On August 16, 2022, the City Council certified The Ontario Plan 2050 Update Supplemental Environmental Impact Report (“SEIR”) in conjunction with The Ontario Plan 2050 (“TOP 2050”) (File No. PGPA20- 002) General Plan update. The TOP 2050 and SEIR, included the addition of approximately 67 acres of industrial land within the Rich Haven Specific Plan boundary located west of the SCE Mira Loma Substation.
On June 20, 2023, the City Council certified the Rich Haven Specific Plan Amendment and Environmental Impact Report (State Clearinghouse No. 2022100425) in conjunction with File No. PSPA22-001. The amendment included land use changes to bring the Rich Haven Specific Plan into compliance with The Ontario Plan Policy Plan (General Plan) that also included updates to the residential, commercial, and industrial development standards, exhibits, and text changes.
On February 1, 2023, the applicant submitted a Tentative Parcel Map and Development Plan (File Nos. PMTT23-004 and PDEV23-002) to subdivide 32.67 gross acres of land into 8 lots and construct one industrial building totaling 460,000 square feet on the Project site.
On December 18, 2023, the applicant submitted a Development Agreement (File No.
PDA23-006) to establish the terms and conditions of the associated Tentative Parcel Map 20685 on the Project site.
The Ontario Ranch financial commitments required for construction of properties within a specific plan are substantial. Therefore, to adequately forecast these costs and gain assurance that the project may proceed under the existing policies, rules, and regulations Legacy Land Partners, LLC, JAB Mill Creek, LLC, and Richland Ontario Developers, LLC (“Owner”), ha ve requested that the City enter into negotiations to create a Development Agreement (“Agreement”).
In accordance with California Government Code Section 65865, which in part states that any city… may enter into a Development Agreement with any person having a legal or equitable interest in real property for the development of such property…” and California Government Code Section 65865.52, which in part states that “a Development Agreement shall specify the duration of the Agreement, the permitted uses of the property… and may include conditions, terms, restrictions…,” the City of Ontario adopted Resolut ion No. 2002 -100 setting forth the procedures and requirements for consideration of Development Agreements. Pursuant to these procedures and requirements, staff entered into negotiations with the Applicant to create a Development Agreement for consideratio n by the Planning Commission and City Council.
The proposed Agreement is based on the model Development Agreement that was developed in coordination with the City Attorney and legal counsel for NMC Builders. This model Development Agreement is consistent with the provisions of the Construction Agreement. The terms of the agreement between NMC Builders’ members requires that members of the LLC enter into Development Agreements that are consistent with the 1387
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provisions of the Construction Agreement and are consistent with the commitments to assure that adequate public infrastructure improvements are constructed by the Owner.
PROJECT SETTING: The Project site consists of 32.67 acres of land located at northwest corner of Ontario Ranch Road and Mill Creek Avenue, within Planning Areas 3C, 5A and 5C (Light Industrial District and Open Space – Non-Recreation) of the Rich Haven Specific Plan, which is depicted in Exhibit A: Project Location Map. The site is currently vacant and was previously used for agricultural purposes and slopes from north to south with an approximate 20-foot differential in grade. The natural vegetation and soil conditions that once occurred throughout the project area have been significantly al tered through agricultural activities, leaving little to no native vegetation. There is an existing 300 -foot- wide SCE Easement that runs east -west along the northern boundary of the project site and contains power lines with four (115kV) transmission towers that are 180 feet tall. There is a secondary 255 -foot-wide SCE Easement that runs diagonally located on the southeast corner of the project site and contains power lines with one (115kV) transmission tower (180 feet tall).
The existing land uses surrounding the project site includes vacant land and residential development to the north and south, the SCE Mira Loma Substation, industrial development and vacant land to the east and residential development to west. The existing surrounding land uses, zoning, and Policy Plan (general plan) and specific plan land use designations are summarized in Table 1: Surrounding Zoning & Land Uses.
PROJECT ANALYSIS:
(1) Development Agreement
The Agreement proposes to include 32.67 gross acres of land within Planning Areas 3C, 5A and 5C (Light Industrial District and Open Space – Non-Recreation) of the Rich Haven Specific Plan , the Agreement grants the Applicant a vested right to develop Tentative Parcel Map 20685 (File No. PMTT23-004), provided the Owner complies with the terms and conditions of the Specific Plan and related EIR.
The Tentative Parcel Map proposes to subdivide 32.67 gross acres of land into 8 lots and the associated Development Plan is for the construction of one industrial building totaling 460,000 square feet located at the northwest corner of Ontario Ranch Road and Mill Creek Avenue within Planning Areas 3C, 5A and 5C (Light Industrial District and Open Space – Non-Recreation) of the Rich Haven Specific Plan , as shown on the attached Exhibits C and D.
The term of the Agreement is for 10 years, with a 5-year option to renew. The main points of the Agreement address funding for all new City expenses created by the project, which includes: Development Impact Fees (“DIF”) for construction of public improvements (i.e. streets, sewer, water, storm drain and fiber); Public Service Funding to ensure adequate provisions of public services (police, fire and other public services); and 1388
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the creation of a Community Facilities District (“CFD”) for the maintenance of public facilities.
Staff finds that the Agreement is consistent with State law, The Ontario Plan, and the City’s Development Agreement policies. As a result, staff is recommending approval of the application to the Planning Commission. If the Planning Commission finds the Agreement is acceptable, a recommendation of approval to the City Council would be appropriate.
PUBLIC NOTIFICATION: The subject application was advertised as a public hearing in at least one newspaper of general circulation in the City of Ontario (the Inland Valley Daily Bulletin newspaper). In addition, notices were mailed to all owners of real property located within a minimum of 300 feet of the exterior boundaries of the property that is the subject of the hearing, as shown on the records of the County Assessor.
CORRESPONDENCE: As of the preparation of this Agenda Report , Planning Department staff have not received any written or verbal communications from the owners or occupants of properties surrounding the Project site or from the public in general, regarding the subject application.
AGENCY/DEPARTMENT REVIEWS: Each City agency/department has been provided the opportunity to review and comment on the subject application and recommend conditions of approval to be imposed upon the application. At the time of the Resolution preparation, recommended conditions of approval were provided and are appended to the attached Resolutions as Attachment A.
AIRPORT LAND USE COMPATIBILITY PLAN (ALUCP) COMPLIANCE: The California State Aeronautics Act (Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan.
On April 19, 2011, the City Council of the City of Ontario approved and adopted the ONT ALUCP, establishing the Airport Influence Area for Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Cou nties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. As the recommending body for the Project, the Planning Commission has reviewed and considered the facts and information contained in the Application and supporting documentation against the ONT ALUCP compatibility factors, including [1] Safety Criteria (ONT ALUCP Table 2-2) and Safety Zones (ONT ALUCP Map 2-2), [2] Noise Criteria (ONT ALUCP Table 2 -3) and Noise Impact Zones (ONT ALUCP Map 2 -3), [3] Airspace protection Zones (ONT ALUCP Map 2 -4), and [4] Overflight Notification Zones (ONT ALUCP Map 2-5). As a result, the Planning Commission finds and determines that the Project, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the ONT ALUCP. 1389
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COMPLIANCE WITH THE ONTARIO PLAN 2050: The proposed Project is consistent with the principles, goals and policies contained within the Vision, Governance, Policy Plan (general plan), and City Council Priorities components of The Ontario Plan 2050 ("TOP").
More specifically, the goals and polici es of TOP that are furthered by the proposed Project are as follows:
(1) City Council Goals
• Invest in the Growth and Evolution of the City's Economy • Operate in a Businesslike Manner
• Focus Resources in Ontario's Commercial and Residential Neighborhoods • Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
• Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
(1) Vision
Distinctive Development that integrates our varied and diverse focal points, districts, centers, corridors, and neighborhoods to provide a feeling of coherence without sacrificing uniqueness.
(2) Governance
Decision Making
Goal G1: Sustained decision-making that consistently moves Ontario towards its Vision by using The Ontario Plan as a framework for assessing choices.
• G1-1 Consistency with Policies. We require that staff recommendations to the City Council be consistent with adopted City Council Priorities (Goals and Objectives) and The Policy Pan.
• G1-2 Long -term Benefit. We require decisions to demonstrate and document how they add value to the community and support the Ontario Vision.
(3) Policy Plan (General Plan)
Land Use Element
Goal LU-2 Compatibility: Compatibility between a wide range of uses and a resultant urban patterns and forms.
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• LU-2.1 Land Use Decisions. We minimize adverse impacts on adjacent properties when considering land use and zoning requests.
• LU-2.2 Buffers. We require new uses to provide mitigation or buffers between existing uses where potential adverse impacts could occur. Additional mitigation is required when new uses could negatively impact environmental justice areas.
• LU-2.4 Regulation of Nuisances. We regulate the location, concentration, and operation of potential nuisances.
• LU-2.5 Regulation of Uses. We regulate the location, concentration, and operation of uses that have impacts on surrounding land uses.
• LU-2.6 Infrastructure Compatibility. We require infrastructure to be aesthetically pleasing and in context with the community character.
• LU-2.11 Context -Aware Transitions and Connections. We require new development projects and land-planning efforts to provide context-aware and appropriate transitions and connections between existing and planned neighborhoods, blocks, sites, and buildings.
Goal LU -3 Flexibility : Staff, regulations and processes that support and allow flexible response to conditions and circumstances in order to achieve the Vision.
• LU-3.1 Development Standards. We maintain clear development standards which allow flexibility to achieve our Vision and provide objective standards that ensure predictability and deliver the intended physical outcomes.
• LU-3.3 Land Use Flexibility. We consider uses not typically permitted within a land use category if doing so improves livability, reduces vehicular trips, creates community gathering places and activity nodes, and helps create identity.
Goal LU -5 Airport Planning : Integrated airport systems and facilities that minimize negative impacts to the community and maximize economic benefits.
• LU-5.7 ALUCP Consistency with Land Use Regulations. We comply with state law that requires general plans, specific plans, and all new development to be consistent with the policies and criteria set forth within an Airport Land Use Compatibility Plan for any public-use airport.
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Community Economics Element
Goal CE-1 Complete Community: A complete community that provides for all incomes and stages of life.
• CE-1.1 Jobs -Housing Balance. We pursue improvement to the Inland Empire’s balance between jobs and housing by promoting job growth that reduces the regional economy’s reliance on out-commuting.
Mobility Element
Goal M-1 Roadway System : A system of roadways that meets the mobility needs of a dynamic and prosperous Ontario.
• M-1.4 Complete Streets. We work to provide a complete, balanced, context-aware, multimodal transportation network that meets the needs of all users of streets, roads, and highways, including motorists, pedestrians, bicyclists, children, persons with disabi lities, seniors, movers of commercial goods, and users of public transportation. We prioritize implementation of complete streets improvements in environmental justice areas to facilitate opportunities for residents to use active transportation systems.
Goal M -2 Active Transportation : A system of trails and corridors that facilitate and encourage active modes of transportation.
• M-2.3 Pedestrian Walkways. We require streets to include sidewalks and visible crosswalks at major intersections where necessary to promote safe and comfortable mobility between residential areas, businesses, schools, parks, recreation areas, and other key destination points.
Community Design Element
Goal CD -1 Image & Identity : A dynamic, progressive city containing distinct and complete places that foster a positive sense of identity and belonging among residents, visitors, and businesses.
• CD-1.4 Transportation Corridors. We will enhance our major transportation corridors within the City through landscape, hardscape, signage and lighting. The extent of enhancement should be appropriate to the use, type, and context of each corridor.
Goal CD-2 Design Quality: A high level of design quality resulting in neighborhoods, public spaces, parks, and streetscapes that are attractive, safe, functional, human -scale, and distinct.
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• CD-2.1 Quality Building Design and Architecture. We encourage all development projects to convey visual interest and character through:
1. Building volume, massing, and height to provide context - appropriate scale and proportion;
2. A true architectural style which is carried out in plan, section, and elevation through all aspects of the building and site design and appropriate for its setting; and
3. Exterior building materials that are articulated, high quality, durable, and appropriate for the architectural style.
• CD-2.9 Landscape Design. We encourage durable, sustainable, and drought-tolerant landscaping materials and designs that enhance the aesthetics of structures, create and define public and private spaces, and provide shade and environmental benefits.
• CD-2.10 Parking Areas. We require all development, including single -family residential, to minimize the visual impact of surface, structured, and garage parking areas visible from the public realm in an aesthetically pleasing, safe and environmentally sensitive manner. Examples include:
1. Surface parking: Shade trees, pervious surfaces, urban run -off capture and infiltration, and pedestrian paths to guide users through the parking field.
• CD-2.13 Entitlement Process. We work collaboratively with all stakeholders to ensure a high degree of certainty in the efficient review and timely processing of all development plans and permits.
Goal CD-5 Protection of Investment: A sustained level of maintenance and improvement of properties, buildings, and infrastructure that protects property values and encourages additional public and private investments.
• CD-5.1 Maintenance of Buildings and Property. We require all public and privately-owned buildings and property (including trails and easements) to be properly and consistently maintained.
• CD-5.2 Maintenance of Infrastructure. We require the continual maintenance of infrastructure.
HOUSING ELEMENT COMPLIANCE: The Project is consistent with the Housing Element of the Policy Plan (general plan) component of The Ontario Plan 2050, as the Project site is not 1393
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one of the properties in the Housing Element Sites contained in Tables B -1 and B -2 (Housing Element Sites Inventory) of the Housing Element Technical Report.
ENVIRONMENTAL REVIEW: The environmental impacts of this Project were previously reviewed in conjunction with the Rich Haven Specific Plan Amendment (File No. PSPA22- 001), for which an Environmental Impact Report (State Clearinghouse No. 2022100425) was adopted by the City Council on June 20, 2023. This Application introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of Project approval and are incorporated herein by this reference.
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TECHNICAL APPENDIX:
Table 1: Surrounding Zoning and Land Uses
Existing
Land Use
Policy Plan
Designation
Zoning
Designation
Specific Plan
Land Use
Site Vacant Industrial (0.55 FAR) Rich Haven Specific
Plan
Planning Areas 3C, 5A
and 5C (Light Industrial
District and Open
Space – Non-
Recreation
North Vacant Industrial (0.55 FAR) Rich Haven Specific
Plan
Planning Area 3C (Light
Industrial)
South Vacant
Mixed Use - Rich Haven:
residential (14.0 to 50.0
du/ac) & office/retail
(0.70 FAR)
Rich Haven Specific
Plan
Planning Area 5B
(Regional Commercial
and Stand-alone
residential overlay)
East
SCE Mira Loma
Substation, Industrial
Building and Vacant
Land
Business Park (0.60 FAR)
& General Commercial
(0.40 FAR)
Specific Plan
Agricultural Overlay
Zoning District and Rich
Haven Specific Plan
Planning Area 6A and
6B (Light Industrial and
Regional Commercial)
West
Residential Subdivision
(Brookfield Canvas Park)
Mixed Use - Rich Haven:
residential (14.0 to 50.0
du/ac) & office/retail
(0.70 FAR)
Rich Haven Specific
Plan
Planning Area 4A
(Stand-alone residential
overlay)
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Exhibit A: PROJECT LOCATION MAP
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Exhibit B: RICH-HAVEN SPECIFIC PLAN LAND USE MAP
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Exhibit C: TENATIVE PARCEL MAP
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Exhibit D: SITE PLAN
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Attachment A:
Resolution File No. PDA23-006
(Documents to follow this page)
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RESOLUTION NO. PC25-016
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
ONTARIO, CALIFORNIA, RECOMMENDING CITY COUNCIL APPROVE
FILE NO. PDA23-006, A DEVELOPMENT AGREEMENT BETWEEN THE
CITY OF ONTARIO AND LEGACY LAND PARTNERS, LLC, JAB MILL
CREEK, LLC, AND RICHLAND ONTARIO DEVELOPERS, LLC, TO
ESTABLISH THE TERMS AND CONDITIONS ASSOCIATED WITH
TENTATIVE PARCEL MAP 20685 (FILE NO. PMTT23-004), LOCATED AT
THE NORTHWEST CORNER OF ONTARIO RANCH ROAD AND MILL
CREEK AVENUE WITHIN PLANNING AREAS 3C, 5A AND 5C (LIGHT INDUSTRIAL DISTRICT AND OPEN SPACE – NON RECREATION) OF
THE RICH HAVEN SPECIFIC PLAN , AND MAKING FINDINGS IN
SUPPORT THEREOF—APNS: 218-016-22 AND 218-211-42
WHEREAS, RICHLAND ONTARIO DEVELOPERS, LLC ("Applicant") has filed an Application for the approval of a Development Agreement , File No. PDA 23-006, as described in the title of this Resolution (hereinafter referred to as " Application" or "Project"); and
WHEREAS, the property to the north of the Project site is within Planning Area 3C (Light Industrial) of the Rich Haven Specific Plan and is vacant. The properties to the east are within the Specific Plan Agricultural Overlay zoning district and Planning Ar eas 6A and 6B (Light Industrial and Regional Commercial) of the Rich Haven Specific Plan, and are developed with SCE Mira Loma Substation, an industrial building and vacant land.
The property to the south is within Planning Area 5B (Regional Commercial and Stand- alone residential overlay) of the Rich Haven Specific Plan and is vacant. The property to the west is within Planning Area 4A (Stand- alone residential overlay) of the Rich Haven Specific Plan, and is developed with a residential community; and
WHEREAS, the Application applies to 32.67 gross acres of land, located at the northwest corner of Ontario Ranch Road and Mill Creek Avenue within Planning Areas 3C, 5A and 5C (Light Industrial District and Open Space – Non-Recreation) of the Rich Haven Specific Plan; and
WHEREAS, the Applicant submitted Tentative Parcel Map No. 20685 (File No.
PMTT23-004), to subdivide 32.67 gross acres of land into 2 numbered lots and 6 lettered lots in conjunction with a Development Plan to construct one industrial building totaling 460,000 square feet on the Project site; and
WHEREAS, t he term of the Agreement is for 10 years, with a 5- year option to renew. The main points of the Agreement address funding for all new City expenses created by the project, which includes: Development Impact Fees (“DIF”) for construction 1401
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of public improvements (i.e. streets, sewer, water, storm drain and fiber); and the creation of a Community Facilities District (“CFD”) for the maintenance of public facilities; and
WHEREAS, the environmental impacts of this Project were previously reviewed in conjunction with File No. PSPA22- 001, the Rich Haven Specific Plan Amendment for which an Environmental Impact Report (State Clearinghouse No. 2022100425) was adopted by the City Council on June 20, 2023, and this Application introduces no new significant environmental impacts; and
WHEREAS, the City 's "Local Guidelines for the Implementation of the California Environmental Quality Act (CEQA) " provide for the use of a single environmental assessment in situations where the impacts of subsequent projects are adequately analyzed; and
WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the Planning Commission the responsibility and authority to review and make recommendations to the City Council on the subject Application; and
WHEREAS, the Project has been reviewed for consistency with the Housing Element of the Policy Plan component of The Ontario Plan, as State Housing Element law (as prescribed in Government Code Sections 65580 through 65589.8) requires that development projects must be consistent with the Housing Element, if upon consideration of all its aspects, it is found to further the purposes, principals, goals, and policies of the Housing Element; and
WHEREAS, the Project is located within the Airport Influence Area of Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and is subject to, and must be consistent with, the policies and criteria set forth in the Ontario International Airport Land Use Compatibil ity Plan (hereinafter referred to as "ALUCP"), which applies only to jurisdictions within San Bernardino County, and addresses the noise, safety, airspace protection, and overflight impacts of current and future airport activity; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on April 22, 2025, the Planning Commission of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date; and
WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred. 1402
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NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND RESOLVED by the Planning Commission of the City of Ontario, as follows:
SECTION 1: Environmental Determination and Findings. As the recommending body for the Project, the Planning Commission has reviewed and considered the information contained in the previous Certified EIR and supporting documentation. Based upon the facts and information contained in the previous Certified EIR and supporting documentation, the Planning Commission finds as follows:
(1) The environmental impacts of this Project were previously reviewed in conjunction with File No. PSPA22- 001, the Rich Haven Specific Plan Amendment for which an Environmental Impact Report (State Clearinghouse No. 2022100425) was adopted by the City Council on June 20, 2023; and
(2) The previous Certified EIR contains a complete and accurate reporting of the environmental impacts associated with the Project; and
(3) The previous Certified EIR was completed in compliance with CEQA and the Guidelines promulgated thereunder; and
(4) The previous Certified EIR reflects the independent judgment of the Planning Commission; and
(5) The proposed project will introduce no new significant environmental impacts beyond those previously analyzed in the previous Certified EIR, and all mitigation measures previously adopted with the Certified EIR, are incorporated herein by this reference.
SECTION 2: Subsequent or Supplemental Environmental Review Not Required. Based on the information presented to the Planning Commission, and the specific findings set forth in Section 1 , above, the Planning Commission finds that the preparation of a subsequent or supplemental Certified EIR is not required for the Project, as the Project:
(1) Does not constitute substantial changes to the Certified EIR that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and
(2) Does not constitute substantial changes with respect to the circumstances under which the Certified EIR was prepared, that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and 1403
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(3) Does not contain new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the Certified EIR was certified/adopted, that shows any of the following:
(a) The project will have one or more significant effects not discussed in the Certified EIR; or
(b) Significant effects previously examined will be substantially more severe than shown in the Certified EIR; or
(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the City declined to adopt such measures; or
(d) Mitigation measures or alternatives considerably different from those analyzed in the Certified EIR would substantially reduce one or more significant effects on the environment, but which the City declined to adopt.
SECTION 3: Housing Element Compliance. Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as the recommending body for the Project, the Planning Commission finds that based on the facts and information contained in the Application and supporting documentation, at the time of Project implementation, the Project is consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan 2050, as the Project site is not one of the properties in the Housing Element Sites Inventory contained in Tables B-1 and B-2 of the Housing Element Technical Report.
SECTION 4: Airport Land Use Compatibility Plan ("ALUCP") Compliance.
The California State Aeronautics Act (Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan.
(1) On April 19, 2011, the City Council of the City of Ontario approved and adopted the Ontario International Airport Land use Compatibility Plan, establishing the Airport Influence Area for Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area , as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. A s the recommending body for the Project, the Planning Commission has reviewed and considered the facts and information contained in the Application and supporting documentation against the ONT ALUCP compatibility factors, including [1] Safety Criteria 1404
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(ONT ALUCP Table 2 -2) and Safety Zones ( ONT ALUCP Map 2 -2), [2] Noise Criteria (ONT ALUCP Table 2-3) and Noise Impact Zones ( ONT ALUCP Map 2-3), [3] Airspace protection Zones ( ONT ALUCP Map 2- 4), and [ 4] Overflight Notification Zones ( ONT ALUCP Map 2- 5). As a result, the PLANNING COMMISSION , therefore, finds and determines that the Project will be consistent with the policies and criteria set forth within the ONT ALUCP; and
SECTION 5: Concluding Facts and Reasons. Based upon the substantial evidence presented to the Planning Commission during the above- referenced hearing, and upon the specific findings set forth in Section 1 through 4, above, the Planning Commission hereby concludes as follows:
(1) The provisions of the development agreement are consistent with the goals, policies, plans, and exhibits of the Vision, Policy Plan (General Plan), and City Council Priorities components of The Ontario Plan 2050, and any applicable specific plans.
a. The Development Agreement applies to approximately 32.67 gross acres of land located at the northwest corner of Ontario Ranch Road and Mill Creek Avenue within Planning Areas 3C, 5A and 5C (Light Industrial District and Open Space – Non- Recreation) of the Rich Haven Specific Plan; and
b. The Development Agreement establishes parameters for the development of land within the Rich-Haven Specific Plan. The Development Agreement also grants the Applicant, the right to develop, the ability to quantify the fees; and establish the terms and conditions that apply to those projects. These terms and conditions are consistent with The Ontario Plan Policy Plan (General Plan), design guidelines and development standards for the Rich Haven Specific Plan; and
c. The Development Agreement grants the Applicant a vested right to develop Tentative Parcel Map 20685 (File No. PMTT23-004) as long as the Applicant complies with the terms and conditions of the Rich Haven Specific Plan and EIR; and
d. The Development Agreement has been prepared in conformance with the goals and policies of The Ontario Plan Policy Plan (General Plan); and
e. The Development Agreement does not conflict with the Land Use Policies of The Ontario Plan Policy Plan (General Plan) and will provide for development, within the district, in a manner consistent with the Policy Plan and with related development; and
f. This Development Agreement will promote the goals and objectives of the Land Use Element of the Policy Plan; and
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SECTION 6: Planning Commission Action. Based upon the findings and conclusions set forth in Sections 1 through 5, above, the Planning Commission hereby RECOMMENDS THE CITY COUNCIL APPROVE the herein described Application, subject to each and every condition set forth in the Development Agreement (File No.
PDA23-006 attached hereto as "Attachment A," and incorporated herein by this reference.
SECTION 7: Indemnification. The Applicant shall agree to defend, indemnify and hold harmless, the City of Ontario or its agents, officers, and employees from any claim, action or proceeding against the City of Ontario or its agents, officers or employees to attack, set aside, void, or annul this approval. The City of Ontario shall promptly notify the applicant of any such claim, action, or proceeding, and the City of Ontario shall cooperate fully in the defense.
SECTION 8: Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings have been based are located at the City of Ontario City Hall, 303 East " B" Street, Ontario, California 91764. The custodian for these records is the City Clerk of the City of Ontario.
SECTION 9: Certification to Adoption. The Secretary shall certify to the adoption of the Resolution.
- - - - - - - - - - - - - -
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ATTACHMENT A:
FILE NO. PDA23-006
DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation,
and
Legacy Land Partners LLC, a Florida limited liability
company,
and
JAB Mill Creek LLC, a Florida limited liability company
and
Richland Ontario Developers LLC
(Development Agreement to follow this page)
1409
-1-
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CITY OF ONTARIO
CITY CLERK / RECORDS MANAGEMENT
303 EAST “B” STREET
ONTARIO, CA 91764-4196
Exempt from Fees Per Gov. Code § 6103
______________________________________________________________________ Space above this line for Recorder’s Use Only
FILE NO. PDA23-006
DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation,
and
Legacy Land Partners LLC, a Florida limited liability
company,
and
JAB Mill Creek LLC, a Florida limited liability company
and
Richland Ontario Developers, LLC
_________________, 2025
San Bernardino County, California
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DEVELOPMENT AGREEMENT PDA23-006
This Development Agreement (hereinafter “Agreement”) is entered into effective as of the ____ day of ____________, 2025 by and among the City of Ontario, a California municipal corporation (hereinafter “CITY”), and Legacy Land Partners LLC, a Florida limited liability company, JAB Mill Creek LLC, a Florida limited liability company , and Richland Ontario Developers, LLC (hereinafter “OWNER”):
RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864, et seq. of the Government Code and Section
4.01.015 of the Ontario Development Code; and
WHEREAS, OWNER has requested CITY to enter into a development agreement and proceedings have been taken in accordance with the rules and regulations of CITY; and
WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and
WHEREAS, the terms and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and
WHEREAS, the best interests of the citizens of the CITY and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Project and the Agreement in the Rich Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 2006051081) (the “FEIR”). The City Council found and determined that the FEIR was prepared in accordance with the requirements of the California Environmental Quality Act and adequately describes the impacts of the project described in the FEIR, which included consi deration of this Agreement; and
WHEREAS, this Agreement and the Project are consistent with the CITY’s Comprehensive General Plan and the Rich Haven Specific Plan; and WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and WHEREAS, development of the Property in accordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
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WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under Sections 65864 et seq. of the Government Code are intended; and
WHEREAS, OWNER has incurred and will in the future incur substantial costs in order to assure development of the Property in accordance with this Agreement; and WHEREAS, OWNER has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Property in accordance with this Agreement.
WHEREAS, the Property is located in an area of the City of Ontario that has been known as the “New Model Colony” area and the New Model Colony area has now been renamed as “Ontario Ranch.
WHEREAS, Owner’s Property is within the boundaries defined in Exhibit A of the Construction Agreement between the CITY and NMC Builders and the Property covered by this Agreement is what is known as a “Phase 2 Water Property” as such, shall be required to provide funding for CITY’s future construction of the “Phase 2 Water Improvements” which will result in the availability of additional Net MDD Water Availability required for the development as shown on Exhibit “I-1”..
WHEREAS, the property developer/owner is made aware of the South Archibald Trichloroethylene (TCE) Plume “Disclosure Letter” (Exhibit “J”). Property owner may wish to provide the attached Letter as part of the Real Estate Transfer Disclosure requirements under California Civil Code Section 1102 et seq. This may include notifications in the Covenants, Conditions and Restrictions (CC&Rs) or other documents related to property transfer and disclosures. Additional information on the plume is available from the Santa Ana Regional Water Quality Control Board
at http://geotracker.waterboards.ca.gov/profile_report.asp?global_id=T10000004658.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. The following terms when used in this Agreement shall be defined as follows:
1.1.1 “Agreement” means this Development Agreement.
1.1.2 “CITY” means the City of Ontario, California, a California municipal corporation.
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1.1.3 “Construction Agreement” means that certain Agreement for the Financing and Construction of Phases I and II Infrastructure Improvements to Serve an Easterly Portion of the New Model Colony, entered into between the CITY and NMC Builders as of the 4th day of October, 2005, and all future amendments thereto and including the First Amended and Restated Agreement for the Financing and Construction of Limited Infrastructure Improvements to Serve an Easterly Portion of the New Model Colony entered into between the CITY and NMC Builders as of the 21st day of August, 2012 and the Amendment to the First Amended and Restated Agreement for the Financing and Construction of Limited Infrastructure Improvements to Serve and Easterly Portion of the New Model Colony entered into between the CITY and NMC Builders as of the 19 th day
of September 2017.
1.1.4 “Development” means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of public infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping. “Development” does not include the maintenance, repair, reconstruction or redevelopment of any building , structure, improvement or facility after the construction and completion thereof.
1.1.5 “Development Approvals” means all permits and other entitlements for use subject to approval or issuance by CITY in connection with development of the Property including, but not limited to:
(a) specific plans and specific plan amendments;
(b) tentative and final subdivision and parcel maps;
(c) development plan review.
1.1.6 “Development Exaction” means any requirement of CITY in connection with or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of fees in order to les sen, offset, mitigate or compensate for the impacts of development on the environment or other public interests.
1.1.7 “Development Impact Fee” means a monetary exaction, other than a tax or special assessment, whether characterized as a fee or a tax and whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, and, for purposes of this Agreement only, includes fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4. For purposes of this Agreement only, "Development Impact Fee" shall not include processing fees and charges imposed by CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring 1413
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compliance with any Development Approvals granted or issued, including, without limitation, fees for zoning variances; zoning changes; use permits; building inspections; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese- Knox-Hertzberg Local Government Reorganization Act of 2000, Division 3 (commencing with Section 56000) of Title 5 of the Government Code; the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Gover nment Code, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public Utilities Code, as such codes may be amended or superseded, including by amendment or replacement.
1.1.8 “Development Plan” means the Existing Development Approvals and the Existing Land Use Regulations applicable to development of the Property.
1.1.9 “Effective Date” means the date that the ordinance approving this Agreement goes into effect.
1.1.10 “Existing Development Approvals” means all Development Approvals approved or issued on or prior to the Effective Date. Existing Development Approvals includes the Approvals incorporated herein as Exhibit “C” and all other Approvals which are a matter of public record on the Effective Date.
1.1.11 “Existing Land Use Regulations” means all Land Use Regulations in effect on the date of the first reading of the Ordinance adopting and approving this Agreement.
Existing Land Use Regulations includes the Regulations incorporated herein as Exhibit “D” and all other Land Use Regulations that are in effect and a matter of public record on such date.
1.1.12 “General Plan” means the Ontario Plan adopted on August 16, 2022.
1.1.13 “Improvement” or “Improvements” means those public improvements required to support the development of the Project as described in the Parcel Map conditions for Parcel Map 20685 as further described in Exhibit “E” and depicted in Exhibit “F” (the “Infrastructure Improvements Exhibit”).
1.1.14 “Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property . “Land Use Regulations” does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
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(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of similar rights and interests that provide for the use of or the entry upon public property; (e) the exercise of the power of eminent domain.
1.1.15 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns.
1.1.16 “Net MDD” means net maximum daily water demand.
1.1.17 “NMC Builders” means the consortium of investors and developers responsible for the construction of infrastructure within the New Model Colony incorporated as NMC Builders, LLC.
1.1.18 “OWNER” means the persons and entities listed as owner on page 1 of this Agreement and their permitted successors in interest to all or any part of the Property.
1.1.19 “Phase 2 Water EDUs” means the number of equivalent dwelling units or non-residential square footage assigned to OWNER upon payment to City of the Phase 2 Water Participation Fee for the Project and evidenced by the issuance by CITY of a Certificate of Phase 2 Net MDD Availability in the form attached as Exhibit G.
1.1.20 “Phase 2 Water Improvements” means the future water infrastructure Improvements required for the issuance by CITY of the “Water Availability Equivalents” (WAE) for the Project.
1.1.21 “Phase 2 Water Participation Fee” means the fee paid to City upon City approval of the first Development Entitlement for the Project, to fund the Property’s respective share of the projected costs of the design and construction of the Phase 2 Water Improvements by City. The Phase 2 Water Participation Fee shall be the calculated amount of the Regional Water DIF for the Project based upon the number of units, and land use category for residential units or the number of square feet, and land use category for non-residential square footage of the Project.
1.1.22 “Project” means the development of the Property contemplated by the Development Plan, as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement.
1.1.23 “Property” means the real property described on Exhibit “A” and shown on Exhibit “B” to this Agreement.
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1.1.24 “Reservations of Authority” means the rights and authority excepted from the assurances and rights provided to OWNER under this Agreement and reserved to CITY under Section 3.6 of this Agreement.
1.1.25 “Amendment to the Construction Agreement” means the amendment to the Construction Agreement modifying the boundaries of the property in Exhibit A of such Construction Agreement to include the Property covered by this Agreement and to provide for the additional funds require d for CITY’s future construction of the “Phase 2 Water Improvements” described in a modification to Exhibit C -3 of the Construction Agreement.
1.1.26 “Specific Plan” means that certain specific plan adopted by the City Council, and entitled, “Rich Haven Specific Plan.”
1.1.27 “Subsequent Development Approvals” means all discretionary Development Approvals required subsequent to the Effective Date in connection with development of the Property.
1.1.28 “Subsequent Land Use Regulations” means any discretionary Land Use Regulations adopted and effective after the Effective Date of this Agreement.
1.1.29 “Water Availability Equivalent (WAE)” means a designated portion of the total Net MDD made available through the construction of each Phase described in the Water Phasing Plan of the Construction Agreement. Th e number of Water Availability Equivalents (of portions thereof) required for the approval of a Tract or Subdivision Map shall be based upon water demand factors and assumptions listed in the Construction Agreement and shown in Exhibit “I-2”.
1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:
Exhibit “A” — Legal Description of the Property.
Exhibit “B” — Map showing Property and its location.
Exhibit “C” — Existing Development Approvals.
Exhibit “D” — Existing Land Use Regulations.
Exhibit “E” — Description of Required Infrastructure Improvements Exhibit “F” — Infrastructure Improvements Exhibit
Exhibit “G” – Form of Certificate of Net MDD to be issued by CITY Exhibit “H” – Form of Certificate of DIF Credit to be issued by CITY Exhibit “I-1” – Ontario Ranch Water Supply Phasing Plan 1416
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Exhibit “I-2” – Water Demand Equivalents by Land Use
Exhibit “J” - Form of Disclosure letter
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out only in accordance with the terms of this Agreement.
2.1 Ownership of Property. OWNER represents and covenants that it is the owner of the fee simple title to the Property or a portion thereof, or has the right to acquire fee simple title to the Property or a portion thereof from the current owner(s) thereof. To the extent OWNER does not own fee simple title to the Property, OWNER shall obtain written consent from the current fee owner of the Property agreeing to the terms of this Agreement and the recordation thereof.
2.2 Term. The term of this Agreement shall commence on the Effective Date and shall continue for an initial term of ten (10) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement. The term of this Agreement may be extended for an additional five (5) years following expiration of the initial ten (10) year term, provided the following have occurred:
(a) OWNER provides at least 180 days written notice to CITY prior to expiration of the initial term; and
(b) OWNER is not then in uncured default of this Agreement.
2.3 Assignment.
2.3.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410, et seq.), to any person, partnership, limited liability company, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement with respect to the portion of the Property sold and be made in strict compliance with the following:
(a) No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property. OWNER may be required to provide disclosure that the Property is within the South Archibald Trichloroethylene (TCE) Plume (Exhibit “J”). OWNER may wish to provide the attached Disclosure Letter (Exhibit I) as part of the Real Estate Transfer Disclosure requirements under California Civil Code Section 1102 et seq. (b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, OWNER shall notify CITY’s City Manager, in writing, of such 1417
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sale, transfer or assignment and shall provide CITY with: (1) an executed agreement, in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Agreement with respect to the portion of the Property so sold, transferred or assigned. (c) Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by OWNER under this Agreement.
Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required b y Paragraph (b) of this Subsection 2.4.1, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed. The City Manager shall have the authority to review, consider and either approve, conditionally approve, or deny any proposed sale, transfer or assignment that is not made in compliance with this section 2.4.
2.3.2 Release of Transferring Owner . Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement unless such transferring owner is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring owner of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the portion of the Property sold, transferred or assigned.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed an agreement as required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER (if any) to secure performance of its obligations hereunder which are to be performed upon portion of the Property sold, transferred or assigned .
2.3.3 Effect of Assignment and Release of Obligations . In the event of a sale, transfer or assignment pursuant to the provisions of Section 2.4.2 above:
(a) The assignee shall be liable for the performance of all obligations of OWNER with respect to transferred property but shall have no obligations with respect to the portions of the Property, if any, not transferred (the “Retained Property”). (b) The owner of the Retained Property shall be liable for the performance of all obligations of OWNER with respect to Retained Property but shall have no further obligations with respect to the transferred property.
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(c) The assignee’s exercise, use and enjoyment of the Property or portion thereof shall be subject to the terms of this Agreement to the same extent as if the assignee were the OWNER.
2.3.4 Subsequent Assignment . Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section 2.4.
2.3.5 Termination of Agreement With Respect to Individual Lots Upon Sale to Public and Completion of Construction. The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one year) of any parcel which has been finally subdivided and is individually (and not in “bulk”) sold or leased to a member of the public or other ultimate user of the parcel. Notwithstanding any other provisions of this Agreement, this Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
(a) The lot has been finally subdivided and individually (and not in “bulk”) sold or leased (for a period longer than one year) to a member of the public or other ultimate user; and,
(b) A certificate of occupancy has been issued for a building on the parcel, and the fees set forth under Section 4 of this Agreement have been paid.
2.4.6 Partial Assignment and Assumption. CITY and OWNER agree OWNER may partially assign its obligations and rights under this Agreement, and all amendments hereto, to a purchaser, transferee or assignee of a lot, which has been subdivided subject to provisions of a partial assignment and assump tion agreement in a form approved by CITY. Any such complete and executed partial assignment and assumption of this Agreement shall be submitted to CITY for approval pursuant to Section 2.4.1 of this Agreement. CITY shall review, and if the above conditions, including but not limited to, those conditions in Section 2.4.2, are satisfied, CITY may approve the partial assignment and release and notify the purchaser, transferee or assignee in writing thereof. No such release approved pursuant to this Subsection 2.4.6 shall cause, or otherwise affect, a release of OWNER from the duties and obligations under this Agreement that are retained by OWNER and excluded from the transfer or assignment.
2.4 Amendment or Cancellation of Agreement . This Agreement may be amended or cancelled in whole or in part only in the manner provided for in Government Code Section 65868.1. Any amendment of this Agreement, which amendment has been requested by OWNER, shall be considered by the CITY only upon t he payment of the applicable processing charge. This provision shall not limit any remedy of CITY or OWNER as provided by this Agreement. Either Party or successor in interest, may propose an amendment to or cancellation, in whole or in part, of this Agreement. Any amendment or cancellation shall be by mutual consent of the parties or their successors in interest except as provided otherwise in this Agreement or in Government Code Section 65865.1. For purposes of this section, the term “successor in interest” shall mean 1419
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any person having a legal or equitable interest in the whole of the Property, or any portion thereof as to which such person wishes to amend or cancel this Agreement. The procedure for proposing and adopting an amendment to, or cancellation of, in whole or in part, this Agreement shall be the same as the procedure for adopting and entering into this Agreement in the first instance. Notwithstanding the foregoing sentence, if the CITY initiates the proposed amendment to, or cancellation of, in whole or in part, this Agreement, CITY shall first give notice to the OWNER of its intention to initiate such proceedings at least sixty (60) days in advance of the giving the public notice of intention to consider the amendment or cancellation.
2.5.1 Minor Modification. Upon the written application of OWNER, minor modifications and changes to the Development Plan including modifications to building design or footprint (not affecting minimum setbacks), parking layout and design, and landscape area design may be approved by the Director of the Planning Department without the need to amend this Development Agreement. Other changes in the Development Plan shall be processed pursuant to the City Zoning Ordinance. It is also contemplated by CITY and OWN ER that OWNER may, from time to time, seek amendments to one or more of the Development Approvals. Any such amendments are contemplated by CITY and OWNER as being within the scope of this Agreement as long as they are consistent with the Land Use Regulations and shall, upon approval by CITY, continue to constitute the Development Approvals as referenced herein. The parties agree that any such modifications or amendments shall not constitute an amendment to this Agreement nor require an amendment to this Agreement.
2.5 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
(a) Expiration of the stated term of this Agreement as set forth in Section 2.3. (b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement.
(d) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications.
Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Agreement. Upon such termination, any public facilities and services mitigation fees 1420
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paid pursuant to Section 4.2 of this Agreement by OWNER to CITY on which construction has not yet begun shall be refunded to OWNER by CITY within ten (10) business days.
2.6 Notices.
(a) As used in this Agreement, “notice” includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. (b) All notices shall be in writing and shall be considered given either: (i) when delivered in person, including, without limitation, by courier, to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below. All notices shall be addressed as follows:
If to CITY:
Scott Ochoa, City Manager
City of Ontario
303 East "B" Street
Ontario, CA 91764
If to OWNER:
Craig Cristina
Richland
3161 Michelson, Suite 425
Irvine, CA 92612
[email protected]
with a copy to:
Ruben Duran, City Attorney
Best Best & Krieger, LLP
2855 E Guasti Road
Ontario, CA 91761
With a copy to:
Richland Legal Dept.
c/o John Troutman
3161 Michelson, Suite 425
Irvine, CA 92612
[email protected]
(c) Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservations of Authority in Section 3.4, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the Development Plan. The Project shall remain subject to all Subsequent Development Approvals required to complete the Project as contemplated by the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Development Plan. 1421
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3.2 Effect of Agreement on Land Use Regulations . Except as otherwise provided under the terms of this Agreement including the Reservations of Authority in Section 3.4, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifi cations applicable to development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, CITY shall exercise discretion in accordance with the same manner as it exercises its discretion under its police powers, including the Reservations of Authority set forth herein; provided however, that such discretion shall not prevent development of the Property for the uses and to the density or intensity of development set forth in this Agreement.
3.3 Timing of Development. The parties acknowledge that OWNER cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of OWNER, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v.
City of Camarillo (1984) 37 Cal. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that OWNER shall have the ri ght to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment.
3.3.1 Infrastructure Improvement Exhibit. Attached hereto as Exhibit “F ” are a description of the Infrastructure Improvements needed for the development of the Property (“the Infrastructure Improvement Exhibits”).
3.4 Reservations of Authority.
3.4.1 Limitations, Reservations and Exceptions . Notwithstanding any other provision of this Agreement, the CITY shall not be prevented from applying new rules, regulations and policies upon the OWNER, nor shall a development agreement prevent the CITY from denying or conditionally approving any subsequent development project application on the basis of such new rules, regulations and policies where the new rules, regulations and policies consist of the following:
(a) Processing fees by CITY to cover costs of processing applications for development approvals or for monitoring compliance with any development approvals; (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records and any other matter of procedure; (c) Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including all uniform codes adopted by the CITY and any local amendments to those codes adopted by the CITY; provided however that, OWNER shall have a vested right to develop the 1422
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Property in accordance with, and to the extent of, the standards and specifications that are expressly identified in the Specific Plan and the building codes in effect as of the Effective Date;
(d) Regulations that may conflict with this Agreement and the Development Plan but that are reasonably necessary to protect the occupants of the Project and/or of the immediate community from a condition perilous to their health or safety; (e) Regulations that do not conflict with those rules, regulations and policies set forth in this Agreement or the Development Plan and which do not impose additional obligations, costs, and expenses on Owner or the Project; (f) Regulations that may conflict but to which the OWNER consents.
3.4.2 Subsequent Development Approvals . This Agreement shall not prevent CITY, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations that do not conflict with the Development Plan and/or the Existing Development Approvals, nor shall this Agreement preven t CITY from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan and/or the Existing Development Approvals.
3.4.3 Modification or Suspension by State or Federal Law. In the event that State or Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspe nded as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. In the event OWNER alleges that such State or Federal laws or regulations preclude or prevent compliance with one or more provisions of this Agreement, and the CITY does not agree, the OWNER may, at its sole cost and expense, seek declaratory relief (or other similar non- monetary remedies); provided however, that nothing contained in this Section 3.6.3 shall impose on CITY any monetary liability for contesting such declaratory relief (or other similar non- monetary relief).
3.4.4 Intent. The parties acknowledge and agree that CITY is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to CITY all of its police power which cannot be so l imited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority which cannot be restricted by contract.
(INSERT SPECIFIC INFRASTRUCUTRE IMPROVEMENTS)
3.5 Public Works; Utilities. If OWNER is required by this Agreement or a condition of project approval to construct any public works facilities which will be dedicated to CITY or 1423
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any other public agency upon completion, and if required by applicable laws to do so, OWNER shall perform such work in the same manner and subject to the same requirements as would be applicable to CITY or such other public agency should it have undertaken such construction. As a condition of development approval, OWNER shall connect the Project to all utilities necessary to provide adequate water, recycled water, sewer, gas, electric, and other utility service to the Project. As a further condition of development approval, OWNER shall to the extent possible contract with the CITY for CITY-owned or operated utilities for this purpose, for such price and on such terms as may be available to similarly situated customers in the CITY.
3.5.1 OWNER agrees that development of the Project shall require the construction of storm drain Improvements from the Property to the connection with the Cucamonga Creek Channel as described in Exhibit E and depicted in Exhibit F. OWNER shall be responsible for the construction of the necessary extension of storm drain facilities, as described in Exhibit E and depicted in Exhibit F . OWNER and CITY agree that CITY may issue grading, building permits and other required permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY and OWNER agrees that OWNER shall not request, and CITY shall not issue a final occupancy permit for any buildings prior to c ompletion of the storm drain Impr ovements described in Exhibit E and depicted in Exhibit F. CITY agrees that OWNER may request that CITY issue temporary certificates of occupancy on a building-by-building basis prior to completion of the storm drain improvements.
3.5.2 OWNER agrees that development of the Project shall require the construction of street improvements as described in Exhibit E and depicted in Exhibit F .
OWNER and CITY agree that CITY may issue grading, building permits and other required permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY and OWNER agrees that OWNER shall not request and CITY shall not issue a final occupancy permit for any buildings on the Property prior to Substantial Completion of the street Improvements as described in Exhibit E and depicted in Exhibit F . For purposes of the foregoing, street improvements shall be deemed Substantially Complete even if the final lift of pavement has not been completed (i.e., Owner may install the final lift after completion of all other construction). C ITY agrees that OWNER may request that CITY issue temporary certificates of occupancy on a building-by-building basis prior to completion and subject to final acceptance by CITY of the street impro vements. OWNER agrees that the street improvements shall be completed and subject to final acceptance by CITY prior to the release of any security for the construction of the street improvements.
3.5.3 OWNER agrees that development of the Property shall require the extension of permanent water utility Improvements as described in Exhibit E and depicted in Exhibit F consisting generally of the construction of the extension of permanent water utility Improvements from two (2) points of connection to serve the Property. OWNER and CITY agree that CITY may issue grading, building and other required permits for OWNER to initiate construction of structures for the Property according to plans approved by CITY upon completion of sufficient water and recycled water improvement s to serve the Property from at least one point of connection and sufficient fire protection and 1424
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OWNER agrees that OWNER shall not request and CITY shall not issue a final occupancy permit for any buildings on the Property until the c ompletion of permanent water and recycled water Improvements described in Exhibit E and depicted in Exhibit F. City agrees that OWNER may request that CITY issue temporary certificates of occupancy on a building-by-building basis prior to completion of the water and recycled water improvements if there is available water service from a minimum of two (2) points of connection and sufficient water is available for water quality purposes and fire protection purposes for any buildings while under construction.
3.6 Acquisition of Offsite Provision of Real Property Interests . In any instance where OWNER is required by any Development Approval or Land Use Regulation and the Construction Agreement to construct any public improvement on land not owned by OWNER (“Offsite Improvements”), the CITY and OWNER shall cooperate in acquiring the necessary legal interest (“Offsite Property”) in accordance with the procedures set forth in Section 2.4 of the Construction Agreement. This section 3. 6 is not intended by the parties to impose upon the OWNER an enforceable duty to acquire land or construct any public improvements on land not owned by OWNER, except to the extent that the OWNER elects to proceed with the development of the Project, and then only in accordance with valid conditions imposed by the CITY upon the development of the Project under the Subdivision Map Act or other legal authority.
3.6.1 CITY Acquisition of Non-Construction Agreement Offsite Property. In the event OWNER is required to construct any public improvements on land not owned by OWNER, but such requirement is not based upon the Construction Agreement, Sections
3.6.1 and 3.6.2 shall control the acquisition of the necessary property interest(s) (“Non- Construction Agreement Offsite Property”). If the OWNER is unable to acquire such Non- Construction Agreement Offsite Property and following the written request from the OWNER to CITY, CITY agrees to use reasonable and diligent good faith efforts to acquire the Non-Construction Agreement Offsite Property from the owner or owners of record by negotiation to the extent permitted by law and consistent with this Agreement. If CITY is unable to acquire the Non-Construction Agreement Offsite Property by negotiation within thirty (30) days after OWNER’S written request, CITY shall, initiate proceedings utilizing its power of eminent domain to acquire that Non- Construction Agreement Subject Property at a public hearing noticed and conducted in accordance with California Code of Civil Procedure Section 1245.235 for the purpose of considering the adoption of a resolution of necessity concerning the Non -Construction Agreement Offsite Property, subject to the conditions set forth in this Section 3. 6.1 The CITY and OWNER acknowledge that the timelines set forth in this Section 3.6.1 represent the maximum time periods which CITY and OWNER reasonably believe will be necessary to complete the acquisition of any Non -Construction Agreement Offsite Property. CITY agrees to use reasonably good faith efforts to complete the actions described within lesser time periods, to the extent that it is reasonably able to do so, consistent with the legal constraints imposed upon CITY.
3.6.2 Owner’s Option to Terminate Proceedings . CITY shall provide written notice to OWNER no later than fifteen (15) days prior to making an offer to the owner of the Non-Construction Agreement Offsite Property. At any time within that fifteen (15) day 1425
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period, OWNER may, at its option, notify CITY that it wants CITY to cease all acquisition proceedings with respect to that Non- Construction Agreement Offsite Property, whereupon CITY shall cease such proceedings. CITY shall provide written notice to OWNER no later than fifteen (15) days prior to the date of the hearing on CITY’S intent to consider the adoption of a resolution of necessity as to any Non- Construction Agreement Offsite Property. At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease condemnation proceedings, whereupon CITY shall cease such proceedings. If OWNER does not notify CITY to cease condemnation proceedings within said fifteen (15) day period, then the CITY may proceed to consider and act upon the Non-Construction Agreement Offsite Property resolution of necessity. If CITY adopts such resolution of necessity, then CITY shall diligently institute condemnation proceedings and file a complaint in condemnation and seek an order of immediate possession with respect to the Non-Construction Agreement Offsite Property.
3.7 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies. CITY agrees to cooperate fully, at no cost to CITY, with OWNER in obtaining any required permits or compliance with the regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations or policies of the CITY.
3.8 Tentative Parcel Maps; Extension. With respect to applications by OWNER for tentative parcel maps for portions of the Property, CITY agrees that OWNER may file and process tentative maps in accordance with Chapter 4.5 (commencing with Section 66498.1) of Division 2 of Title 7 of the Califo rnia Government Code and the applicable provisions of CITY’s subdivision ordinance, as the same may be amended from time to time. In accordance with the provisions of Section 66452.6 of the Government Code, each tentative subdivision map or tentative parcel map, heretofore or hereafter approved in connection with development of the Property, shall be deemed to have been granted an extension of time to and until the date that is five (5) years following the Effective Date of this Agreement. The CITY’s City Council may, in its discretion, extend any such map for an additional period of up to five (5) years beyond its original term, so long as the subdivider files a written request for an extension with the City prior to the expiration of the initial five (5) year term.
4. PUBLIC BENEFITS.
4.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public needs that will not be fully met by the Development Plan and further acknowledge and agree that this Agreement confers substantial private benefits on OWNER that should be balanced by commensurate public benefits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on OWNER by providing more fully for the satisfaction of the public needs resulting from the Project.
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4.2 Development Impact Fees.
4.2.1 Amount of Development Impact Fee. Development Impact Fees (DIF) shall be paid by OWNER. The Development Impact Fee amounts to be paid by OWNER shall be the amounts that are in effect at the time such amounts are due. Nothing contained in this Agreement shall affect the ability of the CITY to impose new Development Impact Fees or amend the amounts of existing Development Impact Fees. Additionally, nothing contained in this Agreement shall affect the ability of other public agencies that are not controlled by CITY to impose and amend, from time to time, Development Impact Fees established or imposed by such other public agencies, even though such Development Impact Fees may be collected by CITY.
4.2.2 Time of Payment . The Development Impact Fees required pursuant to Subsection 4.2.1 shall be paid to CITY prior to the issuance of building permit for each applicable building (subject to the application/use of available fee deferrals or credits), except for the Open Space and Habitat Acquisition Development Impact fee, which shall be paid by OWNER to CITY prior to the issuance of a grading permit
4.3 Responsibility for Construction of Public Improvements.
4.3.1 Timely Construction of Public Infrastructure. The phasing of the area wide infrastructure construction within the Ontario Ranch area shall be as approved by the CITY. OWNER shall be responsible for the timely construction and completion of all public infrastructure required for the Project as shown on the attached Exhibit “F” and any and all parcel map conditions. Unless otherwise specified in the Parcel Map conditions, and subject to the provisions of Section 3.5 and 3.6, all other required Improvements for each Parcel Map, shall be completed and operational prior to, and as a condition precedent to, OWNER requesting and CITY’s granting of a final occupancy permit for any buildings to be constructed on the Property. All Infrastructure and Improvements shall be completed as required by the Subdivision Agreement/ Parcel Map conditions for Parcel Map No.20685.
4.3.2 Availability and Use of Recycled Water . OWNER agrees that recycled water shall be available and utilized by OWNER for all construction- related water uses including prior to, and during, any grading of the Property
4.3.3. Construction of DIF Program Infrastructure. To the extent OWNER is required to construct and complete construction of public improvements that are included in CITY’s Development Impact Fee Program CITY agrees that CITY shall issue DIF Credit and DIF Reimbursement in accordance with the provisions of a separate Fee Credit Agreement between CITY and OWNER . Limitations on the use of DIF Credit issued to OWNER to offset OWNER’s DIF payment obligations shall also be subject to the provisions of a separate Fee Credit Agreement. OWNER may also be eligible to receive reimbursement from DIF collected by CITY and paid by other development that benefits from OWNER’s construction of DIF Program Infrastructure. Any such DIF Reimbursement shall be subject to a Fee Credit Agreement between CITY and OWNER. 1427
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CITY and OWNER agree that the Fee Credit Agreement between CITY and OWNER shall comply with CITY’s adopted policies applicable to such agreements.
4.4 Net MDD/Water Availability Equivalents.
4.4.1 Effectiveness of Agreement. Notwithstanding anything else set forth in this Agreement, CITY and OWNER each acknowledge, confirm, and agree, that (i) the City approval of this Agreement and (ii) the effectiveness of this Agreement, in each case, is conditioned upon OWNER’s admission to NMC Builders as a “Member” thereof pursuant to the terms and conditions of the operating agreement of NMC Builders. OWNER and CITY agree that OWNER shall become a Member of NMC Builders within 30 days of the effective date of this Agreement.
4.4.2 Assigned Net MDD/Water Availability Equivalents. OWNER acknowledges that the City has agreed with NMC Builders to reserve exclusively for Members of NMC Builders, including OWNER, Net MDD made available through the construction of water system improvements funded by NMC Builders and/or OWNER. OWNER acknowledges that the provisions of the Construction Agreement Amendment require that the City shall not issue building permits or certificates of occupancy for the area of development within the New Model Colony served by the water system improvements funded by NMC Builders, except to the bearer of a Certificate of Net MDD Water Availability.
4.4.3 Requirement for NMC Builders LLC Membership as a Phase 2 Water Member. OWNER and CITY agree that OWNER’s’ payment to CITY required by Section
4.5.3 below represents OWNER’s contribution to the funding required for the future construction of the Phase 2 Water Improvements and the availability of additional Net MDD Water Availability required for the development of the Property described in Exhibit A of this Agreement.
4.4.4 CITY issuance of Water Availability Equivalents. Within 30 days after the effectiveness of this Development Agreement OWNER shall pay or have paid to City the applicable Phase 2 Water Participation Fee. The Phase 2 Water Participation Fee shall be calculated based on the amount of the Regional Water DIF for the applicable land use category and the square footage of the applicable buildings. The calculated amount of the Phase 2 Water Participation Fee shall be paid to City within 30 days after the effective date of this Agreement or, at OWNER’s option, the Phase 2 Water Participation Fee may be paid to City in two (2) installments. The first installment shall be fifty percent (50%) of the total Phase 2 Water Participation Fee and such first installment shall be due and payable to City within 30 days after the effective date of this Development Agreement .
The second installment shall be the remaining amount of the Phase 2 Water Participation Fee and such second installment shall be due and payable to City within one (1) year after the payment of the first installment, or prior to, and as a condition precedent to , the recording of any final Parcel Map for the Project, whichever occurs first. Upon OWNER’s complete payment to CITY of the Phase 2 Water Participation Fee CITY shall issue a Certificate of Water Availability Equivalents in the form attached hereto as Exhi bit G.
Such Water Availability Equivalents Certificate shall be issued by CITY within thirty (30) days of the receipt of such required payment. CITY and OWNER agree that the amount 1428
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of Water Availability Equivalents issued to OWNER shall be based on the maximum projected need for Water Availability Equivalents required for the Property based upon water demand factors and assumptions listed in Exhibit C -2R of the Phase 2 Water Amendment to the Construction Agreement “Water Demand Equivalents by Land Use” for each land use category. Additionally, within five (5) business days of CITY’s receipt of OWNER’s payment as required under this Section 4.5.2, CITY shall issue a certificate of DIF Credit against OWNER’s DIF obligations in the Regional Water DIF Category.
4.4.5 Requirement for other Water System Improvements. A Certificate of Net MDD Availability is evidence only of available water capacity and does not satisfy any other conditions applicable to OWNER’s Project, including those relating to design and construction of master -planned potable water and recycled w ater transmission and distribution system for the respective pressure zone and other public infrastructure requirements.
4.5 Requirement for other Water System Improvements. A Certificate of Net MDD Availability is evidence only of available water capacity and does not satisfy any other conditions applicable to OWNER’s Project, including those relating to design and construction of master -planned potable water and recycled w ater transmission and distribution system for the respective pressure zone and other public infrastructure requirements.
4.6 Compliance with Public Benefits Requirements.
4.6.1 Failure to Provide Public Benefits. In the event OWNER fails or refuses to comply with any condition referenced in Section 4.1 through 4.6, or challenges (whether administratively or through legal proceedings) the imposition of such conditions, OWNER shall be deemed in default of this Agreement pursuant to Section 8 hereof, thereby entitling the City to any and all remedies available to it, including, without limitation, the right of the City to withhold OWNER’s Project -related building permits, certificates of occupancy, or discretionary approvals, without liability . Nothing herein shall waive Owner’s right to assert a default (or failure to perform) by the City has excused Owner’s performance under this Agreement.
5. FINANCING OF PUBLIC IMPROVEMENTS.
5.1 Financing Mechanism(s) . OWNER agrees that, prior to the recordation of any Parcel Map, the property subject to such Parcel Map shall be included in a CFD to finance City services through annual special taxes that will initially be $.25 per square foot for non-residential buildings. These amounts shall be subject to an automatic increase at a rate not to exceed four (4%) percent per year, unless otherwise modified by CITY.
Depending on the fiscal year that the CFD is formed and the CFD tax is levied, the annual special taxes may be higher. CITY shall be the sole and exclusive lead agency in the formation of any CFD, assessment district or other public financing mechanism within the Property; provided however, that the proceeds of any such CFD, assessment district, or financing mechanism may be used, subject to restrictions that may be imposed by applicable law, for the purposes of acquiring, constructing or maintaining public facilities 1429
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to be owned or operated by other public agencies, including, without limitation those facilities owned or operated by a school district. In addition to the rights of the CITY pursuant to section 5.1 hereof, CITY shall have the right, but not the obligatio n, to condition the formation of any CFD, assessment district or other public financing mechanism within the Property on the OWNER mitigating all Project -related impacts to the applicable school district(s) as required by such school district(s). Written evidence by such school district(s) may be required by the CITY as the condition to the formation of any CFD, assessment district or other public financing mechanism within the Property, or any steps preliminary thereto, including, without limitation, the adoption of any resolution of intention to form such CFD, assessment district or other public financing mechanism within the Property. It is not the intent of the parties hereto, by this provision, to prohibit or otherwise limit the City’s ability to take any and all necessary steps requisite to the formation of the CFD to finance City services through annual special taxes as set forth in this Section 5.1. Formation of any CFD, assessment district or other public financing mechanism within the Property, s hall be subject to CITY’s ability to make all findings required by applicable law and complying with all applicable legal procedures and requirements including, without limitation, CITY’s public financing district policies as such policies may be amended f rom time to time. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as requiring CITY or the City Council to form any such district.
6. REVIEW FOR COMPLIANCE.
6.1 Periodic and Special Reviews.
6.1.1 Time for and Initiation of Periodic Review . The CITY shall review this Agreement every twelve (12) months from the Effective Date in order to ascertain the good faith compliance by the OWNER with the terms of this Agreement. The OWNER shall submit an Annual Monitoring Report to CITY, in a form acceptable to the City Manager, along with any applicable processing charge within ten (10) days after each anniversary date of the Effective Date of this Agreement. Within fifteen (15) days after the receipt of the Annual Monitoring Report, CITY shall rev iew the Annual Monitoring Report. Prior to the expiration of the fifteen (15) day review period, CITY shall either issue a notice of continuing compliance or a notice of non- compliance and a notice of CITY’s intent to conduct a Special Review pursuant to Sections 6.1.2 through 6.1.6. Issuance of a notice of continuing compliance may be issued by the City Manager or his designee.
6.1.2 Initiation of Special Review. A special review may be called either by agreement between the parties or by initiation in one or more of the following ways:
(a) Recommendation of the Planning staff;
(b) Affirmative vote of at least four (4) members of the Planning Commission; or (c) Affirmative vote of at least three (3) members of the City Council.
6.1.3 Notice of Special Review. The City Manager shall begin the special review proceeding by giving notice that the CITY intends to undertake a special review of this 1430
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Agreement to the OWNER. Such notice shall be given at least ten (10) days in advance of the time at which the matter will be considered by the Planning Commission.
6.1.4 Public Hearing. The Planning Commission shall conduct a hearing at which the OWNER must demonstrate good faith compliance with the terms of this Agreement.
The burden of proof on this issue is upon the OWNER.
6.1.5 Findings Upon Public Hearing. The Planning Commission shall determine upon the basis of substantial evidence whether or not the OWNER has, for the period under review, complied in good faith with the terms and conditions of this Agreement.
6.1.6 Procedure Upon Findings.
(a) If the Planning Commission finds and determines on the basis of substantial evidence that the OWNER has complied in good faith with the terms and conditions of this Agreement during the period under review, the review for that period is concluded. (b) If the Planning Commission finds and determines on the basis of substantial evidence that the OWNER has not complied in good faith with the terms and conditions of this Agreement during the period under review, the Planning Commission may recommend to the City Council to modify or terminate this Agreement. (c) The OWNER may appeal a determination pursuant to paragraph (b) to the City Council in accordance with the CITY's rule for consideration of appeals in zoning matters generally.
6.2 Proceedings Upon Modification or Termination. If, upon a finding under Section
6.1.6(b), the CITY determines to proceed with modification or termination of this Agreement, the CITY shall give notice to the property OWNER of its intention so to do.
The notice shall contain:
(a) The time and place of the hearing;
(b) A statement as to whether or not the CITY proposes to terminate or to modify this Agreement; and
(c) Other information that the CITY considers necessary to inform the OWNER of the nature of the proceeding.
6.3 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, the OWNER shall be given an opportunity to be heard.
The OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on the OWNER.
If the City Council finds, based upon substantial evidence in the administrative record, that the OWNER has not complied in good faith with the terms and conditions of the agreement, the City Council may terminate this Agreement or modify this Agreement and impose those conditions to the action it takes as it considers necessary to protect the 1431
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interests of the CITY. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.
6.4 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon written request by OWNER, issue a Certificate of Agreement Compliance (“Certificate”) to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Planning Director and City Council that (1) this Agreement remains in effect and (2) OWNER is not in default . The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review . OWNER may record the Certificate with the County Recorder. Whether or not the Certificate is relied upon by assignees or other transferees or OWNER, CITY shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Planning Director or City Council.
7. [OMITTED]
8. DEFAULT AND REMEDIES.
8.1 Remedies in General. It is acknowledged by the parties that CITY would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof. In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that CITY shall not be liable in damages to OWNER, or to any successor in interest of OWNER, or to any other p erson, and OWNER covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
(b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
(c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.
8.2 Specific Performance . The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non- monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
(a) Money damages are unavailable against CITY as provided in Section 8.1 above.
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(b) Due to the size, nature and scope of the project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun . After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the Property or portions thereof. OWNER has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate OWNER for such efforts.
8.3 Release. Except for nondamage remedies, including the remedy of specific performance and judicial review as provided for in Section 6.5, OWNER, for itself, its successors and assignees, hereby releases the CITY, its officers, agents and employees from any and all c laims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the CITY because it entered into this Agreement or because of the terms of this Agreement.
8.4 Termination or Modification of Agreement for Default of OWNER . Subject to the provisions contained in Subsection 6.3 herein, CITY may terminate or modify this Agreement for any failure of OWNER to perform any material duty or obligation of OWNER under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as “default”); provided, however, CITY may terminate or modify this Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such acti ons and cure such default.
8.5 Termination of Agreement for Default of CITY . OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default and, where the default can be cured, CITY has failed to take such actions and cure such default within 60 days after the effective date of such n otice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.
9. THIRD PARTY LITIGATION.
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9.1 General Plan Litigation. CITY has determined that this Agreement is consistent with its Comprehensive General Plan, as such General Plan exists as of the Effective Date (“General Plan”), and that the General Plan meets all requirements of law. OWNER has reviewed the General Plan and concurs with CITY’s determination. CITY shall have no liability in damages under this Agreement for any failure of CITY to perform under this Agreement or the inability of OWNER to develop the Property as contemplat ed by the Development Plan of this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.
9.2 Third Party Litigation Concerning Agreement . OWNER shall defend, at its expense, including attorneys’ fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement . CITY shall promptly notify OWNER of any such claim, action or proceeding, and CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of any such claim, action or proceeding, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action or proceeding.
9.3 Indemnity. In addition to the provisions of 9.2 above, OWNER shall indemnify and hold CITY, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of OWNER, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury, or death (OWNER’s employees included) or any other element of damage of any kind or nature, to the extent relating to or in any way connected wi th or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sol e active negligence or sole willful misconduct of CITY . OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions. CITY may in its discretion participate in the defense of any such legal action.
9.4 Environment Assurances. OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, to the extent based or asserted, upon any act or omission of OWNER, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property during OWNER’S period of ownership of the Property, including, but not limited to, soil and groundwater conditions caused by OWNER, and OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents and employees in any action based or assert ed upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action.
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9.5 Reservation of Rights . With respect to Sections 9.2, 9.3 and 9.4 herein, CITY reserves the right to either (1) approve the attorney(s) which OWNER selects, hires or otherwise engages to defend CITY hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense, provided, however, that OWNER shall reimburse CITY forthwith for any and all reasonable expenses incurred for such defense, including attorneys’ fees, upon billing and accounting therefor.
9.6 Survival. The provisions of this Sections 9.1 through 9.6, inclusive, shall survive the termination of this Agreement.
10. MORTGAGEE PROTECTION.
10.1 Mortgagee Protection . The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner, at OWNER’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security devic e securing financing with respect to the Property . CITY acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein for giving notices, shall be entitled to receive written notificati on from CITY of any default by OWNER in the performance of OWNER’s obligations under this Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement. (d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of OWNER’s obligations or other affirmative covenants of OWNER hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by OWNER is a 1435
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condition precedent to the performance of a covenant by CITY, the performance thereof shall continue to be a condition precedent to CITY’s performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shal l be subject to the provisions of Section 2.4 of this Agreement (e) In the event of a default by Owner, any Mortgagee shall have the right to remedy, or cause to be remedied, such default within sixty (60) days following the later to occur of (i) the date of Mortgagee's receipt of the notice referred to in Section 10.1(b) above, or (ii) the expiration of the period provided herein for Owner to remedy or cure such default, and City shall accept such performance by or at the insistence of the Mortgagee as if the same had been timely made by Owner; provided, however, that (i) if such default is not capable of being cured within the timeframes set forth in this Section and Mortgagee commences to cure the default within such timeframes, then Mortgagee shall have such additional time as is required to cure the default so long as M ortgagee diligently prosecutes the cure to completion and (ii) if possession of the Property (or portion thereof) is required to effectuate such cure or remedy, the Mortgagee shall be deemed to have timely cured or remedied if it commences the proceedings necessary to obtain possession thereof within sixty (60) days after receipt of the copy of the notice, diligently pursues such proceedings to completion, and, after obtaining possession, diligently completes such cure or remedy.
11. MISCELLANEOUS PROVISIONS.
11.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the San Bernardino County Recorder by the City Clerk within the ten (10) days after the CITY executes this Agreement, as required by Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement as provided for herein and in Government Code Section 65868, or if the CITY terminates or modifies the agreement as provided for herein and in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of this Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder.
11.2 Entire Agreement . This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.
11.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 4 of this Agreement, including the payment of the fees set forth therein, are essential ele ments of this Agreement and CITY would not have entered into this Agreement but for such provisions, 1436
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and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.
11.4 Interpretation and Governing Law . This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.
11.5 Section Headings . All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
11.6 Singular and Plural. As used herein, the singular of any word includes the plural.
11.7 Joint and Several Obligations . Subject to Section 2.4, if at any time during the term of this Agreement the Property is owned, in whole or in part, by more than one owner, all obligations of such owners under this Agreement shall be joint and several, and the default of any such owner shall be the default of all such owners . Notwithstanding the foregoing, no owner of a single lot which has been finally subdivided and sold to such owner as a member of the general public or otherwise as an ultimate user shall have any obligation under this Agreement except as provided under Section 4 hereof.
11.8 Time of Essence. Time is of the essence in the performance of .the provisions of this Agreement as to which time is an element.
11.9 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.
11.10 No Third-Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns . No other person shall have any right of action based upon any provision of this Agreement.
11.11 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor dif ficulties beyond the party’s control, (including the party’s employment force), government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the party’s control . If any such events shall occur, t he term of this Agreement and the time for performance by either party of any of its obligations hereunder may be extended by the written agreement of the parties for the period of time that such events prevented such performance, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years. 1437
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11.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.
11.13 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement . All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs wi th the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.
11.14 Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.
11.15 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of San Bernardino, State of California, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court.
11.16 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement . The only relationship betwe en CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property.
11.17 Further Actions and Instruments . Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement . Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. The City Manager may delegate his powers and duties under this Agreement to an Assistant City Manager or other management level employee of the CITY.
11.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain. 1438
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11.19 Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, O WNER shall file with the Planning Director, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent f or the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon OWNER. If for any reason service of such process upon such agent is not feasible, then in such event OWNER may be personally served with such process out of this County and such service shall constitute valid service upon OWNER. OWNER is amenable to the process so served, submits to the jurisdict ion of the Court so obtained and waives any and all objections and protests thereto.
11.20 Estoppel Certificate. Within thirty (30) business days following a written request by any of the parties, the other party shall execute and deliver to the requesting party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the responding party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may be represented by the requesting party. OWNER shall pay to CITY all costs incurred by CITY in connection with the issuance of estoppel certificates requested by Owner under this Section 11.20 prior to CITY’s issuance of such certificates.
11.21 Authority to Execute. The person or persons executing this Agreement on behalf of OWNER warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind OWNER to the performance of its obligations hereunder.
11.22 Prevailing Wage. OWNER, for itself, its successors, and assigns, agrees, covenants, and warrants that the development of the Property, if any, shall comply with all applicable federal and state labor laws (including, without limitation, the requirement under California law to pay prevailing wages and hire apprentices), and all obligations as set forth herein.
11.22.1 CITY makes no representations concerning prevailing wages in compliance with California Labor Code Section 1770 et seq.
11.22.2 OWNER acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations with respect to the payment of prevailing wages and complying therewith. OWNER shall bear all risks of payment or 1439
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non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.
11.22.3 The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the construction and development of the Property by OWNER, its successors or assigns. OWNER shall be solely responsible for determining and effectuating compliance with such laws.
11.22.4 OWNER, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND ASSIGNS,
WAIVES AND RELEASES CITY FROM ANY RIGHT OF ACTION THAT MAY BE AVAILABLE TO OWNER PURSUANT TO LABOR CODE SECTION 1781 OR THE DAVIS BACON ACT. RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 11.22, OWNER ACKNOWLEDGES TH E PROTECTIONS OF CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: A GENERAL RELEASE DOES
NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
INITIALS. BY INITIALING BELOW, OWNER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY WITH THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES:
_______________
(Owner's Initials)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year set forth below.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
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SIGNATURE PAGE
TO DEVELOPMENT AGREEMENT PDA23-006
“OWNER”
LEGACY LAND PARTNERS LLC, a
Florida limited liability company
By: ________________________
Name:
Its: ______________________
Date: ___________________
JAB MILL CREEK LLC, a Florida limited
liability company
By: ________________________
Name:
Its: ______________________
Date: ___________________
“CITY”
CITY OF ONTARIO
By:
Scott Ochoa
City Manager
Date: ___________________
ATTEST:
City Clerk, Ontario
APPROVED AS TO FORM:
BEST BEST KRIEGER, LLP
City Attorney
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ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
COUNTY OF _______________________ )
On _________________, 20_____, before me,______________________________________, Date Insert Name and Title of the Officer
personally appeared ___________________________________________________________ Name(s) of Signer(s)
____________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature________________________________
Signature of Notary Public
Place Notary Seal Above
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 1442
A-1
ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
COUNTY OF _______________________ )
On _________________, 20_____, before
me,______________________________________,
Date Insert Name and Title of the Officer
personally appeared
___________________________________________________________ Name(s) of Signer(s)
______________________________________________________________________ ______, who proved to me on the basis of satisfactory evidence to be the person whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY
under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature________________________________
Signature of Notary Public
Place Notary Seal Above
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 1443
A-1
EXHIBIT "A"
TO DEVELOPMENT AGREEMENT
Legal Description of Property
1444
B-1
EXHIBIT "B"
TO DEVELOPMENT AGREEMENT
Map showing Property and its location
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C-1
EXHIBIT "C"
TO DEVELOPMENT AGREEMENT
Existing Development Approvals
On October 23, 2007 the Planning Commission:
a) Issued Resolution No. PC07-125 recommending City Council certification of the Rich-Haven Specific Plan EIR (SCH#2006051081).
b) Issued Resolution No. PC07-127 recommending to City Council approval of the Rich-Haven Specific Plan (File No. PSP05-004).
On December 4, 2007, the City Council:
a) Issued Resolution No. 2007-145 certifying the Rich-Haven Specific Plan EIR (SCH#2006051081).
b) Adopted Ordinance No. 2884 approving the Rich-Haven Specific Plan.
On February 23, 2016, the Planning Commission:
a) Issued Resolution No. PC16-003 recommending City Council adoption of an Addendum to the Rich-Haven EIR.
b) Issued Resolution PC16-004 recommending approval of the Rich-Haven Specific Plan Amendment (File No. PSPA16-001).
On March 15, 2016, the City Council:
a) Issued Resolution No. 2016-024 for the adoption of an Addendum (File No. PSPA16-001) to the Rich-Haven Specific Plan EIR.
b) Issued Resolution No. 2016-025 approving an Amendment (File No.
PSPA16-001) to the Rich-Haven Specific Plan.
On January 23, 2018, the Planning Commission:
a) Issued Resolution No. PC18-014 recommending City Council adoption of an Addendum to the Rich-haven EIR.
b) Issued Resolution No. PC18-015 recommending to City Council adoption of the Rich-Haven Specific Plan Amendment (File No. PSPA16-005).
On February 20, 2018, the City Council:
a) Issued Resolution No. 2018-017 for the adoption of an Addendum (File No. PSPA16-005) to the Rich-Haven Specific Plan EIR.
b) Issued Resolution No. 2018-018 approving an Amendment (File No.
PSPA16-005) to the Rich-Haven Specific Plan.
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D-1
EXHIBIT "D"
TO DEVELOPMENT AGREEMENT
Existing Land Use Regulations
These documents are listed for reference only:
1. The Rich-Haven Specific Plan (File No. PSP05-004) Environmental Impact Report, Resolution No. 2007-145.
2. The Rich-Haven Specific Plan (File No. PSP05-004), Ordinance No. 2884.
3. Addendum to the Rich- Haven Specific Plan (File No. PSPA16- 001) Environmental Impact Report, Resolution No. 2016-024.
4. Amendment to the Rich -Haven Specific Plan (File No. PSPA16 -001), Resolution No. 2016-025.
5. Addendum to the Rich- Haven Specific Plan (File No. PSPA16- 005) Environmental Impact Report, Resolution No. 2018-017.
6. Amendment to the Rich -Haven Specific Plan (File No. PSPA16 -005), Resolution No. 2018-018.
7. City of Ontario Municipal Code
a. Six – Sanitation & Health
b. Seven – Public Works
c. Eight – Building Regulations
d. Nine – Development Code
e. Ten – Parks & Recreation
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E-1
EXHIBIT "E"
TO DEVELOPMENT AGREEMENT
Description of Required Infrastructure Improvements
OWNER shall design, construct, and complete the following Street, Storm Drain (SD), Potable Water (PW), Recycled Water (RW), and Fiber Optic (FO) improvements, prior to OWNER’s request for any final certificate of occupancy permit for any building within the Property.
Street (ST) Improvements
a. ST improvements on Mill Creek Avenue, between the northerly project limits to Ontario Ranch Road.
b. ST improvements on Ontario Ranch Road, between the Sunrise Avenue and Mill Creek Avenue.
c. Modify Traffic Signal at Mill Creek Avenue and Ontario Ranch Road.
Potable Water (PW) Improvements
a. PW on Mill Creek Avenue, between Chino Avenue and Ontario Ranch Road.
Recycled Water (RW) Improvements
a. RW on Mill Creek Avenue, between Chino Avenue and Ontario Ranch Road.
b. RW on Chino Avenue, between Haven Avenue and Mill Creek Avenue.
Fiber Optic (FO) Improvements
a. FO on Mill Creek Avenue, between the northerly project limits and Ontario Ranch Road.
a. FO on South Twinkle Avenue along the SCE corridor connecting existing FO.
Trail Improvements
a. SCE corridor improvements, between Twinkle Avenue and Mill Creek Avenue.
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G-1
EXHIBIT “F”
TO DEVELOPMENT AGREEMENT
Required Infrastructure Improvements
1449
G-1
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G-1
EXHIBIT "G"
TO DEVELOPMENT AGREEMENT
FORM OF CERTIFICATE OF NET MDD AVAILABILITY
Pursuant to Section ___ of this Agreement between the City of Ontario, a California municipal corporation, and ________________, a __________________ company, hereinafter called "OWNER", the terms and definitions of which are hereby incorporated herein by this reference and hereinafter called "Agreement", the City of Ontario hereby certifies based on CITY receipt of payment of OWNER’s share of the funding for t he Phase 2 Water Improvements, that OWNER is entitled to the following Net MDD Water Availability.
Amount of Net MDD _________________________ gpm
________________________________________
Scott Ochoa, City Manager
Dated:_________________________________
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J
EXHIBIT “H”
TO DEVELOPMENT AGREEMENT
FORM OF CERTIFICATE OF REGIONAL DIF CREDIT
Pursuant to Section 4.5. 2 of this Agreement by and between the City of Ontario and ____________________, dated _______________, 201_, the terms and definitions of which are hereby incorporated herein by this reference and hereinafter called the “Development Agreement’, the City of Ontario hereby certifies that OWNER is entitled to the following amount and nature of DIF Credits in the Regional Water DIF Infrastructure Category:
Amount of Credit: $
Scott Ochoa, City Manager
Dated:
1452
J
EXHIBIT“I-1”
TO DEVELOPMENT AGREEMENT
ONTARIO RANCH
WATER SUPPLY PHASING PLAN
Phase 2 Water
Availability
Equivalency
Estimated
Net MDD Available1
Phase 2 A
Supply & Storage
1. 1 - Additional Ground Water Well and Collection lines - Design and Construction
8,250 gpm2
7,750 gpm2
Pipelines (Transmission & Distribution)2
2. 925 Zone Transmission lines – Design and Construction
3. Temporary Pressure Reducing Station3 – Design and
Construction
Phase 2B
Supply & Storage
4. 1 – Additional Ground Water Well and Collection lines – Design and Construction
5. 1 – 6 million gallon Reservoir – 925 Zone – Design and Construction
10,500 gpm2 9,860 gpm2
(1) Upon Completion of the construction of all of the improvements described for each Phase a Certificate of Net MDD Availability shall be issued to Developer for the corresponding amount of Net MDD. Net MDD means the maximum daily demand on the potable water supply, net of the water requirements for public schools and parks. The Water Availability Equivalency includes the estimated requirements for public schools and parks. The amount of Net MDD specified is the cumulative amount for which building permits may be issued upon funding of the corresponding and all preceding Phases of improvements.
(2) The ability of a particular development to utilize Net MDD assigned to it by the Developer will require the completion of design and construction of Master-planned potable and recycled water transmission and distribution pipelines for the respective pressure zone. Other factors may include its location, the particular land use and Water Availability Equivalents assigned to it as specified in Exhibit C-2.
(3) Pressure reducing stations are a component of the pipeline transmission and distribution system.
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J
EXHIBIT “I-2”
317129390.1
Available Water Supply - See Exhibit C-1R for Net MDD Available Table A - Water Demand Equivalents By Land Use
Water
Demand
Equivalents
(WDE)2
Recycled
Water
Demand
Factor1
(ADD)
Recycled
Water
Demand Of
Total Water
Demand
(gpd/du) (gpd/ac) (gpm/unit) (gpd/ac) (%)
Detached Dwellings (less than 5 units per acre) 544 0.57 900 28% Detached or Attached Dwellings (between 5 and 11 units per acre) 464 0.48 1, 000 21% Attached Dwellings (between 11 and 25 units per acre) 323 0.34 1,500 18% High Density Dwellings (25+ units per acre) 152 0.16 1,500 27% Commercial Lodging 150 0.16 1,700 50%
Retail/Services Uses 2,200 2.29 2,300 51%
Office Uses 3,400 3.54 2,300 40%
Business Park Uses 2,200 2.29 2,200 50%
Industrial Uses 2,000 2.08 2,200 52%
Institutional Use 2,200 2.29 1,600 42%
Parks 1,000 1.04 1,400 58%
Schools 3,500 3.65 1,600 31%
Table B - Example Water Supply Calculation
Land Use Residential
Units
WDE Factor
(gpm)
Potable
MDD
(gpm)
Development
Detached Dwellings (less than 5 units per acre) 5,061 0.57 2,868 Detached or Attached Dw ellings (betw een 5 and 11 units per acre) 2,530 0.48 1,223 A
ttached Dwellings (between 11 and 25 units per acre) 3,410 0.34 1,147 Retail/Services Uses (per acre)2 2.29 239
TOTAL 11,001 5,477
Three (3) Wells Are required to Support this example, assuming each w ell produces 2,000 gpm and connection to the Recycled Water System maximizing Recycled Water Use. 1 Residential Acres are estimated based on the w eighted average derived from the average number of units per land use category. 2 Commercial acreage is calculated from a total square footage of 1,361,000 SF w ith an average Floor to Area Ratio (FAR) of 0.30 for commercial services in The Ontario Plan. 1Recycled Water Demands include irrigation for right-of-w ay (medians and parkw ays), neighborhood edge, pocket parks, and common areas.
Potable WaterThe Ontario Plan Recycled Water
Land Use
1,428
166
194 202
1,950
1,284
Acres1
(gross)
104
369
803
Recycled
Water ADD
(gpm)
Water Demand Factor
(ADD)
256
2 The WDE is based on the Maximum Day Demand (MDD) w ith a peaking factor of 1.5 in the NMC for all land use categories. 1454
J
Exhibit “JI”
FORM OF PLUME DISCLOSURE LETTER
1455
Department: Management Services
Prepared By: Michael
Krouse
Staff Member Presenting: Jennifer McLain
Hiramoto, Economic Development Director
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 23
SUBJECT:
A RESOLUTION DECLARING RESULTS OF MAJORITY PROTEST PROCEEDINGS AND
RENEWING THE GREATER ONTARIO TOURISM MARKETING DISTRICT
CITY OF ONTARIO
Agenda Report
May 20, 2025
SECTION:
ADMINISTRATIVE
REPORTS/DISCUSSION/ACTION
RECOMMENDATION:
That the City Council hold a final hearing and adopt a Resolution declaring the results of the majority protest proceeding to renew the Greater Ontario Tourism Marketing District Management District (GOTMD).
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Invest in the Growth and Evolution of the City's Economy FISCAL IMPACT:
There is not a direct fiscal impact associated with this action.
Greater Ontario
Tourism Marketing District Management District
programs are intended to increase visitation to the
City, stimulating increase in transient occupancy tax and sales tax collections.
BACKGROUND & ANALYSIS:
The GOTMD is a benefit assessment district proposed to continue a revenue source to help fund Sales & Marketing and Tourism Enhancement & Development efforts for Greater Ontario lodging businesses. This approach has been used successfully in other destination areas throughout the state to improve tourism and drive additional room nights to assessed businesses. The renewed GOTMD includes all lodging businesses, including short-term rentals, existing and in the future, available for public occupancy within the boundaries of the cities of Ontario and Rancho Cucamonga (Cities).
Lodging business owners decided to pursue renewal of the GOTMD in order to continue a revenue source devoted to marketing Greater Ontario as a tourist, meeting and event destination. If renewed, the GOTMD would generate approximately $6,000,000 on an annual basis for promotion of travel and tourism specific to Greater Ontario.
TOURISM MARKETING DISTRICTS
Tourism Marketing Districts (TMDs) utilize the efficiencies of private sector operation in the market- based promotion of tourism. These special assessment districts allow assessed business owners to organize their efforts to increase tourism. Business owners within the TMD fund the TMD, and those funds are used to provide services that are desired by and benefit the assessed businesses within the TMD.
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TMD benefits:
Funds cannot be diverted for other government programs; They are customized to fit the needs of each destination; They allow for a wide range of services; including: destination marketing, tourism promotion, and sales lead generation;
They are designed, created and governed by those who will pay the assessment; and They provide a stable funding source for tourism promotion.
In California, TMDs are primarily formed pursuant to the Property and Business Improvement District Law of 1994 (94 Law). This law allows for the creation of special benefit assessment districts to raise funds within a specific geographic area. The key difference between TMDs and other special benefit assessment districts is that funds raised are returned to the private non-profit corporation governing the TMD.
MANAGEMENT DISTRICT PLAN
The Management District Plan (Attachment 1) includes the proposed boundary of the GOTMD, a service plan and budget and a proposed means of governance. The GOTMD will include all lodging businesses, including short-term rentals, existing and in the future, available for public occupancy within the boundaries of the Cities.
The annual assessment rate is three percent (3%) of gross short-term sleeping room rental revenue.
Because the marketing programs will not promote or seek certain stays, assessments will not be collected on revenue resulting from: stays of more than thirty (30) consecutive days; stays by any Federal officer or employee when on official Federal government business; nor on stays by any officer or employee of a foreign government who is exempt by express provision of Federal law or international treaty.
The renewed GOTMD will have a ten (10) year term, beginning July 1, 2028, or as soon as possible thereafter, and ending ten (10) years from its start date. The assessment will be implemented beginning July 1, 2028. Once per year beginning on the anniversary of GOTMD renewal there is a thirty (30) day period in which business owners paying fifty percent (50%) or more of the assessment may protest and begin proceedings to terminate the GOTMD.
The Cities or the Greater Ontario Convention and Visitors Bureau dba GOCAL (GOCAL) will be responsible for collecting the assessment on a monthly basis from each assessed business in each respective jurisdiction. The Cities or GOCAL shall forward the assessments to GOCAL, which will have the responsibility of managing GOTMD programs as provided in the Management District Plan.
GOTMD RENEWAL PROCESS
March 18, 2025 RESOLUTION OF INTENTION HEARING (COMPLETED) Upon the submission of a written petition, signed by the business owners in the renewed district who will pay more than fifty percent (50%) of the assessments proposed to be levied, the City Council may initiate proceedings to renew the GOTMD by the adoption of a resolution expressing its intention to renew the GOTMD.
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Petition Status: Petitions in favor of GOTMD renewal were submitted which represent over 50% of the total GOTMD assessment. This majority petition allows the Council to initiate proceedings for GOTMD renewal at the March 18, 2025, City Council meeting.
April 4, 2025 NOTICE (COMPLETED)
The 94 Law requires the City to mail written notice to the owners of all businesses proposed to be assessed within the GOTMD. Mailing the notice begins a mandatory forty-five (45) day period in which assessed business owners may protest GOTMD renewal.
April 15, 2025 PUBLIC MEETING (COMPLETED)
Allow public testimony on the renewal of the GOTMD and levy of assessments. No Council action required.
May 20, 2025 FINAL PUBLIC HEARING
If written protests are received from the owners of businesses in the renewed GOTMD which will pay fifty percent (50%) or more of the assessments proposed to be levied, and protests are not withdrawn so as to reduce the protests to less than fifty percent (50%), no further proceedings to levy the proposed assessment against such businesses shall be taken for a period of one (1) year from the date of the finding of a majority protest by the Council.
If the Council, following the public hearing, decides to establish the renewed GOTMD, the Council shall adopt a Resolution of formation.
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RESOLUTION NO. ________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO
DECLARING RESULTS OF MAJORITY PROTEST PROCEEDINGS AND
RENEWING THE GREATER ONTARIO TOURISM MARKETING
DISTRICT (GOTMD)
WHEREAS, the City of Ontario created the GOTMD on June 4, 2013 by Resolution No 2013-041; and
WHEREAS, the GOTMD was created for a five (5) year term and subsequently renewed for a ten (10) year term which ends on June 30, 2028; and WHEREAS, the Property and Business Improvement Law of 1994, Streets and Highways Code § 36600 et seq., authorizes the City of Ontario (City) to renew business improvement districts upon petition by a weighted majority of the business owners located within the boundaries of the district; and
WHEREAS, lodging business owners who will pay more than fifty percent (50%) of the proposed assessment, as weighted according to the amount of the assessment to be paid by the petitioner, within the boundaries of the GOTMD have petitioned the City Council of the City of Ontario (Council) to renew the GOTMD; and WHEREAS, the renewed GOTMD includes all lodging businesses, including short- term rentals, in the cities of Ontario and Rancho Cucamonga; and WHEREAS, consent to include all lodging businesses, including short-term rentals, in its jurisdiction has been received from the city of Rancho Cucamonga; and WHEREAS, included with the petitions was a Management District Plan (Plan) summary that describes the proposed assessment to be levied on all lodging businesses, existing and in the future, within the GOTMD to pay for Sales & Marketing and Tourism Development & Enhancement programs, and other improvements and activities set forth in the Plan; and
WHEREAS, the assessed lodging businesses within the GOTMD will receive a specific benefit from the activities and improvements set forth in the Plan; and WHEREAS, on March 18, 2025, at 6:30 PM at the Council Chambers located at City Hall, 303 E. B Street, Ontario, CA 91764, the Council adopted a Resolution of Intention, Resolution No. 2025-007; and
WHEREAS, the public meeting and public hearing to consider the renewal of the GOTMD have been properly noticed in accordance with Streets and Highways Code §36623; and
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WHEREAS, on April 15, 2025, at 6:30 PM at the Council Chambers located at City Hall, 303 E. B Street, Ontario, CA 91764, the Council held a public meeting regarding the renewal of the GOTMD, and the Council heard and received objections and protests, if any, to the renewal of the GOTMD and the levy of the proposed assessment; and WHEREAS, on May 20, 2025, at 6:30 PM at the Council Chambers located at City Hall, 303 E. B Street, Ontario, CA 91764, the Council held a public hearing regarding the renewal of the GOTMD, and the City Council heard and received all objections and protests, if any, to the renewal of the GOTMD and the levy of the proposed assessment; and
WHEREAS, the City Clerk has determined that there was no majority protest. A majority protest is defined as written protests received from owners of businesses in the renewed GOTMD which would pay fifty percent (50%) or more of the assessments proposed to be levied. Protests are weighted based on the assessment proposed to be levied on each lodging business; and
WHEREAS, the City bears the burden of proving by a preponderance of the evidence that an assessment imposed for a specific benefit or specific government service is not a tax, that the amount is no more than necessary to cover the costs to the City in providing the specific benefit or specific government service, and that the manner in which those costs are allocated to a payor bear a fair or reasonable relationship to the specific benefits or specific government services received by the payor.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL THAT:
1. The recitals set forth herein are adopted by the City Council as findings and they are true and correct.
2. The GOTMD is hereby renewed for a ten (10) year term, beginning July 1, 2028, or as soon as possible thereafter, and ending ten (10) years from its start date, unless renewed pursuant to Streets and Highways Code § 36660.
3. The Plan dated March 5, 2025, is hereby adopted and approved.
4. The activities to be provided to benefit businesses in the GOTMD will be funded by the levy of the assessment. The revenue from the assessment levy shall not be used: to provide activities that directly benefit businesses outside the GOTMD; to provide activities or improvements outside the GOTMD; or for any purpose other than the purposes specified in this Resolution, the Resolution of Intention, and the Plan. Notwithstanding the foregoing, improvements and activities that must be provided outside the GOTMD boundaries to create a specific benefit to the assessed businesses may be provided, but shall be limited to marketing or signage pointing to the GOTMD.
5. The Council finds as follows:
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a) The activities funded by the assessment will provide a specific benefit to assessed businesses within the GOTMD that is not provided to those not paying the assessment.
b) The assessment is a charge imposed for a specific benefit conferred or privilege granted directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of conferring the benefit or granting the privilege. c) The assessment is a charge imposed for a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product. d) Assessments imposed pursuant to the GOTMD are levied solely upon the assessed business, and the business owner is solely responsible for payment of the assessment when due. If the owner chooses to collect any portion of the assessment from a transient, that portion shall be specifically called out and identified for the transient in any and all communications from the business owner as the “GOTMD Assessment” or “Tourism Assessment” as specified in the Plan.
6. The assessments levied for the GOTMD shall be applied towards Sales & Marketing and Tourism Development & Enhancement programs to market Greater Ontario lodging businesses as tourist, meeting and event destinations, and other improvements and activities as set forth in the Plan.
7. Assessments levied on lodging businesses pursuant to this resolution shall be levied on the basis of benefit. Because the services provided are intended to increase sleeping room rentals, an assessment based on gross short-term sleeping room rental revenue is the best measure of benefit.
8. The annual assessment rate is three percent (3%) of gross short-term sleeping room rental revenue. Because the marketing programs will not promote or seek certain stays, assessments will not be collected on revenue resulting from: stays of more than thirty (30) consecutive days; stays by any Federal officer or employee when on official Federal government business; nor on stays by any officer or employee of a foreign government who is exempt by express provision of Federal law or international treaty.
9. The assessments for the entire GOTMD will total approximately $6,000,000 in year one (1).
10. Bonds shall not be issued to fund the GOTMD.
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11. The GOTMD shall include all lodging businesses located within the cities of Ontario and Rancho Cucamonga (Cities). A boundary map is attached hereto and incorporated herein by reference.
12. The assessments shall be used for the purposes set forth above and any funds remaining at the end of any year may be used in subsequent years in which the GOTMD assessment is levied as long as they are used consistent with the requirements set forth herein.
13. The assessments to fund the activities and improvements for the GOTMD will be collected by The Greater Ontario Convention and Visitors Bureau dba GOCAL (GOCAL) or Cities on a monthly basis, and in accordance with Streets and Highways Code §36631.
14. The Council, through adoption of this Resolution and the Plan, has the right pursuant to Streets and Highways Code §36651, to identify the body that shall implement the proposed program, which shall be the Owners’ Association of the GOTMD as defined in Streets and Highways Code §36612. The Council has determined that The Greater Ontario Convention and Visitors Bureau dba GOCAL shall be the GOTMD Owners’ Association.
15. GOCAL, pursuant to Streets and Highways Code §36650, shall cause to be prepared a report for each fiscal year, except the first year, for which assessments are to be levied and collected to pay the costs of the improvement and activities described in the report. The first report shall be due after the first year of operation of the GOTMD.
16. The GOTMD renewed pursuant to this Resolution will be subject to any amendments to the Property and Business Improvement District Law of 1994 (California Streets and Highways Code §36600 et. seq.).
17. The City Clerk, or his or her designee, is directed to take all necessary actions to complete the renewal of the GOTMD and to levy the assessments.
18. This Resolution shall take effect immediately upon its adoption by the Council.
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 20th day of May, 2025. _____________________________________
PAUL S. LEON, MAYOR
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ATTEST:
____________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
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STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2025- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held May 20, 2025 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. 2025- duly passed and adopted by the Ontario City Council at their regular meeting held May 20, 2025. _____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
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EXHIBIT A
BOUNDARY MAP
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CONTENTSI. Overview ............................................................................................................................3II. Background........................................................................................................................4III. Accomplishments ..............................................................................................................5IV. Boundary............................................................................................................................7V. Assessment Budget And Services......................................................................................8A. Annual Service Plan .............................................................................................................................8B. Annual Budget ....................................................................................................................................10C. California Constitutional Compliance.............................................................................................10D. Assessment..........................................................................................................................................13E. Interest And Overdue Charges ........................................................................................................13F. Time And Manner For Collecting Assessments............................................................................14VI. Governance................................................................................................................... 15A...........................................................................................................................15B. Brown Act And California Public Records Act Compliance.......................................................15C. Annual Report ....................................................................................................................................15Appendix 1 Law .................................................................................................................... 16Appendix 2 Assessed Businesses .........................................................................................28Prepared byCivitas(800)999-7781www.civitasadvisors.com 1467
GOTMD Management District Plan 3 March 5, 2025
I. OVERVIEW Developed by Greater Ontario area lodging businesses and the Greater Ontario Convention and Visitors Bureau dba GOCAL, the Greater Ontario Tourism Marketing District (GOTMD) is an assessment district proposed to continue to provide specific benefits to payors, by funding marketing and sales promotion efforts for assessed businesses. This approach has been used successfully in other destination areas throughout the country to provide the benefit of additional room night sales directly to payors. The GOTMD was formed in 2013 for an initial five (5) year term and was subsequently renewed in 2018 for a ten (10) year term. Lodging businesses now wish to renew the GOTMD for an additional ten (10) year term. Location: The renewed GOTMD includes all lodging businesses, including short-term rentals, existing and in the future, available for public occupancy within the boundaries of the cities of Ontario and Rancho Cucamonga (Cities), as shown on the map in Section IV. Services: The GOTMD is designed to provide specific benefits directly to payors by increasing awareness and demand for room night sales. Sales & Marketing and Tourism Development & Enhancement programs will increase demand for overnight tourism and market payors as tourist, meeting and event destinations, thereby increasing demand for room night sales. Budget: The total GOTMD annual assessment budget for the initial year of its ten (10) year operation is anticipated to be approximately $6,000,000. A similar assessment budget is expected to apply to subsequent years, but this assessment budget is expected to fluctuate as room sales do, and as businesses open and close. Cost: The annual assessment rate is three percent (3%) of gross short-term sleeping room rental revenue. Because the marketing programs will not promote or seek certain stays, assessments will not be collected on revenue resulting from: stays of more than thirty (30) consecutive days; stays by any Federal officer or employee when on official Federal government business; nor on stays by any officer or employee of a foreign government who is exempt by express provision of Federal law or international treaty. Collection: GOCAL or Cities will be responsible for collecting the assessment on a monthly basis (including any delinquencies, interest, and overdue charges) from each lodging business located in each respective jurisdiction. GOCAL and Cities shall take all reasonable efforts to collect the assessments from each lodging business. Duration: The renewed GOTMD will have a ten (10) year life, beginning July 1, 2028, or as soon as possible thereafter, and ending ten (10) years from its start date. After ten (10) years, the GOTMD may be renewed pursuant to the Property and Business Improvement District Law of 1994, Streets and Highways Code section 36600 et seq. (94 Law) if lodging business owners support continuing the GOTMD programs. Management: GOCAL shall continue to serve as the GOTMDAssociation is charged with managing funds and implementing programs in accordance with this Plan and must provide annual reports to the City Council. 1468
GOTMD Management District Plan4March 5, 2025
II. BACKGROUNDTourism Marketing Districts (TMDs) are an evolution of the traditional Business Improvement District. The first TMD was formed in West Hollywood, California in 1989. Since then, over 100 California destinations have followed suit. In recent years, other states have begun adopting the California model Illinois, Minnesota, Massachusetts, Montana, South Dakota, Washington, Colorado, Texas and Louisiana have adopted TMD laws. Several other states are in the process of adopting their own legislation. The cities of Wichita, Kansas and Newark, New Jersey used an existing business improvement district law to form a TMD. Additionally, some cities, like Portland, Oregon and Memphis, Tennessee have utilized their home rule powers to create TMDs without a state law. TMDs collectively raise over $300 million annually for local destination marketing. With competitors raising their budgets, and increasing rivalry for visitor dollars, it is important thatthe Greater Ontario area lodging businesses continue to invest in stable, commerce-specific marketing programs. TMDs utilize the efficiencies of private sector operation in the market-based promotion of tourism districts. TMDs allow tourism business owners to organize their efforts to increase commerce. Lodging business owners within the TMD pay an assessment and those funds are used to provide services that increase commerce. In California, most TMDs are formed pursuant to the Property and Business Improvement District Law of 1994. This law allows for the creation of a benefit assessment district to raise funds within a specific geographic area. The key difference between TMDs and other benefit assessment districts is that funds raised are returned to the private non-profit corporation governing the district. There are many benefits to TMDs:Funds must be spent on services and improvements that provide a specific benefit only to those who pay; Funds cannot be diverted to general government programs;They are customized to fit the needs of payors in each destination;They allow for a wide range of services;They arethe assessment; andThey provide a stable, long-term funding source for tourism promotion. 020406080100120Number of Districts Operating in California 1469
GOTMD Management District Plan 5 March 5, 2025
III. ACCOMPLISHMENTS & FUTURE OUTLOOK Since its formation, the GOTMD has played a pivotal role in strengthening and enhancing the local tourism economy to drive overnight visitation to assessed businesses. As the GOTMD looks ahead to its next chapter, this section highlights key accomplishments from the most recent term, and looks to the future for the renewed GOTMD. The following charts illustrate the economic impact and tourism activity generated by the GOTMD over the past decade. The first chart demonstrates the total economic impact by fiscal year, while the second chart provides data on sales leads and room nights generated, showing the number of leads pursued and hotel room nights booked as a result of GOTMD efforts. GOCAL is attracting new hotel development and increasing its hotel supply, with 5 new hotels in the works with the Ontario Planning Department. In addition, GOCAL will be experiencing anticipated convention destination. Hotels in development are: Hyatt House/Hyatt Place 256 Rooms (anticipated opening in March/April 2026) Residence Inn A-Loft 225 Rooms (anticipated opening in October 2026) Ontario Hotel 650 Rooms (anticipated opening in Fall 2027) Hilton Hampton Inn 124 (anticipated opening in Spring 2026) Everhome Suites 113 Rooms (anticipated opening in Winter 2025) Upon completion of the properties above, hotel rooms for the Greater Ontario area will increase by another 1,369 hotel inventory to a total of over 8,000 rooms. In addition to the anticipated add of more hotels: Michael Krouse, President & CEO of GOCAL, led the Centers Coalition for the reopening of convention center to begin hosting meetings and conventions and recovery for the industry. GOCAL received a grant for $974,768 combined from the US Department of Commerce Economic Development Administration to assist in those efforts of restoring the meetings and conventions. Plans are in the works to expand the Ontario Convention Center to include a 650-room headquarter hotel onsite and a newly constructed parking structure. Construction to begin in 2026.
Fiscal Year Sales Leads Room Nights Generated 2013-2014 325 58,584 2014-2015 316 49,417 2015-2016 290 54,540 2016-2017 389 65,937 2017-2018 383 65,937 2018-2019 295 39,456 2019-2020 -------- --------- 2020-2021 58 DOWN 75% No data due to COVID2021-2022 350 60,009 2022-2023 425 59,000 2023-2024 320 87147 Fiscal Year Economic Impact 2013-2014 $52M 2014-2015 $69M 2015- 2016 $97M 2016-2017 $94M 2017-2018 $95M 2018-2019 $92M 2019-2020 -------- 2020-2021 $76.5M LOSS 2021-2022 $77.7M 2022-2023 $96.5M 2023-2024 $110M TOTAL $792.2M 1470
GOTMD Management District Plan 6 March 5, 2025
Ontario Convention Center has 300 active days per year and has attracted larger conventions for multiple years. This expansion to double the size of the center will allow us to secure meetings and conventions in a next higher tier in size. Coupled with new hotel products, this also supports our ability to grow in the meetings and convention sector. , established in 2013, is a two-day classic car show that attracts enthusiasts from all over the country. Each year, we see an increase in classic car participants, and in 2024, an all-time record of over 1,300 cars were on display. This event attracts over 100,000 attendees from several states nationwide over the two days. The development of the 200-acre Ontario Sports Empire, a new minor league baseball stadium in South Ontario and future home of a minor league team and LA Dodger affiliate, will increase demand for overnight stays for the projected 1.4 million new visitors. The Adept project surrounding the Toyota Arena will be a world-class entertainment district with plans for a Performing Arts Center, open spaces and an outdoor concert venue, restaurants, dining, and a new hotel. Ontario International Airport continues to add domestic flights to destinations such as El Paso, Nashville, Washington DC, and Hawaii. The airport is working on future plans for expansion and development of a dedicated state-of-the-art international Terminal 3. Our convention center is located within one mile of the Ontario International Airport. Brightline West will provide high-speed rail service to and from Cucamonga Station in Rancho Cucamonga and Las Vegas in 2028, with connectivity to all of Southern California via Metrolink and Amtrak. Having established the Greater Ontario Sports and Entertainment Authority, we have dedicated sales and marketing staff booking and marketing to this specific growing industry for professional and youth sports of all kinds. Since 2013, we have produced over $1B in economic impact to our region. The State of the Region Event hosted annually at the Ontario Convention Center is a premier event for the region to discuss current statistics, provide an economic forecast for the coming year learn about the dynamic strength of our economy, how to adapt to changing conditions, and build a network of forward-thinking professionals as we plan for the future. 1471
GOTMD Management District Plan 7 March 5, 2025
IV. BOUNDARY The GOTMD will include all lodging businesses, including short-term rentals, existing and in the future, available for public occupancy within the boundaries of the Cities of Ontario and Rancho Cucamonga, as shown in the map below. Lodging business definition: any structure, or any portion of any structure, which is occupied, or intended or designed for occupancy, by transients for dwelling, lodging, or sleeping purposes and shall include any hotel, inn, tourist home, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure, or portion thereof. Short-term rental definition: a dwelling unit, or any portion thereof, that is rented by the host to another party for a period of not more than 30 consecutive days in exchange for any form of monetary or non--ental activity in which the host remains on the site of his or her primary residence throughout the duration of the -site for so--room occupancy buildings and a dwelling unit for which a tenant has a month-to-month rental agreement and the rental payments are made on a monthly basis, or corporate housing. A complete listing of assessed lodging businesses within the renewed GOTMD can be found in Appendix 2. 1472
GOTMD Management District Plan 8 March 5, 2025 Total Square Miles: 90.21 Distance to Los Angeles: 37 Miles Distance to Palm Springs: 72 Miles Distance to San Diego: 113 Miles 1473
GOTMD Management District Plan9March 5, 2025
V. ASSESSMENT BUDGET AND SERVICESA. Annual Service PlanAssessment funds will be spent to provide specific benefits conferred or privileges granted directly to the payors that are not provided to those not charged, and which do not exceed the reasonable cost to the City of Ontario (City) of conferring the benefits or granting the privileges. The privileges and services provided with the GOTMD funds are Sales & Marketing and Tourism Development & Enhancement programs available only to assessed businesses. A service plan assessment budget has been developed to deliver services that benefit the assessed businesses. A detailed annual assessment budget will be developed and approved by GOCAL. The chart below illustrates the initial annual assessment budget allocations. These activities and allocations will also apply in subsequent years. The total initial assessment budget is estimated to be $6,000,000.
Although actual revenues will fluctuate due to market conditions, the proportional allocations of the budget shall remain the same. However, the City and the GOCAL board shall have the authority to adjust budget allocations between the categories by no more than fifteen percent (15%) of the total budget per year. A description of the proposed improvements and activities for the initial year of operation is below. The same activities are proposed for subsequent years. In the event of a legal challenge against the GOTMD, any and all assessment funds may be used for the costs of defending the GOTMD. Each budget category includes all costs related to providing that service. For example, the Sales &Marketing budget includes the cost of staff time dedicated to overseeing and implementing the sales and marketing program. Staff time dedicated purely to administrative tasks is allocated to the Administration & Advocacy portion of the budget. The costs of an individual staff member may be allocated to multiple budget categories. The staffing levels necessary to provide the services below will be determined by GOCAL on an as-needed basis.Sales & Marketing, 4,080,000, 68.0%Tourism Development & Enhancement, $500,000 , 8.3%Administration & Advocacy, $880,000 , 14.7%Contingency / Renewal, $540,000 , 9.0%Initial Annual Assessment Budget -$6,000,000 1474
GOTMD Management District Plan 10 March 5, 2025
Sales & MarketingA Sales & Marketing program will promote assessed businesses as tourist, meeting, and event destinations. The Sales & Marketing program will have a central theme of promoting Ontario and Rancho Cucamonga as desirable places for overnight visits to leisure travelers and meeting planners. The program will have the goal of increasing overnight visitation and room night sales at assessed businesses, and may include the following activities: Internet marketing efforts to increase awareness and optimize internet presence to drive overnight visitation and room sales to assessed businesses; Print ads in magazines and newspapers targeted at potential visitors to drive overnight visitation and room sales to assessed businesses; Television ads targeted at potential visitors to drive overnight visitation and room sales to assessed businesses; Promotion and production of special events that draw overnight visitors to assessed businesses; Radio ads targeted at potential visitors to drive overnight visitation and room sales to assessed businesses; Attendance of trade shows to promote assessed businesses; Sales blitzes for assessed businesses; Familiarization tours of assessed businesses; Preparation and production of collateral promotional materials such as brochures, flyers and maps featuring assessed businesses; Attendance of professional industry conferences and affiliation events to promote assessed businesses; Market research to identify targets and opportunities to attract overnight visitors to assessed businesses; Incentivizing conferences and meetings to book at the destination to increase overnight visitation at assessed businesses. Partnership with both local, state and national tourism organizations to target key domestic and international markets to increase overnight visitation at assessed businesses; Development and implementation of a public relations and communications strategy, inclusive of social media outlets and press release distribution designed to drive overnight visitation at assessed businesses; Lead generation activities designed to attract tourists and group events to assessed businesses; and Director of Sales and General Manager meetings to plan and coordinate tourism promotion efforts for assessed businesses Tourism Development & Enhancement A Tourism Development & Enhancement program will be designed to improve the visitor experience in an effort to increase overnight visitation at assessed lodging businesses and short-term rentals. It will provide potential funding for programs and initiatives based on criteria to be developed. The focus of the program will be on the entire destination brand footprint to ensure a consistent brand experience. The program may include the following activities, but is not limited to: A transportation program connecting hotels with points of interest, the airport and tourism assets, to increase room night sales and enhance the visitor experience; An ambassador program with stakeholders to improve the overall destination experience and encourage overnight visitation; and 1475
GOTMD Management District Plan 11 March 5, 2025
Operation of a California Welcome Center (WC) to provide visitor resources and ensure a consistent brand experience throughout the destination. Administration & Advocacy The Administration & Advocacy portion of the budget will be utilized to provide the activities and improvements for the GOTMD. These costs may include rent, telephone charges, legal fees, accounting fees, postage, administrative staff, insurance, and other general office expenses. A small portion of the budget may be utilized towards dedicated staff time to provide unified attention, communication and responsiveness throughout the GOTMD and provide a unified voice to represent Contingency / Renewal A prudent portion of the budget will be allocated to a contingency fund, to account for lower than anticipated collections. If there are contingency funds collected and near the expiration of the GOTMD there are contingency funds remaining, and businesses wish to renew the GOTMD, the contingency funds may be used for renewal costs. B. Annual Budget The total ten (10) year assessment budget is projected at approximately $6,000,000 annually, or $60,000,000 through June 2038. A similar budget is expected to apply to subsequent years, but this budget is expected to fluctuate as room sales do and as businesses open and close. C. California Constitutional Compliance The GOTMD assessment is not a property-based assessment subject to the requirements of Proposition 218. Courts have found property.1 Rather, the GOTMD assessment is a business-based assessment, and is subject to Proposition 26. Pursuant to Proposition 26 all levies are a tax unless they fit one of seven exceptions. Two of these exceptions apply to the GOTMDservice.City of conferring the benefits or providing the services. 1. Specific Benefit Proposition 26 requires that assessment funds be expea specific benefit conferred or privilege granted directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of conferring the benefit or granting the privilege2 The services in this Plan are designed to provide targeted specific benefits directly to assessed businesses, and are intended only to provide specific benefits and services directly to those businesses paying the assessment. These services are tailored not to serve the general public, businesses in general, or parcels of land, but rather to serve the specific businesses within the GOTMD. The activities described in this Plan are specifically targeted to increase demand for room night sales for assessed lodging businesses within the boundaries of the GOTMD and are narrowly tailored. GOTMD funds will be used exclusively to provide the specific benefit of increased demand for room night sales directly to the assessees. Assessment funds shall not be used to feature non-assessed lodging businesses in GOTMD programs, or to directly generate sales for non-assessed businesses. The activities paid for from assessment revenues are business services constituting and providing specific benefits to the assessed businesses. Nothing in this Plan limits the ability of the 1 Jarvis v. the City of San Diego 72 Cal App. 4th 230 2 Cal. Const. art XIII C § 1(e)(1) 1476
GOTMD Management District Plan 12 March 5, 2025
to enter into private contracts with non-assessed lodging businesses for the provision of services to those businesses. The assessment imposed by this GOTMD is for a specific benefit conferred directly to the payors that are not provided to those not charged. The specific benefit conferred directly to the payors is an increase in demand for room night sales. The specific benefit of an increase in demand for room night sales for assessed lodging businesses will be provided only to lodging businesses paying the district assessment, with Sales & Marketing programs promoting lodging businesses paying the GOTMD assessment. The Sales & Marketing programs will be designed to increase room night sales at each assessed lodging businesses. Because they are necessary to provide the Sales & Marketing programs that specifically benefit the assessed lodging businesses, the Administration & Advocacy and Contingency/Renewal services also provide the specific benefit of increased demand for room night sales to the assessed lodging businesses. Although the GOTMD, in providing specific benefits to payors, may produce incidental benefits to non-paying businesses, the incidental benefit does not preclude the services from being considered a specific benefit. as a merely because an indirect benefit to a nonpayor occurs incidentally and without 3 Specific Government Service The assessment may also be utilized to provide, a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product.4 The legislature has recognized that marketing and promotions services like those to be provided by the GOTMD are government services within the meaning of Proposition 265. Further, the legislature has determined payor as a co6 3. Reasonable Cost GOTMD services will be implemented carefully to ensure they do not exceed the reasonable cost of such services. The full amount assessed will be used to provide the services described herein. Funds will be managed by GOCAL, and reports submitted on an annual basis to the City. Only assessed lodging businesses will be featured in marketing materials, receive sales leads generated from GOTMD-funded activities, be featured in advertising campaigns, and benefit from other GOTMD-funded services. Non-assessed lodging businesses will not receive these, nor any other, GOTMD-funded services and benefits. The assessed lodging business list was compiled from records provided by each jurisdiction and complies with the requirements of the 94 Law. Pursuant to Streets and Highways Code Section 36615, the City Council's determination of ownership is final and conclusive, with no obligation to obtain other information. The GOTMD-funded programs are targeted directly to benefit assessed businesses. It is, however, possible that there will be a spillover benefit to non-assessed businesses. If non-assessed lodging businesses receive incremental room nights, that portion of the promotion or program generating 3 Government Code § 53758(a) 4 Cal. Const. art XIII C § 1(e)(2) 5 Government Code § 53758(b) 6 Government Code § 53758(b) 1477
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those room nights shall be paid with non-GOTMD funds. GOTMD funds shall only be spent to benefit the assessed businesses and shall not be spent on that portion of any program which directly generates incidental room nights for non-assessed businesses. D. Assessment The annual assessment rate is three percent (3%) of gross short-term sleeping room rental revenue. Because the marketing programs will not promote or seek certain stays, assessments will not be collected on: stays of more than thirty (30) consecutive days; stays by any Federal officer or employee when on official Federal government business; nor on stays by any officer or employee of a foreign government who is exempt by express provision of Federal law or international treaty. The assessment was calculated based on the total cost of the activities to be provided for the benefit of the businesses within the GOTMD, with costs allocated based on the proportional benefit conferred to each assessed business. Activities funded by the GOTMD, are specifically targeted to increase room nights at assessed businesses. All room night sales do not represent the same benefit to the payors. For example, a higher priced room night is of greater benefit than a lower priced room night because the assesses derive greater revenue. To account for this benefit differential and to make sure the benefits are proportional, an assessment formula based on a percentage of revenue has been selected. The proposed formula accurately reflects greater benefit to assessed businesses with higher priced room nights. sleeping for the occupancy of space in a lodging business valued in money. Gross sleeping room rental revenue shall not include any federal, state or local taxes collected, including but not limited to transient occupancy taxes. The assessment is levied upon and a direct obligation of the assessed lodging business. However, the assessed lodging business may, at its discretion, pass the assessment on to transients. The amount of assessment, if passed on to each transient, shall be disclosed in advance and separately stated from the amount of rent charged and any other applicable taxes, and each transient shall receive a receipt for payment from the business. If the GOTMD assessment is identified separately it shall be disclosed aGOTMD GOTMD assessment and the amount of the assessment imposed pursuant to the California Tourism The assessment is imposed solely upon and is the sole obligation of the assessed lodging business even if it is passed on to transients. The assessment shall not be considered revenue for calculation of transient occupancy taxes. Bonds shall not be issued. E. Interest and Overdue Charges The GOTMD shall reimburse the Cities of Ontario and Rancho Cucamonga for any costs associated with collecting unpaid assessments. If sums in excess of the delinquent GOTMD assessment are sought to be recovered in the same collection action by the Cities, the GOTMD shall bear its pro rata share of such collection costs. 1. Any business which fails to remit any assessment within thirty (30) days shall pay an overdue charge in the amount of one-half of one percent (0.5%) per day of the assessment due and owning in addition to the amount of the assessment. 1478
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2. Any business which fails to remit any delinquent assessment on or before a period of thirty (30) days following the date on which the assessment first became delinquent (or sixty [60] days after the initial due date) shall pay a second delinquency overdue charge in the amount of ten percent (10%) of the assessment due and owing in addition to the amount of the assessment and the one-half of one percent (0.5%) overdue charge first imposed pursuant to section 1 above. 3. If the collecting City determines that the non-payment of any assessment is due to fraud, an overdue charge in the amount of twenty-five (25%) of the amount of assessment due and owning shall be added thereto in addition to the overdue charges set forth in section 1 and 2 above. 4. In addition to the overdue charges imposed, any business which fails to remit any assessment shall pay interest at the rate of one-half of one percent (0.5%) per month, or fraction thereof, on the amount of the assessment due and owing, exclusive of overdue charges, from the date on which the assessment first became delinquent until paid. F. Time and Manner for Collecting Assessments The GOTMD assessment will be implemented beginning July 1, 2028 or as soon as possible thereafter, and end ten (10) years from its start date. The Cities or GOCAL will be responsible for collecting the assessment on a monthly basis (including any delinquencies, overdue charges and interest) from each assessed lodging business located in their respective jurisdictions. GOCAL and Cities shall take all reasonable efforts to collect the assessments from each lodging business within the GOTMD. 1. GOCAL and/or Cities shall make all reasonable efforts to enter into an agreement with all Hosting Platforms to collect and remit the GOTMD assessment on behalf of assessed businesses using the hosting platform. 2. An assessed business, using a Hosting Platform, reserves the right to have the Hosting Platform collect the assessment based on information supplied by the assessed business, and remit such assessment to the assessed business for ultimate reporting and remittance by the assessed business to GOCAL and/or Cities. In such case, the Hosting Platform, upon request from GOCAL and/or Cities, and not more than once per consecutive twelve-month period, shall provide GOCAL and/or Cities with copies of documentation related to assessed business which have provided acknowledgement of its obligation to collect all assessments owed on a gross short-term room rental revenue and to remit and report any assessments collected directly to GOCAL and/or Cities. 1479
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VI. GOVERNANCE A. The Ontario City Council, through adoption of this Plan, has the right, pursuant to Streets and Highways Code §36651, to identify the body that shall implement the proposed program, which shall be the OAssociation of the GOTMD as defined in Streets and Highways Code §36612. The Ontario City Council has determined that GOCAL Association for the GOTMD. B. Brown Act and California Public Records Act Compliance Association is, however, subject to government regulations relating to transparency, namely the Ralph M. Brown Act and the California Public Records Act. These regulations are designed to promote Act (Government Code §54950 et seq.). Thus, meetings of the Board and certain committees must be held in compliance with the public notice and other requirements of the Brown Act. Accordingly, the of each member present and disclosure requirements of the California Public Records Act. C. Annual Report GOCAL shall present an annual report at the end of each year of operation to the City Council pursuant to Streets and Highways Code §36650 (see Appendix 1). The annual report shall include: Any proposed changes in the boundaries of the improvement district or in any benefit zones or classification of businesses within the district. The improvements and activities to be provided for that fiscal year. An estimate of the cost of providing the improvements and the activities for that fiscal year. The method and basis of levying the assessment in sufficient detail to allow each business owner to estimate the amount of the assessment to be levied against his or her business for that fiscal year. The estimated amount of any surplus or deficit revenues to be carried over from a previous fiscal year. The estimated amount of any contributions to be made from sources other than assessments levied pursuant to this part. 1480
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APPENDIX 1 LAW *** THIS DOCUMENT IS CURRENT THROUGH THE 2023 EXTRA SESSION CH 1, 2023 REGULAR SESSION CH. 890*** (ALL 2023 LEGISLATION) STREETS AND HIGHWAYS CODE DIVISION 18. PARKING PART 7. PROPERTY AND BUSINESS IMPROVEMENT DISTRICT LAW OF 1994 CHAPTER 1. General Provisions ARTICLE 1. Declarations 36600. Citation of part 36601. Legislative findings and declarations; Legislative guidance The Legislature finds and declares all of the following: economically disadvantaged, are underutilized, and are unable to attract customers due to inadequate facilities, services, and activities in the business districts. (b) It is in the public interest to promote the economic revitalization and physical maintenance of business districts in order to create jobs, attract new businesses, and prevent the erosion of the business districts. (c) It is of particular local benefit to allow business districts to fund business related improvements, maintenance, and activities through the levy of assessments upon the businesses or real property that receive benefits from those improvements. (d) Assessments levied for the purpose of conferring special benefit upon the real property or a specific benefit upon the businesses in a business district are not taxes for the general benefit of a city, even if property, businesses, or persons not assessed receive incidental or collateral effects that benefit them. (e) Property and business improvement districts formed throughout this state have conferred special benefits upon properties and businesses within their districts and have made those properties and businesses more useful by providing the following benefits: (1) Crime reduction. A study by the Rand Corporation has confirmed a 12-percent reduction in the incidence of robbery and an 8-percent reduction in the total incidence of violent crimes within the 30 districts studied. (2) Job creation. (3) Business attraction. (4) Business retention. (5) Economic growth. (6) New investments. (f) With the dissolution of redevelopment agencies throughout the state, property and business improvement districts have become even more important tools with which communities can combat blight, promote economic opportunities, and create a clean and safe environment. (g) Since the enactment of this act, the people of California have adopted Proposition 218, which added Article XIII D to the Constitution in order to place certain requirements and restrictions on the formation of, and activities, expenditures, and assessments by property-based districts. Article XIII D of the Constitution provides that property-based districts may only levy assessments for special benefits. its interaction with the provisions of Article XIII D of the Constitution, and the determination of special benefits in property-based districts. (1) The lack of legislative guidance has resulted in uncertainty and inconsistent application of this act, which discourages the use of assessments to fund needed improvements, maintenance, and activities in property-based districts, contributing to blight and other underutilization of property. 1481
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(2) Activities undertaken for the purpose of conferring special benefits upon property to be assessed inherently produce incidental or collateral effects that benefit property or persons not assessed. Therefore, for special benefits to exist as a separate and distinct category from general benefits, the incidental or collateral effects of those special benefits are inherently part of those special benefits. The mere fact that special benefits produce incidental or collateral effects that benefit property or persons not assessed does not convert any portion of those special benefits or their incidental or collateral effects into general benefits. (3) It is of the utmost importance that property-based districts created under this act have clarity regarding restrictions on assessments they may levy and the proper determination of special benefits. Legislative clarity with regard to this act will provide districts with clear instructions and courts with legislative intent regarding restrictions on property-based assessments, and the manner in which special benefits should be determined. 36602. Purpose of part The purpose of this part is to supplement previously enacted provisions of law that authorize cities to levy assessments within property and business improvement districts, to ensure that those assessments conform to all constitutional requirements and are determined and assessed in accordance with the guidance set forth in this act. This part does not affect or limit any other provisions of law authorizing or providing for the furnishing of improvements or activities or the raising of revenue for these purposes. 36603. Preemption of authority or charter city to adopt ordinances levying assessments Nothing in this part is intended to preempt the authority of a charter city to adopt ordinances providing for a different method of levying assessments for similar or additional purposes from those set forth in this part. A property and business improvement district created pursuant to this part is expressly exempt from the provisions of the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 (Division 4 (commencing with Section 2800)). 36603.5 Part prevails over conflicting provisions Any provision of this part that conflicts with any other provision of law shall prevail over the other provision of law, as to districts created under this part. 36604. Severability This part is intended to be construed liberally and, if any provision is held invalid, the remaining provisions shall remain in full force and effect. Assessments levied under this part are not special taxes. ARTICLE 2. Definitions 36606. (a) Promotion of public events. (b) Furnishing of music in any public place. (c) Promotion of tourism within the district. (d) Marketing and economic development, including retail retention and recruitment. (e) Providing security, sanitation, graffiti removal, street and sidewalk cleaning, and other municipal services supplemental to those normally provided by the municipality. (f) Other services provided for the purpose of conferring special benefit upon assessed real property or specific benefits upon assessed businesses located in the district. 36606.5. providing activities that will provide certain benefits to properties or businesses located within a property and business improvement district. 1482
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36607. 36608. Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government Code, the public member agencies of which includes only cities, counties, or a city and county, or the State of California. 36609. or board created pursuant to a joint powers agreement and which is a city within the meaning of this part. 36609.4. 36609.5. -defined in Section 36615.5. 36610. estimated useful life of five years or more including, but not limited to, the following: (a) Parking facilities. (b) Benches, booths, kiosks, display cases, pedestrian shelters and signs. (c) Trash receptacles and public restrooms. (d) Lighting and heating facilities. (e) Decorations. (f) Parks. (g) Fountains. (h) Planting areas. (i) Closing, opening, widening, or narrowing of existing streets. (j) Facilities or equipment, or both, to enhance security of persons and property within the district. (k) Ramps, sidewalks, plazas, and pedestrian malls. (l) Rehabilitation or removal of existing structures. 36611. 36612. be an existing nonprofit enmay not be considered a public entity for any purpose, nor may its board members or staff be considered to be public officials for any purpose. Notwithstanding this secM. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code), at all times when matters within the subject matter of the district are heard, discussed, or deliberated, and with the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code), for all records relating to activities of the district. 36614. 1483
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36614.5. established pursuant to this part. 36614.6. - - part upon real property. 36614.7. - - -based assessment. 36615. obligation to obtain other information as to the ownership of land or businesses, and its determination of ownership shall be final and conclusive for the purposes of this part. Wherever this part requires the signature of the property owner, the signature of the authorized agent of the property owner shall be sufficient. Wherever this part requires the signature of the business owner, the signature of the authorized agent of the business owner shall be sufficient. 36615.5. -based district, a particular and distinct benefit over and above general benefits conferred on real property located in a district or to the public at large. Special benefit includes incidental or collateral effects that arise from the improvements, maintenance, or activities of property-based districts even if those incidental or collateral effects benefit property or persons not assessed. Special benefit excludes general enhancement of property value. -based district, a particular and distinct benefit provided directly to each assessed parcel within the district. Merely because parcels throughout an assessment district share the same special benefits does not make the benefits general. 36616. ARTICLE 3 Prior Law 36617. Alternate method of financing certain improvements and activities; Effect on other provisions This part provides an alternative method of financing certain improvements and activities. The provisions of this part shall not affect or limit any other provisions of law authorizing or providing for the furnishing of improvements or activities or the raising of revenue for these purposes. Every improvement area established pursuant to the Parking and Business Improvement Area Law of 1989 (Part 6 (commencing with Section 36500) of this division) is valid and effective and is unaffected by this part. CHAPTER 2. Establishment 36620. Establishment of property and business improvement district A property and business improvement district may be established as provided in this chapter. 36620.5. Requirement of consent of city council 1484
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A county may not form a district within the territorial jurisdiction of a city without the consent of the city council of that city. A city may not form a district within the unincorporated territory of a county without the consent of the board of supervisors of that county. A city may not form a district within the territorial jurisdiction of another city without the consent of the city council of the other city. 36621. Initiation of proceedings; Petition of property or business owners in proposed district (a) Upon the submission of a written petition, signed by the property or business owners in the proposed district who will pay more than 50 percent of the assessments proposed to be levied, the city council may initiate proceedings to form a district by the adoption of a resolution expressing its intention to form a district. The amount of assessment attributable to property or a business owned by the same property or business owner that is in excess of 40 percent of the amount of all assessments proposed to be levied, shall not be included in determining whether the petition is signed by property or business owners who will pay more than 50 percent of the total amount of assessments proposed to be levied. (b) The petition of property or business owners required under subdivision (a) shall include a summary of the management district plan. That summary shall include all of the following: (1) A map showing the boundaries of the district. (2) Information specifying where the complete management district plan can be obtained. (3) Information specifying that the complete management district plan shall be furnished upon request. (c) The resolution of intention described in subdivision (a) shall contain all of the following: (1) A brief description of the proposed improvements, maintenance, and activities, the amount of the proposed assessment, a statement as to whether the assessment will be levied on property or businesses within the district, a statement as to whether bonds will be issued, and a description of the exterior boundaries of the proposed district, which may be made by reference to any plan or map that is on file with the clerk. The descriptions and statements do not need to be detailed and shall be sufficient if they enable an owner to generally identify the nature and extent of the improvements, maintenance, and activities, and the location and extent of the proposed district. (2) A time and place for a public hearing on the establishment of the property and business improvement district and the levy of assessments, which shall be consistent with the requirements of Section 36623. 36622. Contents of management district plan The management district plan shall include, but is not limited to, all of the following: (a) If the assessment will be levied on property, a map of the district in sufficient detail to locate each parcel of property and, if businesses are to be assessed, each business within the district. If the assessment will be levied on businesses, a map that identifies the district boundaries in sufficient detail to allow a business owner to reasonably determine whether a business is located within the district boundaries. If the assessment will be levied on property and businesses, a map of the district in sufficient detail to locate each parcel of property and to allow a business owner to reasonably determine whether a business is located within the district boundaries. (b) The name of the proposed district. (c) A description of the boundaries of the district, including the boundaries of benefit zones, proposed for establishment or extension in a manner sufficient to identify the affected property and businesses included, which may be made by reference to any plan or map that is on file with the clerk. The boundaries of a proposed property assessment district shall not overlap with the boundaries of another existing property assessment district created pursuant to this part. This part does not prohibit the boundaries of a district created pursuant to this part to overlap with other assessment districts established pursuant to other provisions of law, including, but not limited to, the Parking and Business Improvement Area Law of 1989 (Part 6 (commencing with Section 36500)). This part does not prohibit the boundaries of a business assessment district created pursuant to this part to overlap with another business assessment district created pursuant to this part. This part does not prohibit the boundaries of a business assessment district created pursuant to this part to overlap with a property assessment district created pursuant to this part. (d) The improvements, maintenance, and activities proposed for each year of operation of the district and the estimated cost thereof. If the improvements, maintenance, and activities proposed for each year of operation are the same, a description of the f 1485
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and a statement that the same improvements, maintenance, and activities are proposed for subsequent years shall satisfy the requirements of this subdivision.(e) The total annual amount proposed to be expended for improvements, maintenance, or activities, and debt service in each year of operation of the district. If the assessment is levied on businesses, this amount may be estimated based upon the assessment rate. If the total annual amount proposed to be expended in each year of operation of the district is not significantly different, the amount proposed to be expended in the initial year and a statement that a similar amount applies to subsequent years shall satisfy the requirements of this subdivision. (f) The proposed source or sources of financing, including the proposed method and basis of levying the assessment in sufficient detail to allow each property or business owner to calculate the amount of the assessment to be levied against their property or business. The plan also shall state whether bonds will be issued to finance improvements. (g) The time and manner of collecting the assessments. (h) The specific number of years in which assessments will be levied. In a new district, the maximum number of years shall be five. Upon renewal, a district shall have a term not to exceed 10 years. Notwithstanding these limitations, a district created pursuant to this part to finance capital improvements with bonds may levy assessments until the maximum maturity of the bonds. The management district plan may set forth specific increases in assessments for each year of operation of the district. (i) The proposed time for implementation and completion of the management district plan. (j) Any proposed rules and regulations to be applicable to the district. (k) for properties to be assessed, and a statement of the method or methods by which the expenses of a district will be imposed upon benefited real property or businesses, in proportion to the benefit received by the property or business, to defray the cost thereof. (2) In a property-based district, the proportionate special benefit derived by each identified parcel shall be determined exclusively in relationship to the entirety of the capital cost of a public improvement, the maintenance and operation expenses of a public improvement, or the cost of the activities. An assessment shall not be imposed on any parcel that exceeds the reasonable cost of the proportional special benefit conferred on that parcel. Only special benefits are assessable, and a property-based district shall separate the general benefits, if any, from the special benefits conferred on a parcel. Parcels within a property-based district that are owned or used by any city, public agency, the State of California, or the United States shall not be exempt from assessment unless the governmental entity can demonstrate by clear and convincing evidence that those publicly owned parcels in fact receive no special benefit. The value of any incidental, secondary, or collateral effects that arise from the improvements, maintenance, or activities of a property-based district and that benefit property or persons not assessed shall not be deducted from the entirety of the cost of any special benefit or affect the proportionate special benefit derived by each identified parcel. (3) In a property-based district, properties throughout the district may share the same special benefits. In a district with boundaries that define which parcels are to receive improvements, maintenance, or activities over and above those services provided by the city, the improvements, maintenance, or activities themselves may constitute a special benefit. The city may impose assessments that are less than the proportional special benefit conferred, but shall not impose assessments that exceed the reasonable costs of the proportional special benefit conferred. Because one or more parcels pay less than the special benefit conferred does not necessarily mean that other parcels are assessed more than the reasonable cost of their special benefit. (l) In a property-certified by the State of California supporting all assessments contemplated by the management district plan. (m) Any other item or matter required to be incorporated therein by the city council. 36623. Procedure to levy assessment (a) If a city council proposes to levy a new or increased property assessment, the notice and protest and hearing procedure shall comply with Section 53753 of the Government Code. (b) If a city council proposes to levy a new or increased business assessment, the notice and protest and hearing procedure shall comply with Section 54954.6 of the Government Code, except that notice shall be 1486
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mailed to the owners of the businesses proposed to be assessed. A protest may be made orally or in writing by any interested person. Every written protest shall be filed with the clerk at or before the time fixed for the public hearing. The city council may waive any irregularity in the form or content of any written protest. A written protest may be withdrawn in writing at any time before the conclusion of the public hearing. Each written protest shall contain a description of the business in which the person subscribing the protest is interested sufficient to identify the business and, if a person subscribing is not shown on the official records of the city as the owner of the business, the protest shall contain or be accompanied by written evidence that the person subscribing is the owner of the business or the authorized representative. A written protest that does not comply with this section shall not be counted in determining a majority protest. If written protests are received from the owners or authorized representatives of businesses in the proposed district that will pay 50 percent or more of the assessments proposed to be levied and protests are not withdrawn so as to reduce the protests to less than 50 percent, no further proceedings to levy the proposed assessment against such businesses, as contained in the resolution of intention, shall be taken for a period of one year from the date of the finding of a majority protest by the city council. (c) If a city council proposes to conduct a single proceeding to levy both a new or increased property assessment and a new or increased business assessment, the notice and protest and hearing procedure for the property assessment shall comply with subdivision (a), and the notice and protest and hearing procedure for the business assessment shall comply with subdivision (b). If a majority protest is received from either the property or business owners, that respective portion of the assessment shall not be levied. The remaining portion of the assessment may be levied unless the improvement or other special benefit was proposed to be funded by assessing both property and business owners. 36624. Changes to proposed assessments At the conclusion of the public hearing to establish the district, the city council may adopt, revise, change, reduce, or modify the proposed assessment or the type or types of improvements, maintenance, and activities to be funded with the revenues from the assessments. Proposed assessments may only be revised by reducing any or all of them. At the public hearing, the city council may only make changes in, to, or from the boundaries of the proposed property and business improvement district that will exclude territory that will not benefit from the proposed improvements, maintenance, and activities. Any modifications, revisions, reductions, or changes to the proposed assessment district shall be reflected in the notice and map recorded pursuant to Section 36627. 36625. Resolution of formation (a) If the city council, following the public hearing, decides to establish a proposed property and business improvement district, the city council shall adopt a resolution of formation that shall include, but is not limited to, all of the following: (1) A brief description of the proposed improvements, maintenance, and activities, the amount of the proposed assessment, a statement as to whether the assessment will be levied on property, businesses, or both within the district, a statement on whether bonds will be issued, and a description of the exterior boundaries of the proposed district, which may be made by reference to any plan or map that is on file with the clerk. The descriptions and statements need not be detailed and shall be sufficient if they enable an owner to generally identify the nature and extent of the improvements, maintenance, and activities and the location and extent of the proposed district. (2) The number, date of adoption, and title of the resolution of intention. (3) The time and place where the public hearing was held concerning the establishment of the district. (4) A determination regarding any protests received. The city shall not establish the district or levy assessments if a majority protest was received. (5) A statement that the properties, businesses, or properties and businesses in the district established by the resolution shall be subject to any amendments to this part. (6) A statement that the improvements, maintenance, and activities to be conferred on businesses and properties in the district will be funded by the levy of the assessments. The revenue from the levy of assessments within a district shall not be used to provide improvements, maintenance, or activities outside the district or for any purpose other than the purposes specified in the resolution of intention, as modified by the city council at the hearing concerning establishment of the district. Notwithstanding the foregoing, improvements and activities that must be provided outside the 1487
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district boundaries to create a special or specific benefit to the assessed parcels or businesses may be provided, but shall be limited to marketing or signage pointing to the district.(7) A finding that the property or businesses within the area of the property and business improvement district will be benefited by the improvements, maintenance, and activities funded by the proposed assessments, and, for a property-based district, that property within the district will receive a special benefit. (8) In a property-based district, the total amount of all special benefits to be conferred on the properties within the property-based district. (b) The adoption of the resolution of formation and, if required, recordation of the notice and map pursuant to Section 36627 shall constitute the levy of an assessment in each of the fiscal years referred to in the management district plan. 36627. Notice and assessment diagram Following adoption of the resolution establishing district assessments on properties pursuant to Section 36625, the clerk shall record a notice and an assessment diagram pursuant to Section 3114. No other provision of Division 4.5 (commencing with Section 3100) applies to an assessment district created pursuant to this part. 36628. Establishment of separate benefit zones within district; Categories of businesses The city council may establish one or more separate benefit zones within the district based upon the degree of benefit derived from the improvements or activities to be provided within the benefit zone and may impose a different assessment within each benefit zone. If the assessment is to be levied on businesses, the city council may also define categories of businesses based upon the degree of benefit that each will derive from the improvements or activities to be provided within the district and may impose a different assessment or rate of assessment on each category of business, or on each category of business within each zone. 36628.5. Assessments on businesses or property owners The city council may levy assessments on businesses or on property owners, or a combination of the two, pursuant to this part. The city council shall structure the assessments in whatever manner it determines corresponds with the distribution of benefits from the proposed improvements, maintenance, and activities, provided that any property-based assessment conforms with the requirements set forth in paragraph (2) of subdivision (k) of Section 36622. 36629. Provisions and procedures applicable to benefit zones and business categories All provisions of this part applicable to the establishment, modification, or disestablishment of a property and business improvement district apply to the establishment, modification, or disestablishment of benefit zones or categories of business. The city council shall, to establish, modify, or disestablish a benefit zone or category of business, follow the procedure to establish, modify, or disestablish a property and business improvement district. 36630. Expiration of district; Creation of new district If a property and business improvement district expires due to the time limit set pursuant to subdivision (h) of Section 36622, a new management district plan may be created and the district may be renewed pursuant to this part. CHAPTER 3: Assessments 36631. Time and manner of collection of assessments; Delinquent payments The collection of the assessments levied pursuant to this part shall be made at the time and in the manner set forth by the city council in the resolution levying the assessment. Assessments levied on real property may be collected at the same time and in the same manner as for the ad valorem property tax, and may provide for the same lien priority and penalties for delinquent payment. All delinquent payments for assessments levied pursuant to this part may be charged interest and penalties. 36632. Assessments to be based on estimated benefit; Classification of real property and businesses; Exclusion of residential and agricultural property 1488
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(a) The assessments levied on real property pursuant to this part shall be levied on the basis of the estimated benefit to the real property within the property and business improvement district. The city council may classify properties for purposes of determining the benefit to property of the improvements and activities provided pursuant to this part. (b) Assessments levied on businesses pursuant to this part shall be levied on the basis of the estimated benefit to the businesses within the property and business improvement district. The city council may classify businesses for purposes of determining the benefit to the businesses of the improvements and activities provided pursuant to this part. (c) Properties zoned solely for residential use, or that are zoned for agricultural use, are conclusively presumed not to benefit from the improvements and service funded through these assessments, and shall not be subject to any assessment pursuant to this part. 36633. Time for contesting validity of assessment The validity of an assessment levied under this part shall not be contested in an action or proceeding unless the action or proceeding is commenced within 30 days after the resolution levying the assessment is adopted pursuant to Section 36625. An appeal from a final judgment in an action or proceeding shall be perfected within 30 days after the entry of judgment. 36634. Service contracts authorized to establish levels of city services The city council may execute baseline service contracts that would establish levels of city services that would continue after a property and business improvement district has been formed. 36635. Request to modify management district plan modification of the management district plan shall be made pursuant to this chapter. 36636. Modification of plan by resolution after public hearing; Adoption of the resolution of intention district plan after conducting one public hearing on the proposed modifications. The city council may modify the improvements and activities to be funded with the revenue derived from the levy of the assessments by adopting a resolution determining to make the modifications after holding a public hearing on the proposed modifications. If the modification includes the levy of a new or increased assessment, the city council shall comply with Section 36623. Notice of all other public hearings pursuant to this section shall comply with both of the following: (1) The resolution of intention shall be published in a newspaper of general circulation in the city once at least seven days before the public hearing. (2) A complete copy of the resolution of intention shall be mailed by first class mail, at least 10 days before the public hearing, to each business owner or property owner affected by the proposed modification. (b) The city council shall adopt a resolution of intention which states the proposed modification prior to the public hearing required by this section. The public hearing shall be held not more than 90 days after the adoption of the resolution of intention. 36637. Reflection of modification in notices recorded and maps Any subsequent modification of the resolution shall be reflected in subsequent notices and maps recorded pursuant to Division 4.5 (commencing with Section 3100), in a manner consistent with the provisions of Section 36627. 36638. Assessment as government improvised fee on Civ C § 1770 transaction [Operative July 1, 2024] (a) A business assessment pursuant to this part is a fee imposed by a government on the transaction for purposes of paragraph (29) of subdivision (a) of Section 1770 of the Civil Code. (b) This section shall become operative on July 1, 2024. 1489
GOTMD Management District Plan 25 March 5, 2025
CHAPTER 3.5 Financing 36640. Bonds authorized; Procedure; Restriction on reduction or termination of assessments (a) The city council may, by resolution, determine and declare that bonds shall be issued to finance the estimated cost of some or all of the proposed improvements described in the resolution of formation adopted pursuant to Section 36625, if the resolution of formation adopted pursuant to that section provides for the issuance of bonds, under the Improvement Bond Act of 1915 (Division 10 (commencing with Section 8500)) or in conjunction with MarksRoos Local Bond Pooling Act of 1985 (Article 4 (commencing with Section 6584) of Chapter 5 of Division 7 of Title 1 of the Government Code). Either act, as the case may be, shall govern the proceedings relating to the issuance of bonds, although proceedings under the Bond Act of 1915 may be modified by the city council as necessary to accommodate assessments levied upon business pursuant to this part. (b) The resolution adopted pursuant to subdivision (a) shall generally describe the proposed improvements specified in the resolution of formation adopted pursuant to Section 36625, set forth the estimated cost of those improvements, specify the number of annual installments and the fiscal years during which they are to be collected. The amount of debt service to retire the bonds shall not exceed the amount of revenue estimated to be raised from assessments over 30 years. (c) Notwithstanding any other provision of this part, assessments levied to pay the principal and interest on any bond issued pursuant to this section shall not be reduced or terminated if doing so would interfere with the timely retirement of the debt. CHAPTER 4. Governance 36650. for which assessments are to be levied and collected to pay the costs of the improvements, maintenance, and activities described in the report. Thof operation of the district. The report may propose changes, including, but not limited to, the boundaries of the property and business improvement district or any benefit zones within the district, the basis and method of levying the assessments, and any changes in the classification of property, including any categories of business, if a classification is used. (b) The report shall be filed with the clerk and shall refer to the property and business improvement district by name, specify the fiscal year to which the report applies, and, with respect to that fiscal year, shall contain all of the following information: (1) Any proposed changes in the boundaries of the property and business improvement district or in any benefit zones or classification of property or businesses within the district. (2) The improvements, maintenance, and activities to be provided for that fiscal year. (3) An estimate of the cost of providing the improvements, maintenance, and activities for that fiscal year. (4) The method and basis of levying the assessment in sufficient detail to allow each real property or business owner, as appropriate, to estimate the amount of the assessment to be levied against his or her property or business for that fiscal year. (5) The estimated amount of any surplus or deficit revenues to be carried over from a previous fiscal year. (6) The estimated amount of any contributions to be made from sources other than assessments levied pursuant to this part. particular contained in the report and approve it as modified. Any modification shall be made pursuant to Sections 36635 and 36636. The city council shall not approve a change in the basis and method of levying assessments that would impair an authorized or executed contract to be paid from the revenues derived from the levy of assessments, including any commitment to pay principal and interest on any bonds issued on behalf of the district. 36651. 1490
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improvements, maintenance, and activities described in the management district plan. If the management district ion, the city shall contract with the designated nonprofit corporation to provide services. CHAPTER 5. Renewal 36660. Renewal of district; Transfer or refund of remaining revenues; District term limit (a) Any district previously established whose term has expired, or will expire, may be renewed by following the procedures for establishment as provided in this chapter. (b) Upon renewal, any remaining revenues derived from the levy of assessments, or any revenues derived from the sale of assets acquired with the revenues, shall be transferred to the renewed district. If the renewed district includes additional parcels or businesses not included in the prior district, the remaining revenues shall be spent to benefit only the parcels or businesses in the prior district. If the renewed district does not include parcels or businesses included in the prior district, the remaining revenues attributable to these parcels shall be refunded to the owners of these parcels or businesses. (c) Upon renewal, a district shall have a term not to exceed 10 years, or, if the district is authorized to issue bonds, until the maximum maturity of those bonds. There is no requirement that the boundaries, assessments, improvements, or activities of a renewed district be the same as the original or prior district. CHAPTER 6. Disestablishment 36670. Circumstances permitting disestablishment of district; Procedure (a) Any district established or extended pursuant to the provisions of this part, where there is no indebtedness, outstanding and unpaid, incurred to accomplish any of the purposes of the district, may be disestablished by resolution by the city council in either of the following circumstances: (1) If the city council finds there has been misappropriation of funds, malfeasance, or a violation of law in connection with the management of the district, it shall notice a hearing on disestablishment. (2) During the operation of the district, there shall be a 30-day period each year in which assessees may request disestablishment of the district. The first such period shall begin one year after the date of establishment of the district and shall continue for 30 days. The next such 30-day period shall begin two years after the date of the establishment of the district. Each successive year of operation of the district shall have such a 30-day period. Upon the written petition of the owners or authorized representatives of real property or the owners or authorized representatives of businesses in the district who pay 50 percent or more of the assessments levied, the city council shall pass a resolution of intention to disestablish the district. The city council shall notice a hearing on disestablishment. (b) The city council shall adopt a resolution of intention to disestablish the district prior to the public hearing required by this section. The resolution shall state the reason for the disestablishment, shall state the time and place of the public hearing, and shall contain a proposal to dispose of any assets acquired with the revenues of the assessments levied within the property and business improvement district. The notice of the hearing on disestablishment required by this section shall be given by mail to the property owner of each parcel or to the owner of each business subject to assessment in the district, as appropriate. The city shall conduct the public hearing not less than 30 days after mailing the notice to the property or business owners. The public hearing shall be held not more than 60 days after the adoption of the resolution of intention. 36671. Refund of remaining revenues upon disestablishment or expiration without renewal of district; Calculation of refund; Use of outstanding revenue collected after disestablishment of district (a) Upon the disestablishment or expiration without renewal of a district, any remaining revenues, after all outstanding debts are paid, derived from the levy of assessments, or derived from the sale of assets acquired with the revenues, or from bond reserve or construction funds, shall be refunded to the owners of the property or businesses then located and operating within the district in which assessments were levied by 1491
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applying the same method and basis that was used to calculate the assessments levied in the fiscal year in which the district is disestablished or expires. All outstanding assessment revenue collected after disestablishment shall be spent on improvements and activities specified in the management district plan. (b) If the disestablishment occurs before an assessment is levied for the fiscal year, the method and basis that was used to calculate the assessments levied in the immediate prior fiscal year shall be used to calculate the amount of any refund. 1492
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APPENDIX 2 ASSESSED BUSINESSES LODGING BUSINESS ADDRESS CITY, STATE ZIP 205 N EUCLID LLC 203 N Euclid Ave 1B Ontario CA 91762 205 N EUCLID LLC 203 N Euclid Ave 6A Ontario CA 91762 205 N EUCLID LLC 203 N Euclid Ave 8 Ontario CA 91762 AARON LI 2720 Eagle Creek Pl Ontario CA 91761 ABEL II MORA 223 S Bermuda Dunes St Ontario CA 91762 ABEL MORA 8890 Church St Rancho Cucamonga CA 91730 AIDA SEGURA 2902 Palomino Ct Ontario CA 91761 Airport Stay Motel 1211 North Grove Avenue Ontario CA 91764 ALFRED T FONG 2550 E Canterbury Trail Ontario CA 91761 ALLEN PENG 541 N Vine Ave Ontario CA 91762 Aloft Ontario-Rancho Cucamonga 10480 Fourth Street Rancho Cucamonga CA 91730 American Inn 755 North Euclid Avenue Ontario CA 91762 ANGEL T TONGCO 3159 Clover Ln Ontario CA 91761 ANNETTE DUSSETT 11149 Summerside Ln Rancho Cucamonga CA 91701 Armendariz Family Living TR 12/16/22 2632 E Dunes St Ontario CA 91761 Ayres Suites at the Mills Mall 4370 Mills Circle Ontario CA 91764 Azure Hotel & Suites Ontario Airport 1945 East Holt Boulevard Ontario CA 91761 Baymont Inn & Suite Ontario 1655 East 4th Street Ontario CA 91764 BENJAMIN BINLING CHEN 2246 Loggers Ln Ontario CA 91762 BENNY ANTHONY RAMIREZ AGUILAR 1446 N Campus Ave Ontario CA 91764 Best Ontario Inn 1045 West Mission Boulevard Ontario CA 91762 Best Western Ontario Airport 209 North Vineyard Avenue Ontario CA 91764 Best Western Ontario Mills Mall 4395 Ontario Mills Parkway Ontario CA 91764 Best Western Plus Heritage Inn 8179 Spruce Ave. Rancho Cucamonga CA 91730 BING JIANG 2614 GARFIELD AVE Ontario CA91761 BINGWU GENG 559 E ROSEWOOD CT Ontario CA 91764 BOWEN LI 608 E Joseph Privado Ontario CA 91761 BRANDI GREWAL 6009 JADEITE AVE Alta Loma CA 91737 Bright Star Motel 1530 West Mission Boulevard Ontario CA 91762 CAI LIVING TRUST 6322 Semillon Pl Rancho Cucamonga CA 91737 Canden HEUTON 2637 S Quaker Ridge Pl Ontario CA 91761 Candlewood Suites 1818 East Holt Boulevard Ontario CA 91761 Capri Inn 1217 East Holt Boulevard Ontario CA 91764 CATHY WANG 105 E Rosewood Ct Ontario CA 91764 Chan Phoebe Family Trust 2/11/12 704 W Granada Ct Ontario CA 91762 CHEAN NANCY & MICHAEL FAM TR 908 W 4TH ST Ontario CA 91762 CHESTER GILCHRIST 1004 W PRINCETON ST Ontario Ca 91762 Cheung Family Revocable Trust 8/19/1 845 Virginia Ave Ontario CA 91764 Cheung Family Revocable Trust 9/19/1 638 W Harvard Pl Ontario CA 91762 CHRISTIAN TAI 3684 Hyche Ave Ontario CA 91761 Christmas House Bed and Breakfast Inn 9240 Archibald Avenue Rancho Cucamonga CA 91730 CHU-JAN CHENG 10460 Alta Loma Dr Rancho Cucamonga CA 91737 1493
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CHUNHUA LI 2476 Salem St Ontario CA91761 CLEMONS CARMEN REVOCABLE TRUST 4/20 5219 Cartilla Ave Rancho Cucamonga CA 91737 Comfort Inn & Suites 3333 Shelby Drive Ontario CA 91764 Comfort Suites 1811 E. Holt Blvd. Ontario CA 91761 Country Inn 2359 South Grove Avenue Ontario CA 91761 Country Inn & Suites - Ontario Mills 4674 E. Ontario Mills Pkwy Ontario CA 91764 Courtyard by Marriott Rancho Cucamonga 11525 Mission Vista Dr. Rancho Cucamonga CA 91730 CRT FAMILY TRUST 2/5/13 1105 S Elderberry Ave Ontario CA 91762 CRYSTAL EARWOOD 6963 SHAMROCK LN ALTA LOMA CA 91701 D & R TRUST 3674 S HYCHE AVE Ontario CA 91761 DANIEL T JR CLARK 5554 Glen Ridge Ct Rancho Cucamonga CA 91739 DANIEL VASQUEZ 11618 Mt Hood Ct Rancho Cucamonga CA 91737 DANIEL YANG 2465 E Bennington St Ontario CA 91761 DARRYL R LEVESQUE 1016 E I St Ontario CA 91764 Days Inn 1405 East 4th Street Ontario CA 91764 DEJUN XU 5400 Stoneview Rd Rancho Cucamonga CA 91739 Delta Hotels by Marriott 2200 East Holt Boulevard Ontario CA 91761 DEYANIRA REQUENES 9949 Meadowood Dr Rancho Cucamonga CA 91737 Doubletree by Hilton Ontario Airport 222 North Vineyard Avenue Ontario CA 91764 DO-YOUNG PARK 8623 Adega Dr Rancho Cucamonga CA 91730 DX FAMILY TRUST 750 W Hollowell St Ontario CA 91762 Economy Inn 2301 South Euclid Avenue Ontario CA 91762 Element Ontario 900 Via Piemonte Ontario CA 91764 Embassy Suites Ontario 3663 East Guasti Road Ontario CA 91761 ERIC JAMES HONANIE 1309 W Mission Dr 81 Ontario CA 91762 Express Inn & Suites 1150 North Grove Avenue Ontario CA 91764 Extended Stay America #911 3990 East Inland Empire Boulevard Ontario CA 91764 Fairfield Inn and Suites 9550 Pittsburgh Avenue Rancho Cucamonga CA 91730 FENG ZHU YI 4345 S Amherst Ave Ontario CA91762 Four Points Rancho Cucamonga 11960 Foothill Blvd. Rancho Cucamonga CA 91739 FRANCISCO JAVIER MEZA 307 W 6th St Ontario CA 91762 FRANCISCO PILA 300 N Allyn Ave Ontario CA 91764 GABRIEL SANCHEZ 1138 S Greenwood Ave Ontario CA 91761 GARDUNO MARIA RODRIGUEZ LIV TR 9/9 2107 S Euclid Ave Ontario CA 91762 GEORGINA MILANES FONTANILLA 9472 Sunglow Ct Rancho Cucamonga CA 91730 GEORGINA MILANES FONTANILLA 9472 Sunglow Ct Rancho Cucamonga CA 91730 GUANG SHOU LIN 1609 E DEODAR ST Ontario CA 91764 HAI ZHU 818 W Bonnie Brae Ct Ontario CA 91762 HAICHUCK ZHANG 9743 Woodleaf Dr Rancho Cucamonga CA 91737 HAIFENG WANG 13215 River Oaks Dr Rancho Cucamonga CA 91739 HAIZHU LIN 4835 S Monarch Pl Ontario CA 91762 Hampton Inn & Suites - Ontario 4500 East Mills Circle Ontario CA 91764 Hampton Inn & Suties Rancho Cucamonga 11669 Foothill Blvd Rancho Cucamonga CA 91730 HANA A AL JABARI 11700 BRANDYWINE PL Rancho Cucamonga CA 91730 1494
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HAO ZHANG 7032 Avenida Leon Rancho Cucamonga CA 91701 HARDY NGUYEN 12409 HARWICK DR Rancho Cucamonga Ca 91739 HARDY NGUYEN 13198 FIRESTONE DR Rancho Cucamonga CA 91739 HDK GROUP LLC 2440 E Salem St Ontario CA 91761 HENRY KE 2238 Loggers Ln Ontario CA 91762 Heritage Inn of Rancho Cucamonga 11481 Mission Vista Dr. Rancho Cucamonga CA 91730 Holiday Inn Express & Suites Ontario 2280 South Haven Ave. Ontario CA 91761 Holiday Inn Express Hotel & Suites 9589 Milliken Ave. Rancho Cucamonga CA 91730 Holiday Inn Ontario 2155 E. Convention Center Way Ontario CA 91764 HOLLY QIAOYI HUANG 3342 S NEWTON AVE Ontario CA 91761 Homewood Suites RC 11433 Mission Vista Dr. Rancho Cucamonga CA 91730 HONG BAO 9153 CANDLEWOOD ST Rancho Cucamonga CA 91730 HONG CHU 7676 Marine Ave Rancho Cucamonga CA 91730 HONGWEI SHI 9596 SEASONS DR Rancho Cucamonga Ca 91730 Hotel d'Lins 3400 East Shelby Street Ontario CA 91764 Hotel Hacienda 2425 South Archibald Avenue Ontario CA 91761 Hotel Seville 2441 South Euclid Avenue Ontario CA 91762 Hyatt Place Ontario 4760 East Mills Circle Ontario CA 91764 ICE BLUE LLC 1672 E Harvard Pl A Ontario CA 91764 ICE BLUE LLC 1672 E Harvard Pl B Ontario CA 91764 I-CHUN CHEN 604 W Bonnie Brae Ct Ontario CA 91762 IM STILL WITH YOU TRUST 5/2/22 4381 Amherst Ave Ontario CA 91762 IWINI SURROGACY INC 1153 Whittlers Pl Ontario CA 91762 JENNY LI 3954 E Catalina St Ontario CA 91761 JIA WANG 1013 S EUCLID AVE Ontario Ca 91762 JIAHAO WU 2938 E Arbor Ln Ontario CA 91762 JIAHUI HUANG 938 W GRANADA CT Ontario CA 91762 JIAMING LIU 768 W H St Ontario CA 91762 JIANLI WANG 10663 ORANGE BLOSSOM DR Rancho Cucamonga CA 91730 JIANLI WANG 8602 Stoneside Dr Rancho Cucamonga CA 91730 JIASHUN JI 2714 S Garfield Ave Ontario CA 91761 JILL HUANG WONG 321 E Maple St Ontario CA 91761 JINGTAO GAO 5090 S CENTENNIAL CIR Ontario CA 91762 JINGTAO GAO 5090 S CENTENNIAL CIR EAST Ontario CA 91672 JOANNA D TSAI 11450 Church Street 9 Rancho Cucamonga CA 91730 JORGE RAFAEL GUERRERO MAYO 13178 CHATHAM DR Rancho Cucamonga CA 91739 JOSEPH C NG 11241 Terra Vista Pkwy Rancho Cucamonga CA 91730 JOSEPH XANO & ADELE REV T WANG & TAN 926 W HAWTHORNE ST Ontario CA 91762 JOSEPH XANO WANG 1749 E Yale St Ontario CA 91764 JUMING SUN 9821 La Vine Ct Rancho Cucamonga CA 91701 JUNG KAI LAI 6868 Aberdeen Ct Rancho Cucamonga CA 91739 KATHY A MADISON 3266 Sweetwater Dr Ontario CA 91761 KEITH DION BRATTON 944 Divino Privado N 64 Ontario CA 91764 KE-JIA YU 3255 S Newton Ave Ontario CA 91761 KENNY CHEN 10311 FINCH ST Rancho Cucamonga CA 91737 1495
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Kittitod Pongvattanasomporn 6767 RAMONA AVE Alta Loma Ca 91701 Konomi Marie LLC 2164 E Alondra St Ontario CA 91764 KRISTINE SUZANNE ESCUJURI 7710 EASTWOOD AVE Rancho Cucamonga CA 91730 KUN SHI 11002 Getaway Dr Rancho Cucamonga CA 91730 La Quinta Inn & Suites #170 3555 E. Inland Empire Boulevard Ontario CA 91764 LAI YIM WONG 315 N Marin Privado Ontario CA 91764 LAI YIM WONG 6584 Vianza Pl Rancho Cucamonga CA 91701 LAZARUS SAINT FAMILY TRUST 12/29/16 7639 Archibald Ave 7645 Rancho Cucamonga CA 91730 Le Doux Jennifer Revocable TR 6-26 125 E H St Ontario CA 91764 LI LI 552 E Hawthorne St Ontario CA 91764 LI LI 558 E HAWTHORNE ST A Ontario CA 91764 LIAN HUANG 203 W G St Ontario CA 91762 LIU DONGMEI 4014 E Catalina St Ontario CA 91761 LIUTAO TANG 8510 Monte Vista St Alta Loma California 91701 Lotus Inn & Suites 724 South San Antonio Avenue Ontario CA 91762 MAJID REZA ZEREHI 740 Camalot Ct Ontario CA 91762 MARIO PEREZ 1453 E RIVERSIDE DR Ontario Ca 91761 MAT HO 13062 MALVASIA WAY Rancho Cucamonga CA 91739 MAURICIO GARCIA RECILLAS 540 E D St Ontario CA 91764 Mayfair Inn 1120 East Holt Boulevard Ontario CA 91761 MEI LI 2819 S Euclid Ave Ontario CA 91761 MEIRONG DENG 9313 Valley View St Rancho Cucamonga CA 91737 MENG-HSIEN SUN 715 E Boxwood Ct Ontario CA 91761 Metaverse Kingdom Castle LLC 3099 E Arbor Ln Ontario CA 91762 MICHAEL CARR BARRON 2884 E La Avenida Dr Ontario CA91761 MICHAEL WILLIAMS 6351 CARNABY CT Rancho Cucamonga CA 91739 MICHELE CHADEAYNE 219 E GRANADA CT Ontario Ca 91764 MICHELLE MA 1369 S EUCLID AVE Ontario CA 91762 MICHELLE QIAOLI XU 1985 E Harvard Privado A Ontario CA 91764 MIGUEL A JR NAJERA 1516 W Stoneridge Ct Ontario CA 91762 MINA MICHAEL 2638 S CALAVERAS PL Ontario Ca 91761 MINYANG WANG 4892 S Jordan Ave Ontario CA 91762 Mission Motel 1514 W. Mission Boulevard Ontario CA 91762 Moreno Family Trust 10/27/23 951 E D ST Ontario CA 91764 Motel 6 Ontario Airport 1560 East 4th Street Ontario CA 91764 Mountain Inn 2289 South Mountain Avenue Ontario CA 91762 NADINE ROUFAIL SAMAAN 12183 Appian Dr Rancho Cucamonga CA 91739 New Kansan Motel 9300 Foothill Blvd. Rancho Cucamonga CA 91730 Ontario Airport Hotel 700 North Haven Avenue Ontario CA 91764 Ontario Airport Inn 1801 East G Street Ontario CA 91764 Ontario Golden Bear Inn 661 West Holt Boulevard Ontario CA 91762 Ontario Motor Inn 1522 W Mission Blvd Ontario CA 91762 Ontario SpringHill Suites 3595 E. Guasti Rd. Ontario CA 91761 Pepper Tree Motel 1241 East Holt Boulevard Ontario CA 91761 PING LUO 6235 VALINDA AVE Rancho Cucamonga CA 91737 1496
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QIHE CHEN 543 W Francis St Ontario CA 91762 Quality Inn Ontario Airport 514 North Vineyard Avenue Ontario CA 91764 Ramada Ontario Airport 1841 East G Street Ontario CA 91764 Rancho Cucamonga Garden Inn 11481 Mission Vista Drive Rancho Cucamonga CA 91730 Rancho Motel 1440 West Mission Boulevard Ontario CA 91762 RAQUEL BIANCA ACOSTA 1159 W E St Ontario CA 91762 RAYMOND CALDERON 1004 W YALE ST Ontario Ca 91762 RC DICKSON TRUST 7/11/22 723 W Camalot Ct Ontario CA 91762 Red Carpet Motel 1117 North Baker Avenue Ontario CA 91764 Residence Inn Ontario 2025 E. Convention Center Way Ontario CA 91764 Residence Inn-Rancho Cucamonga 9299 Haven Avenue Rancho Cucamonga CA 91730 RICHARD OPPELAAR 551 E H St Ontario CA 91764 ROCHA EDUARDO & ADRIANA FAM TR 2/16 7376 Reserve Pl Rancho Cucamonga CA 91739 Rodeway Inn - Ontario Mills Mall 4075 East Guasti Road Ontario CA 91761 RUBY Khanal 4491 S GRANT PASEO Ontario CA 91762 RUI JIAN 2942 S Halton Ontario CA 91761 Sands Motel 1240 West Mission Boulevard Ontario CA 91762 SEN LI 1403 N Amador Ave Ontario CA 91764 SHARIF S WAFFIN 9404 Somerset Dr Rancho Cucamonga CA 91701 SHEN KUO HSU 13858 Nash Dr Rancho Cucamonga CA 91739 Sheraton Ontario Airport 429 North Vineyard Avenue Ontario CA 91764 SHILONG LEI 963 Orchard Ln Ontario CA 91764 Sol Investments & Solutions Inc 720 N ALAMEDA AVE Ontario CA 91764 Star Motel 1250 West Mission Boulevard Ontario CA 91762 STEVENS FAMILY TRUST 1/4/19 4869 S MONARCH PL Ontario Ca 91762 Studio 6 231 North Vineyard Avenue Ontario CA 91764 SureStay (Fromerly Fairfield Inn by Marriott) 3201 East Centrelake Drive Ontario CA 91761 TAM NGOC NGUYEN 751 W Holt Blvd Ontario CA 91762 TownePlace Suites 9625 Milliken Ave. Rancho Cucamonga CA 91730 USA LUCKY BABY INC 6998 ETIWANDA AVE Rancho Cucamonga CA 91739 Vandermeer Alan & Isabel Rev TR 9/2 6689 Sevilla Pl Rancho Cucamonga CA 91739 Wayne Tung 3739 Pinto Pl Ontario CA 91761 WEI XIE 1456 E Merion Ct Ontario CA 91761 WEICE CHEN 12792 N Rim Way Rancho Cucamonga CA 91739 WEIJIE XIE 501 E Princeton St Ontario CA 91764 WENDY ELIZABETH BELTRAN 735 N Imperial Ave Ontario CA 91764 WENQING CUI 846 W CHESTNUT ST Ontario Ca 91762 WENYIN ZHANG 4714 S JASMINE LN Ontario CA 91762 WING LUN NG 1952 E Brookside Dr Ontario CA 91761 WING LUN NG 2242 S Augusta Pl Ontario CA 91761 WING LUN NG 734 E J ST Ontario CA 91764 WOLE A ADEGOKE 6229 LAUREL BLOSSOM PL Rancho Cucamonga CA 91739 XIANXING JIANG 6132 CELESTITE AV Rancho Cucamonga CA 91701 XIAO HUANG 4061 E LUNA PASEO 31 Ontario CA 91764 XIAOFANG XIONG 642 W H St Ontario CA 91762 1497
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XIAOGANG SHI 2633 E Clara Ln Ontario CA 91762 XIAOLING YU 11159 ST TROPEZ DR Rancho Cucamonga CA 91730 XIAOMIN XIAN 214 E F St Ontario CA91764 XIAOYU ZHANG 1824 S Fern Ave Ontario CA 91762 XIN ZUO 2492 E WILLIAMSBURG LN Ontario Ca 91761 XU YANHUA FAMILY TRUST 709 W CEDAR ST Ontario CA 91762 YAN RONG ZHENG 8960 LARAMIE DR RANCHO CUCAMONGA CA 91737 YANJUN YANG 9370 Valley View St Rancho Cucamonga CA 91737 YANVESTMENT 1924 S Helen Ave Ontario CA91762 YANYING SUN 5595 Malachite Ave Alta Loma CA 91737 YAO CHEN 12258 MOUNTAIN ASH CT Etiwanda CA 91739 YI Y ROBERTS 14066 Glendale Ct Rancho Cucamonga CA 91739 YING REN 9703 La Vine Ct Rancho Cucamonga CA 91701 YIQIAN ZHOU 213 E F ST Ontario CA 91764 YU & CHIU FAMILY TRUST 03/06/08 10663 WILDROSE DR Rancho Cucamonga CA 91730 YUGUANG YUAN 3275 E BUTTERFLY LN Ontario CA 91762 YUSHENG NI 9387 Shadowgrove Dr Rancho Cucamonga CA 91730 YUYA SUZUKI 4853 S PRINCE WAY Ontario CA 91762 ZHIQIANG QI 9206 Placer St Rancho Cucamonga CA 91730 ZIHUAN LIU 1125 East E Street Ontario CA 91764 ZILIANG GU 1711 E Hawthorne St Ontario CA 91764 ZIYOU HUANG 9553 HAMMOCK PL RANCHO CUCAMONGA CA 91730 Jurisdiction list as of December 2024. 1498
Department: Human Resources
Prepared By: Reed Sigler
Staff Member Presenting: Angela C. Lopez,
Executive Director Human Resources
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 24
SUBJECT:
APPROVAL OF A SIDE LETTER AMENDING THE MEMORANDUM OF
UNDERSTANDING FOR THE ONTARIO PROFESSIONAL FIREFIGHTER ASSOCIATION
IN ACCORDANCE WITH MODIFICATIONS REQUIRED BY CALPERS
CITY OF ONTARIO
Agenda Report
May 20, 2025
SECTION:
ADMINISTRATIVE
REPORTS/DISCUSSION/ACTION
RECOMMENDATION:
That the City Council, by motion, adopt a Resolution to approve a side letter amending the City of Ontario ("City") and Ontario Professional Firefighter Association ("OFFA") Memorandum of Understanding from July 1, 2023 to June 30, 2027 in accordance with modifications required by the California Public Employees Retirement System (CalPERS) to ensure that pension benefits are properly calculated.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Maintain the Current High Level of Public Safety
FISCAL IMPACT:
The recommended action has no direct fiscal impact as the Memorandum of Understanding modifications coincide with the City's current practice of reporting special compensation for employees represented by the Ontario Professional Firefighters Association.
BACKGROUND & ANALYSIS:
The proposed Resolution related to amending the current Memorandum of Understanding for OFFA is recommended as a result of the review from CalPERS of reportable compensation for employees recently retired from active service in accordance with the California Public Employees' Retirement Law. CalPERS indicated that modifications to sections in the OFFA Memorandum of Understanding are required to coincide with the City's practice in reporting special compensation to CalPERS. The modifications requested in the proposed Resolution and side letter are to include language to identify the calculation of special compensation, including the calculation of Heavy Equipment Operator, Aircraft Rescue &
Firefighting (ARFF) Assignment, Longevity, and Holiday
pay. To ensure compliance, the City met
with OFFA to discuss the proposed changes and approve the modifications. The Resolution and side letters will help ensure that special compensation items reported by the City to CalPERS are included in the calculation of pension benefits for retirees as intended by the City. 1499
RESOLUTION NO. ________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, APPROVING A SIDE LETTER AMENDING THE
MEMORANDUM OF UNDERSTANDING FOR EMPLOYEES
REPRESENTED BY THE ONTARIO PROFESSIONAL FIREFIGHTERS
ASSOCIATION.
WHEREAS, the City of Ontario (“City”) and the Ontario Professional Firefighters Association, Local 1430 I.A.F.F. (OFFA) entered into a memorandum of understanding from July 1, 2023 through June 30, 2027 (“MOU”) to outline the agreement between the parties regarding wages, hours, and other terms and conditions of employment; and WHEREAS, the California Public Employees Retirement System (“CalPERS”) conducted a review of the reported compensation for several retiring City employees and instructed the City to make certain modifications to the MOU in order to ensure that reported special compensation items were included in pension benefit calculations.
NOW THEREFORE, be it resolved the City Council hereby finds and determines the following:
SECTION 1. That the City Council hereby approves a side letter amending the MOU, incorporated herein by reference and enclosed as Exhibit “A” (“side letter”), which incorporates the modifications suggested by CalPERS.
SECTION 2. That the City Council hereby authorizes the City Manager to execute said side letter on behalf of the City.
SECTION 3. This Resolution shall become effective upon its adoption.
SECTION 4. The City Mayor shall sign this Resolution, and the City Clerk shall attest and certify to the passage and adoption thereof.
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 20th day of May, 2025. _____________________________________
PAUL S. LEON, MAYOR
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ATTEST:
____________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
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STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2025- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held May 20, 2025 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. 2025- duly passed and adopted by the Ontario City Council at their regular meeting held May 20, 2025. _____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
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