BB&K 2020
PAUL S. LEON
MAYOR
ALAN D. WAPNER
MAYOR PRO TEM
JIM W. BOWMAN
DEBRA PORADA
DAISY MACIAS
COUNCIL MEMBERS
SHEILA MAUTZ
CITY CLERK
JAMES R. MILHISER
CITY TREASURER
SCOTT OCHOA
CITY MANAGER
AMENDMENT NO. 9
TO THE SECURITY CAMERAS, ACCESS CONTROL,
PAGING/DURESS INSTALLATION, REPAIR AND MAINTENANCE
SERVICES AGREEMENT BETWEEN THE CITY OF ONTARIO AND
AMERICAN THREAT ASSESSMENT CONSULTING, INC.
1. Parties and Date.
This Amendment No. 9 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and American Threat Assessment Consulting, Inc. , a Corporation (Consultant) . City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Recitals.
2.1 Agreement. T he City and Consultant have entered into an agreement entitled Security Cameras, Access control, Paging/Duress Installation, Repair and Maintenance Service Agreement dated August 1, 2020 (“Agreement”).
2.2 Amendment Purpose . T he City and Consultant desire to amend the Agreement to extend the term for three additional years , increase the not-to-exceed total by $716,048, and revise the scope.
2.3 Amendment Authority. This Amendment No. 9 is authorized pursuant to Section 3.1 of the Agreement.
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3. Terms.
3.1 Amendment. Exhibit A – Scope of Services is hereby amended to add Attachment A and B, which is hereto and incorporated herein by reference. All other previously added or deleted scope of services are retained in their entirety.
Section 3 of the Agreement is hereby amended in its entirety to read as follows:
3.1.2 Term. The term of this Agreement shall be from August 1, 2020 through July 30, 202 8, unless earlier terminated as provided herein. Contractor shall complete the services within the terms of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.3.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference.
The total compensation shall not exceed Two Million Four Hundred Ninety- Three Thousand Nine Hundred Sixty-Three Dollars ($2,493,963) without written approval of the City Manager. Extra work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2 Continuing Effect of Agreement . Except as amended by this Amendment No. 9, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Am endment No. 9. From and after the date of this Amendment No. 9, whenever the term “Agreement” appears in the Agre ement, it shall mean the Agreement as amended by this Amendment No. 9.
3.3 Adequate Consideration. The Parties hereto irrevocably stipulat e and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 9.
3.4 Severability. If any portion of this Amendment No. 9 is declared invalid, i llegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of t his Amendment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integrated amendment.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 9 TO THE SECURITY CAMERAS, ACCESS
CONTROL, PAGING/DURESS INSTALLATION, REPAIR AND MAINTENANCE
SERVICES AGREEMENT BETWEEN THE CITY OF ONTARIO AND AMERICAN THREAT ASSESSMENT CONSULTING, INC.
IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 9 as of the day and year first above written.
CITY OF ONTARIO AMERICAN THREAT ASSESSMENT
CONSULTING, INC.
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
City Clerk
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ATTACHMENT A
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ATTACHMENT B
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AMENDMENT NO. 10
TO THE SECURITY CAMERAS, ACCESS CONTROL,
PAGING/DURESS INSTALLATION, REPAIR AND MAINTENANCE
SERVICES AGREEMENT BETWEEN THE CITY OF ONTARIO AND
AMERICAN THREAT ASSESSMENT CONSULTING, INC.
1. Parties and Date.
This Amendment No. 10 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and American Threat Assessment Consulting, Inc a corporation(“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Recitals.
2.1 Agreement. T he City and Contractor have entered into an agreement entitled Security Cameras, Access control, Paging/Duress Installation, Repair and Maintenance Service Agreement dated August 1, 2020 (“Agreement”).
2.2 Amendment Purpose . T he City and Contractor desire to amend the Agreement to extend the term, add additional compensation for the purchase of additional equipment and increase the not to exceed total.
2.3 Amendment Authority. This Amendment No. 10 is authorized pursuant to Sectio n
3.1 of the Agreement.
3. Terms.
3.1 Amendment. Exhibit “A” – Scope of Services is hereby amended to add Attachment “A”, which is hereto and incorporated herein by reference. All other previou sly added or deleted scope of services are retained in their entirety.
3.1.1 Amendment. Section 3.1.2 of the Agreement is her eby amended in its entirety to read as follows:
3.1.2 Term. The term of this Agreement shall be from August 1st, 2020 to June 30th, 2030, unless earlier terminated as provided herein. Vendor shall provide all Goods and complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.
PAUL S. LEON
MAYOR
ALAN D. WAPNER
MAYOR PRO TEM
JIM W. BOWMAN
DEBRA PORADA
DAISY MACIAS
COUNCIL MEMBERS
SHEILA MAUTZ
CITY CLERK
JAMES R. MILHISER
TREASURER
SCOTT OCHOA
CITY MANAGER
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The Parties may, by mutual, written consent, ext end the term of this Agreement if necessary to complete the work.
3.1.2 Amendment. Section 3.3.1 of the Agreement is hereby am ended in its entirety to read as follows:
3.3.1 Compensation. Contractor shall receive compensation, including authorized reim bursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” . The total compensation shall not exceed Two Million Five Hundred Thirty -Five Thousand Three Hundred Fifty -Nine Dollars ($2,535,359) without written approval o f the City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 10 all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 8. From and after the date of this Amendment No. 10, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 10.
3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agr ee that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 10.
3.4 Severability. If any portion of this Amendment No. 10 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Ame ndment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporat ed herein. This is an integrated amendment.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 10 TO THE SECURITY CAMERAS,
ACCESS CONTROL, PAGING/DURESS INSTALLATION, REPAIR AND
MAINTENANCE SERVICES AGREEMENT BETWEEN THE CITY OF ONTARIO AND AMERICAN THREAT ASSESSMENT CONSULTING, INC.
IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 10 as of the day and year first above written.
CITY OF ONTARIO American Threat Assessment Consulting,
Inc.
If Corporation, Two Signatures, President Or Vice President And Secretary Or Treasurer Required
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
City Clerk
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EXHIBIT “A”
“Scope of Services”
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EXHIBIT “C”
“Compensation”
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892
Department: Police Department
Prepared By: Celeste Owens
Staff Member Presenting: Mike Lorenz, Chief of
Police
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 14
SUBJECT:
A PROFESSIONAL SERVICES AGREEMENT WITH LAW ENFORCEMENT MEDICAL SERVICES, INC. FOR MEDICAL EVIDENCE COLLECTION SERVICES
CITY OF ONTARIO
Agenda Report
June 17, 2025
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council authorize the City Manager, or his designee, to execute a Professional Services Agreement, through cooperative purchasing, for medical evidence collection services with Law Enforcement Medical Services, Inc., of Fontana, California, for a total not-to- exceed amount of $185,000.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
FISCAL IMPACT:
The Professional Services Agreement has a not-to-exceed amount of $185,000. If approved, appropriations in the General Fund will be included in future annual budgets to City Council for approval as needed for medical evidence collection services.
BACKGROUND & ANALYSIS:
Since 2012, the Ontario Police Department has utilized the services of Law Enforcement Medical Services, Inc. (LEMS) to support critical forensic and medical procedures.
These services include on-site blood withdrawals, sexual assault examinations for both suspects and victims, and expert witness testimony, all conducted by qualified healthcare professionals.
LEMS delivers these services at various locations throughout the City, ensuring timely and efficient evidence collection in support of public safety and investigative processes.
On September 14, 2021, the San Bernardino County Board of Supervisors approved Contract No. 21-675 (Item No. 50) with LEMS to provide medical evidence collection services from October 01, 2021, through September 30, 2024. The agreement included options to extend the term for two additional one-year periods or one additional two-year period. On September 24, 2024, the County amended the agreement to extend the contract through September 30, 2026.
A cooperative purchasing arrangement is being sought under the terms of the County's existing agreement with LEMS. Cooperative purchasing enables the City to leverage the County's procurement terms, resulting in cost savings and administrative efficiency. This approach provides both fiscal and operational advantages by pooling purchasing power with another public agency. 893
By entering into a cooperative purchasing agreement with LEMS, the City will continue to receive high quality, cost-effective medical evidence collection services, aligning with San Bernardino County's contract cycle and ensuring continuity in public safety operations.
Given the longstanding partnership with LEMS, the consistently high quality of services provided, and the demonstrated value in terms of both time and cost savings, Staff recommends continuing services through a cooperative purchasing model as it best supports public safety and operational efficiency.
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PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY
OF ONTARIO AND LAW ENFORCEMENT MEDICAL SERVICES
1. PARTIES AND DATE.
This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California ("City") and Law Enforcement Medical Services, INC, a Corporation, with its principal place of business at 8285 Sierra Avenue, Suite 107, Fontana, California 92335 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing professional medical evidence collection services to public clients, is licensed in the State of California, and is familiar with the plans of City.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional medical evidence collection services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from July 01, 2025 to September 30, 2026, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if PAUL S. LEON
MAYOR
ALAN D. WAPNER
MAYOR PRO TEM
JIM W. BOWMAN
DEBRA PORADA
DAISY MACIAS
COUNCIL MEMBERS
SHEILA MAUTZ
CITY CLERK
JAMES R. MILHISER
TREASURER
SCOTT OCHOA
CITY MANAGER
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necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed One Hundred Eighty Five Thousand Dollars ($185,000) without written approval of the City Council or City Manager, as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2.2 Payment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.
City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.
3.2.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
3.2.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.2.5 Automated Clearing House (“ACH”) payments. It is the City’s policy to pay its consultant invoices via electronic fund transfers through the ACH network. All payments due and owing pursuant to a properly issued and correct invoice or under this Agreement shall be made through electronic ACH transfers, unless otherwise agreed upon by both Parties in writing.
Consultant shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Consultant in the amount required pursuant to a properly issued and correct invoice or under this Agreement. Each Party shall undertake any and all required actions and execute any required documents, instruments, or agreements required to effectuate the requirements of this Section. In the event the City erroneously deposits funds into an account, or otherwise deposits funds to which Consultant is not entitled: (1) Consultant shall immediately notify the City and the financial institution; (2) Consultant shall not withdraw any of the funds which were erroneously deposited or to which Consultant is not entitled; and (3) Consultant authorizes both the City and financial institution to take all actions necessary to correct the error and return to the City all funds erroneously deposited or to which Consultant is not entitled. 896
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3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law.
Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.3.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows:
3.3.5 City's Representative. The City hereby designates the City Manager, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in this Agreement.
Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
3.3.6 Consultant's Representative. Consultant hereby designates Kris Rowney, President, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the 897
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satisfactory coordination of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.
3.3.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.3.9 Period of Performance.
3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.3.9.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.
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3.3.9.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Consultant to any additional compensation.
Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
3.3.10 Laws and Regulations; Employee/Labor Certification.
3.3.10.1 Compliance with Laws. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.3.10.2 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement.
3.3.10.3 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.4 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.5 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such 899
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authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.
3.3.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed.
3.3.11 Insurance.
3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.3.11.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $2,000,000 per occurrence and no less than $4,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with 900
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limits of not less than $1,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement.
3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability: (1) Additional Insured: The City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Vendor or for which the Vendor is responsible. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(C) Professional Liability (Errors & Omissions (1) Cancellation:
Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) This insurance shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend.
(D) Workers' Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.3.11.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other 901
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insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or self- insured retention must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
3.3.11.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.3.11.9 Enforcement of Agreement Provisions (non estoppel).
Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.3.11.10 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.
3.3.11.11 Additional Insurance Provisions
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(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.3.11.12 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, 903
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Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants.
3.4.3 Compliance Monitoring. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.
3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall 904
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not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.6 Indemnification.
3.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
3.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.7 General Provisions.
3.7.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.7.2 Independent Contractors and Subcontracting.
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3.7.2.1 Use of Consultants. Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only utilize its employees to provide the Services. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section 3.7.2.2 below. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.
3.7.2.2 Prior Approval Required. Consultant shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Consultant to use a Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.
3.7.3 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Consultant: Law Enforcement Medical Services, Inc
8285 Sierra Avenue, Suite 107
Fontana, CA 92335
ATTN: Kris Rowney, President
City: City of Ontario
303 East “B” Street
Ontario, CA 91764
ATTN: Records Management
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.7.4 Ownership of Materials and Confidentiality.
3.7.4.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days 906
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following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
3.7.4.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
3.7.4.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.
3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.7.4.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to 907
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any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.7.4.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.
Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.
3.7.5 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.7.6 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.7.7 Attorneys’ Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all costs of such action.
3.7.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.7.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
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3.7.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.
3.7.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.7.12 Assignment or Transfer. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination.
Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
3.7.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.7.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.7.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.7.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.7.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of 909
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City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.7.19 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.7.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.7.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.
SIGNATURES ON NEXT PAGE
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SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
LAW ENFORCEMENT MEDICAL SERVICES, INC
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.
CITY OF ONTARIO LAW ENFORCEMENT MEDICAL SERVICES,
INC.
By:
Its:
Printed Name:
By:
Its:
Printed Name:
If Corporation, TWO SIGNATURES, President
OR Vice President AND Secretary OR
Treasurer REQUIRED
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
City Clerk
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BB&K (2024) Exhibit “A”-1 PROFESSIONAL SERVICES AGREEMENT
EXHIBIT "A"
SCOPE OF SERVICES
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BB&K (2024) Exhibit “A”-2 PROFESSIONAL SERVICES AGREEMENT
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Department: Economic Development
Prepared By: Charity Hernandez
Staff Member Presenting: Jennifer McLain
Hiramoto, Economic Development Director
Reviewed By: Jennifer Hiramoto
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 15
SUBJECT:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA,
APPROVING A LEASE AGREEMENT WITH SAN DIEGO OUTDOOR ADVERTISING,
DBA GENERAL OUTDOORS ADVERTISING
CITY OF ONTARIO
Agenda Report
June 17, 2025
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council adopt a Resolution approving a Lease between the City of Ontario and San Diego Outdoor Advertising dba General Outdoors Advertising; and authorize the City Manager or his designee to execute the Lease and all other documents required for implementation of the Lease.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
FISCAL IMPACT:
The annual lease revenue will be $4,000 per month for $48,000 per year for the first five years. The lease payment will increase after five years and each five year block thereafter.
BACKGROUND & ANALYSIS:
The proposed Lease allows San Diego Outdoor Advertising, dba General Outdoors Advertising ("GOA") to lease a portion of the property generally located on the southeast corner of Interstate 10 and Milliken Avenue currently occupied by a City-owned water reservoir ("Leased Premises"), identified as Exhibit "A" attached hereto.
GOA will construct, operate, and maintain an electronic billboard sign structure with two electronic LED advertising displays facing in opposite directions. The Sign shall also feature fixed elements on each of the its two sides. The area immediately above the LED screen will display the name of the Ontario Mills Shopping Center, the area immediately beneath the LED screen will display the abbreviated name GOA, and a sign mounted below will display the City of Ontario logo (referred to collectively as the “Sign”). The Sign shall be 42 feet in height with the LED screens being 14 feet tall by 48 feet in width, and have the appearance as shown on Exhibit “B” attached hereto.
The City shall be entitled to post up to one (1) eight (8) second public service message per minute on the Sign on a continuous basis. Should the City not utilize its allotment of advertising space, GOA shall be entitled to lease that time for other advertising purposes consistent with the terms of the 914
Lease. GOA shall be responsible for displaying the public service message no later than 48 hours after receipt of advertising copy from the City.
In addition to continual advertising opportunities, the on-going revenue will help offset costs and/or enhance services provided to the community.
The proposed Lease term is for thirty (30) years commencing on the date that GOA takes possession of the Lease Premises to begin construction.
915
EXHIBIT “A”
SOUTHEAST CORNER OF INTERSTATE 10 AND MILLIKEN AVENUE
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EXHIBIT “B”
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RESOLUTION NO. ________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, APPROVING A LEASE AGREEMENT WITH SAN DIEGO OUTDOOR ADVERTISING, DBA GENERAL OUTDOORS ADVERTISING.
WHEREAS, the City of Ontario (the “City”) owns in fee simple certain real property located at the southeast corner of Interstate 10 and Milliken Avenue in Ontario, California, on which is a City owned water reservoir and other water related i mprovements (the “Reservoir”), together with the real property(the “Property”); and
WHEREAS, General Outdoors Advertising (“GOA”) desires to lease a portion of the Property, pursuant to the terms and conditions of a lease agreement (the “Lease”); and
WHEREAS, Specifically, GOA desires to lease that certain area described and depicted in Exhibit “A” of the Lease, adjacent to the Reservoir (“Leased Premises”); and
WHEREAS, the City desires to lease the Leased Premises to GOA; and
WHEREAS, the City has determined that leasing the Leased Premises to GOA under the terms and conditions of the Lease is in the best interests of the City and its residents; and
WHEREAS, the City finds that the Lease is not subject to the requirements of the Surplus Land Act (Government Code Sections 54220 et seq.) because the Lease does not involve or authorize any development or demolition, as those terms are defined in the Surplus Land Act Guidelines, and therefore does not constitute a disposition of land for purposes of the Act.
NOW, THEREFORE, THE CITY DOES HEREBY RESOLVE AND DECLARE AS FOLLOWS:
SECTION 1. Recitals. The above recitals are true and correct and incorporated into this Resolution by reference.
SECTION 2. Approval of Lease. The City Council hereby approves the Lease in substantially the form attached hereto as Exhibit “A” and on file with the City Clerk, together with such additions thereto and changes therein as the City Attorney shall deem necessary, desirable or appropriate, the execution of which by the City Manager shall be conclusive evidence of the approval of any such additions and changes.
SECTION 3. City Manager Authorization . The City Manager is hereby authorized and directed to execute, and the City Clerk is hereby authorized and directed to attest to the final form of the Lease for and in the name and on behalf of the City. The City Council hereby authorizes the delivery and performance of the Lease . The City Manager and his designees are hereby authorized a nd directed, jointly and severally, to do any and all things, to execute and deliver any and all documents, which in consultation 918
with the staff and the City Attorney they may deem necessary or advisable in order to effectuate the purposes of this Resolution, and any such actions previously taken by such officers are hereby ratified and confirmed.
SECTION 4. CEQA. The approval of the Lease and authorization of the City Manager to execute the Lease to allow the construction, operation and maintenance of a billboard sign structure with two (2) electronic outdoor advertising displays facing in opposite directions (“project”) is exempt from the California Environmental Quality Act (Pub.
Res. Code § 21000 et seq.) (“CEQA”) pursuant to State CEQA Guidelines Section 15303 (Class 3 – New Construction of Small Structures) because the lease authorizes the construction of a new billboard sign structure in a developed area. None of the exceptions to the Class 3 exemption found in State CEQA Guidelines Section 15300.2 apply to the project as the location is not sensitive, cumulative impacts would not result as this is a single lease for a single location, there are no unusual circumstances regarding the project, it is not on a scenic highway or hazardous waste site, and as the site is already disturbed, it will not impact historical resources. Further, for the reasons above, the project is exempt under CEQA Guidelines § 15061(b)(3), because there is no “potential for causing a significant effect on the environment.”
SECTION 5. Effective Date. This Resolution shall take effect upon adoption.
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 17th day of June, 2025.
_____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
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STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2025- was duly passed and adopted by the City Council of the Ci ty of Ontario at their regular meeting held June 17, 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 June 17, 2025.
_____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
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GROUND LEASE
By and Between
CITY OF ONTARIO, a California Municipal Corporation
And
SAN DIEGO OUTDOOR ADVERTISING, INC., a California
Corporation doing business as GENERAL OUTDOOR
ADVERTISING
Approved by Ontario City Council
_____________________, 2025
San Bernardino County, California
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GROUND LEASE
Ground Lease
Preamble and Recitals
ARTICLE 1 LEASE OF PREMISES AND TERM OF LEASE
Section 1.01 Agreement to Lease
Section 1.02 Term of Lease
Section 1.03 Conditions to Lease
Section 1.04 No Obstruction of Sign
ARTICLE 2 RENT
Section 2.01 Rent
Section 2.02 Time and Place for Payment of Rent
Section 2.03 No Partnership or Joint Venture
ARTICLE 3 USE OF PREMISES
Section 3.01 Permitted Use
Section 3.02 Compliance With Laws
Section 3.03 Prohibited Uses
Section 3.04 Promotion of City Events
ARTICLE 4 TAXES AND UTILITIES
Section 4.01 Taxes
Section 4.02 Proration of First and Last Year Taxes
Section 4.03 Separate Assessment of Leased Premises
Section 4.04 Payment Before Delinquency
Section 4.05 Taxes Payable in Installments
Section 4.06 Contest of Tax
Section 4.07 Tax Returns and Statements
Section 4.08 Utilities
ARTICLE 5 CONSTRUCTION BY TENANT
Section 5.01 Duty to Construct
Section 5.02 Requirement of Landlord’s Written Approval Section 5.03 Preparation and Submission of Plans
Section 5.04 Landlord’s Approval or Rejection of Plans
Section 5.05 Changes in Plans
Section 5.06 All Work on Written Contract
Section 5.07 Compliance With Law and Standards
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Section 5.08 Ownership of Improvements
ARTICLE 6 ENCUMBRANCE OF LEASEHOLD ESTATE
Section 6.01 Tenant’s Right to Encumber
Section 6.02 Notice to and Service on Lender
Section 6.03 No Modification Without Lender’s Consent
Section 6.04 Right of Lender to Realize on Security
Section 6.05 Right of Lender to Cure Defaults
Section 6.06 Foreclosure in Lieu of Curing Default
Section 6.07 Assignment Without Consent on Foreclosure
Section 6.08 New Lease to Lender
Section 6.09 No Merger of Leasehold and Fee Estates
Section 6.10 Lender as Assignee of Lease
Section 6.11 Lender as Including Subsequent Security Holders Section 6.12 Two or More Lenders
ARTICLE 7 REPAIRS AND RESTORATION
Section 7.01 Maintenance by Tenant
Section 7.02 Tenant’s Duty to Restore Premises
Section 7.03 Application of Insurance Proceeds
Section 7.04 Hazardous Materials
ARTICLE 8 INSURANCE
Section 8.01 Liability and Commercial Automobile Insurance Section 8.02 Fire and Casualty Insurance
Section 8.03 Specific Perils to Be Insured
Section 8.04 Deposit of Insurance With Landlord
Section 8.05 Notice of Cancellation of Insurance
Section 8.06 Indemnification
ARTICLE 9 ASSIGNMENT AND SUBLEASING
Section 9.01 No Assignment Without Landlord’s Consent
Section 9.02 Leasehold Encumbrances and Subsequent Transfers Section 9.03 Tenant’s Right to Sublease
Section 9.04 Transfers to or by Entity
ARTICLE 10 DEFAULT AND REMEDIES
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Section 10.01 Continuation of Lease in Effect
Section 10.02 Termination and Unlawful Detainer
Section 10.03 Breach and Default by Tenant
Section 10.04 Waiver of Breach
Section 10.05 Surrender of Premises
ARTICLE 11 OTHER PROVISIONS
Section 11.01 Force Majeure
Section 11.02 Notices to Landlord
Section 11.03 Notices to Tenant
Section 11.04 Governing Law
Section 11.05 Binding on Heirs and Successors
Section 11.06 Partial Invalidity
Section 11.07 Sole and Only Agreement
Section 11.08 Memorandum of Lease for Recording
Section 11.09 Attorney Fees
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GROUND LEASE
Preamble and Recitals
THIS LEASE is entered into on _________________, 2025 (the “Effective Date”), by and between the City of Ontario, a California municipal corporation referred to in this lease as “Landlord,” and San Diego Outdoor Advertising, Inc., a California corporation doing business as General Outdoor Advertising referred to in this lease as “Tenant.” A. Landlord is the owner of a certain parcel of real property in the County of San Bernardino, State of California, legally described in Exhibit “A,” which is attached to and made a part of this lease (such parcel—exclusive of the Premises as defined below—is referred to in this lease as the “Property”).
B. Tenant desires to lease a portion of the parcel described in Exhibit “A ,” which portion is legally described in Exhibit “B” attached hereto and made a part hereof, and is depicted (approximately) on Exhibit “C” attached here to and made a part hereof (the “Premises”), together with certain appurtenant rights over the Property for ingress, egress and related purposes as more particularly described below, in order to construct, operate and maintain a billboard sign structure with two (2) electronic outdoor advertising display s facing in opposite directions (such displays being referred to collectively herein as the “Sign”), appurtenant electrical service, and all other related improvements ( such bill board sign structure, Sign , electrical and other appurtenant improvements being collectively referred to in th is lease as the “Improvements”) , having the appearance, dimensions and specifications shown on Exhibit “D” attached hereto and made a part hereof. The Improvements shall feature only the following fixed elements, each having the dimensions shown on Exhibit “ D” hereto, on each of the two (2) faces or sides of the Improvements: (i) an LED screen; (ii) an area immediately above the LED screen display ing the name of the shopping center currently known as “Ontario Mills” (the “Shopping Center”); (iii) an area immediately above the Shopping Center name displaying the logo of either the Shopping Center or the owner of the Shopping Center; (iv) immediately beneath the LED screen, an area displaying the abbreviated name of Tenant (i.e, currently “GENERAL”); and (v) a sign mounted below the Tenant name displaying the logo of Landlord.
ARTICLE 1 LEASE OF PREMISES AND TERM OF LEASE
Section 1.01 Agreement to Lease. For and in conside ration of the rents to be paid and covenants to be performed by Tenant under this lease, Landlord agrees to lease the Premises to Tenant, and Tenant agrees to lease the Premises from Landlord, on the terms and conditions set forth in this lease, subject to all matters of record and all matters which would be revealed by an ALTA survey. Tenant shall take the Premises in its “AS IS” condition, without representation or warranty, express or implied. Except as expressly otherwise provided in this lease, “the Premises” includes the following licenses beginning on the Commencement Date as defined hereinbelow and continuing until the expiration or earlier termination of this lease:
(a) a license for pedestrian and vehicular access across those certain portions of the Property which Landlord determines are reasonably necessary to access the Premises for the construction, operation, maintenance, repair and/or replacement of the Improvements. Tenant 925
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acknowledges that the Property is enclosed by a perimeter fence with locked gate, and that access to the Premises shall be subject to scheduling and coordination with Landlord, and such access control measures as Landlord may impose in its reasonable discretion.
(b) a license to store dirt and other materials on a portion of the Property during construction of the Improvements, the exact location of which shall be determined in the sole discretion of Landlord. All dirt and construction debris will be completely remov ed by Tenant from the Property immediately upon completion of construction of the Improvements.
(c) a license over portions of the Property to the extent necessary to provide electrical or other utility service to the Premises (overhead or underground as determined by Landlord, after consulting with Tenant), at Tenant’s sole cost and expense , provided, however, that all utility service(s) to the Premises shall be designed, constructed, operated and maintained in such a manner as to minimize to the greatest extent possible any interference with the use of the Property by Landlord and/or the general public. Landlord’s determination regarding the locations required under this paragraph and the undergrounding of utilities shall be final and binding on Tenant.
Any exercise of any right or interest granted pursuant to this lease shall be conducted in such a manner as (i) to be in compliance with all applicable safety rules and regulations , and (ii) to minimize interference with any use by Landlord and/or the gen eral public of the Property as much as is reasonably feasible. Tenant shall be responsible for the prompt repair and/or restoration of any damage caused by Tenant during any exercise of the rights or interests granted pursuant to this lease, including, as necessary, but not limited to, replacement of any damaged landscaping material or irrigation system.
Landlord covenants and agrees that Tenant, by keeping and performing the covenants contained in this lease, shall at all times during the term of this lease, peaceably and quietly have, hold and enjoy the Premises and Improvements, subject to all matters of record and the provisions of this lease.
Section 1.02 Term of Lease. The term of this lease shall be for a period of approximately thirty (30) years commencing on the date (the “Commencement Date”) which is the earlier of (i) the date that Tenant takes possession of the Premises to begin construction pursuant to Section
5.01 below, or (ii) the date which is twelve (12) months after the Effective Date of this lease, and continuing until the last day of the calendar month in which the thirtieth (30th) anniversary of the Commencement Date occurs (or, if the Commencement Date occurs on the first day of a calendar month, the day immediately preceding the thirtieth [30th] anniversary of the Commencement Date), unless terminated earlier as provided in this lease.
Section 1.03 Conditions to Lease . Tenant’s obtaining all necessary permits and approvals for the construction and maintenance of the Improvements, including, but not limited to, any approvals required from the California Department of Transportation, any use and/or construction permits required from the City of Ontario, in its governmental/regulatory capacity (as opposed to its proprietary capacity as owner and Landlord of the Premises pursuant hereto) including any required general plan amendments or zone changes (collectively, the “Permits”), is a condition precedent to the continuing effectiveness of this lease. Should any necessary Permit 926
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for the construction or maintenance of the Improvements not be approved for issuance to Tenant within twelve (12) months of the Effective Date of this lease , then each of Landlord and Tenant shall have the right to terminate this lease, without incurring any further liability for any rent or other obligation accruing after such cancellation, upon ten (10) days’ advance written notice to the other party given after such twelve (12) month period but before all such Permits are available for issuance to Tenant . Tenant agrees to use reasonable diligence to request, pursue and obtain all such Permits as soon as reasonably practicable from and after the Effective Date of this lease. In no event shall this l ease or any of the provisions hereof be deemed to requir e any particular outcome in the normal regulatory processing of Tenant’s application(s) for such Permits that are required from the City of Ontario in its governmental capacity for the construction and operation of the Improvements.
Section 1.04 No Obstruction of Sign. Landlord shall not permit any other construction, improvements, trees, vegetation or any other thing on the Property to obstruct the view of the Sign from the adjacent freeway right-of-way.
ARTICLE 2 RENT
Section 2.01 Rent. Commencing on the Commencement Date and continuing throughout the term of this lease, Tenant shall pay to Landlord monthly base rent (“Base Rent”) in initial the amount of $4,000.00 (and after the initial approximately five [5] years of the lease term, in the amounts indicated in the schedule below), without offset, deduction or prior notice or demand, on or before the first day of each calendar month, prorated for any partial calendar month at the beginning of such period or at the end of the lease term. Following the sixtieth (60 th) full calendar month of the lease term, monthly Base Rent shall increase to the amounts and for the portions of the lease term shown in the following schedule:
Years 5-10 $4,500.00
Years 11-15 $5,000.00
Years 16-20 $5,500.00
Years 21-25 $6,000.00
Years 26-30 $6,500.00
Payments shall be made in United States currency, or by check or other order as is then customary in business transactions and is otherwise acceptable to Landlord in its reasonable discretion.
Delivery by mail or other means shall be deemed made in accordance with the definition of delivery set forth in this lease.
Section 2.02 Time and Place for Payment of Rent . All Rent shall be paid at the times set forth in Section 2.01 and shall be paid and delivered to Landlor d at 303 E. B Street, Ontario, California 91764, or any other place or places that Landlord may designate by written notice to Tenant.
Section 2.03 No Partnership or Joint Venture. Nothing in this lease shall be construed to render Landlord in any way or for any purpo se a partner, joint venturer, or associate in any 927
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relationship with Tenant other than that of Landlord and Tenant, nor shall this lease be construed to authorize either to act as agent for the other.
ARTICLE 3 USE OF PREMISES
Section 3.01 Permitted Use . Tenant shall use the Pre mises solely for the purpose of constructing, maintaining, and offering for display an electronic outdoor advertising sign .
Landlord and Tenant mutually confirm that the Improvements are not intended to serve as a public forum for public discourse or expressive activity, nor to provide a forum for all types of signage.
Landlord and Tenant acknowledge that the purpose of the Improvements is to promote commerce in the City of Ontario generally, as well as to display non-commercial information which Landlord deems to be of service to the community. Tenant, throughout the lease term, shall be the exclusive owner and operator of the Improvements, with sole control of the content displayed on the Improvements, subject to the terms and requirements of this lease.
Section 3.02 Compliance With Laws. Tenant shall, at Tenant’s own cost and expense, obtain all necessary permitting from the State of California for the Improvements. Tenant, at Tenant’s expense, shall obtain all necessary local permits and approvals for the Improvements.
Tenant shall comply with all statutes, ordinances, regulations, and requirements of all governmental entities, both federal and state and county or municipal, including those requiring capital improvements to the Premises or Improvements, relating to any use and occupancy of the Premises (and specifically not limited to any particular use or occupancy by Tenant), whether those statutes, ordinances, regulations, and requirements are now in force or are subsequently enacted; provided, however, Landlord shall not enact any ordinance, regulation or requirement that would effectively prohibit Tenant’s use of the Premises, the Sign, or Improvements.
Section 3.03 Prohibited Uses. Tenant shall not use or permit the Premises or any portion of the Premises to be improved, developed, used, or occupied in any manner or for any purpose that would in any way cause Landlord or Tenant to be in violation of any valid decisional or statutory law, ordinance, or regulation of any federal, state, county, or local governmental agency, body, or entity. Furthermore, Tenant shall not maintain, commit, or permit the maintenance or commission of any nuisance as now or hereafter defined by any statuto ry or decisional law applicable to the Premises or any part of the Premises.
Tenant agrees that any advertising displayed on the Sign shall not contain any advertising for adult entertainment or nudity including, but not limited to, topless bars, nightclub s, establishments that feature nude dancing, mud wrestling, any adult business featuring retail sales of adult novelty items, books, magazines, videos and tapes, or any material that could reasonably be considered pornographic. Further, Tenant voluntarily covenants and agrees for itself, its successor and assigns that any advertising displayed on the Sign shall not contain any advertising for alcohol, tobacco or cannabis (including so-called “vaping” paraphernalia) products of any type, gambling or gambling services, or any political messages or advertising. Notwithstanding the foregoing, gambling establishments may advertise non -gaming/gambling services. Landlord further reserves the right to object to any other advertising that may be considered detrimenta l to the image of the Landlord. In such cases, Landlord shall inform Tenant in writing of the offensive advertising and request that it be removed. To the extent that any use of the Premises and Improvements is made that is violative of the limitations set forth in this Section 3.03, Tenant shall 928
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be solely responsible for the removal of the violative material and Landlord shall bear no responsibility or obligation for the use of its discretion in requesting that materials be removed it believes not to be in conformance with this Section.
Section 3.04 Promotion of City Events. As further consideration for this lease, Landlord shall be entitled to place public service announcements on the Sign, provided, however, that such public service announcements shall be limited to civic public service messages, including events sponsored by the City of Ontario or by private organizations approved by the City of Ontario (hereinafter “Public Service Messages”). The term Public Service Message shall expressly exclude any message advertising any business, company or event where such message would have a direct and tangible economic benefit to a private, for -profit company. Landlord shall be entitled to post up to one eight (8) second Public Service Message per minute on the Sign on a con tinuous basis.
Notwithstanding the foregoing, should Landlord not utilize its allotment of advertising space, Tenant shall be entitled to lease that time for other advertising purposes consistent with the terms of this lease. For all Public Service Messages, Landlord shall be responsible for providing Tenant with the advertising copy and artwork. Tenant shall not be responsible for producing or substantially modifying any advertising copy for a Public Service Message, and shall display the Public Service Message no later than 48 hours after receipt of advertising copy from Landlord.
ARTICLE 4 TAXES AND UTILITIES
Section 4.01 Taxes. Tenant shall be solely responsible for any and all real and personal property taxes, general and special assessments, and other charges (including any increase caused by a change in the tax rate or by a change in assessed valuation) of any description levied or assessed during the term of this lease by any governmental agency or entity on or against the Premises, the Improvements located on the Premises , personal property located on or in the Premises or affixed to the Improvements, and the leasehold estate created by this lease, whether or not assessable as to or against Landlord. In the event the State of California or any taxing authority thereunder changes or modifies the system of taxing real estate so as to tax, for example, the rental income from real estate in lieu of or in addition to real estate taxes as imposed as of the Effective Date of this lease, and so as to impose a liability upon Landlo rd for the amount of such tax on the Premises and/or Improvements, Tenant shall be liable under this lease for the payment of the taxes so imposed to the same extent as though the alternative or new tax was a tax upon the value of the Premises and Improvements.
Section 4.02 Proration of First and Last Year Taxes . Notwithstanding the provisions of Section 4.01 of this lease, all taxes, assessments, or other charges levied or assessed during the tax years in which the term of this lease commences and ends shall be prorated between Landlord and Tenant as of 12:01 A.M. on the date the term commences and on the date the term ends, respectively, on the basis of tax years that commence on July 1 and end on June 30 of each year.
Section 4.03 Separate Assessment of Leased Premises . Sh ould the Premises be assessed and taxed with or as part of other property owned by Landlord before the commencement of the term of this lease, Landlord shall use reasonable efforts to arrange with the taxing authorities to have the Premises taxed and assessed as a separate parcel distinct from any other real or personal property owned by Landlord. Should the Premises be assessed and taxed for the year in which this lease is to commence with or as part of other property owned by Landlord, the share of the ta xes, 929
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assessments, or other charges for which Tenant is liable to pay under Section 4.02 shall be determined as follows: Tenant shall pay an amount equal to that portion of the taxes, assessments, and other charges that bears the same ratio to the total of the taxes, assessments, and other charges as the ground area of the Premises bears to the ground area of the total taxed property. Without limiting the generality of the foregoing, in accordance with California Revenue and Taxation Code Section 107.6(a), Landlord states that by entering into this lease, a possessory interest subject to property taxes may be created. Tenant shall be subject to the payment of property taxes levied on such interest if created. Tenant acknowledges and agrees that the Premise s and/or the Improvements thereon, and any possessory interest therein, may at all times after the Commencement Date be subject to ad valorem taxes levied, assessed or imposed on such property, and Tenant further agrees that it will pay as and when due all such amounts.
Section 4.04 Payment Before Delinquency . The non -assessed party shall pay to the assessed party its share of any and all taxes and assessments and installments of taxes and assessments required to be paid by Landlord and Tenant under this lease at least ten (10) days before each such tax, assessment, or installment of tax or assessment becomes delinquent.
Section 4.05 Taxes Payable in Installments . Should any special tax or assessment be levied on or assessed against the Premises that may be either paid in full before a delinquency date within the term of this lease or paid in installments over a period either within or extending beyond this lease, Tenant shall have the option of paying the special tax or assessment in installments. The fact that the exercise of the option to pay the tax or assessment in installments will cause the Premises to be encumbered with bonds or will cause interest to accrue on the tax or assessment is immaterial and shall not interfere with the free exercise of the option by Tenant. Should T enant exercise the option to pay any such tax or assessment in installments, Tenant shall be liable to pay only those installments becoming due during the term of this lease. Landlord shall cooperate with Tenant and on written request of Tenant execute or join with Tenant in executing any instruments required to permit any such special tax or assessment to be paid in installments.
Section 4.06 Contest of Tax . Either party shall have the right to contest, oppose, or object to the amount or validity of any tax, assessmen t, or other charge levied on or assessed against the Premises or any part of the Premises; provided, however, that the contest, opposition, or objection must be filed before the tax, assessment, or other charge at which it is directed becomes delinquent and that written notice of the contest, opposition, or objection must be given to the other party at least ten (10) days before the date the tax, assessment, or other charge becomes delinquent. Further, the other party shall, on written request of the contes ting, opposing, or objecting party, join in any such contest, opposition, or objection if the contesting, opposing or objecting party determines that joinder is necessary or convenient for the proper prosecution of the proceedings. The contesting, opposing, or objecting party shall be responsible for and shall pay all costs and expenses in any contest or legal proce eding instituted by such party . Notwithstanding any contest, opposition, or objection, the parties agree that they shall either: (a) Pay the tax , assessment, or other charge under protest before its becoming delinquent; or (b) Obtain and maintain a stay of all proceedings for enforcement and collection of the tax, assessment, or other charge by posting a bond or other security required by law for such a stay.
Section 4.07 Tax Returns and Statements . Tenant shall, as between Landlord and Tenant, have the duty of attending to, preparing, making, and filing any statement, return, report, 930
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or other instrument required or permitted by law in connection with the dete rmination, equalization, reduction, or payment of any taxes, assessments, or other charges that are or may be levied on or assessed against the Premises, the Improvements located on the Premises, personal property located on or in the Premises or Improveme nts, and the leasehold estate created by this lease.
Section 4.08 Utilities. Tenant shall be solely responsible for all utility costs associated with construction , operation and maintenance of the Improvements . Tenant shall separately arrange for utility service(s) to be provided to the Premises and Improvements through a separate meter(s) installed at Tenant’s cost.
ARTICLE 5 CONSTRUCTION BY TENANT
Section 5.01 Duty to Construct. Once all necessary Permits are available for issuance to Tenant , Tenant shall promptly construct or cause to b e constructed on the Premises, an electronic, outdoor advertising display in the manner and according to the terms and conditions specified in this Article and elsewhere in this lease . Landlord acknowledges that Tenant cannot order certain necessary construction materials until after the Permits are available for issuance and that there is typically lead time of many months before the materials are received and construction can begin. The cost of constructing the Improvements, including without limitation the cost of obtaining the Permits, and all additional work required for their operations on the Premises in accordance with this lease shall be borne solely by Tenant. Landlord will not waive any fees payable to Landlord in its governmental capacity. The Improvements shall be completed within twelve (12) months after the Permits are available for issuance to Tenant, subject to delays beyond the control of Tenant (excluding lack of funds). Nothing herein shall delay the payment of Rent however. Landlord shall at all times during the term of this lease have the right to post and maintain on the Premises and to record as required by law any notice or notices of non - responsibility provided for by the mechanics’ lien laws of the State of California. Tenant shall keep the Premises and the Property free and clear of all liens or claims of liens for labor, services, materials, supplies, or equipment performed on or furnished to the Premises or Improvements.
Section 5.02 Requirement of Landlord’s Written Approval . No structu re or other improvement of any kind shall be constructed on the Premises unless and until the plans, specifications, and proposed location of that structure or improvement have been approved in writing by Landlord in its capacity as the lessor hereunder (and not in its governmental capacity).
Furthermore, no structure or other improvement shall be constructed on the Premises that does not comply with plans, specifications, and locations so approved in writing by Landlord.
Section 5.03 Preparation and Submission of Plans. Tenant shall, at Tenant’s own cost and expense, prepare or cause to be prepared plans and specifications for the Improvements and shall submit to Landlord for approval drawings and materials in the form of plans and elevations, etc., sufficient to convey the design of the Improvements to Landlord.
Section 5.04 Landlord’s Approval or Rejection of Plans. Within 21 days after receipt by Landlord of any of the documents submitted to Landlord for approval under Section 5.03 of this lease, Landlord shall either approve th ose documents (in its proprietary capacity as lessor hereunder) or Landlord shall give written notice to Tenant of any objections Landlord may have 931
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to those documents, which objections shall be commercially reasonable in nature. Within 21 days after servic e on Tenant of the written notice of Landlord’s objections, Tenant may deliver corrective amendments to the documents to Landlord and Landlord shall, within 14 days after receiving the corrective amendments, serve written notice on Tenant of Landlord’s app roval or rejection of the documents as so amended.
Section 5.05 Changes in Plans. After approval by Landlord of the documents pertaining to the Improvements described in Sections 5.03 and 5.04 of this lease , any substantial change in the plans or specifications for the Improvements shall be approved by Landlord. For purposes of this Section, “substantial change” means one that materially changes the exterior appearance of the Improvements. Minor changes in work or materials not constituting a substantial change need not be approved by Landlord but a copy of the altered plans and specifications reflecting those changes shall be given to Landlord.
Section 5.06 All Work on Written Contract . All work required in the construc tion of the Improvements, including any site preparation work, and utility installation work, as well as actual construction work on the Improvements, shall be performed only by competent contractors licensed under the laws of the State of California and shall be performed in accordance with written contracts with those contractors.
Section 5.07 Compliance With Law and Standards . The Improvements shall be constructed, operated and maintained , and all work on the Premises shall be performed, and all other property on the Premises shall be erected , in accordance with all valid laws, ordinances, regulations, and orders of all federal, state, county, or local governmental agencies or entities having jurisdiction over the Premises, including without limitation all applicable federal and state labor standards and requirements . All work performed on the Premises under this lease, or authorized by this lease, shall be done in a good workmanlike manner and only with new materials of good quality and high standard.
Section 5.08 Ownership of Improvements. Title to all Improvements to be constructed on the Premises by Tenant shall be owned by Tenant during the term of this lease. Upon the expiration of the term or earlier termination of this lease, title to all Improvements, including the Sign, on the Premises, shall automatically transfer to Landlord free and clear of all liens and shall thereafter remain Landlord’s property. Tenant shall pay off all liens on the Improvements concurrently with any such expiration or termination of the lease, an d shall execute any documentation reasonably required or prudent to effectuate such transfer promptly on request by Landlord.
ARTICLE 6 ENCUMBRANCE OF LEASEHOLD ESTATE
Section 6.01 Tenant’s Right to Encumber . Tenant may, at any time and from time to time during the term of this lease, encumber to any institutional lender regulated by state or federal authority (referred to in this lease as “Lender”), by deed of trust or mortgage or other security instrument, all of Tenant’s interest under this lease and the leasehold estate here by created in Tenant (referred to in this lease as a “Leasehold Encumbrance”) for any purpose or purposes without the consent of Landlord. However, no Leasehold Encumbrance incurred by Tenant in accordance with this section shall, and Tenant shall not have power to incur any encumbrance that 932
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shall, constitute in any way a lien or encumbrance on Landlord’s fee interest in the Premises. Any Leasehold Encumbrance shall be subject to all covenants, conditions, and restrictions set forth in this lease and to all rights and interests of Landlord, except as is otherwise provided in this lease.
Tenant shall give Landlord prior written notice of any Leasehold Encumbrance, together with a copy of the deed of trust, mortgage, or other security interest evidencing the L easehold Encumbrance.
Section 6.02 Notice to and Service on Lender. Landlord shall mail to any Lender who has given Landlord written notice of its name and address, a duplicate copy of any and all notices Landlord may from time to time give to or serve on Tenant in ac cordance with or relating to this lease, including but not limited to any notice of default, notice of termination, or notice regarding any matter on which Landlord may predicate or claim a default. Any notices or other communications permitted by this or any other section of this lease or by law to be served on or given to Lender by Landlord shall be deemed duly served on or given to Lender when deposited in the United States mail, first -class postage prepaid, addressed to Lender at the last mailing address for Lender furnished in writing by Lender to Landlord.
Section 6.03 No Modification Without Lender’s Consent . For as long as there is any Leasehold Encumbrance in effect for which notice has been given to Landlord pursuant to Section
6.01 of this lease, Tenant and L andlord hereby expressly stipulate and agree that they will not modify this lease in any way nor cancel this lease by mutual agreement without the written consent of Lender having that Leasehold Encumbrance.
Section 6.04 Right of Lender to Realize on Security . A Lende r with a Leasehold Encumbrance shall have the right at any time during the term of this lease and the existence of the encumbrance to do both of the following:
(a) Any act or thing required of Tenant under this lease, and any such act or thing done and performed by Lender shall be as effective to prevent a forfeiture of Tenant’s rights under this lease as if done by Tenant; and
(b) Realize on the security afforded by the leasehold estate by foreclosure proceedings, accepting an assignment in lieu of foreclosure, or other remedy afforded in law or in equity or by the security instrument evidencing the Leasehold Encumbrance (referred t o in this lease as “the Security Instrument”), and
(1) To transfer, convey, or assign the title of Tenant to the leasehold estate created by this lease to any purchaser at any foreclosure sale, whether the foreclosure sale is conducted under court order or a power of sale contained in the Security Instrument, or to an assignee under an assignment in lieu of foreclosure; and
(2) To acquire and succeed to the interest of Tenant under this lease by virtue of any foreclosure sale, whether the foreclosure sale is condu cted under a court order or a power of sale contained in the Security Instrument, or by virtue of an assignment in lieu of foreclosure. 933
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The Lender or any person or entity acquiring the leasehold estate shall be liable to perform Tenant’s obligations under this lease only during the period, if any, in which that entity or person has ownership of the leasehold estate or possession of the Premises.
Section 6.05 Right of Lender to Cure Defaults . For as long as there is in effect any Leasehold Encumbrance, before Landlord m ay terminate this lease because of any default under or breach of this lease by Tenant, Landlord must give written notice of the default or breach to Lender and afford Lender the opportunity after service of the notice to do one of the following:
(a) Cure the breach or default within thirty [30] days after expiration of the time period granted to Tenant under this lease for curing a default, when the default can be cured by the payment of money to Landlord or some other person;
(b) Cure the breach or default within sixty [60] days after expiration of the time period granted to Tenant under this lease for curing a default, when the breach or default must be cured by something other than the payment of money and can be cured within that time; or (c) Cure the breach or def ault in any reasonable time that may be required when something other than money is required to cure the breach or default and cannot be performed within sixty [60] days after expiration of the time period granted to the Tenant under this lease for curing the default, provided that acts to cure the breach or default are commenced within that time period after service of notice of default on Lender by Landlord and are thereafter diligently continued by Lender.
Section 6.06 Foreclosure in Lieu of Curing Default . Notwiths tanding any other provision of this lease, a Lender under a Leasehold Encumbrance may forestall termination of this lease by Landlord for a default under or breach of this lease by Tenant by commencing proceedings to foreclose the Leasehold Encumbrance. The proceedings so commenced may be for foreclosure of the Leasehold Encumbrance by order of court or for foreclosure of the Leasehold Encumbrance under a power of sale contained in the Security Instrument. The proceedings shall not, however, forestall termination of this lease by Landlord for the default or breach by Tenant unless all of the following conditions are met:
(a) The proceedings are commenced within sixty [60] days after service on Lender of the notice described in Section 6.05 of this lease;
(b) The pro ceedings are, after having been commenced, diligently pursued in the manner required by law to completion; and
(c) Lender keeps and performs all of the terms, covenants, and conditions of this lease requiring the payment or expenditure of money by Tenant until the foreclosure proceedings are complete or are discharged by redemption, satisfaction, payment, or conveyance of the leasehold estate to Lender.
Section 6.07 Assignment Without Consent on Foreclosure . A transfer of Tenant’s leasehold interest under this lease to any of the following shall be subject to the requirements and consent set forth in Article 9 of this lease:
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(a) A purchaser at a foreclosure sale of the Leasehold Encumbrance, whether the foreclosure sale is conducted under court order or a power of sale in the instrument creating the encumbrance; (b) An assignee of the leasehold estate of Tenant under an assignment in lieu of foreclosure; or
(c) A purchaser or assignee of the purchaser at a foreclosure sale of the Leasehold Encumbrance or of the assignee of the leasehold estate of Tenant acquired under an assignment in lieu of foreclosure.
Section 6.08 New Lease to Lender . Notwithstanding any other provision of this lease, should this lease terminate because of any default under or breach of this lease by Tenant, Landlord agrees to enter into a new lease for the Premises with Lender under a Leasehold Encumbrance, as Tenant, provided all of the following conditions are satisfied:
(a) A written request for the new lease is served on Landlord by Lender within thirty [30] days after service on Lender of the notice described in Section 6.05 of this lease; (b) The new lease
(1) Is for a term ending on the same date the term of this lease would have ended had this lease not been terminated;
(2) Provides for the payment of rent at the same rate that would hav e been payable under this lease during the remaining term of this lease had this lease not been terminated; and (3) Contains the same terms, covenants, conditions, and provisions as are contained in this lease (except those that have already been fulfilled or are no longer applicable); (c) Lender, on execution of the new lease by Landlord, shall pay any and all sums that would at the time of the execution of the new lease be due under this lease but for its termination and shall otherwise fully remedy, or agree in writing to remedy, any other defaults under or breaches of this lease committed by Tenant that can be remedied; (d) Lender, on execution of the new lease, shall pay all reasonable costs and expenses, including attorneys’ fees and court costs, incurred by Landlord in terminating this lease, recovering possession of the Premises from Tenant or the representative of Tenant, and preparing the new lease;
(e) The new lease shall be subject to all existing subleases between Tenant and subtenants, provided that for any sublease, the subtenant agrees in writing to attorn to Lender (or its assignee); and
(f) Lender complies with the requirements of Article 9 of this lease.
Section 6.09 No Merger of Leasehold and Fee Estates . For as long as any Leasehold Encumbrance is in existence, there shall be no merger of the leasehold estate created by this lease 935
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and the fee estate of Landlord in the Premises merely because both estates have b een acquired or become vested in the same person or entity, unless Lender otherwise consents in writing.
Section 6.10 Lender as Assignee of Lease . No Lender under any Leasehold Encumbrance shall be liable to Landlord as an assignee of this lease unless and until Lende r acquires all rights of Tenant under this lease through foreclosure, an assignment in lieu of foreclosure, or as a result of some other action or remedy provided by law or by the instrument creating the Leasehold Encumbrance.
Section 6.11 Lender as Including Subsequent Security Holders. Except for purposes of Section 6.08, the term “Lender” as used in this lease shall mean not only the institutional lender that loaned money to Tenant and is named as beneficiary, mortgagee, secured party, or security holder in the Secu rity Instrument creating any Leasehold Encumbrance, but also all subsequent purchasers or assignees of Lender’s interest in the Leasehold Encumbrance.
Section 6.12 Two or More Lenders . In the event two or more Lenders each exercise their rights under this lease and there is a conflict that renders it impossible to comply with all requests of Lenders, the Lender whose Leasehold Encumbrance would have senior priority in the event of a foreclosure shall prevail.
ARTICLE 7 REPAIRS AND RESTORATION
Section 7.01 Maintenance by Tenant . Tenant sha ll maintain, repair and operate the Improvements on the Premises, or cause the Improvements to be maintained, repaired and operated, in a first class condition, free of debris, waste and graffiti, and in compliance with the following:
a. All Improvements on the Premises shall be maintained in good condition in accordance with the custom and practice generally applicable to high quality electronic/digital billboard signs, and in conformance and compliance with all plans, drawings and related documents approved by Landlord pursuant to this lease, and with all conditions of approval, including cleaning, repainting, or resurfacing, as appropriate, of all exterior surfaces of the Improvements, preventative maintenance, and repair or replacement of any items on the s ign structure which are not in excellent working order and condition. b. The Premises and the Improvements shall be kept clean and clear of refuse and obstructions, and all garbage, trash and rubbish shall be lawfully disposed of. c. Tenant’s maintenance and ope ration obligation for the Improvements shall include obtaining and paying for all necessary utilities such as electricity and communications services and any security device(s) or service(s) required to assure the Improvements are not subject to vandalism.
d. Tenant shall make necessary and appropriate capital
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technological and other changes in the maintenance and operation of high quality advertising sign operations.
Tenant shall have full responsibility for the operation and maintenance (including repair, restoration and reconstruction) of all of the Improvements and the costs thereof, and the Landlord shall have no liability for costs of such operation and maintenance or for any claims arising from the operation and maintenance (including repair, restoration and reconstruction) of such improvements.. Once the Improvements have been con structed, Tenant shall not remove or demolish the Improvements during the lease term, except as necessary promptly to replace same.
Section 7.02 Tenant’s Duty to Restore Premises. If at any time during this lease’s term, any Improvements now or hereafter on the Premises are destroyed in whole or in part by fire, theft, the elements, or any other cause not the fault of Landlord, this lease shall continue in full force and effect , with no abatement of Rent, and Tenant shall repair and restore the damaged Improvements as soon after the occurrence of such damage or destruction as is commercially reasonably possible, and in all events within no more than twelve (12) months after the occurrence of the damage or destruction . Any restoration by Tenant shall comply with original plans for the Improvements described in Article 5, except as may be modified by agreement of the parties.
Section 7.03 Application of Insurance Proceeds . Any and all fire or other insurance proceeds that become payable at any time during the term of this lease becaus e of damage to or destruction of any Improvements on the Premises shall be paid to Tenant and applied by Tenant toward the cost of repairing and restoring the damaged or destroyed Improvements in the manner required by Section 7.02 of this lease.
Section 7.04 Hazardous Materials. “Hazardous Substance” as used in this lease means any substance, material or waste which is or becomes regulated by the United States government, the State of California, or any local or other governmental authority, including, without limitation, any material, substance or waste , whether in the form of a solid, liquid, gas or any other form whatsoever, which by any governmental requirements either requires special handling in its use, transportation, generation, collection, storage, treatment or disposal, or is defined as “hazardous” or is harmful to the environment or capable of posing a risk of injury to public health and safety .
Tenant shall not bring or allow to be brought onto the Premises or use or store on the Property any Hazardous Materials without the prior express written consent of Lessor, except for those Hazardous Materials (such as fuel stored in motor vehicles) customarily used in the ordinary course of business in the use and operation of the Premises for the Improvements and in compliance with all applicable laws . Tenant hereby agrees to indemnify and hold Landlord harmless from any claims, losses or liabilities arising from any breach of the foregoing obligations of Tenant regarding Hazardous Materials.
ARTICLE 8 INSURANCE
Section 8.01 Liability and Commercial Automobile Insurance . Tenant shall procure and maintain during the entire term of this lease a broad form comprehensive coverage policy of public liability insurance and commercial automobile insurance issued by an insurance company licensed by the State of California insuring Tenant and Landlord against loss or liability caused by 937
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or connected with Tenant’s occupation and use of the Premises under this lease in amounts not less than the following:
(a) ‘Two Million Dollars ($2,000,000.00) for injury to or death of one person per occur rence and Four Million Dollars ($4,000,000.00) aggregate for bodily injury, and (b) One Million Dollars ($1,000,000.00) for damage to or destruction of any property, and (c) One Million Dollars ($1,000,000) per accident for bodily injury and property damage; and (d) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California; and (e) Employer’s Liability limits of One Million Dollars ($1,000,0 00) per accident for bodily injury or disease.
The insurer shall agree to waive all rights of subrogation against Landlord, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed. The general liability policy and commercial automobile policy shall be endorsed to state that: (1) Landlord, its directors, officials, officers, employees, agents and volunteers shall be covered as additiona l insureds with respec t to the s ervices or operations performed by or on behalf of Tenant, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects Landlord, its directors, officials, o fficers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage in excess of Tenant’s scheduled underlying coverage. Any insurance or self -insurance maintained by Landlord, its directors, officials, officers, employees , agents and volunteers shall be excess of Tenant’s insurance and shall not be called upon to contribute with it in any way.
Section 8.02 Fire and Casualty Insurance. Tenant shall at all times during the term of this lease, keep all Improvements on the Premises insure d for their full replacement value by insurance companies authorized to do business in the State of California against loss or destruction by fire and the perils commonly covered under the standard extended coverage endorsement to fire insurance policies i n the county where the Premises are located. For as long as there is any Leasehold Encumbrance in existence, that policy shall also contain a standard lender endorsement.
Section 8.03 Specific Perils to Be Insured . Notwithstanding anything to the contrary contained in Section 8.02 of this lease, the insurance required by Section 8.02 of this lease shall, whether or not included in the standard extended coverage endorsement referred to in Section 8.02, insure all Improvements on the Premises against loss or destruction by windstorm, cyclone, tornado, hail, explosion, riot, riot attending a strike, civil commotion, malicious mischief, vandalism, aircraft, fire, smoke damage, and sprinkler leakage.
Section 8.04 Deposit of Insurance With Landlord . Tenant shall, prior to commencement of construction of the Improvements and annually thereafter, deliver to Landlord a true and correct copy of each insurance policy required by this Article of this lease or a certificate 938
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executed by the insurance company or companies or their authorized agent evidencing that policy or policies.
Section 8.05 Notice of Cancellation of Insurance. Each insurance policy required under this Article shall contain a provision that it cannot be cancelled for any reason unless at least ten (10) days’ prior written notice of the cancellation is given to Landlord and to Lender in the manner required by this lease for service of notices on Landlord by Tenant.
Section 8.06 Indemnification. At Tenant’s sole cost and expense Tenant shall indemnify, defend, and hold harmless Landlord and its officers, agents, employees, public officials and volunteers from and against any claim, liability, loss or damage caused by Tenant, its officers, agents, employees or contractors in, or relating in any way to, its exercise of the rights or interests granted pursuant to this lease. Tenant further agrees to indemnify, pay and hold Landlord harmless from all costs and expenses, including attorney’s fees, incurred by Landlord or held to be the liability of the Landlord in connection with the Landlord’s defense of its actions in any proceeding brought in any state or federal court challenging the Landlord’s actions with respect to this lease and/or the Sign.
ARTICLE 9 ASSIGNMENT AND SUBLEASING
Section 9.01 No Assignment Without Landlord’s Consent . Tenant may assign this lease or any interest in this lease, subject to the prior written consent of Landlord. Landlord shall not unreasonably withhold or delay its consent, and shall grant consent if the proposed assignee is financially qualified and has sufficient experience in the operation and management of outdoor advertising displays to perform all the agreements, undertakings, and covenants of this lease and all other agreements entered into by Tenant which relate to the management, operation, maintenance, construction, and res toration of the Improvements and the Premises. To assist Landlord in determining whether or not the proposed assignee is so qualified, Tenant shall furnish to Landlord at no expense to Landlord, before that assignment, detailed and complete financial statements of the proposed assignee, audited by a certified public accountant reasonably satisfactory to Landlord (if the proposed transferee causes its statements to be so audited in its normal course of business), together with detailed and complete information about the business of the proposed assignee, including its experience in operating outdoor advertising displays, the use to be made of the Premises and Improvements by the proposed assignee, projections by the proposed assignee of the sources of funds to be used to repay any indebtedness of Tenant that the proposed assignee will assume or take subject to, or agree to pay to Tenant, and other claims on and requirements for those funds, together with any other information as Landlord may reasonably require to assist Landlord in determining whether or not the proposed assignee is so qualified.
Landlord shall have thirty (30) days after receipt of the information described above to notify Tenant of whether it consents or does not consent to the proposed assig nment. Absent any such notification by Landlord during the thirty (30) day period, Landlord shall be conclusively deemed to have consented to the assignment. A consent by Landlord to one assignment shall not be deemed to be a consent to any subsequent assignment. Any assignment made contrary to the terms of this section shall be null and void unless otherwise permitted by this Article.
Section 9.02 Leasehold Encumbrances and Subsequent Transfers . Notwithstanding the provisions of Section 10.01 of this lease, Tenant may without the prior written consent of 939
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Landlord transfer and assign all Tenant’s interest under this lease and Tenant’s leasehold estate created under this lease to a Lender under a Leasehold Encumbrance (as defined in Section 6.01 of this lease). However, any transfer, conveyance, or assignment resulting from a foreclosure or acceptance of a deed in lieu of foreclosure by any Lender (as defined in Section 6.01 of this lease), or any transfer, conveyance, or assignment by any Lender following its acquisition of this lease and the leasehold estate of Tenant created by this lease as a result of foreclosure or acceptance of a deed in lieu of foreclosure shall require the prior consent of Landlord.
Section 9.03 Tenant’s Right to Sublease. Intentionally omitted.
Section 9.04 Transfers to or by Entity . Notwithstanding Section 10.01 of this lease, Tenant may, without the prior consent of Landlord, but with at least ten (10) days prior written notice to Landlord, transfer and assign all of Tenant’s interest under the lease and the leasehold estate created under this lease to another entity now or hereafter organized in which Tenant owns at least twenty-five percent (25%).
ARTICLE 10 DEFAULT AND REMEDIES
Section 10.01 Continuation of Lease in E ffect. Should Tenant breach this lease and abandon the Premises before the natural expiration of the lease’s term, Landlord may continue this lease in effect by not terminating Tenant’s right to possession of the Premises, in which event Landlord shall be entitled to enforce all Landlord’s rights and remedies under this lease, including the right to recover the Rent specified in this lease as it becomes due under this lease.
Section 10.02 Termination and Unlawful Detainer. In the event of a tenant default under this lease, Landlord may terminate this lease by written n otice to Tenant and may also do the following:
(a) Bring an action to recover the following from Tenant:
(1) The worth at the time of award of the unpaid Rent that had been earned at the time of termination of the lease;
(2) The worth at the time of award of the amount by which the unpaid Rent that would have been earned after termination of the lease until the time of award exceeds the amount of rental loss that Tenant proves could have been reasonably avoided;
(3) The worth at the time of award of the amount by which the unpaid Rent for the balance of the term after the time of award exceeds the amount of rental loss that Tenant proves could be reasonably avoided; and
(4) Any other amount necessary to compensate Landlord for all detriment proximately caused by Tenant’s failure to perform Tenant’s obligations under this lease; and (b) Bring an action, in addition to or in lieu of the action described in subsection (a) of this section, to reenter and regain possession of the Premises in the manner provided by the laws of unlawful detainer of the State of California then in effect.
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Section 10.03 Breach and Default by Tenant . All covenants and agreements contained in this lease are declared to be conditions to this lease and to the term hereby leased to Tenant.
Should Tenant fail to perform any covenant, condition, or agreement contained in this lease and the default is not be cured within thirty (30) after written notice of the default is served on Tenant by Landlord, then Tenant shall be in default under this lease.
Section 10.04 Waiver of Breach. The waiver by either party of any breach by the other of any of the provisions of this lease shall not constitute a continuing waiver or a waiver of any subsequent breach by the other party of either the same or a different provision of this lease.
Section 10.05 Surrender of Premises. On expiration or earlier termination of this lease, Tenant shall surrender the Premises and all Improvements, including the Sign, on the Premises within thirty (30) days of such expiration or term ination. Subject to the foregoing, Tenant shall leave the Premises to Landlord in as good, safe, and clean condition as practicable, reasonable wear and tear excepted. Subject to the foregoing, any personal property of Tenant not removed from the Premises within thirty (30) days of the expiration or termination of this lease for any cause will be deemed abandoned, and Landlord may take possession and dispose of it in any manner without liability to Landlord.
ARTICLE 11 OTHER PROVISIONS
Section 11.01 Force Majeure. Except as otherwise expressly provided in this lease, if the performance of any act required by this lease to be performed by either Landlord or Tenant is prevented or delayed by reason of any act of God, strike, lockout, labor trouble, inability to secure materials, rest rictive governmental laws or regulations, or any other cause (except financial inability) not the fault of the party required to perform the act, the time for performance of the act will be extended for a period equivalent to the period of delay and perfor mance of the act during the period of delay will be excused. However, nothing contained in this section shall excuse the prompt payment of Rent by Tenant as required by this lease or the performance of any act rendered difficult or impossible solely becaus e of the financial condition of the party required to perform the act.
Section 11.02 Notices to Landlord. Except as otherwise expressly provided by law, any and all notices or other communications required or permitted by this lease or by law to be served on or given to Landlord by Tenant or any Lender described in Article 6 of this lease shall be in writing and shall be deemed duly served and given when personally delivered to Landlord, to any managing employee of Landlord, or, in lieu of personal service, when deposited in the United States mail, first-class postage prepaid, and sent by express mail that allows for tracking, addressed to Landlord at 303 E. B Street, Ontario, California 91764. Landlord may change Landlord’s address for the purpose of this Section by giving written notice of that change to Tenant in the manner provided in Section 11.03; Tenant shall then transmit a copy of that notice to any Lender described in Article 6 of this lease.
Section 11.03 Notices to Tenant. Except as otherwise expressly provided by law, any and all notices or other communications required or permitted by this lease or by law to b e served on or given to Tenant by Landlord shall be in writing and shall be deemed duly served and given when personally delivered to Tenant, any managing employee of Tenant, or, in lieu of personal 941
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service, when deposited in the United States mail, first-class postage prepaid, and sent by express mail that allows for tracking, addressed to Tenant at 632 S. Hope Avenue, Ontario, California 91761. Tenant may change its address for the purpose of this section by giving written notice of that change to Landlord in the manner provided in Section 11.02 of this lease.
Section 11.04 Governing Law. This lease, and all matters relating to this lease, shall be governed by the laws of the State of California in force at the time any need for interpretation of this lease or any decision or holding concerning this lease arises.
Section 11.05 Binding on Heirs and Successors. This lease shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, grantees, and assigns of the parties hereto, but nothing in t his section shall be construed as a consent by Landlord to any assignment of this lease or any interest in the lease by Tenant except as provided in Article 10 of this lease.
Section 11.06 Partial Invalidity . If any provision of this lease is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this lease shall remain in full force and effect unimpaired by the holding.
Section 11.07 Sole and Only Agreement . This instrument constitutes the sole and only agreement between Landlord and Tenant respecting the Premises, the leasing of the Premises to Tenant, the construction of the Sign described in this lease on the Premises (except as provided in any governmental permits or approvals), and the lease terms set forth in this lease, an d correctly sets forth the obligations of Landlord and Tenant to each other as of its date. Any agreements or representations respecting the Premises, their leasing to Tenant by Landlord, or any other matter discussed in this lease not expressly set forth in this instrument are null and void.
Section 11.08 Memorandum of Lease for Recording. Neither Landlord nor Tenant shall record this lease without the written consent of the other. However, Landlord and Tenant shall, at the request of either at any time during the term of this lease, execute a memorandum or “short form” of this lease for purposes of, and in a form suitable for, recordation. The memorandum or “short form” of this lease shall describe the parties, set forth a description of the leased premises, specify the term of this lease, incorporate this lease by reference, and include any other provisions required by Lender(s).
Section 11.09 Attorney Fees. In the event that any party hereto shall bring or commence an action to enforce the terms and conditions of thi s lease or to obtain damages against the other party arising from any default under or violation of this lease, then the prevailing p arty shall be entitled to an award of attorneys’ fees and court costs as reasonably determined by a court.
[SIGNATURES FOLLOW ON NEXT PAGE]
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Executed on at Ontario, California.
LANDLORD
CITY OF ONTARIO
By:
Chris Hughes, City Manager
Date:
ATTEST:
Assistant City Clerk, Ontario
APPROVED AS TO FORM:
BEST BEST & KRIEGER LLP
City Attorney
TENANT
SAN DIEGO OUTDOOR ADVERTISING, INC.
doing business as
GENERAL OUTDOOR ADVERTISING
By:
William R. Wynn, III
General Manager
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EXHIBIT “A”
Legal Description of Legal Parcel Which Includes the Premises
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EXHIBIT “B”
Legal Description of Premises
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EXHIBIT “C”
Site Plan
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EXHIBIT “D”
Sign Plan
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EXHIBIT “E”
Memorandum of Lease
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Ontario
___________________
Ontario, CA _______
Attn: City Clerk
[Space Above For Recorder’s Use Only]
The undersigned Lessor declares that this Memorandum of Lease is exempt from Recording Fees pursuant to California Government Code Section 27383.
MEMORANDUM OF GROUND LEASE
THIS MEMORANDUM OF GROUND LEASE (this “ Memorandum”) is dated as of _______________, 2024 and is entered into by and between the CITY OF ONTARIO, a municipal corporation (“ Landlord”) and SAN DIEGO OUTDOOR ADVERTISING, INC., dba General Outdoor Advertising (“Tenant”).
R E C I T A L S
A. Landlord and Tenant executed that certain Lease dated ______________, 2025 (the “Lease”) affecting the land described on Exhibit “A” (the “Leased Premises”).
B. Landlord and Tenant now desire to record this Memorandum in order to, among other things, comply with law requiring that municipal leases be recorded, giving constructive notice of the existence of the Lease, and permitting the Tenant and its secured lender(s) approved by Landlord in writing to obtain title insurance if desired.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing recitals, and the covenants and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Lease. Landlord has leased the Leased Premises to Tenant, and Tenant has leased the Leased Premises from Landlord, upon and subject to the terms and conditions set forth in the Lease. The Lease is hereby incorporated herein by this reference.
2. Term; Conditions Precedent. The term of the Lease commences on the Commencement Date (as defined in the Lease) and expires on the last day of the calendar month 948
46700.12001\42999580.2
Ground Lease
in which the thirtieth (30th) anniversary of the Commencement Date occurs. However, the effectiveness of the Lease is conditioned upon Lessee getting valid permits for, the sign described in the Lease.
3. Incorporation of Lease. All of the terms, conditions, provisions, representations and warranties, and covenants of the Lease are incorporated in this Memorandum by reference as though set forth in their entirety herein, and the Lease and this Memorandum shall be deemed to constitute but a single instrument. The provisions of this Memorandum are solely for the purpose of giving notice to third parties of Tenant’s interest, shall not be deemed to add to, modify, or limit the provisions of the Lease, and shall be of no force or effect whatsoever in construing the Lease.
IN WITNESS WHEREOF , on the date first above written, Landlord and Tenant have caused this Memorandum to be executed on their behalf.
LANDLORD
CITY OF ONTARIO
By:
Name: ______________________________
City Manager
TENANT
SAN DIEGO OUTDOOR ADVERTISING,
INC., dba GENERAL OUTDOOR
ADVERTISING
a California corporation
By:
Print Name:
Title:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
949
46700.12001\42999580.2
Ground Lease
)
County of )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ____________________________________ (Seal)
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.
950
46700.12001\42999580.2
Ground Lease
State of California )
County of )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknow ledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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.
951
46700.12001\42999580.2
Ground Lease
Exhibit A to Memorandum of Ground Lease
Legal Description of Leased Premises
952
Department: Development Administration
Prepared By: Pablo De Lara
Staff Member Presenting: Rudy Zeledon,
Executive Director Community Development
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 16
SUBJECT:
A PUBLIC HEARING TO CONSIDER THE ADOPTION OF AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT (FILE NO. PDA24-004) BETWEEN THE
CITY OF ONTARIO, WARM SPRINGS INVESTMENTS LTD, LHC ONTARIO
HOLDINGS, LLC, AND RICHLAND ONTARIO DEVELOPERS, LLC
CITY OF ONTARIO
Agenda Report
June 17, 2025
SECTION:
PUBLIC HEARINGS
RECOMMENDATION:
That the City Council introduce and waive further reading of an Ordinance Approving a Development Agreement (File No. PDA24-004) between the City of Ontario, Warm Springs Investments Ltd, LHC Ontario Holdings, LLC, and Richland Ontario Developers, LLC
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT:
There is not a direct fiscal impact associated with this action. The Development Agreement will provide funding from the formation of a Community Facilities District (CFD) for City services and facilities required to support the Subarea 29 Specific Plan (Specific Plan) development, thereby mitigating the increased costs associated with such services. In addition, the City will receive development impact, compliance processing, licensing, and permitting fees.
BACKGROUND & ANALYSIS:
The financial commitments associated with constructing properties within Ontario Ranch are significant. To accurately forecast these costs and ensure the projects can move forward in compliance with current policies, rules, and regulations, Warm Springs Investments Ltd., LHC Ontario Holdings, LLC, and Richland Ontario Developers, LLC (collectively referred to as the "Applicant" or "Owner") have requested that the City enter into negotiations to establish a Development Agreement (the "Agreement").
The Agreement proposes to include 55.2 acres of land within Planning Area 33 of the Subarea 29 Specific Plan, as shown on the attached Exhibit A. The Agreement grants the Applicant a vested 953
right to develop Tentative Tract Map 20724 (the map), provided that the Owner complies with the terms and conditions of the Specific Plan and related EIR.
The Map (see attached Exhibit B) is located at the southeast corner of Eucalyptus Avenue and Mill Creek Avenue and proposes to subdivide 55.2 acres of land into 16 lettered lots and five (5) numbered lots, for residential uses, private drives, landscape edges, and common open space purposes.
The term of the Agreement is for 10 years, with a 5-year option to renew. The main points of the Agreement address funding for all new City expenses created by the project, which includes:
Development Impact Fees (DIF) for construction of public improvements (i.e. streets and bridges, sewer, water, storm drain and fiber); and the creation of a Community Facilities District (CFD) for the maintenance of public facilities.
In considering the Agreement at their meeting on May 27, 2025, the Planning Commission found the Agreement to be consistent with State law, The Ontario Plan, and the City's Development Agreement policies. As a result, the Planning Commission adopted Resolution No. PC25-022 with a 5 to 0 vote, recommending City Council approval of the Agreement.
ENVIRONMENTAL REVIEW:
The environmental impacts of this Project were previously reviewed in conjunction with File No. PSPA21-005, a Specific Plan Amendment for which a Subsequent Environmental Impact Report (SEIR) (State Clearinghouse No. 2004011009) was adopted by the City Council on November 21, 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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Exhibit A:
SUBAREA 29 SPECIFIC PLAN LAND USE MAP
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Exhibit B:
TENTATIVE TRACT MAP NO. 20724
956
ORDINANCE NO. ________
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, RECOMMEN DING CITY COUNCIL AP PROVE FILE NO.
PDA24-004, A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
ONTARIO AND, WARM SP RINGS INVESTMENTS LT D, LHC ONTARIO
HOLDINGS, LLC, AND R ICHLAND ONTARIO DEVE LOPERS, LLC TO
ESTABLISH THE TERMS AND CONDITIONS ASSOC IATED WITH
TENTATIVE TRACT MAP 20724 (FILE NO. PMTT 24-005) LOCATED AT
THE SOUTHEAST CORNER OF EUCALYPTUS AVENU E AND MILL
CREEK AVENUE, WITHIN PLANNING AREA 33 OF THE SUBAREA 29 SPECIFIC PLAN (FILE NO. PSPA21 -005). (AP NS: 1073 -171-05, 107 3- 171-06, 1073-171-07).
WHEREAS, Richland Ontario Developers, LLC ("Applicant") has filed an Application for the approval of a Development Agreement, File No. PDA24 -004, as described in the title of this Ordinance (hereinafter referred to as "Application" or "Project"); and
WHEREAS, the Application applies to 55.2 acres of land, located at the southeast corner of Eucalyptus Avenue and Mill Creek Avenue, within Planning Area 33 of the Subarea 29 Specific Plan (File No. PSPA21-005); and
WHEREAS, the Applicant submitted Tentative Tract Map No. 20724 (File No.
PMTT24-005), subdividing 55.2 acres of land into 16 lettered lots and five (5) numbered lots, for residential uses, private dr ives, landscape edges, and common open space purposes; and
WHEREAS, the environmental impacts of this Project were previously reviewed in conjunction with File No. PSPA21 -005, a Specific Plan Amendment for which a Subsequent Environmental Impact Report (SEIR) (State Clearinghouse No. 2004011009) was adopted by the City Council on November 21, 2023. This Application introduces no new significant environmental impacts; and
WHEREAS, the City's "Local Guidelines for the Implementation of the California Environmental Quality Act (CEQA)" provide for the use of a single environmental assessment in situations where the impacts of subsequent projects are adequately analyzed; and
WHEREAS, Ontario Development Code Table 2.02 -1 (Review Matrix) grants the City Council the responsibility and authority to review and make recommendations to the City Council on the subject Application; and
WHEREAS, the Project has been reviewed for consistency with the Housing Element of the Policy Plan component of The Ontario Plan, as State Housing Element law (as prescribed in Government Code Sections 65580 through 65589.8) requires that development projects must be consistent with the Housing Element, if upon consideration 957
of all its aspects, it is found to further the purposes, princ ipals, goals, and policies of the Housing Element; and
WHEREAS, the Project is located within the Airport Influence Area of Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and is subject to, and must be consistent with, the policies and criteria set forth in the Ontario International Airport Land Use Compatibility Plan (hereinafter referred to as "ALUCP"), which applies only to jurisdictions within San Bernardino County, and addresses the noise, safety, airspace protection, and overflight impacts of current and future airport activity; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided a nd hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on May 27, 2025, the Planning Commission of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date, voting to issue Resolution No. PC25-022 recommending the City Council approve the Application; and
WHEREAS, on June 17, 2025, the City Council of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date; and
WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.
NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND RESOLVED by the City Council of the City of Ontario, as follows:
SECTION 1: Environmental Determination an d Findings. As the recommending authority for the Project, the City Council 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 Cer tified EIR and supporting documentation, the City Council finds as follows:
(1) The environmental impacts of this Project were previously reviewed in conjunction with File No. PSPA21 -005, a Specific Plan Amendment for which a Subsequent Environmental Impact R eport (SEIR) (State Clearinghouse No. 2004011009) was adopted by the City Council on November 21, 2023. This Application introduces no new significant environmental impacts; 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
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(4) The previous Certified EIR reflects the independent judgment of the City Council; 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 City Council , and the specific findings set forth in Section 1, above, the City Council 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
(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 effe cts 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 authority for the Project, the City Council finds that based on the facts 959
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. Th e project site is not one of the properties in the Housing Element Sites contained in Tables B -1 and B -2 (Housing Element Sites Inventory) of the Housing Element Technical Report.
SECTION 4: Airport Land Use Compatibility Plan ("ALUCP") Compliance. The California State Aeronautics Act (Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan.
(1) On April 19, 2011, the City Council of the City of Ontario approved and adopted the Ontario International Airport Land use Compatibility Plan, establishing the Airport Influence Area for Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. As the recommending authority for the Project, the City Council has reviewed and considered the facts and information contained in the Application and supporting documentation against the ONT ALUCP compatibility factors, including [1] Safety Criteria (ONT ALUCP Table 2 -2) and Safety Zones (ONT ALUCP Map 2 -2), [2] Noise Criteria (ONT ALUCP Table 2 -3) and Noise Impact Zones (ONT ALUCP Map 2-3), [3] Airspace protection Zones (ONT ALUCP Map 2-4), and [4] Overflight Notification Zones (ONT ALUCP Map 2-5). As a result, the City Council, therefore, finds and determines that the Project, is will be consistent with the policies and criteria set forth within the ONT ALUCP; and
(2) On August 2, 2022, the City Council of the City of Ontario approved and adopted a Development Code Amendment to establish the Chino Airport ("CNO") Overlay Zoning District ("OZD") and Reference I, Chino Airport Land Use Compatibility Plan ("CNO ALUCP"). Th e CNO OZD and CNO ALUCP established the Airport Influence Area for Chino Airport, solely within the City of Ontario, and limits future land uses and development within the Airport Influence Area, as they relate to safety, airspace protection, and overflight impacts of current and future airport activity. The CNO ALUCP is consistent with policies and criteria set forth within the Caltrans 2011 California Airport Land Use Planning Handbook. The proposed Project is located within the Airport Influence Area of Chino Airport and was evaluated and found to be consistent with the California Airport Land Use Planning Handbook and the CNO ALUCP. As the recommending authority for the Project, the City Council has reviewed and considered the facts and information conta ined in the Application and supporting documentation against the CNO ALUCP compatibility factors, including Safety, Airspace Protection, Overflight. As a result, the City Council , 960
therefore, finds and determines that the Project is consistent with the policies and criteria set forth within the California Airport Land Use Planning Handbook and the Chino ALUCP.
SECTION 5: Concluding Facts and Reasons. Based upon the substantial evidence presented to the City Council during the above -referenced hearing, and u pon the specific findings set forth in Section 1 through 4, above, the City Council hereby concludes as follows:
(1) The Development Agreement applies to 55.2 acres of land located at the southeast corner of Eucalyptus Avenue and Mill Creek Avenue, within Planning Area 33 of the Subarea 29 Specific Plan (File No. PSPA21 -005); and
(2) The Development Agreement establishes parameters for the development of land within the Subarea 29 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 Subarea 29 Specific Plan; and
(3) The Development Agreement grants the Applicant a vested right to develop Tentative Tract Map 20724 (File No. PMTT24-005) as long as the Applicant complies with the terms and conditions of the Subarea 29 Specific Plan and EIR. T entative Tract Map 20724 is located at the southeast corner of Eucalyptus Avenue and Mill Creek Avenue and proposes to subdivide 55.2 acres of land into 16 lettered lots and five (5) numbered lots, for residential uses, private drives, landscape edges, and common open space purposes; and
(4) The Development Agreement has been prepared in conformance with the goals and policies of The Ontario Plan Policy Plan (General Plan); and
(5) The Development Agreement does not conflict with the Land Use Policies of The Ont ario Plan Policy Plan (General Plan) and will provide for development, within the district, in a manner consistent with the Policy Plan and with related development; and
(6) This Development Agreement will promote the goals and objectives of the Land Use Element of the Policy Plan; and
(7) This Development Agreement will not be materially injurious or detrimental to the adjacent properties and will not have a significant impact on the environment or the surrounding properties for which a Subsequent Environmental Impact Report (SCH# 2004011009) was adopted by the City Council on November 21, 2023; and
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(8) This Application introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of project approval and are incorporated herein by this reference.
SECTION 6: City Council Action. Based upon the findings and conclusions set forth in Sections 1 through 5, above, the City Council hereby APPROVES the Development Agreement (File No. PDA24-004), attached hereto as "Attachment A," and incorporated herein by this reference.
SECTION 7: City Manager Administrative Authority. The City Council acknowledges that refinements and further development of the Ontario Ranch development area may demonstrate that changes are appr opriate with respect to the details and performance of the parties under the Development Agreement. The City Council desires to retain a certain degree of flexibility with respect to the details of the Ontario Ranch developments, and with respect to those items covered in general terms under the Development Agreement. If and when the City Manager (or designee) and the Developer mutually find that changes, adjustments, or clarifications are appropriate to further the intended purposes of the Development Agreement, and such are not materially inconsistent with the Development Agreement, they may, unless otherwise required by law, effectuate such changes, adjustments, or clarifications by written amendment to this Agreement, or through one or more memoranda which are mutually approved by the City Manager on behalf of the City and by the Developer, and, after execution, shall be attached to the Development Agreement and become a part thereof. Unless otherwise required by law, no such changes, adjustments, or clarifications shall require prior notice or hearing before the City Council. The City Manager, with the approval of the City Attorney, shall have the authority but not the obligation to execute amendments, memoranda or other documents, and may take any action necessary to implement the Development Agreement.
SECTION 8 Indemnification. The Applicant shall agree to defend, indemnify and hold harmless, the City of Ontario or its agents, officers, and employees from any claim, action or proceeding against the City of Ontario or its agents, officers or employees to attack, set aside, void, or annul this approval. The City of Ontario shall promptly notify the applicant of any such claim, action, or proceeding, and the City of Ontario shall cooperate fully in the defense.
SECTION 9: Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings have been based are located at the City of Ontario City Hall, 303 East "B" Street, Ontario, California 91764. The custodian for these records is the City Clerk of the City of Ontario.
SECTION 10: Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be inva lid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The People of the City of Ontario hereby declare that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be 962
declared invalid or unconstitutional.
SECTION 11: Effective Date. This Ordinance shall become effective 30 days following its adoption.
SECTION 12: Publication and Posting. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within fifteen (15) days of the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.
PASSED, APPROVED, AND ADOPTED this ________ day of _________ 2025.
_____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
963
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. _______ was duly introduced at a regular meeting of the City Council of the City of Ontario held _____________ and adopted at the regular meeting held ___________, 2025 by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
_________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
I hereby certify that the foregoing is the original of Ordinance No. _______ duly passed and adopted by the Ontario City Council at their regular meeting held ____________ and that Summaries of the Ordinance were published on ___________ and _____________, in the Inland Valley Daily Bulletin newspaper.
__________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
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ATTACHMENT A:
FILE NO. PDA24-004
DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation
and
Warm Springs Investments Ltd.
and
LHC Ontario Holdings, LLC
and
Richland Ontario Developers, LLC
(Development Agreement to follow this page)
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1 RECORDING REQUESTED BY AND
WHEN RECORDED MAIL 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. PDA24-004
DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation
and
Warm Springs Investments Ltd.
and
LHC Ontario Holdings, LLC
and
Richland Ontario Developers, LLC
_________________________, 2025
San Bernardino County, California
966
-2-
DEVELOPMENT AGREEMENT PDA24-004
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 Warm Springs Investments Ltd., a Florida limited partnership (“WSI”), LHC Ontario Holdings, LLC, a Delaware limited liability company (“LHC”), and Richland Onta rio Developers, LLC, a Delaware limited liability company (“ROD”) (hereinafter WSI, LHC and ROD are collectively referred to as “OWNER”):
RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitab le interests in real property for the development of such property, pursuant to Section 65864, et seq. of the Government Code; and WHEREAS, OWNER has requested CITY to enter into a development agreement and proceedings have been taken in accordance with th e 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 that Subarea 29 Specific Plan (State Clearinghouse No. 2004011009 (the “ SEIR”). The City Council found and determined that the SEIR was prepared in accordance with the requirements of the California Environmental Quality Act and adequately describes the impacts of the project described in the SEIR, which included consideration of this Agreement; and WHEREAS, this Agreement and the Project are consistent with the CITY’s Comprehensive General Plan and the Subarea 29 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 acc ordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
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-3-
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 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, the property developer/owners are made aware of the South Archibald Trichloroethylene (TCE) Plume Disclosure Letter (Exhibit “G”). 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 defi ned as follows:
1.1.1 “Agreement” means this Development Agreement.
1.1.2 “CITY” means the City of Ontario, California, a California municipal corporation.
1.1.3 “Construction Agreement” means that certain Agreement for the Financing and Construction of Ph ases 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 amendments thereto and “Construction Agreement Amendment” means that 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 21st day of August 2012.
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-4-
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 buildin g, 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;
(d) conditional use permits (including model home use permits ), public use permits and plot plans;
(e) zoning;
(f) grading and building permits.
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 lessen, 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 (commen cing 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 Appro vals or for monitoring compliance with any Development Approvals granted or issued, including, without limitation, fees for zoning variances; zoning changes; use permits; building inspections; building permits; filing and processing applications and petiti ons 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 969
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processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Government Code, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public Utilities Code, as such codes may be amended or superceded, 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 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 Re gulations in effect on the Effective Date. 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 the Effective Date.
1.1.12 “General Plan” means the General 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 Tract Map conditions for Tract No . 20724 as further de scribed 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 limi tation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. “Land Use Regulations” does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
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(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 “Model Units” includes model units, private common recreation facilities and sales facilities constructed by OWNER prior to the construction of any Production units and not offered for sale and occupancy for a period of time after the issuance of permits for Production Units.
1.1.17 “Net MDD” means net maximum daily water demand.
1.1.18 “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.
1.1.19 “OWNER” means the three 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.
1.1.20 “Phase 2 Water EDUs” means the number of equivalent dwelling units or non-residential square footage assigned to OWERN 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”.
1.1.21 “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.
1.1.22 “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.
1.1.23 “Production Unit(s)” means all units constructed for sale and occupancy by OWNER and excludes the specified number of Model Units constructed by OWNER for promotion of sales.
1.1.24 “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.
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1.1.25 “Property” means the real property described on Exhibit “A” and shown on Exhibit “B” to this Agreement.
1.1.26 “Reservations of Authority” means the rights a nd authority excepted from the assurances and rights provided to OWNER under this Agreement and reserved to CITY under Section 3.6 of this Agreement.
1.1.27 “Specific Plan” means that certain specific plan adopted by the City Council, and entitled, “Subarea 29 Specific Plan.”
1.1.28 "Storm Water Treatment Capacity Availability” means a designated portion of the total Storm Water Treatment Capacity Availability made available through the completion of construction of a Phase of regional storm water treatment facilities by the NMC Builders LLC as described in the Construction Agreement Amendment. The amount, in acres, of Storm Water Treatment Capacity Availability required for the issuance of a grading permit shall be based upon the factors and assumptions li sted in the Construction Agreement Amendment.
1.1.29 “Subsequent Development Approvals” means all Development Approvals required subsequent to the Effective Date in connection with development of the Property.
1.1.30 “Subsequent Land Use Regulations” means any Land Use Regulations adopted and effective after the Effective Date of this Agreement.
1.1.31 “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. The number of Water Availability Equivalents (of portions thereof) required for the issuance of each building permit shall be based upon water demand factors and assumptions listed in the Construction Agreement and Construction Agreement Amendment as “Water Availability Equivalents by Land Use” for each land use category.
1.1.32 “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 required for CITY’s future construction of the “Phase 2 Water Improvements” described in a modification to Exhibit C -3 of the Construction Agreement.
1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:
Exhibit “A” — Legal Description of the Property.
Exhibit “B” — Map showing Property and its location.
Exhibit “C” — Existing Development Approvals.
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Exhibit “D” — Existing Land Use Regulations.
Exhibit “E” — Description of Required Infrastructure Improvements Exhibit “F” — Depiction of Required Infrastructure Improvements 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 Exhibit “I-2” - Water Demand Equivalents by Land Use
Exhibit “J” - Form of Plume 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.
2.2 Ownership of Property . OWNER represents and covenants that it is th e 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, O WNER shall obtain written consent from the current fee owner of the Property agreeing to the terms of this Agreement and the recordation thereof.
2.3 Term. The term of this Agreement shall commence on the Effective Date and shall continue for an initial t erm 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) In non-mixed use and residential use only projects, the OWNER shall have obtained, as applicable, building per mits for at least seventy percent (70%) of the actual number of residential units permitted under this Agreement; and (c) OWNER is not then in uncured default of this Agreement.
2.4 Assignment.
2.4.1 Right to Assign . OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410, et seq.), to any person, 973
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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 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. OWNER may wish to provide the attached Disclosure Letter (Exhibit J) as part of the Real Estate Transfer Disclosure requirements under California Civil Code Section 1102 et seq.(b) (b) Concurrent with such sale, transfer or assignment, or within fifteen (15) business days thereafter, OWNER shall notify CITY’s City Manager, in writing, of such sale, transfer or assignment and shall p rovide 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; and (2) the payment of the applicable processing charge to cover the CITY’s review and consideration of such sale, transfer or assignment.
(c) Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by OWNER under this Agreement.
Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection 2.4.1, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed. The City Manager shall have the authority to review, consider and either approve, conditionally approve, or deny any proposed sale, transfer or assignment that is not made in compliance with this section 2.4.
2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement unless such transferring owner is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring owner of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the portion of the Property sold, transferred or assigned.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above. 974
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(d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder.
2.4.3 Effect of Assignment and Release of Obligations. In the event of a sale, transfer or assignment pursuant to the provisions of Section 2.4.2 above:
(a) The assignee shall be liable for the performance of all obligations of OWNER with respect to transferred property, but shall have no obligations with respect to the portions of the Property, if any, not transferred (the “Retained Property”). (b) The owner of the Retained Property shall be liable for the performance of all obligations of OWNER with respect to Retained Property, but shall have no further obligations with respect to the transferred property.
(c) The assignee’s exercise, use and enjoyment of the Property or portion thereof shall be subject to the terms of this Agreement to the same extent as if the assignee were the OWNER.
2.4.4 Subsequent Assignment . Any subsequent s ale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section 2.4.
2.4.5 Termination of Agreement with Respect to Individual Lots Upon Sale to Public and Completion of Construction . The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one year) of any lot 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. 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 lot, 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 obligat ions and rights under this Agreement, and all amendments hereto, to a purchaser, transferee or assignee of a lot, which has been subdivided subject to provisions of a partial assignment and assumption agreement in a form approved by CITY. Any such complete and executed partial assignment and assumption of this Agreement shall be submitted to CITY for approval pursuant to Section
2.4.1 of this Agreement. 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 975
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thereof. No such release approved pursuant to this Subsection 2.4.6 shall cause, or otherwise affect, a release of OWNER from the duties and obligations under this Agreement that are retained by OWNER and excluded from the transfer or assignment.
2.5 Amendment or Cancellation of Agreement . This Agreement may be amended or cancelled in whole or in part only in the manner provided for in Government Code Section 65868.1. Any amendment of this Agreement, which amendment has been requested by OWNER, shall be considered by the CITY only upon the payment of the applicable processing charge. This provision shall not limit any re medy 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 th eir successors in interest except as provided otherwise in this Agreement or in Government Code Section 65865.1. For purposes of this section, the term “successor in interest” shall mean any person having a legal or equitable interest in the whole of the Property, or any portion thereof as to which such person wishes to amend or cancel this Agreement. The procedure for proposing and adopting an amendment to, or cancellation of, in whole or in part, this Agreement shall be the same as the procedure for ado pting 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 it s 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 Amendment to Reflect Consistency With Future Amendments to the Construction Agreem ent. To the extent any future amendment to the Construction Agreement provides for modifications to rights or obligations that differ from or alter the same or similar rights or obligations contained in this Development Agreement, OWNER reserves the right to request an amendment to the Development Agreement to reflect any or all of such modifications.
2.5.2 Minor Modification. Upon the written application of OWNER, minor modifications and changes to the Development Plan including modifications to building design or footprint (not affecting minimum setbacks), parking layout and design, and landscape area design may be approved by the Director of the Planning Department without the need to amend this Development Agreement. Other changes in the Development Plan shall be processed pursuant to the City Zoning Ordinance. It is also contemplated by CITY and OWNER that OWNER may, from time to time, seek amendments to one or more of the Development Approvals. Any such amendments are contemplated by CITY and OWNER as being within the scope of this Agreement as long as they are consistent with the Land Use Regulations and shall, upon approval by CITY, continue to constitute the Development Approvals as referenced herein. The parties agree that any such modifications or amendments shall not constitute an amendment to this Agreement nor require an amendment to this Agreement.
2.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
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(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 paid pursuant to Section 4.2 of this Agreement by OWNER to CITY for residential units on which construction has not yet begun shall be refunded to OWNER by CITY.
2.7 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:
Richland
Attn: Derek Barbour, Vice President
3161 Michelson Drive, Suite 425
Irvine, CA 92612
with a copy to:
Ruben Duran, City Attorney
Best Best & Krieger, LLP
2855 E Guasti Road
Ontario, CA 91761
with a copy to:
Richland
Attn: Legal Department
3161 Michelson Drive, Suite 425
Irvine, CA 92612
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(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, 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.
3.2 Effect of Agreement on Land Use Regulations . Except as otherwise provided under the terms of this Ag reement including the Reservations of Authority, 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, imp rovement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, CITY shall exercise discretion in accordance with the same manner as it exercises its discretion under its police powers, including the Reservations of Authority set forth herein; provided however, that such discretion shall not prevent development of the Property for the uses and to the density or intensity of development set forth in this Agreement.
3.3 Timing of Development. The parties acknowledge that OWNER cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are n ot 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 Ca1. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that OWNER shall have the right to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment.
3.4 Requirement for Public Infrastruc ture Improvements. Development of the Property is contingent in part on the phasing of area -wide infrastructure improvements over which the OWNER has control. The issuance of building permits by CITY for Model Units and Production Units is, in general, contingent on OWNER’s completion of needed 978
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infrastructure improvements and the availability of improvements and services to serve the Property.
3.4.1 Attached hereto as Exhibit “F” is a description of the infrastructure improvements needed for the developm ent of the Property (“the Infrastructure Improvement Exhibit”).
3.4.2 Construction of Model Units, private common recreation facilities, and sales facilities is subject to plan submittal by OWNER and approval by CITY. Said plan shall illustrate that adequate public infrastructure is available to serve these uses and shall describe the utilities and other infrastructure necessary to provide sufficient fire protection and other public health and safety requirements.
3.5 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event OWN ER finds that a change in the Existing Development Approvals is necessary or appropriate, OWNER shall apply for a Subsequent Development Approval to effectuate such change and CITY shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Authority. If approved, any such change in the Existing Development Approvals shall be incorporated herein as an addendum to Exhibit “C”, and may be further changed from time to time as provided in this Section. Unless otherwise required by law, as determined in CITY’s reasonable discretion, a change to the Existing Development Approvals shall be deemed “minor” and not require an amendment to this Agreement p rovided such change does not:
(a) Alter the permitted uses of the Property as a whole; or, (b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings; or, (d) Delete a requir ement for the reservation or dedication of land for public purposes within the Property as a whole; or,
(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.
3.6 Reservations of Authority.
3.6.1 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, 979
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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 Property in accordance with, and to the e xtent of, the standards and specifications that are expressly identified in the Specific Plan;
(d) Regulations that may conflict with this Agreement and the Development Plan but that are reasonably necessary to protect the residents of the project and/o r 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;
(f) Regulations that may conflict but to which the OWNER consents.
3.6.2 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, nor shall this Agreement prevent CITY from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan.
3.6.3 Modification or Suspension by State or Federal Law. In the event that State or Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws o r 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 980
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preclude or prevent compliance with one or more provisions o f 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).
3.6.4 Intent. The parties acknowledge and agree that CITY is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to CITY all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority which cannot be restricted by contract.
3.7 Public Works; Utilities . If OWNER is required by this Agreement to construct any public works facilities which will be dedicated to CITY or any other public agency upon completion, and if required by applicable laws to do so, OWNER s hall 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 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.
3.7.1 OWNER agrees that development of the Project shall require the construction of Storm Drain facilities from the Property as described in Exhibit F .
OWNER shall be responsible for the construction of the necessary extension of master planned Storm Drain facilities.
3.7.2 OWNER agrees that development of the Project shall require the construction of street improvements as described in Exhibit F.
3.7.3 OWNER agrees that development of the Property shall require the extension of permanent master planned water and recycled water utility infrastructure as described in Exhibit F consisting generally of the construction of the exten sion of permanent master planned water and recycled water utility improvements to serve the Property. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the water and recycled water Improvements as described in Exhibit F. OWNER also 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.
3.7.4 OWNER agrees that NMC Builders shall be respon sible for funding a portion of the design and construction of an additional extension of master planned recycled water infrastructure in Riverside and Haven Avenues to be constructed by CITY. These master planned recycled water Improvements shall also se rve 981
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the Project. OWNER shall deposit, or shall have deposited, with NMC Builders an amount equal to the OWNER’s capital contribution for the design and construction of the NMC Builders portion of the recycled water improvements in Riverside and Haven Aven ues known as the “Phase 2 Recycled Water Improvements” within thirty (30) days after CITY requests such funds from NMC Builders. If OWNER has not deposited such amount, with NMC Builders within thirty (30) days after CITY requests such funds from NMC Build ers, then CITY shall be entitled to withhold issuance of any further permits (whether discretionary or ministerial) for the Project unless and until OWNER deposits the amount of OWNER’s capital contribution with NMC Builders for the design and construction of the NMC Builders portion of the Phase 2 Recycled Water System Improvements.
3.7.5 OWNER agrees that development of the Property shall require the extension of permanent master planned sewer improvements, at OWNER’s sole cost and expense, as described in the attached Exhibit F consisting generally of the construction of the extension of sewer infrastructure to serve the Property.
3.7.6 OWNER agrees that development of the Property shall require the extension of permanent master planned fiber optic communications infrastructure, at OWNER’s sole cost and expense, as described in the attached Exhibit F consisting generally of the construction of the extension of fiber optic communications infrastructure to serve the Property.
3.7.7 OWNER agrees that development of the project shall require the design and construction of one (1) non -DIF traffic signal at Eucalyptus Avenue and “G” Street, Modification of one (1) existing DIF eligible Traffic Signal at Eucalyptus Avenue and Mill Creek Avenue , and Modifi cation of one (1) existing DIF eligible Traffic Signal at Bellegrave Avenue and Mill Creek Avenue . OWNER shall complete construction prior to the seventy fifth (75th) percentile building permit, as described in the attached Exhibit E and depicted in Exhibit F.
3.7.8 OWNER shall pay their fair share contribution, for the design and construction of one (1) non-DIF traffic signal at the west of project along Bellegrave Avenue (50%). OWNER shall provide CITY with the estimated costs of the one (1) non-DIF traffic signal improvements and shall make such fair share contribution payment to CITY prior to the fiftieth (50th) percentile building permit.
3.8 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 P roperty”) in accordance with the procedures set forth in Section 2.4 of the Construction Agreement. This section 3.8 is not intended by the parties to impose upon the OWNER an enforceable duty to acquire land or construct any public improvements on land n ot owned by OWNER, except to the extent that the OWNER elects to proceed with the development of the Project, and then only in 982
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accordance with valid conditions imposed by the CITY upon the development of the Project under the Subdivision Map Act or other legal authority.
3.8.1 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 3.8.1 and 3.8.2 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 3.8.
The CITY and OWNER acknowledge that the timelines set forth in this Section
3.8.1 represent the maximum time periods which CITY and OWNER reasonably believe will be necessary to c omplete the acquisition of any Non -Construction Agreement Offsite Property. CITY agrees to use reasonable good faith efforts to complete the actions described within lesser time periods, to the extent that it is reasonably able to do so, consistent with the legal constraints imposed upon CITY.
3.8.2 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 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) da y 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.
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3.9 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.
3.10 Tentative Tract Maps; Extension. With respect to applications by OWNER for tentative subdivision maps for portions of the Property, CITY agrees that OWNER may file and process tentative maps in accordance with Chapter 4.5 (commencing with Section 66498.1) of Division 2 of Title 7 of the California Governmen t 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 pri or 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.
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 984
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each applicable residential or other unit, 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. Deferral of the payment of Development Impact Fees may be granted pursuant to a separate agreement approved by City pursuant to City policy.
4.2.3 Parkland and Quimby Act Fees. Pursuant to the General Plan (OntarioPlan) Goal PR1, Policy PR1 -5 (achievement of a park standard of 5 acres of parkland per 1,000 residents) OWNER shall provide improved parks, developed in accordance with the City’s park standards in an amount equal to two (2) acres per 1,000 of projected population without credit, reimbursement, offset or consideration from City. Such areas shall either be dedicated to the City or transferred to a homeowners ’ association. If approved by the City Manager, OWNER may satisfy this requirement through the development of non -public recreation facilities such as private recreational clubhouses or pool facilities.
Credit for such private recreational facilities areas shall be limited to a maximum of 50% of the foregoing park development requirement. If OWNER’s Project does not provide dedicated and developed park acreage equal to two (2) acres per 1,000 projected population, OWNER shall pay a fee in -lieu equal to the per acre estimated costs of acquisition and development of parkland in the City’s Development Impact Fee for the calculated park acreage deficiency. Such in-lieu fee shall be due and payable prior to the issuance of the first building permit for Production Units issued to OWNER. Any park dedication and/or improvements in excess of such two (2) acres per thousand standard, provided such park has been developed in accordance with the City’s park standar ds and is open to the public generally, shall entitle OWNER to a credit toward its obligations under the Quimby Act (Gov. Code, § 64477) and the City’s implementing ordinance and/or resolution (collectively “Quimby Act Obligations”), and to the extent OWNER’s Quimby Act Obligations are satisfied, OWNER shall be entitled to have the City acquire such developed and publicly available parks as Non -Program Interests in accordance with Section 4.3.3 below.
4.3 Responsibility for Construction of Public Improvements.
4.3.1 Timely Construction of Public Infrastructure . The phasing of the areawide infrastructure construction within the New Model Colony will 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 tentative tract map conditions. Unless otherwise specified in the Subdivision Agreement/Tract Map conditions, all other required Improvements for each Tract Map, shall be completed and operational prior to, and as a condition precedent to, OWNER requesting and CITY’s granting of the first building permit for production units for each such Tract Map. All Infrastructure and Improvements shall be completed as r equired by the Subdivision Agreement/Tract Map conditions for Tract No. 20724.
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4.3.2 Construction of DIF Program Infrastructure (Construction Agreement) . To the extent OWNER is required to construct and completes construction of public improvements that are included in CITY’s Development Impact Fee Program and the Construction Agreement between CITY and NMC Builders LLC, CITY agrees that CITY shall issue DIF Credit in accordance with the provisions of the Construction Agreement and any amendments thereto. Use of DIF Credit issued to OWNER as a member of NMC Builders LLC to offset OWNER’s DIF payment obligations shall also be subject to the provisions of the Construction Agreement and any amendments thereto.
4.3.3 Construction of DIF Program Infrastructure (Non-Construction Agreement).
To the extent OWNER is required to construct and completes construction of public improvements that are included in CITY’s Development Impact Fee Program and such public improvements are not inc luded the Construction Agreement between CITY and NMC Builders LLC, 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. Limitation 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 tha t 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. CITY and OWNER agree that the Fee Credit Agreement between CITY and OWNER shall comply with CITY’s adopted policies applicable to such agreements.
4.3.4 Availability and use of Recycled Water. OWNER agrees that recycled water shall be available and utilized by OWNER for all construction -related water uses including prior to, and during, any grading of the Property.
4.4 Affordable Housing Requirement.
4.4.1 Affordable Housing- Number of Units. OWNER shall provide a minimum number of affordable housing units, equivalent to 10% of the OWNER’s total approved residential units within the Project, that are affordable to very low, low and moderate income households. Such requirement for affordable housing shall be met through one, or a combination of one or more, of the options provided in the following Sections 4.3.2.1 through 4.3.2.1. For the purposes of this Section, any term not defined in this Agreement shall be as defined by California Community Redevelopment Law (California Health and Safety Code Section 33000 et seq.).
4.4.2 Affordability Spread . Of the total number of residential dwelling units specified in Section 4.4.1, to be constructed or rehabilitated pursuant to Sections
4.4.2.1 or 4.4.2.2 respectively, thirty percent (30%) shall be available to very low income, thirty percent (30%) shall be available to low income and forty percent 986
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(40%) shall be available to moderate income households. “Households” shall be as defined by California Health and Safety Code Section 50053.
4.4.2.1 New Construction. If OWNER elects to fully or partially satisfy the affordable housing requirement by the construction of new residential units, it shall construct and restrict the affordability of residential dwelling units within its Project or, at OWNER’s option and with the approval of the City, within another project elsewhere within the City. The affordable units constructed shall be intermingled with other units as part of the Project, and shall be built to the same construction, design and aesthetic standards, as well as number of rooms, as other units constructed as part of that OWNER’s Project. In addition, the percentage ratio of affordable units offered for sale versus those offered for rent shall equal the percentage ratio of other units offered for sale versus for rent within OWNER’s Project. Such construction shall be completed no later than the date that is five (5) years following the issuance of the first building permit for OWNER’s Project; provided however that to the extent OWNER has not constructed the required percentage of units, based on the number of building permits for non -restricted units, OWNER shall, prior to the issuance of such building permits, provide security (in the form and substance approved by the City Manager and City Attorney) to City in order to ensure the faithful completion of such required percentage of construction of affordable units. If OWNER elects the option of constructing new affordable units, a detailed Affordable Housing Agreement specifying terms for the allowable monthly housing costs or rents (as applicable) and maintenance and occupancy standards shall be prepared, executed and recorded against such units as a condition to the issuance of a building permit. The Affordable Housing Agreement shall hold a recorded priority position senior to any other non -statutory lien or encumbrance affecting the unit.
4.4.2.2 Rehabilitation . If OWNER elects to fully or partially satisfy the affordable housing requiremen t by the substantial rehabilitation of existing residential units in the City, it shall substantially rehabilitate and restrict the affordability of, the number of residential units specified in Section 4.4.1, provided that such units shall be provided els ewhere within the City. The rehabilitation work shall be substantial and of high quality and shall also address any deferred property maintenance issues on the property. “Substantial rehabilitation ” shall mean rehabilitated multi -family rented dwelling un its with three or more units and the value of the rehabilitation constitutes 25 percent of the after-rehabilitation value of the dwelling, inclusive of land value pursuant to Health and Safety Code Section 33413(b)(2)(A) (iii-iv) as such section exists as of the Effective Date of this Agreement. If OWNER chooses the option of rehabilitation of existing housing units within the City, a detailed Affordable Housing Agreement specifying the terms for the allowable month housing costs or rents (as applicable) and maintenance and occupancy standards shall be prepared, executed and recorded against such units as a condition to the issuance of 987
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a building permit. Such rehabilitation shall be completed no later than the date that is five (5) years following the issua nce of the first building permit for OWNER’s Project; provided however that to the extent OWNER has not rehabilitated the required percentage of units, based on the number of building permits, OWNER shall, prior to the issuance of such building permits, provide security (in the form and substance approved by the City Manager and City Attorney) to the City in order to ensure the faithful completion of such required percentage of rehabilitation.
4.4.2.3 In-Lieu Fee. If OWNER has not fully complied with the requirements of Section 4. 4.1 by providing the minimum number of affordable units through the construction of new affordable units or by the substantial rehabilitation of existing units, shall pay an “ Affordability In-Lieu Fee”. If OWNER has not provided any affordable residential units by construction or rehabilitation, the Affordability In -Lieu fee shall be equal to Three Dollars Thirty-Seven Cents ($3.37) per square foot of residential development within OWNER’s Project or, if pre -paid as set forth below , Two Dollars Ninety-Six Cents ($2.96) per square foot of residential development wit hin OWNER’s Project. If OWNER has partially complied with the requirements of Section
4.4.1 by construction or rehabilitation of less than the minimum number of units, then the Affordability In-lieu Fee shall be recalculated and reduced in consideration of the number and type of affordable units provided. The Affordability In-Lieu Fee shall be paid by OWNER to City no later than prior to the issuance of each building per mit within OWNER’s Project based on the square footage of the residential unit for which such building permit is sought; provided however that OWNER may, at OWNER’s election, pre-pay such Affordability In-Lieu Fee by paying such Affordability In-Lieu Fee within thirty (30) days following the earliest discretionary approval by the City for OWNER’s Project, including, but not limited to, any general plan amendment, specific plan adoption, development agreement, tentative map approval, variance, conditional use permit, or resolution of intention to form any public financing mechanism. The Three Dollars Thirty -Seven Cents ($3.37 Two Dollars Ninety-Six Cents ($2.96) per square foot amounts shall automatically be increased annually, commencing on July 1, 202 5, and automatically each July 1 thereafter. Such adjustment shall be based on the percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA) (December 2017=100) over the preceding year. The pre -paid Affordability In-Lieu Fee shall be calculated based on the maximum floor area ratio (FAR) permitted within the General Plan and any applicable FAR contained within the applicable specific plan, whichever is greater, and the Maximum Development Density. For purposes of this Agreement, “Maximum Development Density” shall be determined by multiplying the OWNER’s Project’s density for residential development potential as set forth in the General Plan or the applicable Specific Plan, whichever is less, by the net acreage of land within OWNER’s Project. All “Affordability In-Lieu Fees” collected by the City shall be used to promote the construction of affordable housing within the City.
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4.4.2.4 Affordability Covenants. Prior to the issuance of the first building permit fo r any affordable unit, the City and OWNER shall enter into an Affordable Housing Agreement Affordability shall be assured for a period of forty-five (45) years for for-sale units and fifty-five (55) years for rentals. For rental units, base rents shall be established by the City and rental adjustments required by the City shall be performed on an annual basis. In addition, the Affordable Housing Agreement shall impose maximum occupancy limits of 2 occupants per bedroom plus 1 additional occupant per dwelling unit, and a requirement for the owner or tenant to properly maintain each dwelling unit.
4.4.2.5 Transfer of Affordable Project. No transfer of title to any affordable housing project shall occur without the prior written consent of the City. In the event OWNER transfers title to any affordable housing project required to be constructed pursuant to this Agreement to a non -profit entity, or other entity, that receives an exemption from ad valorem real property taxes, the City shall be required to assure payment of an annual in lieu fee to the City on July 1 of each year equal to one -tenth of one percent (0.1%) of the assessed value of such project. The City may permit OWNER to satisfy this obligation by recorded covenants against the property and enf orceable against said entity by the City. Any such covenants shall be approved by the Planning Director and the City Attorney.
4.5 Schools Obligations.
4.5.1 Written Evidence of Compliance with Schools Obligations . OWNER shall, either through joint or individual agreements between OWNER and the applicable school district(s), shall satisfy its new school obligations. The new school obligations for the Mountain View School District in the Ontario Ranch area have been projected to include the acquisition or dedication of school sites for, and construction of, up to eight (8) schools. Of these eight (8) schools, six (6) are to be elementary (K -5) grade schools and two (2) are to be middle grade schools. The new school obligations for the Chaffey Joint Uni on High School District in the Ontario Ranch area have been projected to include the dedication of a school site for, and construction of, an additional high school. The new school obligations for the applicable school district shall be met by a combinatio n of the following: (1) designating and dedicating school site(s) within the Property as set forth in the General Plan, and/or (2) paying school impact fees, (3) entering into a joint mitigation agreement or individual mitigation agreements, or (4) any combination of the foregoing. Written evidence of approval by the applicable school district that OWNER has met their school obligations may be required by the City as the condition to the issuance by the City of any entitlements for OWNER’s Project. In the event OWNER is unable to provide such written evidence from the applicable school district(s), the City shall have the right to decline to honor any DIF Credit, Certificates of MDD Availability, Certificates of Storm Water Treatment Capacity Availability, or any combination thereof, presented by such OWNER, without liability to the City. To the extent that a joint 989
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mitigation agreement is approved by the applicable school district(s), and OWNER is a participant in good standing in such mitigation agreement, OWNER shall be deemed to have mitigated its new school obligations under this Section 4.4.1.
4.6 Net MDD/Water Availability Equivalents.
4.6.1 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.
4.6.1 Assigned Net MDD/Water Availability Equivalents. The City has agreed with NMC Builders LLC 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 LLC. NMC Builders has assigned to OWNER its allocable share of the Net MDD issued by City. The provisions of the Construction Agreement Amendment requires that the City shall not approval a final tract map or 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 LLC, except to the bearer of an Assignment of Net MDD Water Availability.
4.6.2 Requirement of NMC Builders, LLC Membership as a Phase 2 Water Member. OWNER and CITY agree that OWNER’s’ payment to CITY required by Section 4.6.3 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.
4.6.3 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 the 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 Fe e 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 sh all 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, 990
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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 Exhibit 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 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 4.6.3, CITY shall issue a certificate of DIF Credit against OWNER’s DIF obligations in the Regional Water DIF Category.
4.6.4 Use of Assigned Net MDD Water Availability. OWNER shall provide evidence of sufficient Net MDD Water Availability Equivalents (or portions thereof) prior to and as a condition precedent to, the City’s approval of any and all tract maps for the Property. The amount of Net MDD Water Availability Equivalents required for City’s approval of a tract map shall b e based upon water demand factors and assumptions listed in Exhibit C -2R of the Construction Agreement Amendment as “Water Demand Equivalents by Land Use” for each land use category.
4.6.5 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 an OWNER’s Project, including those relating to design and construction of planned potable water and recycled water transmission and distribution system for the respective pressure zone and other public infrastructure requirements.
4.7 Storm Water Capacity Availability.
4.7.1 Requirement for Storm Water Treatment Capacity Availability . OWNER shall provide evidence of sufficient Storm Water Treatment Capacity Availability as reserved in a Certificate of Storm Water Treatment Capacity Availability the same manner and subject to the same limitations as provided for the assignment of Certificates of Net MDD Availability in Section 4.7 of this Agreement.
4.7.2 Use of Storm Water Treatment Capacity Availability . The amount of Storm Water Treatment Capacity Availability required for the issuance of a grading permit to OWNER shall be based upon the Net Residential Acreage of the area to b e graded regardless of the corresponding use.
4.7.3 Requirement for other Storm Water Improvements. The Certificate of Storm Water Treatment Capacity Availability is evidence only of available storm water treatment capacity and does not satisfy any othe r conditions applicable to a particular development project, including those relating to on-site water treatment, 991
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water quality, connection to the storm water collection system, or other public infrastructure requirements.
4.8 Maintenance of Open Space . OWNER shall provide for the ongoing maintenance of all park, common areas and open space areas within the Project as more particularly set forth in the Specific Plan, through a homeowners’ association as approved by the CITY. Covenants, conditions and r estrictions establishing any homeowners’ association shall be approved by the Planning Director and City Attorney.
4.9 Compliance with Public Benefits Requirements.
4.9.1 Failure to Provide Public Benefits. In the event OWNER fails or refuses to comply with any condition referenced in Section 4.1 through 4. 9, 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 8.4 hereof, t hereby 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.
5. FINANCING OF PUBLIC IMPROVEMENTS.
5.1 Financing Mechanism(s) . In accordance with the Memorandum of Agreement between the CITY and NMC Builders , CITY will cooperate with OWNER in the formation of a CFD, or CFDs, to include all of the Project, to provide a f inancing mechanism to reimburse the OWNER for funds paid to NMC Builders LLC for OWNER’s share of the costs of public infrastructure pursuant to the Construction Agreement and to acquire other public facilities constructed by OWNER subject to the provision s of the Memorandum of Agreement between CITY and NMC Builders LLC . Notwithstanding such reimbursements and acquisitions, OWNER shall remain entitled to DIF Credits as provided for in Article 3 of the Construction Agreement and/or as provided for in a separate Fee Credit Agreement between CITY and OWNER. OWNER agrees that, prior to the recordation of any Tract Map for the Property, the Property shall be included in a CFD to finance City services through annual special taxes that will initially be $1,371.52 per Single Family Detached Dwelling Unit, $1,188.58 per Multiple -Family Dwelling Unit, $996.75 per Gated Apartment Community Dwelling Unit, and $.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 modified by CITY. CITY shall be the sole and exclusive lead agency in the formation of any CFD, assessment district or other public financing mechanism within the Property; provided however, that the proceeds of any such CFD, assessment district, or financing mechanism may be used, subject to restrictions that may be imposed by applicable law, for the purposes of acquiring, constructing or maintaining public facilities to be owned or operated by other public agencies, including, without limitation those facilities owned or operated by a school district. In addition to the rights of the CITY pursuant to section 5.2 hereof, CITY shall have the right, but not the obligation, to condition the formation of any CFD, 992
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assessment district or other public financing mechanism within the Property on the OWNER mitigating all Project -related impacts to the applicable school d istrict(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 st eps 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, shall be subject to CITY’s ability to make all findings required by applicable law and complying with all applicable legal procedures and requirements including, without limitation, CITY’s public f inancing district policies as such policies may be amended from time to time.
Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as requiring CITY or the City Council to form any such district or to issue and sell bonds.
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 review the Annual Monitoring Report. Prior to the expiration of the fifteen (15) day review period, CITY shall either issue a notice of continuing compliance or a notice of non -compliance and a notice of CITY’s intent to conduct a Special Review pursuant to Sections 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:
(1) Recommendation of the Planning staff;
(2) Affirmative vote of at least four (4) members of the Planning Commission; or
(3) Affirmative vote of at least three (3) members of the City Council.
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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 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 necessa ry 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 994
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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 or modify this Agreement and impose those conditions to the action it takes as it considers necessary to protect the interests of the CITY. The decisio n 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 complia nce 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 Certif icate 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. [RESERVED]
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 person, 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:
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(a) Money damages are unavailable against CITY as provided in Section 8.1 above.
(b) Due to the size, nature and scope of the project, it may not be practical or possible to restore the Property to its natural cond ition 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 extens ive 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 determi ne 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 claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon th e 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 actions 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 notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default. 996
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9. THIRD PARTY LITIGATION.
9.1 General Plan Litigation . CITY has determined that this Agreement is consistent with its Comprehen sive General Plan, as such General Plan exists as of the Effective Date (“General Plan”), and that the General Plan meets all requirements of law.
OWNER has reviewed the General Plan and concurs with CITY’s determination. CITY shall have no liability in damages under this Agreement for any failure of CITY to perform under this Agreement or the inability of OWNER to develop the Property as contemplated by the Development Plan 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 defen se, 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, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limi ted to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sole active negligence or sole willful misconduct of CITY. OWNER shall defend, at i ts 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, based or asserted, upon any act or omission of OWNER, its officers, agents, employees, subcontractors, predecessors in intere st, 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, including, but not 997
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limited to, soil and groundwater conditions, and OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action.
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 approva l 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.
The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner, at OWNER’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. CITY acknowledges that the lenders providing such fin ancing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER’s obligations under this Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement. (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. 998
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Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of OWNER’s obligations or other affirmative covenants of OWNER hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by OWNER is a condition precedent to the performance of a covenant by CITY, the performance thereof shall continue to be a condition precedent to CITY’s performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Agreement.
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 elements of this Agreement and CITY would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.
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. 999
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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 difficulties 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, the term of this Agreement and the time for performance by either party of any of its obligations hereunder may be extended by the written agreement of the parties for the period of time that such events prevented such performance, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years.
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 o f this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the 1000
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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 a ny respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property.
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 provis ions 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.
11.19 Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an as sociation, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, OWNER shall file with the Planning Director, upon its execution of this Agreeme nt, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon OWNER. If for any reason service of such process upon such agent is 1001
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not feasible, then in such event OWNER may be personally served with such process out of this County and such service shall constitute valid service upon OWNER. OWNER is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto. OWNER for itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).
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 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 hav e 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 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 1002
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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 THE PROTECTIO NS 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]
1003
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SIGNATURE PAGE
TO DEVELOPMENT AGREEMENT FILE NO. PDA24-004
"OWNER"
Warm Springs Investments, Ltd.,
a Florida limited partnership
By: Warm Springs Investments, L.P.
a Florida corporation,
its General Partner
By: ________________________
Name:
Its: ______________________
Date: ___________________
LHC Ontario Holdings, LLC, a Delaware
limited liability company
By: ________________________
Name:
Its: ______________________
Date: ___________________
Richland Ontario Developers, LLC, a
Delaware limited liability company
By: ________________________
Name:
Its: ______________________
Date: ___________________
"CITY"
CITY OF ONTARIO
By:
Scott Ochoa
City Manager
Date: ___________________
1004
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ATTEST:
City Clerk, Ontario
APPROVED AS TO FORM:
BEST BEST KRIEGER, LLP
City Attorney
1005
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. 1006
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. 1007
EXHIBIT "A"
TO DEVELOPMENT AGREEMENT
Legal Description of Property
1008
EXHIBIT "B"
TO DEVELOPMENT AGREEMENT
Map showing Property and its location
1009
EXHIBIT "C"
TO DEVELOPMENT AGREEMENT
Existing Development Approvals
On September 26, 2006, the Planning Commission:
a) Issued Resolution No. PC06 -095 recommending City Council adopt and certify the Subarea 29 (Park place) Environmental Impact Report; b) Issued Resolution No. PC06 -096 recommending City Council approval of the General Plan Amendment (PGPA06-003); and c) Issued Resolution No. PC06 -097 recommending City Council approval of the Subarea 29 (Park Place) Specific Plan (PSP03-003).
On October 19, 2006, the City Council:
a) Issued Resolution No. 2006 -089 certifying the Subarea 29 (Park place) Environmental Impact Report; and
b) Issued Resolution No. 2006 -090 approving the General Plan Amendment (PGPA06-003).
On November 7, 2006, the City Council:
a) Issued Ordinance No. 2845 approving of the Subarea 29 (Park Place) Specific Plan (PSP03-003).
On March 27, 2007, the Planning Commission:
a) Issued Resolution No. PC07 -036 recommending City Council approval of an amendment to the Subarea 29 Specific Plan (PSPA07- 007).
On May 1, 2007, the City Council:
a) Issued Resolution No. 2007 -053 approving an amendment to the Subarea 29 Specific Plan (PSPA07-007).
On August 28, 2013, the Zoning Administrator:
a) Issued Decision No. 2013 -025 approving a minor amendment t o the Subarea 29 Specific Plan (PSPA13-002).
1010
EXHIBIT "C"
TO DEVELOPMENT AGREEMENT
Existing Development Approvals (Continued)
On March 24, 2015, the Planning Commission:
a) Issued Resolution No. PC15-035 recommending City Council approval of an amendment to the Subarea 29 Specific Plan (PSPA14-002).
On April 21, 2015, the City Council:
a) Issued Resolution No. 2015-030 approving an amendment to the Subarea 29 Specific Plan (PSPA14-002).
On April 21, 2015, the City Council:
a) Issued Decision No. ZA17-017 approving a minor amendment to the Subarea 29 Specific Plan (PSPA17-003).
On June 15, 2021, the City Council:
a) Issued Resolution No. 2021-058 approving an amendment to the Subarea 29 Specific Plan (PSPA20-006).
On November 21, 2023, the City Council:
a) Issued Resolution No. 2023-156 approving an amendment to the Subarea 29 Specific Plan (PSPA21-005).
1011
EXHIBIT "D"
TO DEVELOPMENT AGREEMENT
Existing Land Use Regulations
These documents are listed for reference only:
1. Subarea 29 (Park place) Environmental Impact Report, Resolution No. 2006-089
2. Subarea 29 (Park Place) General Plan Amendment (PGPA06-003), Resolution No. 2006-090
3. Subarea 29 (Park Place) Specific Plan (PSP03-003), Ordinance No. 2845
4. Amendment to the Subarea 29 Specific Plan (PSPA07-003), Resolution No. 2007-053
5. Amendment to the Subarea 29 Specific Plan (PSPA13-002), Decision No. 2013-025
6. Amendment to the Subarea 29 Specific Plan (PSPA14-002), Resolution No. 2015-030
7. Amendment to the Subarea 29 Specific Plan (PSPA21-005), Resolution No. 2023-156
8. 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
1012
EXHIBIT "E"
TO DEVELOPMENT AGREEMENT
Description of Required Infrastructure Improvements
OWNER shall design, construct, and complete the following Street, Sewer, Storm Drain, Potable Water, Recycled Water, and Fiber Optic improvements, prior to OWNER’s request for building permits for Production Units.
STREETS (ST)
a) ST improvements on Eucalyptus Avenue from the western tract boundary to Mill Creek Avenue.
b) ST improvements on Mill Creek Avenue from Eucalyptus Avenue to Bellegrave Avenue.
c) ST improvements on Bell egrave Avenue from the western tract boundary to Mill Creek Avenue.
d) Full signalized intersection improvements at the corner of Eucalyptus Avenue and Mill Creek Avenue.
e) Traffic signal modification at Eucalyptus Avenue and Mill Creek Avenue f) Traffic signal modification at Bellegrave Avenue and Mill Creek Avenue
STORM DRAIN (SD)
a) SD improvements on Eucalyptus Avenue from the western tract boundary to Mill Creek Avenue.
DOMESTIC WATER (DW)
a) DW improvements on Bellegrave Avenue from Haven Avenue to Mill Creek Avenue
RECYCLED WATER (RW)
a) RW improvements on Bellegrave Avenue from “Public B Street” to Mill Creek Avenue
FIBER OPTICS (FO)
a) FO improvements on Bellegrave Avenue from the western tract boundary to Mill Creek Avenue.
b) FO improvements on Eucalyptus Avenue from the western tract boundary to Mill Creek Avenue.
1013
EXHIBIT “F”
TO DEVELOPMENT AGREEMENT
Depiction of Required Infrastructure Improvements
(SEE ATTACHED EXHBITS)
1014
1015
1016
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 sha re of the funding for the 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:_________________________________
1017
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:
1018
Exhibit “I-1”
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 Station 3 – 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. 1019
EXHIBIT “I-2”
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 Attached 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. 1020
Exhibit “J”
Form of Plume Disclosure Letter
1021
Case Planner: Pablo De Lara – Project Manager
Hearing Body Date Decision Action
Planning Director
Approval:
DAB N/A N/A N/A
PC 5/27/2025 Recommend
Submittal Date: 5/6/2025 CC 7/1/2025 Final
FILE NO: PDA24-004
SUBJECT: A public hearing to consider a Development Agreement between the City of Ontario and Warm Springs Investments Ltd, LHC Ontario Holdings, LLC, and Richland Ontario Developers, LLC to establish the terms and conditions associated with Tentative Tract Map 20724 (File No. PMTT 24-005) located at the southeast corner of Eucalyptus Avenue and Mill Creek Avenue, within Planning Area 33 of the Subarea 29 Specific Plan (File No. PSPA21 -005). (APNs: 1073- 171-05, 1073- 171-06, 1073 -171-07); submitted by Richland Ontario Developers, LLC. City Council action is required.
PROPERTY OWNER: Warm Springs Investments Ltd, LHC Ontario Holdings, LLC, and Richland Ontario Developers, LLC.
RECOMMENDED ACTION: That the Planning Commission consider and recommend City Council adopt an Ordinance approving the Development Agreement (File No . PDA24- 004) between the City of Ontario and Warm Springs Investments Ltd, LHC Ontario Holdings, LLC, and Richland Ontario Developers, LLC, pursuant to the facts and reasons contained in the staff report and attached Resolution.
BACKGROUND: The Subarea 29 Specific Plan and related Environmental Impact Report (State Clearinghouse No. 2004011009) were approved by the City Council on October 17, 2006. The Specific Plan established land use designations, development standards, and design guidelines, which included the potential development of 2,470 dwelling units and up to 87,000 square feet of commercial uses for the Specific Plan Area. Over the years, subsequent Specific Plan Amendments have been adopted to increase dwelling units, include additional product types, and update development standards.
On November 21, 2023, the City Council approved an Amendment to the Subarea 29 Specific Plan (File No. PSPA21-005) and Subsequent Environmental Impact Report (SEIR) (State Clearinghouse No. 2004011009) involving the annexation of 113.2 gross acres of land in conjunction with changes to the land use plan, establishing new development standards for 7 new product types, and updates to the Specific Plan land use map, land use table, development s tandards, exhibits, and text modification. The amendment increased the number of units from 2,418 to 3,888 dwelling units.
On July 16, 2024, the Applicant submitted Tentative Tract Map No. 20724 (File No. PMTT24- 005), to subdivide 55.2 acres of land into 16 lettered lots and five (5) numbered lots , 303 East B Street, Ontario, California 91764 Phone: 909.395.2036 / Email: [email protected]
PLANNING COMMISSION
STAFF REPORT
May 27, 2025
1022
Planning Commission Staff Report
File No.: PDA24-004
May 27, 2025