applicable law and specifically Government Code Section 53083.
SECTION 6. CEQA. The City Council hereby finds that pursuant to the California Environmental Quality Act ("CEQA") (Pub. Res. Code, § 21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs, tit. 14 § 15000 et seq.), approval of the Loan Agreement and acceptance of the Economic Development Subsidy Report is not a "project" for purposes of CEQA and therefore is not subject to CEQA review. The Loan Agreement and acceptance of the Economic Development Subsidy Report is not a project pursuant to State CEQA Guidelines section 15378(b)(4), which states that government fiscal activities 5567
which do not involve any commitment to any specific project which may result in a potentially significant environmental impact are not subject to CEQA. Further, the Loan Agreement and acceptance of the Economic Development Subsidy Report is not a project under State CEQA Guidelines section 15061(b)(3), which states that CEQA does not apply where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.
In addition, the City Council will direct staff to file a categorical exemption with the County of San Bernardino for this location upon adoption of this Resolution.
SECTION 7. Severability. If any provision of this Resolution is held invalid, the remainder of this Resolution shall not be affected by such invalidity, and the provisions of this Resolution are severable.
SECTION 8. Effective Date. This Resolution shall become effective immediately upon its adoption.
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 19th day of November, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
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STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2024- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held November 19, 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 November 19, 2024. _____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
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EXHIBIT A
ECONOMIC DEVELOPMENT SUBSIDY REPORT
[Attached behind this cover page]
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ECONOMIC DEVELOPMENT SUBSIDY REPORT
PURSUANT TO GOVERNMENT CODE SECTION 53083
FOR A LOAN AGREEMENT
BY AND BETWEEN
THE CITY OF ONTARIO
OTC LOT A OWNER, LLC
Pursuant to Government Code Section 53083, the City Council of the City of Ontario must hold a noticed public hearing and, prior to the public hearing, provide all of the following information in written form and available to the public and through the City’s website, regarding a proposed economic development subsidy to be provided by the City pursuant to Loan Agreement (“Agreement”) by and between the City of Ontario (“City”) and OTC LOT A OWNER, LLC, a California corporation (“Developer”). Notice was published in the local newspaper for a public hearing to be held on November 19, 2024.
The purpose of this report is to provide the information required pursuant to Government Code Section 53083 in regard to the Agreement. This report shall remain available to the public and posted on the City’s website until the end date of the economic development subsidy.
1. The name and address of all corporations or any other business entities, except for sole proprietorships, that are the beneficiary of the economic development subsidy.
The Agreement is with OTC LOT A OWNER, LLC, a California corporation
OTC LOT A OWNER, LLC
388 Cordova Street, #280
Pasadena, CA 91101
2. The start and end dates and schedule, if applicable, for the economic development subsidy.
If the Loan Agreement is approved by the City Council, the Effective Date of the Loan Agreement will be the date of Council approval. The Maturity Date will be eight (8) years from the date of the Loan Agreement.
3. A description of the economic development subsidy, including the estimated total amount of the expenditure of public funds by, or of revenue lost to, the local agency as a result of the economic development subsidy.
The economic development subsidy is related to assisting the developer with third party fees associated with development of a mixed-use project on City owned property, adjacent to the City Arena, leased by the Developer. These fees are collected by the Inland Empire Utilities Agency and the School Districts at the time a building permit is issued. The loan shall be a short-term loan in an amount not to exceed $6,600,000.
Interest shall be equal to the California Asset Management Program (“CAMP”) rate on the date of approval by the City Council. Developer shall interest only payments to the 5571
City for the first five (5) years from the date of the issuance of the certification of occupancy for the residential units; provided however, the entire principal amount plus accrued but unpaid and capitalized interest shall be payable in full by the maturity date, which eight (8) from the date of the Loan Agreement.
4. A statement of the public purposes for the economic development subsidy.
The City has determined that the economic subsidy will result in benefits to the City including but not limited to the following:
Generating substantial revenue for the City through additional local sales tax revenue which may be used by the City for the funding of necessary public services and facilities, including but not limited to, public safety services and facilities, public improvements and recreational opportunities that otherwise may not be available to the community for many years
The City will benefit from the interest accrued on the loan Creation of employment opportunities during the construction and improvements made to the Property and for permanent jobs for the operations of the Property Project is expected to generate substantial revenue through increased ad valorem property and possessory interest taxes
Increased taxes from commercial operations and related business activities, strengthening the City's economic base
5. The projected tax revenue to the local agency as a result of the economic development subsidy.
The City anticipates that the mixed-use project will generate significant increases in sales and unsecured property tax. The estimated assessed value of unsecured property at the conclusion of construction is estimated to be $108,000,000, in unsecured property. The increase in property valuation will generate approximately $181,000 in additional unsecured property tax revenues to the City per year. Based on the sales tax projections of over $4,000,000, it is estimated that the City will received approximately $350,000 in additional sales tax revenues per year.
6. The estimated number of jobs created by the economic development subsidy, broken down by full-time, part-time, and temporary positions.
During construction, the project will create approximately over 200 full-time prevailingwage jobs for skilled workers across various trades. In addition, over 75 full-time permanent jobs will be added after completion and stabilization of the project’s various residential and commercial components. This not only enhances the existing uses in the area, but also injects additional economic vitality into our community by providing diverse employment opportunities.
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LOAN AGREEMENT
This LOAN AGREEMENT (“Agreement”) is made effective as of ___________, 2024, by and between OTC Lot A Owner, LLC, a Delaware limited liability company (“Borrower”) whose principal address is 388 Cordova Street, #280, Pasadena, CA 91101, and the CITY OF ONTARIO, a California municipal corporation, whose principal address is 303 East B Street, Ontario, CA 91764 (“City” or “Lender”).
RECITALS
A. Lender collects Inland Empire Utilities Agency Fees (“IEUA Fees”) from businesses within Lender’s jurisdiction that connect to Lender’s utility infrastructure (together, “Businesses”), and passes along the IEUA Fees collected from Businesses to the Inland Empire Utilities Agency (“IEUA”).
B. IEUA Fees have become increasingly costly to developers and businesses, and Lender desires to assist developers and businesses by mitigating this burden.
C. Lender collects school districts development impact fees for the benefit of certain school districts, including the Ontario-Montclair School District fees, the Cucamonga School District fees and Chaffey Joint Union High School fees (hereinafter collectively referred to as the “School District Fees”) from developers and businesses within the Lender’s jurisdiction.
D. Lender has conducted a financial feasibility and community necessity analysis by which Lender may provide loans to qualifying Businesses to subsidize their IEUA Fees and School District Fees.
E. Borrower holds a leasehold interest under that certain Ground Lease dated July 19, 2022 with the City of Ontario and is constructing certain improvements to the land located in the City of Ontario, County of San Bernardino, State of California, also identified with Assessor’s Parcel Number 0210-205-19, (the “Leasehold Property”) for commercial and residential development, known as Lot A (the “Project”) and has requested a loan from Lender for the purpose of paying the IEUA and School District Fees.
F. Lender wishes to provide funds on any IEUA and School District Fees when due related to the development of the Leasehold Property, and has established criteria for the City to provide such loans which include:
1. Such loan shall be reasonably related to a legitimate purpose; and
2. Such loan shall have a reasonable tendency to promote public heath, morals, safety or general welfare. To that end:
(a) the expenditure must be for a public purpose;
(b) the City must receive consideration in the transaction; 5573
46700.12009\42931796.2
2 (c) the provisions of Section 53083 through 53085 of the California Government Code shall be complied with;
(d) there shall have been prepared an analysis of financial feasibility and community necessity to proceed;
(e) interest shall be payable on the loan; and
(f) such other requirements of the City shall be met.
G. The City will benefit from the interest accrued on the loan, in addition to the creation of construction and permanent jobs. Furthermore, the project is expected to generate substantial revenue through increased ad valorem property taxes and possessory interest taxes and increased sales tax from commercial operations and related business activities, strengthening the City's economic base.
H. Borrower has met all qualifications for Lender to grant this Loan as determined in Lender’s sole discretion and has reviewed and is willing to enter this Agreement with Lender.
I. The City has entered into those certain Ground Leases with OTC Lot B Owner, LLC, OTC Lot C Owner, LLC and OTC Lot D Owner, LLC, each a Delaware limited liability company, each dated July 19, 2022, whereby the City leased City owned parcels, commonly known as Lots B, C and D to OTC Lot B Owner, LLC, OTC Lot C Owner, LLC and OTC Lot D Owner, LLC, respectively.
J. Lender desires to provide, and Borrower desires to borrow, a loan in the amount up to Six Million Six Hundred Thousand and No/100 Dollars ($6,600,000), subject to the terms and conditions set forth herein. Borrower is under common control with its affiliates OTC Lot B Owner, LLC, OTC Lot C Owner, LLC and OTC Lot D Owner, LLC, each a Delaware limited liability company (the “Guarantors”). Borrower has requested and the Guarantors have agreed to grant Lender a security interest in the ground leasehold interests held by each Guarantor in certain unimproved land located in the City of Ontario, County of San Bernardino, State of California, also identified with Assessor’s Parcel Numbers: Lot B - Portion of 0210-205-20; Lot C – 0210-204-38; Lot D – 0210-204-39, and commonly known as Lots B, C and D (collectively, the “Collateral”), respectively, to secure the Loan (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants, conditions, and promises set forth herein, the parties hereto agree as follows:
1. TERMS
1.1 Terms of Loan.
1.1.1 Loan Amount. Subject to the fulfillment of Lender’s funding contingencies as set forth in Section 1.3, Lender shall advance to Borrower an amount not to exceed Six Million Six Hundred Thousand and No/100 Dollars ($6,600,000) (the “Loan”), as evidenced by a Promissory Note (“Note”) and secured by a leasehold deed of trust (each, a 5574
46700.12009\42931796.2
3 “Security Instrument” and collectively, the “Security Instruments”) encumbering the Collateral, the forms of which are attached hereto as Exhibit A, the Note and Exhibit B, the Security Instrument and incorporated herein by reference. The Lender accepts the leasehold interests secured in the attached Security Instrument from all the Guarantors; provided however, the Lender reserves the right to require and the Guarantors agree to execute separate leasehold deed of trust for their respective leasehold interests in the event the Lender requires separate leasehold deeds of trust.
1.1.2 Security. The Promissory Note must be secured by the Security Instruments.
Borrower’s obligation to repay the Loan, as evidenced by the Note, will be secured by a Security Instrument executed by each Guarantor encumbering its respective leasehold interest in the Collateral, which will be recorded as a lien against each of Guarantor’s respective leasehold interests in the Collateral.
1.1.3 Use of Funds. The Loan Funds may be used only to pay fees imposed by the Inland Empire Utilities Agency Fees and the School District Fees for payment to the IEUA and the School District(s). Borrower agrees and understands that the Loan will be disbursed directly to the IEUA and the School Districts identified in Recital C above on behalf of Borrower and that Borrower will not receive any proceeds from the Loan.
1.1.4 Disbursement. The disbursement of the Loan funds may be in an amount not to exceed $6,600,000.00, and may be in one disbursement or periodic disbursements and in the form as Lender may elect in its reasonable discretion.
1.1.5 Principal. Upon disbursement of Loan proceeds under Section 1.1.4 hereof, Lender shall provide Borrower with a repayment schedule of principal payments, attached hereto as Exhibit C to this Loan Agreement, and by this reference incorporated herein.
1.1.6 Payments and Interest Rate. Interest on the Loan is calculated on the basis of a 360-day year of twelve (12) 30-day months. Interest shall be equal to the California Asset Management Program (“CAMP”) rate on the date of the issuance and execution of the Loan, being [____]% per annum for up to $6,600,000 drawn on the Loan to the Maturity Date, as defined below, or prepayment date. So long as no Event of Default occurs prior to the Maturity Date, Borrower shall only be obligated to pay periodic payments on the outstanding principal amount of this Loan and the Note as follows (each, a “Payment”): (a) interest only on a monthly basis commencing on the date that is the earlier of (the “Interest Payment Commencement Date”): (i) the date of issuance of the temporary certificate of occupancy for the residential units of the Project or (ii) the date that is thirtysix (36) months after the closing of the initial construction loan for the Project, and (b) principal and interest on a monthly basis, with principal amortized over a thirty (30) year period and as further provided in the Repayment Schedule, attached as Exhibit C, commencing on the date that is five (5) years after the Interest Payment Commencement Date (the “Amortization Payment Commencement Date”) through the Maturity Date (as defined below); and (c) notwithstanding the foregoing amortization of periodic payments due, Borrower shall be obligated to pay in full the amount of principal plus any accrued and capitalized interest and charges on or before the Maturity Date provided in Section 1.1.7 (as the same may be extended pursuant to the terms of this Agreement).
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4 1.1.7 Maturity Date. Borrower shall be required to make Payments to Lender during the Term as described in Section 1.1.6 above, and the entire unpaid balance of the Loan, plus any accrued and capitalized interest thereon, shall be payable in full on or before the date (as the same may be extended pursuant to the terms hereof, the “Maturity Date”) that is fifteen (15) years from the Interest Payment Commencement Date (the “Initial Maturity Date”); provided, however, Borrower may exercise its right to extend the Initial Maturity Date an additional ten (10) year period (the “Extended Maturity Date”) upon providing written notice of such extension to Lender on or before the Initial Maturity Date.
1.1.8 Prepayment. All or any portion of the Note and this Loan may be prepaid on any business day without penalty in an amount equal to the principal amount remaining hereunder and interest accrued thereon to the date of such prepayment. Borrower shall provide notice to Lender of such prepayment with five (5) days’ notice of the payment thereof.
1.1.9 Interest on Event of Default. Upon an event described in Section 1.4 hereof (an “Event of Default”), Lender may, at Lender’s option, declare the Note and the entire remaining indebtedness thereby evidenced to be immediately due and payable, regardless of the Maturity Date.
Upon the occurrence of an Event of Default and subject to section 1.7, the entire remaining indebtedness shall accrue interest at a rate of 10% per annum (the “Default Rate”).
1.2 Covenants of Borrower.
1.2.1 Borrower and Guarantors shall, at Borrower’s own cost and expense, execute and deliver such further documents and instruments and take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Agreement, including, without limitation, each Guarantor’s cooperation in good faith to transfer any property interests, licenses, or any other items to any third party that Lender approves of to succeed to such Guarantor’s interest in the event that Lender forecloses on the applicable Security Instrument after the occurrence of an Event of Default.
1.2.2 The Loan and the Note secured by the Security Instruments represent a lien and pledge of the revenues and assets of Guarantors relating to the Collateral. In addition to the Security Instruments, Lender may file UCC-1 Financing Statements listing each of the Guarantors (but not the Borrower) as debtor to further secure repayment of the Loan. In the event that any current outstanding lien, including any deed of trust, note or encumbrance, has been fully satisfied and released from the Collateral, the applicable Security Instrument will move into first priority. As a material inducement to the Lender providing the loan, the Security Instruments securing the Promissory Note is unconditional and irrevocable (and as further described in the Security Instruments), the Security Instruments shall survive and remain in effect and enforceable against the party providing the Security Instrument until the principal amount of the Loan and any accrued and capitalized interest is paid in full to the Lender, and notwithstanding any other events, defaults, transfers, assignments that may act to alter, impact or negate each of the Guarantor’s interest in their respective Collateral, or the rights and benefits of the Lender under this Loan. Lender may take any and all actions or remedies available to enforce against the party or parties providing the Security Instruments. 5576
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5 1.2.3 As a condition to funding of the Loan, and while the Loan is outstanding, collectively the Guarantors shall obtain and keep in force a policy(ies) of insurance for casualty loss from fire or other damage to the Collateral in the amount of the principal sum of this Loan, together with a commercial general liability policy of insurance reasonably acceptable to Lender and protecting Guarantors and Lender, as an additional insured, against claims for bodily injury, personal injury and property damage based upon or arising out of the operation of the Collateral.
Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 per occurrence with an annual aggregate of not less than $2,000,000.
Borrower acknowledges and agrees that the failure to obtain and keep such insurance coverage shall be an Event of Default under the Note.
1.2.4 Borrower and Guarantors shall comply with all applicable building codes, land use and planning laws, design guidelines and rules and regulations of the City.
Additionally, Guarantors will carry out construction of any improvements on the Leasehold Property and Collateral, respectively, in conformity with all local, state and federal laws, rules and regulations, including but not limited to all applicable California labor standards. Each Guarantor assumes any and all responsibility and shall be solely responsible for determining whether or not laborers employed relative to the eligible project must be paid the prevailing per diem wage rate as determined by the state, pursuant to Labor Code Sections 1720, et seq.
1.2.5 Lender hereby acknowledges that the Collateral consists solely of leasehold interests in unimproved land. The Collateral shall be maintained in good repair and in a neat and orderly condition. Any damage to the Collateral is to be repaired immediately by the applicable Guarantor so that the Collateral remains in good condition. This includes the removal of graffiti, as defined in California Government Code Section 38772, that has been applied to any exterior surface of a structure or improvement (if any) on the Collateral that is visible from any public right-of-way adjacent or contiguous to the Collateral, shall be removed by borrower by either painting over the evidence of such vandalism with a paint that has been color-matched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water, as appropriate. If any such graffiti is not removed within three (3) business days following the time of the discovery of the graffiti, the City shall have the right to enter the Collateral and remove the graffiti, without notice.
1.2.6 The City or its designated representative may inspect the Collateral on an annual basis or more frequently as reasonably necessary to ensure compliance with the Loan. If the Collateral is found to be inadequately maintained, Guarantors shall immediately commence and diligently proceed to repair the Collateral within thirty (30) days after receipt of written notice from the City. Failure or delay by Guarantors to comply with the request of the Lender will constitute a default of this Loan Agreement.
1.3 Funding Contingencies. Lender’s obligation to fund the Loan shall be contingent upon the fulfillment of the following contingencies, all to Lender’s sole and absolute satisfaction:
(a) Borrower shall have delivered to Lender an original executed copy of the Note and Security Instruments; and
(b) intentionally omitted; and
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6 (c) intentionally omitted; and
(d) Borrower shall have delivered to Lender evidence of insurance coverage, as described under Section 1.2.2 hereof.
1.4 Default.
1.4.1 Events of Default. The following shall be deemed an Event of Default:
(a) Borrower or Guarantors materially breach any of the obligations of the Note, the Security Instruments or this Agreement, including the covenants contained in Section
1.2 hereof; or
(b) Borrower or any of the Guarantors (i) makes a general assignment for the benefit of creditors, (ii) admits in writing Borrower’s inability to pay Borrower’s debts generally as they mature, (iii) files or has filed against it a petition in bankruptcy or a petition or answer seeking a reorganization, arrangement with creditors or other similar relief under the Federal bankruptcy laws or under any other applicable law of the United States of America or any state thereof, or (iv) consents to the appointment of a trustee or receiver for it or for a substantial part of Borrower’s or Guarantor’s property (as applicable); provided, however, if such appointment, petition or proceeding was involuntary and not consented to by Borrower only upon the same not being discharged, stayed or dismissed within ninety (90) days; or (c) Any order, judgment or decree is entered appointing, without Borrower’s or the Guarantor’s consent (as applicable), a trustee or receiver for it or for a substantial part of Borrower’s or Guarantor’s property (as applicable) that is not removed within ninety (90) days from such entry; or
(d) any Guarantor voluntarily or involuntarily transfers, in any way, the Collateral owned by such Guarantor or any portion thereof without the Lender’s prior written consent; or
(e) The event of an actual or deemed entry of an order for relief with respect to Borrower under the Federal Bankruptcy Code.
1.4.2 Remedies. Upon the occurrence of an Event of Default, Lender may, at Lender’s option, exercise one or more of the following remedies, in addition to any other remedies provided herein, in the Note, or by law:
(a) Declare the Note and the entire remaining indebtedness thereby evidenced to be immediately due and payable, regardless of the Maturity Date; (b) Exercise any collection procedures allowed by State law or by the City of Ontario Municipal Code;
(c) Pursue any legal remedy available to secure payment of any and all monies owed by Borrower.
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7 1.4.3 The remedies provided by Section 1.4.2 are cumulative and in addition to and independent of any other remedies available to Lender by law. Any and all costs of collection shall be added to the balance owed, including but not limited to collection agency charges and reasonable attorneys’ fees.
1.5 Compliance with Laws; Prevailing Wage Requirement.
1.5.1 Each Guarantor shall obtain and comply with all necessary land use entitlements and conditions therein applicable to its respective Collateral.
1.5.2 Borrower and Each Guarantor shall cause any work performed in connection with any improvements made by such Guarantor and in connection with the construction of any improvements on the Leasehold Property and Collateral (if any), respectively, after the effective date of this Agreement (“Improvements”) to be performed in compliance with (i) all applicable federal, state and local laws, ordinances, rules and regulations; (ii) applicable state prevailing wage requirements pursuant to Labor Code Sections 1720 et seq. and 1770 et seq., and the regulations pursuant thereto, as further set forth below (“Prevailing Wage Laws”); and (iii) all applicable directions, rules and regulations of any fire marshal, health officer, building inspector, or other officer of any governmental agency with jurisdiction over the Collateral.
1.5.3 Borrower and Guarantors have been alerted to the requirements of Prevailing Wage Laws. If applicable, Borrower and each Guarantor shall pay (and shall cause any contractor and subcontractors to pay) prevailing wages and shall comply (and shall cause any contractor and subcontractors to comply) with all applicable Prevailing Wage Laws in connection with the construction of any Improvements, including the obligation to keep and retain such records as are necessary to determine if prevailing wages have been paid. Each Guarantor shall provide copies of such records to Lender upon Lender’s request therefor.
1.5.4 Guarantors shall operate the Collateral, at all times, in compliance with all applicable federal, state and local laws, ordinances, rules and regulations.
1.5.5 Notwithstanding the foregoing or any contrary provision of this Agreement, the Note or the Security Instruments:
(a) In the event that Borrower anticipates it will be unable to make a Payment that is due under the Loan, Borrower may submit written notice to Lender for a deferment of payments up to 180 days and Lender shall grant such deferment. During such 180- day deferment period, Borrower shall not be deemed to be in default hereunder relative to Borrower’s obligation to make payments under this Loan and the Note. Any interest accrued during such deferment period will be capitalized and added to the principal amount of the Loan. (b) In the event that an Event of Default occurs for non-payment of any Payments due under the Loan (other than the final Payment due on the Initial Maturity Date), Lender hereby agrees to defer such payments for a 180-day period and during such period agrees not to accelerate the Payments of the principal and any accrued and capitalized interest on the Loan; provided, however, such deferment will be subject to interest accruing at the Default 5579
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8 Rate. Any interest accrued during such deferment period will be capitalized and added to the Principal amount of the Loan.
(c) If (i) Borrower does not pay the Loan in full on or prior to the Initial Maturity Date or (ii) an Event of Default occurs for non-payment of any Payments after any applicable deferment period, the Maturity Date will automatically be extended to the Extended Maturity Date and the Default Rate of interest will not apply during the period between the Initial Maturity Date and the Extended Maturity Date (the “Extension Period”). If an Event of Default for non-payment of any Payments were to occur during the Extension Period, Borrower shall not be eligible for any additional deferments and Lender may accelerate the Note and pursue all rights and remedies available to Lender hereunder, including the Lender’s right to terminate any or all of the Ground Leases for Lots B, C and D of the Guarantors, by providing notice of such termination and Guarantor agrees to execute any documents necessary to terminate the Ground Leases and any agreements or documents related thereto.
1.6 Indemnification. Borrower agrees to defend, indemnify and hold Lender and its officials, officers and employees, free and harmless from and against any and all claims, liabilities, penalties, damages, judgments, costs, expenses, fees and interest (other than exemplary, indirect, incidental, special, exemplary, punitive or consequential damages, which include, without limitation, loss of profits, lost opportunities, diminution in value, damage to reputation or the like) arising from or related to any act or omission of Borrower in performing its obligations hereunder and arising out of or incident to any failure or alleged failure to comply with all applicable laws, rules or regulations including the Prevailing Wage Laws, or in operating its Business, and including without limitation reasonable attorneys’ fees and other related costs and expenses. Borrower and Guarantors assume all risk of liability arising from any decision not to comply with Prevailing Wage Laws or for non-compliance of any applicable laws, rules or regulations. Lender shall not be liable for any and all claims, liabilities, penalties, damages, judgments, costs, expenses, fees and interest arising from or related to any act or omission of Borrower or Guarantors in performing their respective obligations hereunder and arising out of or incident to any failure or alleged failure to comply with all applicable laws, rules or regulations by the Borrower or the Guarantors.
1.7 Assignment. Borrower and Guarantors may assign all of its rights, interests, and obligations in and under this Agreement, the Note and/or the Security Instruments after obtaining the prior written approval of Lender. Any assignment of this Agreement, the Note or the Security Instruments without Lender’s prior written approval shall be null and void. Upon assignment of this Agreement, the Note and/or the Security Instruments, any interest accruing on the remaining indebtedness as a result of an Event of Default shall cease to accrue.
1.8 Non-Discrimination. Borrower, for itself and its successors and assigns, agrees that, in performing the construction of the Project, it shall not discriminate against any employee or applicant for employment because of race, color, sexual orientation and/or gender identity, creed, religion, ancestry, political affiliation or opinion, national origin, sex, physical condition, medical condition, pregnancy or pregnancy-related condition, or condition of physical or mental disability or other handicap, age, marital status, or status with regard to public assistance.
Borrower will take affirmative action to insure that all employment practices are free from such 5580
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9 discrimination. Such employment practices include but are not limited to the following: hiring, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of pay or other forms of compensation and selection for training, including apprenticeship.
Borrower agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting agency setting forth the provisions of this nondiscrimination clause.
1.9 Conflict of Interest.
1.9.1 Borrower shall disclose to the Lender whether it has made any campaign contributions of more than $250 to any member of the City Council for the City of Ontario (“City”) or other City elected officer, within the earlier of: (1) the date of the submission of Borrower’s application for the Project, or (2) twelve (12) months before the date this Agreement was approved by the City Council. Borrower acknowledges that under Government Code section 84308, Borrower is prohibited from making campaign contributions of more than $250 to any member of the City Council or City elected officer for twelve (12) months after the Lender’s consideration of the Agreement. In the event of a proposed amendment to this Agreement, Borrower will provide the Lender a written statement disclosing any campaign contribution(s) of more than $250 to any member of the City Council or other City elected officer within the preceding twelve (12) months of the date of the proposed amendment. Campaign contributions include those made by any agent/person/entity on behalf of the Borrower or by a parent, subsidiary or otherwise related business entity of Borrower.
1.9.2 Except for approved eligible administrative or personnel costs, no person described in Section 1.9.3 below who exercises or has exercised any functions or responsibilities with respect to the activities funded pursuant to this Agreement or who is in a position to participate in a decision-making process or gain inside information with regard to such activities, may obtain a personal or financial interest or benefit from the activity, or have an interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom they have family or business ties, during, or at any time after, such person's tenure. Borrower shall exercise due diligence to ensure that the prohibition in this Section is followed.
1.9.3 The conflict of interest provisions of this Section apply to any person who is an employee, agent, consultant, officer, or any immediate family member of such person, or any elected or appointed official of the City, or any person related within the third (3rd) degree of such person.
1.9.4 In accordance with California Government Code Section 1090 and the Political Reform Act, California Government Code section 87100 et seq., no person who is a director, officer, partner, trustee or employee or consultant of Borrower, or immediate family member of any of the preceding, may make or participate in a decision, made by the City or a City board, commission or committee, if it is reasonably foreseeable that the decision will have a material effect on any source of income, investment or interest in real property of that person or Borrower. Interpretation of this Section is governed by the definitions and provisions used in the Political Reform Act, California Government Code Section 87100 et seq., its implementing regulations manual and codes, and California Government Code Section 1090. 5581
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10 1.10 Notices. All notices required to be delivered under this Agreement or applicable law shall be delivered by personal delivery, express mail or by United States mail, certified, postage prepaid. Notices personally delivered or delivered by express mail shall be deemed received upon receipt. Notices delivered by certified mail shall be deemed received the earlier of three (3) days following deposit of such notice with the United States Postal Service or actual receipt. Notices shall be sent as follows:
If to Borrower: If to Lender:
OTC LOT A OWNER, LLC CITY OF ONTARIO
c/o Adept Urban Attn: City Manager
Attn: Patrick Chraghchian and 303 East B Street
Robert Montano Ontario, CA 91764
388 Cordova Street, #280
Pasadena, CA 91101 With a Copy to:
Best, Best & Krieger LLP
Attn: Ruben Duran
Ontario City Attorney
2855 E. Guasti Rd., Suite 400
Ontario, CA 91761
1.11 Severability. The unenforceability or invalidity of any provision or provisions of this Agreement as to any persons or circumstances shall not render that provision or those provisions unenforceable or invalid as to any other persons or circumstances, and all provisions hereof, in all other respects, shall remain valid and enforceable.
1.12 Binding Effect; Inurement. This Agreement shall bind Borrower and its successors and assigns and the benefits hereof shall inure to Lender and Lender’s successors and assigns.
1.13 Governing Law; Jurisdiction. This Agreement shall be governed by and construed exclusively in accordance with the internal substantive laws of the State of California. The parties hereto consent to the exclusive jurisdiction of the state courts sitting in the County of San Bernardino, California, for any action or proceeding arising under this Agreement or the Loan.
1.14 Attorneys’ Fees. Borrower agrees to pay the following costs, expenses, and attorneys’ fees paid or incurred by Lender or adjudged by a Court: (i) reasonable costs of collection, costs, expenses, and attorneys’ fees paid or incurred in connection with the collection or enforcement of the Loan, whether or not suit is filed; and (ii) costs of such sum as the Court may adjudge as attorneys’ fees in an action to enforce payment of this note or any part of it. In the event either party brings an action under this Agreement, the prevailing party shall be entitled to its reasonable attorney’s fees and costs.
[Signatures on Following Page]
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11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
BORROWER:
OTC LOT A OWNER, LLC
By:
Name: Patrick Chraghchian
Title:
By:
Name:
Title:
LENDER:
CITY OF ONTARIO
By:
Scott Ochoa
City Manager
ATTEST:
City Clerk
APPROVED AS TO LEGAL FORM:
BEST BEST & KRIEGER LLP
Ruben Duran, City Attorney
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EXHIBIT A TO LOAN AGREEMENT
Promissory Note
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PROMISSORY NOTE
SECURED BY A LEASEHOLD DEED OF TRUST
(Lot A Project)
Ontario, California
Principal Amount: $6,600,000 Date of Loan: ___________
FOR VALUE RECEIVED, the undersigned OTC LOT A OWNER, LLC, a Delaware limited liability company (“Borrower”) promises to pay to the CITY OF ONTARIO, a California municipal corporation (“City”) at 303 East “B” Street, Ontario, California 91764, or at such place as the City may, from time to time, designate by written notice to the Borrower, the principal sum of Six Million Six Hundred Thousand Dollars ($6,600,000), together with interest on the unpaid principal balance of this Promissory Note from time to time outstanding at an annual rate as set forth below from the date of advance until fully paid at the City’s address provided above, or at such other place as City may from time to time designate in writing, that is due and payable upon the Maturity Date (as defined in the Loan Agreement) or upon an Event of Default (as defined in the Loan Agreement).
1. Purpose of Loan. This Promissory Note is made and given pursuant to that certain Loan Agreement by and between the City of Ontario and OTC LOT A OWNER, LLC dated as of even date herewith, which is incorporated herein by reference (“Loan Agreement”).
All initially capitalized terms used but not defined herein shall have the meanings given to them in the Loan Agreement.
2. Secured Obligation. This Promissory Note is made to evidence the Borrower’s obligation to repay a loan made by City to Borrower for the total amount of Six Million Six Hundred Thousand Dollars ($6,600,000) for the funds disbursed to pay the Inland Empire Utilities Agency Fees (“IEUA Fees”) and the School District Fees as referenced in the Loan Agreement for the total amount of IEUA Fees and for the School District Fees due for the purpose of facilitating Borrower’s commercial development of the property (“Project”) located at in the City of Ontario, County of San Bernardino, State of California (Assessor’s Parcel No 0210-205-19) (the “Leasehold Property”), which is secured by the Security Instruments with each applicable Guarantor, as Trustor, with the City of Ontario as Trustee and as the Beneficiary to secure the principal amount of this Promissory Note upon an Event of Default.
2.1. As a material inducement to the Lender providing the loan, the Security Instruments securing the Promissory Note is unconditional and irrevocable (and as further described in the Security Instruments), the Security Instruments shall survive and remain in effect and enforceable against the party providing the Security Instruments until the principal amount of the Loan and any accrued and capitalized interest is paid in full to the Lender, and notwithstanding any other events, defaults, transfers, assignments that may act to alter, impact or negate each Guarantor’s interest in its respective Collateral, or the rights and benefits of the Lender under this Loan. Lender may take any and all actions or remedies available to enforce against the party or parties providing the Security Instruments. 5585
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3. Term of Loan, Periodic Payments and Right of Agreement, Prepayment.
3.1. Maturity Date. Unless due at an earlier time by virtue of the acceleration of the balance hereof in accordance with Section 6 hereof, all unpaid principal, plus any accrued and capitalized interest, shall be due and payable by Borrower no later than the Maturity Date.
3.2. Periodic Payments or Interest Accrual Prior to Event of Default or Maturity Date. So long as no Event of Default occurs prior to the Maturity Date, Borrower shall only be obligated to pay periodic payments on the outstanding principal amount of this Loan and the Note as follows as follows (each, a “Payment”): (a) interest only on a monthly basis commencing on the date that is the earlier of (the “Interest Payment Commencement Date”): (i) the date of issuance of the temporary certificate of occupancy for the residential units of the Project or (ii) the date that is thirty-six (36) months after the closing of the initial construction loan for the Project, and (b) principal and interest on a monthly basis, with principal amortized over a thirty (30) year period and as further provided in the Repayment Schedule, attached as Exhibit C, commencing on the date that is five (5) years after the Interest Payment Commencement Date (the “Amortization Payment Commencement Date”) through the Maturity Date (as defined below); and (c) notwithstanding the foregoing amortization of periodic payments due, Borrower shall be obligated to pay in full the amount of principal plus any accrued and capitalized interest and charges on or before the Maturity Date (as the same may be extended pursuant to the terms of the Loan Agreement).
3.3. Application of Payments. Each payment under this Note shall be credited first to interest then due and any remainder to principal. All payments of principal under this Note shall be applied to the most remote principal installment then unpaid.
3.4. Prepayment. This Promissory Note may be prepaid in whole or part at any time and from time to time without penalty or premium prior to the Maturity Date.
4. Repayment of Note. Principal and interest are payable in lawful money of the United States of America.
5. Payment of Interest. Upon the Payment Date, Borrower shall be obligated to make payments, computed using the exact interest method, on the principal amount of this Promissory Note that has accrued from the date hereunder until the Event of Default.
5.1. Amount of Interest. Interest shall be equal to the California Asset Management Program (“CAMP”) rate on the date of the issuance and execution of the Loan, being [___]% per annum for up to $6,600,000 drawn on the Loan.
5.2. Calculation of Interest. Interest on the Loan is calculated on the basis of a year of three hundred and sixty (360) day year or twelve (12) thirty day (30-day) months.
6. Acceleration Upon Event of Default.
6.1. The entire unpaid principal balance and accrued interest, if any, of this Promissory Note together with any charges set forth herein, shall at the City’s option be 5586
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immediately due and payable prior to the Maturity Date upon an Event of Default (as defined in the Loan Agreement).
6.2. Notwithstanding the above, in the event of an actual or deemed entry of an order for relief with respect to Borrower under the Federal Bankruptcy Code, this Promissory Note and all interest and other amounts due hereon shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by Borrower. Subject to Section 1.5.5 of the Loan Agreement, the City may exercise City’s option to accelerate upon the occurrence of any Event of Default, regardless of any prior forbearance.
7. Default Rate of Interest. Subject to Section 1.5.5 of the Loan Agreement, upon the occurrence of an Event of Default the entire remaining indebtedness shall accrue interest at the lesser of (a) a rate of 10% per annum or (ii) the maximum interest rate allowed by law (the “Default Rate”). The parties hereto agree that the Default Rate represents a reasonable sum considering all of the circumstances existing on the date of this Promissory Note and represents a fair and reasonable estimate of the costs and damages that City will incur by reason of the late payment. The parties hereto further agree that proof of actual damages would be costly or inconvenient. Acceptance of any late charge shall not constitute a waiver of the default with respect to the overdue amount, and shall not prevent City from exercising any of the other rights and remedies available to City. The foregoing shall not be construed as obligating the City to accept any payment after its due date.
8. Removal of Liens. City shall only remove, or cause to be removed, the Security Instruments as liens against the Collateral after Borrower and/or Guarantors have fully complied with the terms of this Promissory Note, the Loan Agreement and the Security Instruments (as applicable).
9. Notice of Default. Borrower or Guarantors shall provide notice to City of any notice of default sent by any lender with a security interest in the Collateral within three (3) days of the date of such Guarantor’s receipt of such notice.
10. Costs Paid by Borrower. Borrower agrees to pay the following costs, expenses and attorneys’ fees paid or incurred by the City, or as adjudged by a court of competent jurisdiction: (a) reasonable costs of collection, costs and expenses and attorneys’ fees paid or incurred in connection with the collection or enforcement of this Promissory Note, whether or not suit is filed; and (b) costs of suit in such sum as the court may adjudge reasonable as attorneys’ fees in any action to enforce payment of this instrument.
11. Waiver. Borrower hereby waives diligence, presentment, protest and demand, notice of protest, dishonor and nonpayment of this instrument, and expressly agrees that, without in any way affecting the liability of Borrower hereunder, the City may extend any maturity date or the time for payment of any installment due hereunder, accept additional security, release any party liable hereunder or release any security now or hereafter securing this Promissory Note.
Borrower hereby waives, to the fullest extent permitted by law, the right to plead any and all 5587
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statutes of limitations as a defense to any demand on this instrument or any deed of trust, security agreement, guarantee or other agreement now or hereafter securing this Promissory Note.
12. Disclaimer of Personal Liability. Despite anything to the contrary in this Promissory Note or in the Security Instruments securing this Promissory Note, but without in any way affecting the validity of this Promissory Note or of the lien of the Security Instruments, in the event of any Event of Default under this Promissory Note or Security Instruments, City's sole recourse for any and all such defaults shall be by judicial foreclosure, or by exercise of the trustee's power of sale, and the right to terminate the Ground Leases with the Guarantors as provided in the Loan Agreement, and the undersigned Borrower(s) shall not be personally liable for the payment of this Promissory Note of for any other default under the Security Instruments or for the payment of any deficiency established after judicial foreclosure or after a trustee's sale under the Security Instruments. Despite the foregoing, Borrower(s) shall be personally liable and shall indemnify, defend, protect and hold the City harmless from and against any and all loss, damage, liability, action, cause of action, cost or expense, including, without limitation, reasonable attorneys' fees and expenses incurred by the City, arising as a result of any (i) fraud or material misrepresentation by the Borrower under or in connection with the Agreement; (ii) intentional bad faith waste of the real property encumbered by the Security Instruments which secures this Promissory Note; and (iii) losses resulting from Guarantor’s failure to maintain insurance as required under the provisions of the Security Instruments securing this Promissory Note. Borrower’s obligation to indemnify the City as aforesaid shall be a recourse obligation of the Borrower, and in the event of any breach of such obligations, the City shall have the right to proceed directly against the Borrower to recover any and all losses, damages, liability, costs and expenses (including without limitation, reasonable attorneys' fees and expenses) and may bring any action and institute any proceeding to obtain a deficiency judgment in or following foreclosure for any and all such losses, damages, liabilities, costs and expenses resulting from such breach. Notwithstanding the foregoing, Lender shall have the right to terminate any or all of the Ground Leases for Lots B, C and D of the Guarantors, by providing notice of such termination and Guarantor agrees to execute any documents necessary to terminate the Ground Leases and any agreements or documents related thereto in the event of default by Borrower after all the terms in Section 1.5.5 have been exhausted, but does not require the Lender to first proceed with a foreclosure against the Borrower or Guarantors.
13. Severability. If any provision of this Promissory Note is determined by a court of competent jurisdiction to be void or unenforceable, such determination shall not affect any other provision of this instrument, and all other provisions hereof shall remain valid and in full force and effect.
14. Non Waiver. No delay in demanding or failure to demand performance hereunder shall constitute a waiver by the City of its right to subsequently demand such performance or to exercise any remedies for any default hereunder. Further, in order to be effective, any waiver of any of the City’s rights and remedies hereunder shall be expressed in a writing signed by a duly appointed representative of the City. Further, waiver by the City of any right hereunder shall not constitute a waiver of any other right, including, but not limited to, the right to exercise any and all remedies for a different or subsequent event of default hereunder. 5588
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15. Successors and Assigns. This Promissory Note shall bind Borrower and Borrower’s successors and assigns and the benefit hereof shall inure to City and City’s successors and assigns.
16. Indemnification. Borrower agrees to indemnify and to hold City, its officers, officials, employees, successors and assigns, harmless from and against any and all claims, demands, costs, liabilities and obligations of any kind or nature (other than exemplary, indirect, incidental, special, exemplary, punitive or consequential damages, which include, without limitation, loss of profits, or lost opportunities) arising from any default hereunder, including, without limitation, all costs of collection, including reasonable attorneys’ and expert witness fees and all costs of suit, in the event the principal amount of this Promissory Note or any other amount due hereunder is not paid when due.
17. Cooperation; Future Release of Collateral. The City hereby acknowledges that Guarantors will be obtaining construction financing for the future development of the Collateral.
In connection therewith, the City hereby agrees to cooperate with Guarantors in releasing the applicable Collateral from the Security Instruments to permit such construction financing as and when reasonably requested by the applicable Guarantor and Guarantors and the City will cooperate with each other in agreeing upon reasonable replacement collateral to secure this Promissory Note. Any delay in the City’s cooperation hereunder will toll each such Guarantor’s applicable obligations and milestones the applicable development agreement between such Guarantor and the City recorded against the applicable Collateral.
18. Governing Law. The validity, interpretation and performance of this Promissory Note shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of laws principles.
19. Jurisdiction and Venue. Any legal action or proceeding to interpret, enforce, or which in any way arises out of this Promissory Note shall be instituted and prosecuted in the appropriate court in San Bernardino County, California.
20. Amendments and Modifications. This Promissory Note may be amended or modified only in writing signed by the City and the Borrower.
21. Usury. All agreements between Borrower and the City are expressly limited, so that in no event or contingency, whether because of the advancement of the proceeds of this Note, acceleration of maturity of the unpaid principal balance, or otherwise, shall the amount paid or agreed to be paid to Lender for the use, forbearance, or retention of the money to be advanced under this Note exceed the highest lawful rate permissible under applicable usury laws.
If, under any circumstances, fulfillment of any provision of this Note or the personal Guaranty securing this Note or any other agreement pertaining to this Note, after timely performance of such provision is due, shall involve exceeding the limit of validity prescribed by law that a court of competent jurisdiction deems applicable, then, ipso facto, the obligations to be fulfilled shall be reduced to the limit of such validity. If, under any circumstances, Lender shall ever receive as interest an amount that exceeds the highest lawful rate, the amount that would be excessive interest shall be applied to reduce the unpaid principal balance under this Note and not to pay 5589
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interest, or, if such excessive interest exceeds the unpaid principal balance under this Note, such excess shall be refunded to Borrower. This provision shall control every other provision of all agreements between Borrower and Lender.
22. Time of the Essence. Time is of the essence with regard to this Promissory Note.
23. Joint and Several Obligation. Borrower and all other persons liable or to become liable for all or part of this indebtedness, jointly and severally waive demand, presentment for payment, notice of nonpayment, protest and notice of protest hereon, and agree to pay, in the Event of Default hereunder, all costs of collection, including reasonable attorneys’ fees of City, whether or not suit is commenced.
IN WITNESS WHEREOF, Borrower executes and enters into this Promissory Note as of the date of the loan as first written above:
BORROWER:
OTC LOT A OWNER, LLC
By: _________________________________________
[SIGNATURE]
EXHIBIT B TO THE LOAN AGREEMENT
FORM OF DEED OF TRUST
[to be attached]
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EXHIBIT C TO LOAN AGREEMENT
REPAYMENT SCHEDULE
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Ontario
303 East “B” Street
Ontario, CA 91762
ATTN: City Manager
SPACE ABOVE THIS LINE FOR RECORDER’S USE
EXEMPT FROM RECORDING FEES PURSUANT TO GOV. CODE §§6103, 27383
CITY OF ONTARIO
LEASEHOLD DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
This LEASEHOLD DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (“Leasehold Deed of Trust”) is made as of ________________, by, between and among OTC LOT B OWNER, LLC, OTC LOT C OWNER, LLC, and OTC LOT D OWNER, LLC, each a Delaware limited liability company (individually or collectively as the context requires, “Trustor”) and the CITY OF ONTARIO, a California municipal corporation, as Trustee and Beneficiary (“Trustee” and “Beneficiary”). This Leasehold Deed of Trust is made with respect to that certain Loan Agreement by and between the City of Ontario and OTC LOT A OWNER, LLC, a Delaware limited liability company (“Borrower”), which is an affiliate of Trustor that is under common control with Trustor, dated as of even date herewith, which is incorporated herein by reference (“Loan Agreement”).
1. Grant in Trust. Trustor irrevocably grants, bargains, sells, and conveys to Trustee in trust, for the benefit of Beneficiary, with the power of sale and the right of entry and possession, all of Trustor’s estate, right, title, and interest in, to and under the following property: (a) that certain leasehold interests in real property located in the City of Ontario, County of San Bernardino, State of California, more particularly described and depicted in Exhibit “A” attached hereto and incorporated herein by this reference (the “Land”), (b) together with all buildings, structures and other improvements now or in the future located or to be constructed on the Land (the “Improvements”) and all other rights and interests now or in the future benefiting or otherwise relating to the Land or Improvements, including existing and future easements, rights-of-way, water rights and water stock (the “Appurtenances”), (c) together with all materials, supplies, equipment, apparatus, articles of personal property now or hereafter attached to, placed upon for an indefinite term, or used in connection with the Land and/or Improvements, together with all goods and other property that are, or at any time become, so related to the Property that an interest in them arises under real estate law, or they are otherwise adjudged to be a “fixture” under 5593
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2 applicable law, including the California Uniform Commercial Code (each a “Fixture,” collectively “Fixtures”), and (d) together with all other property and interests of any kind or character which may be reasonably necessary or desirable to promote the present and future beneficial use and enjoyment of such real property and improvements (all collectively known as the “Property”).
2. Secured Obligation. Trustor makes this grant for the purpose of securing payment and performance of the following: (i) all present and future indebtedness evidenced by any promissory note or notes Borrower has executed pursuant to the Loan Agreement, which states that it is or such obligations are secured by this Leasehold Deed of Trust; and (ii) all present and future obligations of Trustor to Beneficiary under this Leasehold Deed of Trust and Borrower under the Promissory Note or the Loan Agreement; and (iii) all additional present and future obligations of Trustor to Beneficiary under any other agreement or instrument acknowledged by Trustor (whether existing now or in the future), which states that it is or such obligations are, secured by this Leasehold Deed of Trust; and (iv) all modifications, supplements, amendments, renewals, and extensions of any of the foregoing, whether evidenced by new or additional documents; and (v) reimbursement of all amounts advanced by or on behalf of Beneficiary to protect Beneficiary’s interest under this Leasehold Deed of Trust (collectively referred to as the “Secured Obligations”).
3. Authority of Lender. If any party comprising “Trustor” hereunder is not the Borrower (hereinafter, “Trustor”), Trustor hereby authorizes Lender to perform any of the following acts at any time and from time to time, all without notice or demand to Trustor and without affecting Lender’s rights or Trustor’s obligations under this Deed of Trust:
3.1 Alter any terms of the Note or any part of it, including renewing, compromising, extending, accelerating, or otherwise changing the time for payment of, or increasing or decreasing the rate of interest on, the Note or any part of it.
3.2 Accept new or additional documents, instruments, or agreements relative to the Note or the Obligations.
3.3 Consent to the change, restructure, or termination of the individual, partnership, or corporate structure or existence of Borrower, Trustor, or an affiliate of Borrower or Trustor and correspondingly restructure the Obligations.
3.4 Accept partial payments on the Note or the Obligations.
3.5 Assign the Note, and with it the Deed of Trust, in whole or in part.
3.6 Take and hold security for the Note, accept additional or substituted security or guaranties for the Note, and subordinate, exchange, enforce, waive, release, compromise, fail to perfect, sell, or otherwise dispose of any such security.
3.7 Apply any security now or later held for the Note in any order that Lender in its sole discretion may choose and direct the order and manner of any sale of all or any part of it and bid at any such sale.
3.8 Release the Borrower of its liability for the Note or any part of it. 5594
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3 3.9 Settle, release, compound, compromise, collect, or otherwise liquidate the Note or the Obligations and/or the collateral or any guaranty therefor in any manner, whether in liquidation, reorganization, receivership, bankruptcy, or otherwise.
3.10 Substitute, add, or release any collateral or one or more guarantors or endorsers of the Note.
4. Property Provisions. To protect the security of this Leasehold Deed of Trust, and with respect to the Property described above, Trustor shall and agrees:
4.1 Maintenance and Repair. Beneficiary hereby acknowledges that the Property currently consists solely of Trustor’s leasehold interests in unimproved land. To keep the Property in good condition and repair; not to remove or demolish any building thereon (if any); to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed thereon (if any) and to pay when due all claims for labor performed and materials furnished therefor (if any); to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation of the law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably necessary, the specific enumerations herein not excluding the general.
4.2 Insurance. To maintain hazard insurance against loss by fire, hazards included with the term “extended coverage,” and any other hazards for which Beneficiary requires insurance, and liability insurance as set forth in the Loan Agreement. The insurance carrier and the insurance policies and amounts of coverage shall comply with the terms of the Loan Agreement or shall otherwise be acceptable to Beneficiary, the policies shall name Beneficiary as a loss payee or an additional insured, as applicable, the policies shall include Beneficiary as an additional insured, as applicable. The amount collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as Beneficiary may determine, or at option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
4.3 Defense of Security. To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee. Trustor shall pay all costs and expenses, including costs of evidence of title and attorneys’ fees, in any such action or proceeding in which Trustee or Beneficiary may appear, and in any suit brought by Beneficiary to foreclose this Leasehold Deed of Trust.
4.4 Reimbursement of Costs. Trustor shall pay upon demand all reasonable and documented sums expended by Beneficiary or Trustee provided for in this Leasehold Deed of Trust or allowed by law, with interest from date of expenditure at the maximum rate provided in the Note
4.5 Payment of Taxes and Liens. Trustor shall pay: (a) at least 10 days before delinquency, all non-abated taxes and assessments affecting the Property, including water stock assessments; (b) when due, all encumbrances, charges, and liens, with interest, on the Property, 5595
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4 which are or appear to be prior or superior to this Leasehold Deed of Trust; and (c) upon demand all reasonable and documented costs, fees, and expenses of this Leasehold Deed of Trust. If Trustor fails to make any payment or to do any act provided for in this Leasehold Deed of Trust after written notice of such failure by Beneficiary and a reasonably opportunity to cure, then Beneficiary or Trustee may, without obligation to do so, and with or without notice to or demand upon Trustor, and without releasing Trustor from any obligation under this Leasehold Deed of Trust: (w) make or do the same in such manner and to such extent as either may deem necessary to protect the security, Beneficiary or Trustee being authorized to enter upon the Property for such purposes; (x) appear in or commence any action or proceeding purporting to affect the security, or the rights or powers of Beneficiary or Trustee; (y) pay, purchase, contest or settle any encumbrance, charge or lien which in the judgment of either appears to be senior to this Leasehold Deed of Trust; and (z) in exercising any such powers, pay allowable expenses, including attorneys’ fees.
5. Additional Provisions. It is mutually agreed:
5.1 That any award of damages in connection with any condemnation for public use of or injury to the Property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by it in the same manner and with the same effect as above provided for disposition or proceeds of fire or other insurance.
5.2 That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive its right either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay.
5.3 That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this Leasehold Deed of Trust for endorsement, and without affecting the personal liability or any person for payment of the indebtedness secured hereby, Trustee may: reconvey any part of the Property; consent to making of any map or plat thereof; join in granting any easement thereon; or join in any extension agreement or any agreement subordinating the lien or charge hereof.
5.4 That upon written request of Beneficiary stating that all sums secured hereby have been paid, and Trustor has complied with its obligations under this Leasehold Deed of Trust, the Promissory Note and the Loan Agreement, and that upon surrender of this Leasehold Deed of Trust to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of its fees, Trustee shall reconvey, without warranty, the Property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as “the person or persons legally entitled thereto.”
5.5 Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor of successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where the Property is situated, shall be conclusive proof of proper substitution of such successor Trustee or 5596
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5 Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Leasehold Deed of Trust is recorded and the name and address of the new Trustee.
5.6 That this Leasehold Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors, and assigns.
The term Beneficiary shall mean the owner and holder, including pledgees, of the Promissory Note and Loan Agreement secured hereby, whether or not named as Beneficiary herein. In this Leasehold Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or the neuter, and the singular number includes the plural.
5.7 The Trustee accepts this Trust when this Leasehold Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obliged to notify any party hereto of pending sale under any other deed of trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
5.8 Beneficiary may charge for a statement regarding the obligation secured hereby, provided the charge thereof does not exceed the maximum allowed by laws.
5.9 The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to him or her at his or her address hereinbefore set forth.
6. Waivers.
6.1 Trustor warrants that (i) this Deed of Trust is executed at Borrower’s request, and (ii) Trustor has established adequate means of obtaining from Borrower on a continuing basis financial and other information pertaining to Borrower’s financial condition. Trustor agrees to keep adequately informed from such means as it deems appropriate of any facts, events or circumstances which might in any way affect Trustor’s risks hereunder and Trustor further agrees that Beneficiary shall have no further obligation to disclose to Trustor information or materials required in the course of Beneficiary’s relationship with Borrower.
6.2 Each Trustor:
6.2.1 Waives any right to require Beneficiary to: (i) proceed against any person, including Borrower, (ii) proceed against or exhaust any security held from Borrower or any other person, (iii) pursue any other remedy in Beneficiary’s power, or (iv) make any presentments or demands for performance or give any notices of non-performance, protest, or dishonor in connection with any of the indebtedness held by Beneficiary.
6.2.2 Waives any defense arising by reason of: (i) any disability or other defense of Borrower or any other person, (ii) the cessation or limitation of the liability of Borrower for any cause whatsoever, other than payment in full of all indebtedness owed to Beneficiary, (iii) the application by Borrower of the proceeds of any obligation secured hereby for purposes other than the purposes represented by Borrower to Beneficiary or intended or understood by Beneficiary or Borrower, (iv) any act or omission by Beneficiary which directly or indirectly results in or aids the 5597
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6 discharge of Borrower or any obligation secured hereby by operation of law or otherwise, or (v) any modification of the obligations secured hereby in any form whatsoever, including, without limitation, the renewal, extension, acceleration or other change in the terms of such obligations or any part thereof, including increase or decrease of the rate of interest thereon.
6.2.3 Waives any right it may have to require Lender to proceed against the Borrower, proceed against or exhaust any security held by Lender, or pursue any other remedy in Lender’s power to pursue, including any such right or any other right set forth in California Civil Code §§ 2845 or 2850.
6.2.4 Waives to the fullest extent permitted by law, all rights and benefits under California Civil Code § 2809 purporting to reduce a guarantor’s obligations in proportion to the principal obligation.
6.2.5 Waives all rights and defenses arising out of an election of remedies by the Lender, even though that election of remedies, such as a non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Trustor’s rights of subrogation and reimbursement against the principal by the operation of Civ. Proc. Code, § 580d or otherwise.
6.2.6 Shall have no right of subrogation and waives any defense that may have been based upon any election of remedies by Beneficiary which destroys Trustor’s rights to proceed against Borrower for reimbursement, including, without limitation, any loss of rights Trustor may suffer by reason of any rights, powers, or remedies of Borrower in connection with any anti-deficiency laws or any other laws limiting, qualifying or discharging Trustor’s obligations.
6.2.7 Further waives any right to enforce any remedy which Beneficiary now has or may hereafter have against Borrower or any other person and waives any benefit of or any right to participate in any security whatsoever now or hereafter held by Beneficiary. If any amount shall be paid to Trustor at any time when any indebtedness owing to Beneficiary shall not have been paid in full, such amount shall be held in trust for the benefit of Beneficiary and shall forthwith be paid to Beneficiary to be credited and applied upon such indebtedness, whether matured or unmatured.
6.2.8 Trustor warrants and agrees that each of the waivers set forth above is made with Trustor’s full knowledge of its significance and consequences and that under the circumstances the waivers are reasonable. If any said waivers are determined to be contrary to any application of law or public policy, such waivers shall be effective only to the extent permitted by law.
7. Assignment of Rents. Subject to the rights of senior lenders, Trustor hereby absolutely and unconditionally assigns to Beneficiary all of the rents, issues, profits, royalties, revenues, income, and other benefits (collectively, the “Rents”) derived from the Property, whether now due, past due or to become due, and hereby gives to and confers upon Beneficiary, either directly or through a receiver, the right, power, and authority, but not the obligation, to collect the Rents, and to sue, either in the name of Trustor or Beneficiary, for all such Rents and to apply the same to the 5598
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7 indebtedness secured hereby in such order as Beneficiary may determine in its sole discretion.
This assignment of Rents is intended to create and shall be construed to create an absolute assignment to Beneficiary of all of Trustor’s right, title, and interest in the Rents. So long as no default exists by Trustor in the payment of any indebtedness secured hereby, or in any other covenant contained herein, or in said note or notes or in any other document evidencing or securing such indebtedness, Trustor shall have the right to collect all Rents from the Property and to retain, use, and enjoy the same. Upon the occurrence of such a default beyond any applicable notice and cure periods, without the necessity of demand or other notice to Trustor or any other act to enforce Beneficiary’s interest pursuant to this assignment, Trustor shall have no interest whatsoever in the Rents that are received by Trustor after a default, and all such Rents shall be received and held by Trustor in constructive trust for Beneficiary and delivered promptly to Beneficiary, or to a courtappointed receiver for the Property, without the necessity for further notice to, or demand upon, Trustor. Upon the occurrence of such a default, beyond any applicable notice and cure periods, and at any time thereafter during the continuance thereof, Beneficiary may, at its option, send any tenant of the Property a notice to the effect that: (a) a default has occurred; (b) Beneficiary has elected to exercise its rights under this assignment; and (c) such tenant is thereby directed to thereafter make all payments of Rents to or for the benefit of Beneficiary or as Beneficiary shall direct. Any such tenant shall be entitled to rely upon any notice from Beneficiary and shall be protected with respect to any payment of Rents made pursuant to such notice, irrespective of whether a dispute exists between Trustor and Beneficiary with respect to the existence of a default or the rights of Beneficiary hereunder. Any such tenant shall not be required to investigate or determine the validity or accuracy of such notice or the validity or enforceability of this assignment.
8. Event of Default. Subject to and without in any way limiting Section 1.5.5 of the Loan Agreement, the term “Event of Default” as used in this Leasehold Deed of Trust shall have the same meaning given to such term in the Loan Agreement. Upon the occurrence and during the continuance of an Event Default, Beneficiary may declare all sums secured immediately due and payable by delivery to Trustee of a declaration of default and demand for sale and of a notice of default and of a notice of sale, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Leasehold Deed of Trust, said note or notes, and all documents evidencing expenditures secured by this Leasehold Deed of Trust. Upon the occurrence and during the continuance of an Event Default and acceleration of all sums due, Beneficiary may instruct Trustee to proceed with a sale of the Property under the power of sale granted in this Leasehold Deed of Trust, noticed and held in accordance with California Civil Code Sections 2924, et seq., as such statutes may be amended from time to time. Trustor waives all rights it may have to require marshaling of assets or to require sales of assets in any particular order, including any rights under California Civil Code Sections 2899 and 3455.
9. Remedies upon Event of Default. Upon the occurrence and during the continuance of any Event of Default: (i) all Secured Obligations shall immediately become due and payable without further notice to Trustor; (ii) upon demand by Beneficiary, Trustor shall pay to Beneficiary sums which will be sufficient to pay all taxes which are or may become a lien affecting the Property and the premiums for any policies of insurance to be maintained hereunder. In addition, Beneficiary may, without notice to or demand upon Trustor, exercise any one or more of the following remedies, either directly or through Trustee, an agent or court-appointed receiver:
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8 (i) enter, take possession of, manage, and exercise any other rights of an owner of the Property, and use any other properties of Trustor relating to the Property, all without payment of rent or other compensation to Trustor;
(ii) conduct any business of Trustor in relation to the Property and deal with Trustor's creditors, debtors, tenants, agents and employees and any other persons having any relationship with Trustor in relation to the Property;
(iii) take such other action as Beneficiary deems appropriate to protect the security of this Leasehold Deed of Trust.
Beneficiary may execute and deliver to Trustee written notice of default and of its election to cause all or any part of the Property to be sold, which notice Trustee shall cause to be filed for record; and after the lapse of such time as may then be required by law following the recordation of such notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell such Property at the time and place fixed by it in such notice of sale, either as a whole or in separate parcels and in such order as Beneficiary may direct (Trustor waiving any right to direct the order of sale), at public auction to the highest bidder for cash in lawful money of the United States (or cash equivalents acceptable to Trustee to the extent permitted by applicable law), payable at the time of sale. Any person, including Trustee or Beneficiary, may purchase at such sale, and any bid by Beneficiary may be, in whole or in part, in the form of cancellation of all or any part of the Secured Obligations. Any such sale shall be free and clear of any interest of Trustor and any lease, encumbrance or other matter affecting the Property so sold which is subject or subordinate to this Leasehold Deed of Trust. Notwithstanding the foregoing, Beneficiary shall have the right to terminate any and all of the Ground Leases with the Guarantors without first pursuing any other remedies provided herein and Guarantors shall execute any documents necessary to effect the termination and surrender possession of the leased property upon such termination to Beneficiary.
Each of the remedies provided in this Leasehold Deed of Trust is cumulative and not exclusive of, and shall not prejudice, any other remedy provided in this Leasehold Deed of Trust or by applicable laws and shall be subject and subordinate to the remedies of any holder of a senior lien permitted hereunder. Trustor, for itself and for any other person claiming by or through Trustor, waives, to the fullest extent permitted by applicable laws, all rights to require a marshaling of assets by Trustee or Beneficiary or to require Trustee or Beneficiary to first resort to any particular portion of the Property or any other security (whether such portion shall have been retained or conveyed by Trustor) before resorting to any other portion, and all rights of redemption, stay and appraisal.
10. Distribution of Foreclosure Proceeds. All proceeds of collection, sale, generated by any Foreclosure or other liquidation of the Property (“Proceeds”) shall be applied first to all costs, fees, expenses and other amounts (including interest) payable by Trustor and distributed as follows: (i) First, senior liens and encumbrances (if any) on the Property shall be fully paid from the Proceeds; (ii) Second, Beneficiary shall be fully paid any amounts owing under the Secured Obligations; and (iii) Third, any remaining Proceeds shall be distributed in accordance with 5600
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9 California Civil Code Section 2924(k). As used herein, “Foreclosure” means any judicial or nonjudicial foreclosure, trustee’s sale, deed-in-lieu transfer, short sale, or similar transaction.
11. Costs, Fees and Expenses. Trustor shall pay, on demand, all costs, fees, expenses, advances, charges, losses and liabilities of Trustee and Beneficiary under or in connection with this Leasehold Deed of Trust or the enforcement of, or the exercise of any remedy or any other action taken by Trustee or Beneficiary under, this Leasehold Deed of Trust or the collection of the Secured Obligations, in each case including (i) reconveyance and foreclosure fees of Trustee, (ii) costs and expenses in connection with the operation, maintenance, preservation, or sale of the Property or foreclosure of this Leasehold Deed of Trust, (iii) advances made by Beneficiary to complete or partially construct all or any part of any construction on the Land, (iv) cost of evidence of title, and (v) the reasonable fees and disbursements of Trustee's and Beneficiary's legal counsel.
12. Substitution of Trustee. Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where the Property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers, and duties. Said instrument must contain the name of the original Trustor, Trustee, and Beneficiary hereunder, the book and page where this Leasehold Deed of Trust is recorded, and the name and address of the new Trustee.
13. Successors and Assigns. This Leasehold Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors, and assigns. The term “Beneficiary” shall mean the owner and holder, including pledgees, of the secured note or notes, whether or not named as Beneficiary herein.
14. Trustee Acceptance. Trustee accepts this trust when this Leasehold Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other deed of trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
15. Further Assurances. Trustor shall, at its own cost and expense, do, execute, acknowledge, and deliver all and every such further acts, deeds, conveyances, mortgages, assignments, notices of assignments, transfers, and assurances as Trustee or Beneficiary shall from time to time reasonably require, for better assuring, conveying, assigning, transferring, and confirming unto Trustee the Property and rights hereby conveyed or assigned or intended now or hereafter so to be, or which Trustor may be or may hereafter become bound to convey or assign to Trustee, or for carrying out the intention or facilitating the performance of the terms of this Leasehold Deed of Trust, or for filing, registering, or recording this Leasehold Deed of Trust. Trustor shall, on demand, execute and deliver, and hereby authorizes Trustee and Beneficiary, or either of them, to execute in the name of Trustor, to the extent it may lawfully do so, one or more financing statements, chattel mortgages, or comparable security instruments, to evidence more effectively the lien hereof. Immediately upon the execution and delivery of this Leasehold Deed of Trust, and thereafter from time to time, Trustor shall cause this Leasehold Deed of Trust, and any security 5601
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10 instruments creating a lien or evidencing the lien hereof upon any personal property and each instrument of further assurance, to be filed, registered, or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien hereof upon, and the title of Trustee to, the Property encumbered hereby.
16. Estoppel Certificate. Trustor shall, within thirty (30) days of a written request from Beneficiary, furnish Beneficiary with a written statement, duly acknowledged, setting forth the sums secured by this Leasehold Deed of Trust and any right of set-off, counterclaim or other defense which exists against such sums and the obligations of this Leasehold Deed of Trust.
17. California Uniform Commercial Code Security Agreement; Fixture Filing. Trustor hereby grants Beneficiary a security interest in all personal property of Trustor located on the Property and wherever located and used in any way in connection with or in any way relating to the Property, and whether now owned or hereafter in existence, acquired or created (including equipment, inventory, goods, documents, instruments, general intangibles, chattel paper, accounts, accounts receivable, deposit accounts, and contract rights), and all fixtures of Trustor now owned or hereafter in existence, acquired or created on, of or relating to the Property, and all substitutions, replacements, additions, accessions, and proceeds (including insurance proceeds) of all of the foregoing (collectively, the “Personal Property”). Beneficiary may file this Leasehold Deed of Trust, or a reproduction hereof, in the real estate records or other appropriate index, as a financing statement for the Personal Property. Any reproduction of this Leasehold Deed of Trust or of any other security agreement or financing statement shall be sufficient as a financing statement. In addition, Trustor shall execute and deliver to Beneficiary, upon Beneficiary’s request, any financing statements, as well as extensions, renewals, and amendments thereof, and reproductions of this Leasehold Deed of Trust in such form as Beneficiary may require to perfect a security interest with respect to the Personal Property. Trustor shall pay all costs of filing such financing statements and any extensions, renewals, amendments, and releases thereof, and shall pay all reasonable costs and expenses of any record searches for financing statements Beneficiary may reasonably require. Upon Trustor’s breach of any covenant or agreement of Trustor contained in this Leasehold Deed of Trust, including the covenants to pay when due all sums secured by this Leasehold Deed of Trust, Beneficiary shall have the remedies of a secured party under the California Uniform Commercial Code and, at Beneficiary’s option, may also invoke any remedies provided in this Leasehold Deed of Trust as to the Personal Property. In exercising any of such remedies, Beneficiary may proceed against the Property and any of the Personal Property separately or together and in any order whatsoever, without in any way affecting the availability of Beneficiary’s remedies under the California Uniform Commercial Code or the remedies provided in the Leasehold Deed of Trust. This Leasehold Deed of Trust also covers goods which are or which are to become fixtures on the Property and constitutes a financing statement and is filed as a fixture filing under the California Uniform Commercial Code.
18. Due-On-Sale or Encumbrance. If all or any part of the Property, or any interest therein, or any beneficial interest in Trustor (if Trustor is not a natural person or persons but is a corporation, partnership, trust, limited liability company or other legal entity), is sold, transferred, mortgaged, assigned, pledged, or further encumbered, whether directly or indirectly, whether voluntarily or involuntarily, or by operation of law, Beneficiary may, at Beneficiary’s option, declare all of the sums secured by this Leasehold Deed of Trust to be immediately due and payable, and Beneficiary 5602
46700.12009\42929713.3
11 may invoke any remedies permitted by this Leasehold Deed of Trust.
19. Independent Obligations. Each Trustor’s obligations under this Deed of Trust are independent of those of any other person. Lender may bring a separate action against each Trustor, and each Trustor waives any right to require Lender to proceed against Borrower or any other person, firm, or corporation or to proceed against or exhaust any other security held by it at any time or to pursue any other remedy in its powers, and each Trustor agrees that Lender shall not be obligated to resort to any other security, including security given by Borrower, with any priority, in any particular order, or at all, even if such action destroys, alters, or otherwise impairs a Trustor’s subrogation rights or a Trustor’s right to proceed against Borrower for reimbursement, or both.
20. Miscellaneous Provisions.
20.1 Governing Law. This instrument shall be deemed to have been made in the State of California, and the validity of this Leasehold Deed of Trust, its construction, interpretation, and enforcement, and the parties' rights hereunder and concerning the Property, shall be decided under, governed by, and construed in accordance with the laws of the State of California. The parties agree that all actions or proceedings arising in connection with this Leasehold Deed of Trust shall be tried and litigated only in the state courts located in the County of San Bernardino, State of California, or federal courts located in the Central District of California. Trustor waives any right Trustor may have to assert the doctrine of forum non conveniens or to object to such venue.
20.2 Notices. Any notice, demand, request, consent, approval, communication either party desires or is required to give the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail to the address set forth below.
To Beneficiary: To Trustor:
CITY OF ONTARIO OTC LOT B OWNER, LLC
OTC LOT C OWNER, LLC
OTC LOT D OWNER, LLC
c/o Adept Urban
Attention: City Manager
303 East “E” Street
Ontario, California 91764
Attn: Patrick Chraghchian and
Robert Montano
388 Cordova Street, #280
Pasadena, CA 91101
Copy to: Copy to:
BEST BEST & KRIEGER LLP WILLKIE FARR &
GALLAHGER LLP
Attention: Ruben Duran
City Attorney
2029 Century Park East
Los Angeles, California 90067
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46700.12009\42929713.3
12 2855 E. Guasti Rd., Suite 400
Ontario, California 91764
Attention: Misty M. Sanford, Esq.
Notice shall be deemed given five (5) calendar days after the date of mailing to the party, or, if personally delivered, when received by the Beneficiary or the Trustor, as applicable.
20.3 Liability for Acts or Omissions. Beneficiary shall not be liable or responsible for its acts or omissions under this Leasehold Deed of Trust, except for Beneficiary's own gross negligence or willful misconduct, or be liable or responsible for any acts or omissions of any agent, attorney, or employee of Beneficiary, if selected with reasonable care.
20.4 Joint and Several Obligations. If more than one person is named as Trustor, each obligation of Trustor under this Leasehold Deed of Trust shall be the joint and several obligations of each such person.
20.5 Severability. If any provision of this Leasehold Deed of Trust shall be declared invalid, inoperative or unenforceable by a final judgment or decree of a court of competent jurisdiction such invalidity or unenforceability of such provision shall not affect the remaining parts of this Leasehold Deed of Trust which are hereby declared by the parties to be severable from any other part which is found by a court to be invalid or unenforceable.
20.6 Meaning of Certain Terms. As used in this Leasehold Deed of Trust and unless the context otherwise provides, the words “herein,” “hereunder” and “hereof” mean and include this Leasehold Deed of Trust as a whole, rather than any particular provision of it.
20.7 Captions. Captions and paragraph headings used in this Leasehold Deed of Trust are for convenience of reference only, are not a part of this Leasehold Deed of Trust and shall not be used in construing it.
20.8 Future Cooperation. Beneficiary hereby acknowledges that Trustor will be obtaining construction financing for the future development of the Property. In connection therewith, Beneficiary hereby agrees to cooperate with Trustor in releasing all or any portion of the applicable Property from this Leasehold Deed of Trust to permit such construction financing as and when reasonably requested by the applicable Trustor(s), and Trustor and Beneficiary will cooperate with each other in agreeing upon reasonable replacement collateral to secure the Promissory Note. Any delay in Beneficiary’s cooperation hereunder will toll each Trustor’s applicable obligations and milestones under the applicable development agreement between such Trustor and Beneficiary recorded against the applicable Property.
20.9 Subject to Loan Agreement and Promissory Note. By providing the Collateral and executing hereunder, Trustors, individually and collectively, in addition to being subject to and bound by the terms of this Leasehold Deed of Trust, each acknowledge and agree to be subject to and bound the terms of the Loan Agreement and Promissory Note, including those terms that expressly place certain obligations upon the Guarantors, individually and collectively. [SIGNATURES ON FOLLOWING PAGE]
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13 IN WITNESS WHEREOF, Trustor has executed and delivered this Leasehold Deed of Trust as of the date first written above.
TRUSTOR:
OTC LOT B OWNER, LLC,
a Delaware limited liability company
By:
Name: Patrick Chraghchian
Title: Authorized Signatory
OTC LOT C OWNER, LLC,
a Delaware limited liability company
By:
Name: Patrick Chraghchian
Title: Authorized Signatory
OTC LOT D OWNER, LLC,
a Delaware limited liability company
By:
Name: Patrick Chraghchian
Title: Authorized Signatory
Notarized signature(s) required.
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46700.12009\42929713.3
14 Exhibit “A”
Legal Description of Leased Property
The City has entered into those certain Ground Leases with:
1. Lot B: OTC Lot B Owner, LLC, for land identified with APN Portion of 0210-205-20
2. Lot C: OTC Lot C Owner, LLC, for land identified with APN 0210-204-38, and
3. Lot D: OTC Lot D Owner, LLC, for land identified with APN 0210-204-39 each Ground Lease dated July 19, 2022, whereby the City leased to the aforementioned parties City owned parcels, commonly known as Lot B; Lot C; Lot D, respectively. 5606
46700.12009\42929713.3
15 ALL-PURPOSE ACKNOWLEDGMENT FOR CALIFORNIA
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERNARDINO )
On , before me, _,
Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) personally appeared ,
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED
DOCUMENT
¨ Individual
¨ Corporate Officer
Title(s) Title or Type of Document
¨ Partner(s) ¨ Limited
¨ General
¨ Attorney-In-Fact Number Of Pages
¨ Trustee(s)
¨ Guardian/Conservator
¨ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Date Of Document
Signer(s) Other Than Named
Above
5607
46700.12009\42929713.3
5608
Department: Economic Development
Prepared By: Thailin Martin
Department:
Prepared By: Thailin Martin
Staff Member Presenting: Jennifer McLain
Hiramoto, Economic Development Director
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 13
SUBJECT: A PUBLIC HEARING TO CONSIDER THE SALE OF CITY OF ONTARIO 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 CITY OF ONTARIO AND
RICHARD FERNANDO BARBA
CITY OF ONTARIO
Agenda Report
November 19, 2024
SECTION:
PUBLIC HEARINGS
RECOMMENDATION: That the City of Ontario conduct a public hearing to consider the sale of Cityowned property; and adopt a Resolution approving a Purchase and Sale Agreement (“Agreement”) between the City of Ontario (“City”) and Richard Fernando Barba (“Developer”) (on file in the Records Management Department); and authorize the City Manager 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 City will convey the property for a purchase price of $389,400. The revenue from the land sale proceeds will be deposited into the C.D.B.G. Fund.
BACKGROUND & ANALYSIS: From 1994-2014, the City of Ontario ("City") 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.
In 2007, the property located at 910 East California Street and 808 South Greenwood Avenue ("Property) was acquired by the City with C.D.B.G. funds to allow for land banking and parcel consolidation with adjacent parcels acquired through the Quiet Home Program. The intent was to allow for a more desirable and higher quality redevelopment project that supports, and is compatible with, other airport related uses in the area. (A location map is provided for reference as Exhibit “A”.)
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The sales price of $389,400 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. 5610
EXHIBIT “A”
910 East California Street and 808 South Greenwood Avenue GREENWOOD AVE 808
5611
RESOLUTION NO. _______
A RESOLUTION OF THE CITY OF ONTARIO, OF THE CITY OF
ONTARIO, CALIFORNIA, APPROVING A PURCHASE AND SALE
AGREEMENT BETWEEN THE CITY OF ONTARIO AND RICHARD
FERNANDO BARBA FOR THE PURCHASE AND SALE OF CERTAIN
REAL PROPERTY LOCATED AT 910 EAST CALIFORNIA STREET AND 808 SOUTH GREENWOOD AVENUE, ONTARIO.
WHEREAS, the City of Ontario ("City"), currently owns certain real property generally located at 910 East California Street and 808 South Greenwood Avenue, Ontario (APN 1049-371-04 and 1049-371-05) and more specifically described in Exhibit A attached to this Resolution and incorporated herein by this reference (“Property”); and WHEREAS, the City opts to sell the Property to Richard Fernando Barba (“Purchaser”) under the Economic Opportunity statutes (Government Code sections 52200 et seq.) (the “EO Statutes”); and
WHEREAS, the City 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 $389,400; and
WHEREAS, on November 04, 2024, and November 11, 2024, the City 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 City 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 by selling land that is not being used by the City for potential development and economic opportunity by Purchaser.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ONTARIO AS FOLLOWS:
SECTION 1. Recitals. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference.
SECTION 2. Findings. The City intends to sell the Property to Purchaser and, based on the Recitals and all other information and testimony provided, the City finds that the sale of the Property pursuant to the Agreement will further the goals and purposes of the City, by putting land that is not being used by the City 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.
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SECTION 3. Hearing. In accordance with Government Code Section 52201, a duly noticed public hearing was held by the City on November 19, 2024.
SECTION 4. CEQA. The City’s approval of the Agreement does not constitute approval by the City 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 City Council hereby approves the Agreement in substantially the form presented, subject to any non-substantive revisions which do not increase the City ’s liability and are approved by the City Counsel and authorizes the City Manager to sign and enter into the Agreement and perform the obligations of the City 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 City Council declares that the Council would have adopted this Resolution irrespective of the invalidity of any particular portion of this Resolution.
SECTION 7. Certification. The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
SECTION 8. Effective Date. This Resolution shall become effective immediately upon its adoption.
PASSED, APPROVED, AND ADOPTED this 19th day of November, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________
SHEILA MAUTZ, CITY CLERK
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APPROVED AS TO FORM:
____________________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
5614
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 November 19, 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 November 19, 2024. _____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
5615
EXHIBIT “A”
Description of the Property
LOT 30, BLOCK “B” OF EVERGREEN TRACT, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, AS PER MAP RECORDED IN BOOK 16, PAGE 57, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 1049-371-04
LOT 29, BLOCK “B” OF EVERGREEN TRACT, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, AS PER MAP RECORDED IN BOOK 16, PAGE 57, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 1049-371-05
5616
SUMMARY REPORT PURSUANT TO
CALIFORNIA GOVERNMENT CODE SECTIONS 52200 – 52201
REGARDING A PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
CITY OF ONTARIO
AND
RICHARD BARBA
The following Summary Report has been prepared pursuant to Sections 52200 - 52201 of the California Government Code. The report sets forth certain details of the proposed Purchase and Sale Agreement (“Agreement”) between the City of Ontario (“City”) and Richard Babra (“Developer”). The site is approximately 0.298 acres located along the north side of Mission Boulevard between Bon View Avenue and Cucamonga Avenue (“Site”).
The Site’s current land use is Light Industrial and is occupied vacant land. The redevelopment project would consist of a business park building (“Project”).
BACKGROUND STATEMENT
The following Summary Report is based upon information contained within the Agreement, and is organized into the following six sections:
I. Terms of Agreement: This section includes a description of the project; and the obligations imposed on the City and the Developer by the Agreement.
II. Cost of the Agreement to the City: This section details the total cost to the City associated with implementing the Agreement.
Ill. Estimated Value of the Interests to be Conveyed Determined at the Highest UsePermitted Under the General Plan: This section estimates the value of the interests to be conveyed determined at the highest use permitted under the existing zoning and the requirements imposed by the General Plan.
IV. Estimated Fair Market Value of the Interest to be Conveyed: This section summarized the valuation estimate for the City Property based on the required use.
V. Consideration Received:This section describes the compensation to be received by the City.
VI. Creation of Economic Opportunity: This section describes how the Project will assist in the creation of economic opportunity.
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This Summary Report and the Agreement are to be made available for public inspection prior to the approval of the Agreement.
I. TERMS OF THE AGREEMENT
A. Project Description
The Site is located 910 East California Street and South Greenwood Avenue and the Project will consist of the development of an 10,000-15,000 square foot modern business park building.
The Developer will also be required to build all associated on-site and off-site improvements, including but not limited to all hardscape, landscaping, and public street improvements.
B. City Responsibilities
The Agreement requires the City to accept the following responsibilities:
1. The City must sell the City Property to the Developer for $389,400.
C. Developer Responsibilities
The Agreement imposes the following responsibilities on the Developer:
1. The Developer must accept conveyance of the City Property from the City under the terms of the Agreement, including paying $389,400, for the City Property.
II. COST OF THE AGREEMENT TO THE CITY
The City, prior to the City being fee owner, incurred costs to acquire the site for redevelopment purposes through Federal Aviation Administration grant funding. The City acquired the Property for $447,500.
Ill. ESTIMATED VALUE OF THE INTERESTS TO BE CONVEYED DETERMINED
ATTHE HIGHEST USE PERMITTED UNDER THE REDEVELOPMENT PLAN Section 52201 of the California Government Code requires the City to identify the value of the interests being conveyed at the highest use allowed by the Site's zoning and the requirements imposed by the General Plan.
The City retained CBRE Valuation and Advisory Services to estimate the fair market value of the Property. Mrs. Beth Finestone, MAI, AI-GRS, FRICS, CRE, in an appraisal dated June 18, 2024, concluded the Property had a value of $389,400. 5618
IV. ESTIMATED REUSE VALUE OF THE INTERESTS TO BE CONVEYED As discussed above, the City is conveying the City Property to the Developer for $389,400.
The price that the City is receiving is fair market value for the Property. Therefore, it is concluded that the fair reuse value is equal to or greater than the fair market value.
V. CONSIDERATION RECEIVED AND COMPARISON WITH THE
ESTABLISHEDVALUE OF THE SITE
Under the Agreement, the City is conveying the City Property for $389,400. This falls at fair market for the Site. It is concluded that the City is receiving the fair market value of the Site through this transaction.
In addition to the Purchase Price, the City will receive its share of property tax revenues generated by the Project.
VI. CREATION OF ECONOMIC OPPORTUNITY
Implementation of the Agreement helps to remove blighting influences within the area by improving the physical appearance of the area. The Site includes closed and active industrial facilities and unsightly storage uses. These will be removed and replaced by a new modern Project.
The proposed development would fulfill goals and objectives defined in the City's adopted General Plan and create economic opportunities in the following ways:
1. The improvement of the physical appearance of the area through the implementation of a new industrial project, through public improvements including undergrounding electrical utilities, upgrading streets, sidewalks, and streetscape, andthrough a comprehensive urban design and planned signage program.
2. 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.
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46700.60006\42697426.1
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (“Agreement”) is entered into November 19, 2024 (“Effective Date”), by and between the City of Ontario (“Seller”) and Richard Fernando Barba, an individual, (“Purchaser”).
A. Seller owns that certain real property (the “Property”) commonly known as City of Ontario, County of San Bernardino, State of California, Assessor’s Parcel No.’s 1049-371-04 and 1049- 371-05, a total of three parcels, approximately 0.298 acres, more particularly described in Exhibit “A” attached hereto, together with all rights, privileges, easements or appurtenances to or affecting the Property.
B. Purchaser agrees to purchase from Seller and Seller agrees to sell to Purchaser, “AS-IS,” all of Seller’s right, title and interest in and to the Property on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1
AGREEMENT TO PURCHASE AND SELL
Purchaser agrees to purchase, and Seller agrees to sell, the Property “AS-IS,” at the Purchase Price (defined in Section 2.1) and on the terms set forth herein. Seller agrees to convey to Purchaser title to the Property, including all existing privileges, rights, easements, hereditaments, and appurtenances thereto; and all right, title and interest in and to any streets, alleys, passages and other rights-of-way included therein or adjacent thereto by a recordable Grant Deed in substantially the same form as set forth in Exhibit “B” attached hereto (“Grant Deed”).
ARTICLE 2
ESCROW
2.1 Purchase Price. The purchase price (the “Purchase Price”) to be paid by Purchaser to Seller for the Property shall be Three Hundred Eighty-Nine Thousand Four Hundred Dollars and No Cents ($389,400.00).
2.2 Earnest Money Deposit. Upon full execution of the Agreement, Seller and Purchaser shall open an Escrow (as hereinafter defined) by depositing with Citywide Escrow Services (“Escrow Holder”) a fully executed original or executed counterpart of this Agreement. The “Opening of Escrow” shall occur on that date (“Opening Date”) when Escrow Holder receives a fully executed copy or executed counterparts of this Agreement. Escrow Holder will notify Seller and Purchaser of such date as well as the other dates described herein that are based on the Opening Date. Within two (2) business days after the Opening Date, Purchaser shall deposit into escrow, the sum of One Hundred Thousand Dollars ($100,000), payable in cash, by cashier’s or certified check or wire transfer (“Deposit”).
Reference herein to the “Deposit” shall include all interest earned thereon. Except for a termination caused by a material breach of this Agreement by Seller, the Deposit shall be paid to and retained by the Seller. If this Agreement is terminated prior to Closing because of a material breach of this Agreement 5620
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2 by Seller, then the Deposit shall be returned to Purchaser by Seller. Except as provided in the immediately preceding sentence, the Deposit shall be non-refundable to Purchaser. Notwithstanding anything herein to the contrary, One Hundred Dollars ($100.00) of the Deposit (the “Independent Consideration”) shall not be refundable to Purchaser, but shall represent consideration for this Agreement and shall be paid to Seller. The Independent Consideration shall be paid to Seller within three (3) days of the Opening Date. The Independent Consideration shall serve as consideration for the granting of the time periods herein contained for Purchaser to exercise Purchaser’s right to satisfy and approve all of Purchaser’s conditions herein contained. The Deposit (less Independent Consideration) shall be applied to the Purchase Price at Closing (as defined herein).
2.3 PURCHASER’S DEFAULT AND LIQUIDATED DAMAGES. PURCHASER AND SELLER AGREE THAT SHOULD PURCHASER DEFAULT IN PURCHASER’S OBLIGATION TO
PURCHASE THE PROPERTY WITHIN THE TIME AND IN THE MANNER SPECIFIED IN THIS
AGREEMENT, SELLER SHALL BE RELEASED FROM ALL OBLIGATIONS IN LAW OR EQUITY TO CONVEY THE PROPERTY TO PURCHASER. PURCHASER AND SELLER AGREE
THAT IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX THE ACTUAL
DAMAGES SUFFERED BY SELLER BECAUSE OF SUCH DEFAULT, THAT THE DEPOSIT AND
ANY INTEREST EARNED THEREON SHALL CONSTITUTE A REASONABLE ESTIMATE AND
AGREED STIPULATION OF DAMAGES IN THE EVENT OF SUCH DEFAULT BY PURCHASER
AND THAT SELLER SHALL HAVE NO OTHER RIGHT OR CAUSE OF ACTION AGAINST PURCHASER FOR DAMAGES OR OTHERWISE ARISING FROM SAID DEFAULT. UPON PURCHASER’S DEFAULT, SELLER MAY INSTRUCT ESCROW HOLDER TO CANCEL THE
ESCROW, AND PROMPTLY UPON RECEIPT OF SAID INSTRUCTIONS, ESCROW HOLDER SHALL (i) CANCEL THE ESCROW, (ii) PAY ALL OF ESCROW HOLDER'S CHARGES FROM THE DEPOSIT, AND (iii) DISBURSE TO SELLER THE DEPOSIT PURSUANT TO THIS SECTION. UPON THE OCCURRENCE OF ANY SUCH DEFAULT BY PURCHASER, PURCHASER SHALL DELIVER WITHIN 2 BUSINESS DAYS OF SELLER'S REQUEST ALL PURCHASER’S REPORTS AND APPROPRIATE DOCUMENTS ASSIGNING SAME TO SELLER.
FURTHERMORE, THE PAYMENT AND RETENTION OF SUCH DEPOSIT AS LIQUIDATED
DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 AND 3369, BUT IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677.
Seller’s Initials: ___________ Purchaser’s Initials: ____________
2.4 Closing Costs. Costs of Escrow shall be paid as follows:
2.4.1 By Seller. Seller will pay one-half (1/2) of customary escrow fees. Seller will pay for owner’s title policy.
2.4.2 By Purchaser. Purchaser will pay one-half (1/2) of customary escrow fees, the cost of a title policy, the cost of extended coverage, if desired by Purchaser, the cost of any documentary transfer tax, and any additional title coverage or endorsements which Purchaser may desire and any document preparation costs. Purchaser will pay all recording fees and all County and City transfer tax fees.
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3 Each party will be responsible for payment of its own attorneys’ fees with respect to the negotiation and preparation of this Agreement.
2.5 Close of Escrow; Timing. The performance by Seller and Purchaser of their respective obligations under this Agreement directly or through the completion of the escrow deposits required of them to be made, delivery of the Purchase Price to Seller by Escrow Holder after recording of the Grant Deed and delivery of possession of the Property to Purchaser shall constitute the closing of the sale (“Closing” or “Close of Escrow”). The date of the Closing (“Closing Date”) shall be on or before Thirty (30) days following expiration of the Review Period (defined below). Upon mutual agreement in writing, the parties may elect to close prior to such date.
2.6 Real Property Taxes; Closing Prorations and Adjustments. Because of Seller’s status as a public entity, the Property has not been subject to real property taxation during Seller’s period of ownership. Purchaser will become liable for real property taxes, together with assessments, property operating expenses, utilities, and other recurring costs with respect to the Property from and after Close of Escrow, to the extent that such taxes and assessments relate to periods following Close of Escrow.
All items of income or expense, if any, shall be prorated according to prevailing local custom in San Bernardino County, California. All prorations are final.
2.7 Payment of Purchase Price. The Purchase Price, less the Deposit, Independent Consideration, and plus or minus any adjustments, credits or prorations provided for herein, shall be deposited with Escrow Holder not later than one (1) Business Day prior to the Closing Date, in immediately available funds.
2.8 Possession. Possession of the Property shall be delivered to Purchaser upon the recording of the Grant Deed.
2.9 Escrow. This sale shall be closed through Escrow Holder. This Agreement shall constitute the Escrow Agreement between the parties. Upon the creation of the Escrow, payment of the Purchase Price (after giving Purchaser credit for the Deposit) and delivery of the Grant Deed and other closing documents shall be made through the Escrow. Each party shall have the right to inspect all documents prior to or at the time of deposit in the Escrow. The fee for the Escrow shall be shared equally by the parties, except that the escrow fees attributable to any ancillary lender’s agreement shall be borne by Purchaser alone.
2.10 Documents To Be Delivered By Seller At Closing. At Closing Seller shall deliver or cause to be delivered to Purchaser through the Escrow, the following, each of which shall be in form reasonably satisfactory to Purchaser:
2.10.1 A duly executed and acknowledged Grant Deed to the Property;
2.10.2 All other documents (if any) required to be executed and delivered by Seller; and
2.10.3 Such other instruments and documents as may be reasonably required in order to carry out the purposes of this Agreement.
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4 2.11 Documents To Be Delivered By Purchaser At Closing. At the Closing, Purchaser shall deliver through the Escrow, the following, each of which shall be in form reasonably satisfactory to Seller:
2.11.1 The Purchase Price, plus or minus adjustments, credits and prorations provided for herein;
2.11.2 Evidence reasonably acceptable to Escrow that the documents delivered by Purchaser have been duly authorized and executed on behalf of Purchaser and constitute valid and binding obligations of Purchaser;
2.11.3 All other documents (if any) required to be executed and delivered by Seller; and
2.11.4 Such other instruments and documents as may be reasonably required in order to carry out the purposes of this Agreement.
2.12 Conditions to Seller’s Obligations. The Closing and Seller’s obligations to consummate the transaction contemplated by this Agreement are subject to the satisfaction of the following conditions (or Seller’s waiver thereof which may be waived in writing in Seller’s sole and absolute discretion) which are for Seller’s sole benefit, on or prior to the dates designated below for the satisfaction of such conditions, or the Closing in absence of a specified date:
2.12.1 Purchaser’s Obligations. As of the Closing, Purchaser shall have timely performed all of the obligations required by the terms of this Agreement to be performed by Purchaser.
2.12.2 Purchaser’s Representations. As of the Closing, all representations and warranties made by Purchaser to Seller in this Agreement shall be true and correct as of the Closing.
2.12.3 Purchaser shall not be in default under this Agreement.
2.13 Conditions to Purchaser’s Obligations. The Closing and Purchaser’s obligations to consummate the transaction contemplated by this Agreement are subject to the satisfaction of the following conditions (or Purchaser’s waiver thereof) which are for Purchaser’s sole benefit, on or prior to the dates designated below for the satisfaction of such conditions, or the Closing in absence of a specified date:
2.13.1 Seller’s Obligations. As of the Closing, Seller shall have timely performed all of the obligations required by the terms of this Agreement (including but not limited to delivery of the Purchase Price) to be performed by Seller.
2.13.2 Seller’s Representations. As of the Closing, all representations and warranties made by Seller to Purchaser in this Agreement shall be true and correct as of the Closing.
2.13.3 Title Policy. The Title Company (defined below) shall be prepared to issue at Closing the Title Policy in accordance with the provisions of Section 3.3 below.
ARTICLE 3
REVIEW PERIOD
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5 3.1 Purchaser’s Review Period. Purchaser shall have a period of sixty (60) days following the Opening Date (“Review Period”) within which to investigate and review all aspects of the Property.
If Purchaser has not approved, disapproved or waived all contingencies by written notice to Seller and Escrow Holder prior to the expiration of the Review Period then all contingencies of Purchaser shall be deemed approved. Any written notice from Purchaser purporting to approve the Property and to waive contingencies that contains qualifications or conditions shall be deemed disapproval by Purchaser and an election to terminate this Agreement. In the event Purchaser elects to terminate this Agreement on or before expiration of the Review Period, the Deposit shall be returned to Purchaser. If Purchaser fails to deliver notice of approval or notice to terminate the Agreement, approves, or is deemed to have approved all contingencies upon expiration of the Review Period, Purchaser shall be deemed to have elected to proceed with this Agreement and the Closing, and the Deposit will be nonrefundable to Purchaser and will constitute liquidated damages pursuant to Section 2.3 above.
3.2 Purchaser’s Investigations of the Property. During the Review Period, Purchaser and its agents and contractors shall have the right to conduct such investigations and enter upon the Property to conduct at Purchaser’s expense, such tests and investigations as may be necessary for Purchaser to determine whether any matter would materially hinder or make economically unfeasible Purchaser’s intended use of the Property. Prior to Purchaser or its agents or contractors entering upon the Property pursuant to this Article 3, Purchaser shall (i) give Seller forty-eight (48) hours prior written notice of such entry, and (ii) provide satisfactory evidence to Seller that Purchaser, or its agents or contractors, have obtained commercial general liability insurance, with limits of not less than $200,000.00 per occurrence and $2,000,000.00 in aggregate; workers compensation insurance in statutory limits and employers liability insurance with limits not less than $100,000.00 each incident; and umbrella excess liability insurance excess of the underlying commercial general liability and employers liability insurance with limits not less than $1,000,000.00 per occurrence and $2,000,000.00 aggregate. Seller's representative may be present with Purchaser or Purchaser’s representative for any access to the Property.
Purchaser is not permitted to perform any intrusive testing, including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld or delayed. Purchaser shall keep the Property free and clear of any liens associated with the exercise of Purchaser’s rights pursuant to this Section 3.2 and will indemnify, defend and hold Seller harmless from all claims and liabilities asserted against Seller for liens or for injuries to persons or physical damage to property caused by Purchaser or Purchaser’s employees, agents, and contractors during their access to the Property after the Effective Date or for any claims arising after the Effective Date in connection with any breach of Purchaser’s obligations under this Section, which obligations, and the foregoing indemnification obligations, shall survive Closing or termination of this Agreement. If any such lien shall be filed against the Property, Purchaser shall cause such lien to be discharged or bonded within thirty (30) days after such filing. Following any Inspections, Purchaser shall restore the Property to substantially its physical condition as existed prior to such inspection (except for any changes to the Property caused by Seller, or its agents or employees, ordinary wear and tear excepted). If any inspection or test performed on or after the Effective Date by or for Purchaser damages the Property, Purchaser shall promptly repair such damage, at Purchaser’s sole expense, and Purchaser’s obligation pursuant to this sentence shall survive termination of this Agreement. All due diligence conducted on or after the Effective Date by or on behalf of Purchaser shall be at Purchaser’s sole cost and expense and conducted in a good and workmanlike manner.
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6 3.3 Status of Title. Within seven (7) Business Days following the Opening Date, Purchaser will obtain from [TBD] (“Title Company”) a current preliminary title report for the Property, including legible copies of title exception documents (collectively the “Title Report”). Purchaser will cause Title Company to promptly provide a copy of the Title Report concurrently to Seller. Purchaser may notify Seller during the Review Period of any objection to the status of title to the Property as disclosed by the Title Reports; provided, however, that Seller shall not be required to take any action or incur any expense with respect to any such title objections. At Closing, Purchaser may elect to obtain at its expense a policy of title insurance (“Title Policy”) and such extended coverage or endorsements as Purchaser desires. Failure of Purchaser to notify Seller of Purchaser’s disapproval of all or any item on the Preliminary Report shall be deemed to be an approval by Purchaser of such item(s).
3.4 Street Vacation. Seller shall work in reasonable good faith with Purchaser to vacate the portion of South Greenwood Avenue between California Street and Mission Boulevard. The proposed street vacation shall occur only after Purchaser acquires fee interest in 811 South Greenwood Avenue — Assessor's Parcel No.: 1049-372-02. By operation of law — should a public street be vacated, the real property subject to the street vacation is automatically reverted (from the centerline of the public street) to the property owner/s adjacent to the street vacation. As a result, should Purchaser own in fee Assessor's Parcel No's.: 1049-371-04 and 1049-371-05 and effectively vacate Greenwood Avenue between California Street and Mission Boulevard, the vacated street would automatically revert to Purchaser and Seller shall not be required to take any further action regarding conveyance of any real property within the vacated street to Purchaser.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 Seller’s Representations and Warranties. Seller is selling the Property “AS-IS” with all faults, but represents and warrants to Purchaser as follows:
4.1.1 Authority. Seller has full power and authority to sell, convey and transfer the Property as provided for in this Agreement and this Agreement is binding and enforceable against Seller.
4.1.2 No Representations as to Property. There are no representations, agreements, arrangements, or circumstances, oral or written, between the parties relating to the subject matter contained in this Agreement that are not fully expressed in the Agreement, and Seller has not made and does not make any representation or warranty concerning any matter or thing affecting or relating to the Property, including but not limited to its fitness for a particular use, its physical condition or any other matter.
PURCHASER HEREBY ACKNOWLEDGES THAT IT HAS READ
AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA
CIVIL CODE SECTION 1542 (“SECTION 1542”), WHICH IS SET
FORTH BELOW
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
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7 KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR”
BY INITIALING BELOW, PURCHASER HEREBY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES.
_______________
(Purchaser’s Initials)
4.2 Purchaser’s Representations and Warranties. Except as expressly set forth in this Agreement, Purchaser is relying upon no warranties, express or implied, oral or written, from Seller regarding the Property and, upon Close of Escrow, Purchaser will have accepted the Property as-is, with all faults. Purchaser represents and warrants to Seller as follows:
4.2.1 Agreements. Neither the execution and delivery of this Agreement by Purchaser nor the consummation of the transactions contemplated hereby will result in any breach or violation of or default under any judgment, decree, order, mortgage, lease, agreement, indenture or other instrument to which Purchaser is a party.
4.2.2 Authority. This Agreement and all documents executed by Purchaser which are to be delivered to Seller at the Closing are and at the time of Closing will be duly authorized, executed and delivered by Purchaser, are and at the time of Closing will be legal, valid and binding obligations of Purchaser enforceable against Purchaser in accordance with their respective terms, and do not and at the time of Closing will not violate any provision of any agreement or judicial order to which Purchaser is subject. Purchaser has obtained all necessary authorizations, approvals and consents to the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
Purchaser has full power and authority to execute this Agreement and purchase the Property as provided for in this Agreement and this Agreement is binding and enforceable against Purchaser.
4.2.3 Sophisticated Owner. Purchaser warrants that Purchaser is a sophisticated owner and buyer of real property, familiar and experienced with requirements for the development of real property. Purchaser has examined the Property or will have done so by Closing, is or will be familiar with its physical condition, and accepts the Property in an “AS-IS” condition.
4.2.4 Independent Investigation. Purchaser has conducted or will conduct an independent investigation with respect to zoning and subdivision laws, ordinances, resolutions, and regulations of all governmental authorities having jurisdiction over the Property, and the use and improvement of the Property and is, or at Closing will be, satisfied with the results of such investigation.
4.2.5 As-Is Acquisition. PURCHASER ACKNOWLEDGES AND AGREES THAT,
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, SELLER HAS NOT MADE,
DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (I) VALUE; (II) THE INCOME TO BE DERIVED FROM THE PROPERTY; 5626
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8 (III) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY; (IV) THE COMPLIANCE OF OR BY THE
PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (V)
COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE
LAWS, RULES, REGULATION, ORDERS OR REQUIREMENTS, INCLUDING BUT NOT LIMITED TO, TITLE III OF THE AMERICANS WITH DISABILITIES ACT OF 1990,
CALIFORNIA HEALTH & SAFETY CODE, THE FEDERAL WATER POLLUTION CONTROL ACT, THE FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT, THE U.S.
ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261, THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976,
THE CLEAN WATER ACT, THE SAFE DRINKING WATER ACT, THE HAZARDOUS
MATERIALS TRANSPORTATION ACT, THE TOXIC SUBSTANCE CONTROL ACT, AND REGULATIONS PROMULGATED UNDER ANY OF THE FOREGOING; (VI) THE PRESENCE OR
ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER, OR ADJACENT TO THE PROPERTY; (VII) THE CONTENT, COMPLETENESS OR ACCURACY OF ANY DUE
DILIGENCE MATERIALS DELIVERED BY SELLER TO PURCHASER OR PRELIMINARY REPORT REGARDING TITLE; (VIII) DEFICIENCY OF ANY UNDERSHORING; (IX) DEFICIENCY OF ANY DRAINAGE; (X) THE FACT THAT ALL OR A PORTION OF THE
PROPERTY MAY BE LOCATED ON OR NEAR AN EARTHQUAKE FAULT LINE OR A FLOOD ZONE; OR (XI) WITH RESPECT TO ANY OTHER MATTER. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT IT HAS OR WILL HAVE BEEN GIVEN THE
OPPORTUNITY TO INSPECT THE PROPERTY AND REVIEW INFORMATION AND DOCUMENTATION AFFECTING THE PROPERTY, AND THAT, EXCEPT FOR SELLER’S
EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN, PURCHASER IS
RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND REVIEW OF
SUCH INFORMATION AND DOCUMENTATION, AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER. PURCHASER FURTHER ACKNOWLEDGES
AND AGREES THAT ANY INFORMATION MADE AVAILABLE TO PURCHASER OR
PROVIDED OR TO BE PROVIDED BY OR ON BEHALF OF SELLER WITH RESPECT TO TI-IE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT
MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION
AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. PURCHASER AGREES TO FULLY AND IRREVOCABLY RELEASE
ALL SUCH SOURCES OF INFORMATION AND PREPARERS OF INFORMATION AND
DOCUMENTATION AFFECTING THE PROPERTY WHICH WERE RETAINED BY SELLER
FROM ANY AND ALL CLAIMS THAT THEY MAY NOW HAVE OR HEREAFTER ACQUIRE
AGAINST SUCH SOURCES AND PREPARERS OF INFORMATION FOR ANY COSTS, LOSS,
LIABILITY, DAMAGE, EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM SUCH INFORMATION OR DOCUMENTATION. EXCEPT FOR SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 4.1 ABOVE, SELLER IS
NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, OR THE
OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER FURTHER ACKNOWLEDGES AND AGREES 5627
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9 THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 4.1 ABOVE, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN “AS IS” CONDITION AND
BASIS WITH ALL FAULTS, AND THAT SELLER HAS NO OBLIGATIONS TO MAKE REPAIRS,
REPLACEMENTS OR IMPROVEMENTS EXCEPT AS MAY OTHERWISE BE EXPRESSLY STATED HEREIN. PURCHASER REPRESENTS, WARRANTS AND COVENANTS TO SELLER THAT, EXCEPT FOR SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES SPECIFIED IN THIS AGREEMENT, PURCHASER IS RELYING SOLELY UPON PURCHASER’S OWN INVESTIGATION OF THE PROPERTY.
4.2.6 General Waiver. With respect to the waivers and releases set forth in Section
4.2.3, above, Purchaser expressly waives any of its rights granted under California Civil Code Section 1542, which provides as follows:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
______________
Purchaser’s Initials
ARTICLE 5
DEFAULTS; REMEDIES
5.1 Purchaser’s Default. If the transaction contemplated hereby does not close by reason of a default by Purchaser in any of the terms hereof, then Seller may, pursue any and all other legal and equitable remedies which Seller may have hereunder for failure by Purchaser to close the transaction contemplated hereby, and receive the Deposit as liquidated damages, pursuant to Section 2.3 hereof. In addition, Seller may pursue against Purchaser any and all other rights and remedies available at law or in equity, to obtain from Purchaser: (i) copies of all soil tests, environmental studies, and other tests and studies pertaining to the Property obtained by Purchaser, and (ii) reimbursement for the payment of all costs and expenses properly allocable to Purchaser under Article 3.
5.2 Seller’s Default. If the transaction contemplated hereby does not close by reason of a default by Seller in any of the terms hereof, then Purchaser may as its sole option and in lieu of any other legal and equitable remedies terminate this Agreement and pursue against Seller an action to compel Seller’s specific performance of this Agreement and Seller shall return to Purchaser the Deposit.
In no event shall Seller be liable to Purchaser for indirect or consequential damages, including, without limitation, any loss or damage suffered by Purchaser in connection with any lost profit or other agreement or understanding with any third party for the use, lease or purchase of the Property.
ARTICLE 6
MISCELLANEOUS
6.1 Payment of Real Estate Brokers and Consultants. Seller represents that no real estate broker has been used in connection with this transaction. Purchaser represents that a real estate broker 5628
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10 has been used in connection with this transaction. Purchaser shall be solely responsible, pursuant to separate agreement, for any payment, fee or commission owing to Purchaser’s broker in connection with the purchase and sale of the Property in accordance with this Agreement. Purchaser agrees to indemnify, defend and hold Seller harmless from and against any claim for a real estate broker’s commission or fee by any party claiming to have represented Purchaser in connection with this transaction. The indemnification obligations under this Section 6.1 shall survive the Closing or any termination of this Agreement for any reason whatsoever.
6.2 Notices. All notices and other communications which are required to be, or which may be given under this Agreement shall be in writing, and shall be delivered at the addresses set out hereinbelow. Notice may be given by personal delivery, recognized overnight courier, by United States mail or by facsimile transmission in the manner set forth below. Notice shall be deemed to have been duly given (a) if by personal delivery, on the first to occur of the date of actual receipt or refusal of delivery by any person at the intended address, (b) if by overnight courier, on the first (1st) Business Day after being delivered to a recognized overnight courier, (c) if by mail, on the third (3rd) Business Day after being deposited in the United States mail, certified or registered mail, return receipt requested, postage prepaid, or (d) by facsimile transmission shall be deemed to have been given on the next business day after being transmitted as evidenced by the confirmation slip generated by the sender’s facsimile machine addressed as follows:
If to Seller: City of Ontario
Attn: City Manager
303 East “B” Street
Ontario, CA 91761
If to Purchaser: Richard Fernando Barba
Certified Towing LLC
1135 East State Street
Ontario, CA 91761
To Escrow Holder: [TBD]
Attn:
[INSERT ADDRESS]
or to such other address as either party may from time to time specify as its address for the receipt of notices hereunder, in a notice to the other party. Notices given by an attorney shall be deemed to constitute notice from that party.
6.3 Assignment. Purchaser may not assign or pledge any of its rights hereunder without the prior written consent of Seller, which consent Seller may grant or withhold in its sole discretion; provided, however, that Seller’s consent shall not be required in the event of an assignment to an entity that controls, is controlled by or under common control with Purchaser or to an instruction by Purchaser to Escrow Holder that title at Closing be vested in a vestee other than Purchaser. Subject to the foregoing, this Agreement shall be binding upon the parties hereto and each of their successors and assigns.
6.4 City Manager Implementation. Seller shall implement this Agreement through its City Manager. The City Manager is hereby authorized by Seller to enter into agreements and sign documents 5629
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11 referenced in this Agreement or reasonably required to implement this Agreement on behalf of Seller, issue approvals, interpretations or waivers and enter into amendments to this Agreement on behalf of Seller. All other actions shall require the consideration and approval of the City Council, unless expressly provided otherwise by action of the City Council. Nothing in this Section 6.4 shall restrict the submission to the City Council of any matter within the City Manager’s authority under this Section 6.4, in the City Manager’s sole and absolute discretion, to obtain the City Council’s express and specific authorization on such matter. The specific intent of this Section 6.4 is to authorize certain actions on behalf of Seller by the City Manager, but not to require that such actions be taken by the City Manager, without consideration by the City Council.
6.5 Entire Agreement. This Agreement embodies the entire understanding of the parties and there are no further or other agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof except as may be set forth in writing executed by both parties contemporaneously with or subsequent to this Agreement.
6.6 Severability. If any term or provision of this Agreement or any application thereof shall be invalid or unenforceable, the remainder of this Agreement and other applications thereof shall not be affected thereby.
6.7 Captions; Number. The captions contained in this Agreement are for the convenience of reference only, and shall not affect the meaning, interpretation or construction of this Agreement. As used in this Agreement, the singular form shall include the plural and the plural shall include the singular, to the extent that the context renders it appropriate.
6.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
6.9 Governing Law. This Agreement has been executed and delivered, and is to be performed, in the State of California, and this Agreement and all rights, obligations and liabilities hereunder shall be governed by, and construed in accordance with, the internal laws of the State of California. Purchaser hereby irrevocably waives any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any federal or state court sitting in San Bernardino County, California.
6.10 Time of the Essence. Time is of the essence of this Agreement.
6.11 Modification. The provisions of this Agreement may not be amended, changed or modified orally, but only by an agreement in writing signed by the party against whom any amendment, change or modification is sought.
6.12 Waiver. Except as otherwise expressly provided in this Agreement, no waiver by a party of any breach of this Agreement or of any warranty or representation hereunder by the other party shall be deemed to be a waiver of any other breach by such other party (whether preceding or succeeding and whether or not of the same or similar nature) and no acceptance of payment or performance by a party after any breach by the other party shall be deemed to be a waiver of any breach of this Agreement or of any representation or warranty hereunder by such other party whether or not the first party knows such breach at the time it accepts such payment or performance. Except as otherwise expressly provided in 5630
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12 this Agreement, no failure or delay by a party to exercise any right it may have by reason of the default of the other party shall operate as a waiver of default or modification of this Agreement or shall prevent the exercise of any right by the first party while the other party continues to be so in default.
6.13 Business Days. Except as otherwise provided in this Agreement, if any date specified in this Agreement for the Closing Date or for commencement or expiration of time periods for termination or approvals or for notice occurs on a day other than a Business Day, then any such date shall be postponed to the following Business Day. As used herein, “Business Day” shall mean any day other than a Friday, Saturday, Sunday or a holiday observed by national banks.
6.14 Attorney Fees. In the event of any dispute arising out of the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney fees and costs, to include any attorney fees or costs on appeal.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
SIGNATURES CONTINUED ON NEXT PAGE
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13 SIGNATURE PAGE TO
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
SELLER:
City of Ontario
By:
Scott Ochoa
City Manager
ATTEST:
By: __________________________________
Sheila Mautz
City Clerk
PURCHASER:
Richard Fernando Barba, an individual
Richard Fernando Barba
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A-1
EXHIBIT “A”
Legal Description of the Property
That certain real property located in the City of Ontario, San Bernardino County, California, described as follows:
LOT 30, BLOCK “B” OF EVERGREEN TRACT, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, AS PER MAP RECORDED IN BOOK 16, PAGE 57, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 1049-371-04
LOT 29, BLOCK “B” OF EVERGREEN TRACT, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, AS PER MAP RECORDED IN BOOK 16, PAGE 57, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 1049-371-05
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B-1
EXHIBIT “B”
Grant Deed
RECORDING REQUESTED BY
WHEN RECORDED MAIL TO:
Assessor’s Parcel No.’s 1049-371-04 and 1049-371-05
GRANT DEED
FOR VALUE RECEIVED, receipt of which is hereby acknowledged, City of Ontario (“Grantor”) hereby grants to Richard Fernando Barba, an individual (“Grantee”) all that certain real property situated in the City of Ontario, County of San Bernardino, State of California, more fully described in Exhibit “1” attached hereto and incorporated herein by this reference.
Dated: CITY OF ONTARIO
By:
Scott Ochoa
City Manager
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B-2
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF _____________________________ )
On ________ , 2024 before me, ______________________________ , Notary Public, personally appeared ________________________________________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _________________________________________(seal) 5635
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EXHIBIT “1”
TO GRANT DEED
Legal Description of the Property
That certain real property located in the City of Ontario, San Bernardino County, California, described as follows:
LOT 30, BLOCK “B” OF EVERGREEN TRACT, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, AS PER MAP RECORDED IN BOOK 16, PAGE 57, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 1049-371-04
LOT 29, BLOCK “B” OF EVERGREEN TRACT, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, AS PER MAP RECORDED IN BOOK 16, PAGE 57, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 1049-371-05
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Department: Police Department
Prepared By: Lizceth Zazueta
Staff Member Presenting: Mike Lorenz, Chief of
Police
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 14
SUBJECT: INTRODUCTION OF AN ORDINANCE ANNUALLY ADOPTING A MILITARY EQUIPMENT USE POLICY PURSUANT TO GOVERNMENT CODE SECTIONS 7070, ET.
SEQ.
CITY OF ONTARIO
Agenda Report
November 19, 2024
SECTION:
ADMINISTRATIVE
REPORTS/DISCUSSION/ACTION
RECOMMENDATION: That the City Council introduce and waive further reading of an Ordinance annually adopting the Military Equipment Use Policy and approving the itemized military grade equipment currently in possession of the Ontario Police Department.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
Pursue City's Goals and Objectives by Working with Other Governmental Agencies FISCAL IMPACT: There is no direct fiscal impact associated with this action.
BACKGROUND & ANALYSIS: Assembly Bill No. 481 (AB 481) was approved by Governor Newsom on September 30, 2021 to increase transparency, accountability, and oversight surrounding the use and acquisition of military equipment by state and local enforcement. AB 481 added Chapter 12.8, commencing with Section 7070, to the Government Code. Pursuant to Government Code section 7070 et. seq., the City Council must approve a publicly released, written Military Equipment Use Policy (Policy). The Policy must include the type, quantity, capabilities, purposes, and authorized uses of each type of military equipment owned by the law enforcement agency. Additionally, the Policy must include the acquisition and maintenance costs of the equipment, as well as the training required by any officer allowed to use the military equipment. The Policy must also include mechanisms to enforce the Policy and procedures for members of the public to register complaints or concerns about the use of military equipment.
The City Council must adopt the Policy by ordinance after a public hearing held at a regular meeting pursuant to the Brown Act. The Policy must be posted on the Ontario Police Department website at least thirty (30) days before the public hearing. In compliance with Government Code section 7071(a)(2), the Ontario Police Department made the Policy available on the City's website at https://www.ontarioca.gov/Police on October 8th, 2024, and is providing the proposed Policy to the City Council as an attachment to this staff report, thereby commencing the approval process of the 5637
proposed Policy.
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ORDINANCE NO. _______
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, ADOPTING A MILITARY EQUIPMENT USE POLICY
PURSUANT TO GOVERNMENT CODE §§ 7070, ET. SEQ.
THE CITY COUNCIL OF THE CITY OF ONTARIO DOES HEREBY FIND AND RESOLVE AS FOLLOWS:
WHEREAS, on September 30, 2021, Governor Gavin Newsom signed into law Assembly Bill 481 (“AB 481”), adding Chapter 12.8, “Funding, Acquisition and Use of Military Equipment”, to Division 7 of Title 1 of the Government Code (sections 7070 – 7075), relating to the use of military equipment by California law enforcement agencies; and
WHEREAS, AB 481 seeks to provide transparency, oversight, and an opportunity for meaningful public input on decisions regarding whether and how military equipment is funded, acquired, or used; and
WHEREAS, the Ontario Police Department is in possession of certain items of equipment that qualify as “military equipment” under AB 481 and further intends to acquire other items of military equipment; and
WHEREAS, AB 481 requires, inter alia, that a law enforcement agency possessing and using such qualifying equipment must prepare a publicly released, written, military equipment use policy document covering the inventory, description, quantity, purpose, capabilities, use, lifespan, acquisition, maintenance, authorized use, fiscal impacts, procedures, training, oversight, and complaint process, applicable to the Department’s use of such equipment; and
WHEREAS, the policy must be approved by the City Council by ordinance, and reviewed annually thereafter; and
WHEREAS, the military equipment inventoried and presented to the City Council is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety; and
WHEREAS, the proposed Military Equipment Use Policy (“Policy”) will safeguard the public’s health, welfare, safety, civil rights, and civil liberties; and WHEREAS, the equipment is reasonably cost effective compared to available alternatives that can achieve the same objective of officer and civilian safety; and WHEREAS, prior military equipment use complied with the applicable equipment use policy (which included equipment now defined as military equipment) that was in effect at the time, or if prior uses did not comply with the accompanying military equipment use policy, corrective action has been taken to remedy nonconforming uses and ensure future compliance; and
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WHEREAS, the Police Department has submitted the proposed Policy to the City Council and thereafter has made those documents available on the Police Department’s website for at least 30 days prior to the public hearing concerning the military equipment at issue; and
WHEREAS, the Policy satisfies the requirements of Government Code Section 7070(d); and
WHEREAS, the City Council of the City of Ontario, having received the information required under AB 481 regarding the Ontario Police Department’s use of military equipment as defined in said law, deems it to be in the best interest of the City to and hereby does approve the Military Equipment Policy.
WHEREAS, all legal prerequisites prior to the adoption of this Ordinance have occurred.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ONTARIO
HERBY ORDAINS AS FOLLOWS:
SECTION 1. Recitals. The City Council finds that all the recitals, facts, findings, and conclusions set forth above in the preamble of this Ordinance are true and correct.
SECTION 2. Approval of Military Equipment Policy.
Military Equipment Policy.
(a) The Military Equipment Policy shall govern the use of military equipment by the Ontario Police Department. (Exhibit A)
(b) The Policy shall be made publicly available on the Police Department’s website for as long as the military equipment is available for use or as otherwise ordained by the City Council.
(c) The Police Department shall submit an annual military equipment report to the City Council containing the information required by Government Code Section 7072 and the City Council shall thereafter determine whether each type of military equipment identified therein complied with the standards for approval set forth in Government Code Section 7071(d). (Exhibit B)
(d) The City Council shall on an annual basis and at a regular meeting thereof review this ordinance and vote on whether to renew it pursuant to Government Code Section 7071(e)(2).
(e) The definitions set forth in Government Code section 7070 shall apply to this ordinance. Any provision of state law referred to herein shall mean and include any amended or successor provision thereof.
SECTION 3. Compliance with CEQA. Adoption of this Ordinance is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15061 (b)(3) (General Rule) of the CEQA Guidelines because it is not a “project” and because 5640
it can be seen with certainty that there is no possibility that the passage of this Ordinance will have a significant effect on the environment.
SECTION 4. Inconsistencies. Any provision of the Ontario Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to affect the provisions of this Ordinance.
SECTION 5. Uncodified Ordinance. This Ordinance shall not be codified in the Ontario Municipal Code unless and until the City Council so ordains.
SECTION 6. Severability. If any chapter, article, section, subsection, subdivision, sentence, clause, phrase, word, or portion of this Ordinance, or the application thereof to any person, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of this Ordinance or its application to other persons. The City Council hereby declares that it would have adopted this Ordinance and each chapter, article, section, subsection, subdivision, sentence, clause, phrase, word, or portion thereof, irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, phrases, or portions of the application thereof to any person, be declared invalid or unconstitutional. No portion of this Ordinance shall supersede any local, state, or federal law, regulation, or codes dealing with life safety factors.
SECTION 7. Effective Date. This Ordinance shall become effective thirty (30) days following from 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 _______ day of ________ 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________
SHEILA MAUTZ, CITY CLERK
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APPROVED AS TO FORM:
_______________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
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STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. _______ was duly introduced at a regular meeting of the City Council of the City of Ontario held _____________ and adopted at the regular meeting held ___________, 2024 by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
I hereby certify that the foregoing is the original of Ordinance No. _______ duly passed and adopted by the Ontario City Council at their regular meeting held ____________ and that Summaries of the Ordinance were published on ___________ and _____________, in the Inland Valley Daily Bulletin newspaper. ________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
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