Rancho Cucamonga City Council
January 5, 2022

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Bernardino LAFCO. Both the City and Fire Protection District must consent to this annexation and adopt plans for service for the annexed land.

Prezoning (DRC2020-00186): Related to the proposed annexation, the project also requires Prezoning pursuant to Development Code Section 17.22.050. APN:0229-291-46 is currently assigned a zoning classification of Regional Industrial (I-R) by San Bernardino County, and General Industrial (M-2) by the City of Fontana. Further, the 0.69-acre portion of parcel APN:0229- 291-23 is currently assigned a zoning classification of Regional Industrial (I-R) by San Bernardino County, and Public Utility (P-UC) by the City of Fontana. Approving the Prezoning application will change the zoning designation of these areas to Industrial Employment (IE) Zoning District upon approval of the annexation.

Tentative Parcel Map (SUBTPM20251): As mentioned, the project includes a request to approve a Tentative Parcel Map to consolidate the two existing parcels within the project area and subdivide them into two new parcels, Parcel I and Parcel II. Parcel I proposes an area of approximately 26.73 acres with street frontage along Napa Street and Parcel II proposes an area of approximately 8.67 acres with street frontage along Napa Street and the new Via Maris Place.

Staff has reviewed the Tentative Parcel Map and has determined that it complies with the relevant development standards, subject to certain conditions of approval.

Conditional Use Permit (DRC2021-00317): While the other entitlements are exempt from Ordinance 982, these applications did not address the potential uses/tenants for the project because the project is being built on a speculative basis. Therefore, no pending use permit application was deemed complete prior to the effective date of Ordinance 982, and future uses by tenants who occupy the building will be subject to new standards under Ordinance 982. Thus, the applicant is requesting the review and approval of a Conditional Use Permit subject to Development Code Section Table 17.30.030-1 to permit the following uses on the site: Storage Warehouse, Large – Light Manufacturing, and a Large Distribution and Fulfillment Center.

Uniform Sign Program: The applicant has informed staff that the proposed project may accommodate up to four tenants. Development Code Section 17.16.060 provides that “…a uniform sign program shall be required for all new multi-tenant shipping center, office parks, and other multi-tenant, mixed-use or otherwise integrated developments of three of more separate tenants/uses that share buildings, public spaces, landscape and/or parking facilities.” Accordingly, and as the development could permit up to four tenants up to four tenants, the applicant has applied for a Uniform Sign Program.

Development Agreement (DRC2021-00175): The developer has proposed to enter into a Development Agreement with the City. Pursuant to Development Code Section 17.22.060.A.1, development agreements:

1. Increase the certainty in the approval of development projects, thereby preventing the waste of resources, reducing the cost of development to the consumer, and encouraging investment in and commitment to comprehensive planning, all leading to the maximum efficient utilization of resources at the least economic cost to the public;

2. Provide assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval thereby strengthening the public planning process, encouraging private participation in comprehensive planning, and reducing the economic costs of development;

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3. Enable the City to plan for and finance public facilities, including but not limited to, streets, sewerage, transportation, drinking water, school and utility facilities, thereby removing a serious impediment to the development of new housing.

The proposed Development Agreement (hereafter referred to as the “Agreement”), includes, but is not limited to, the following major terms which are summarized below:
The term of the development agreement would initially be six years, with an option for the applicant to extend the term by nine years upon payment of $2 million. A requirement for future tenants to designate Rancho Cucamonga as the point of sale for the material handling equipment used in Project’s operations; A requirement that the developer shall pay a “Community Benefit Fee,” in the amount of $4,300,000 in order to address the Project’s expected impacts on affordable housing demand, future greenhouse gas emissions, fire protection services, environmental justice and related impacts typically associated with large warehouse development. The applicant may receive a refund of up to 30% of the Community Benefit Fee in the event the project generates $500,000 in sales tax for a period of 3 years provided that the Developer can demonstrate that the tenant responsible for any 3 consecutive year period has a lease covering the entire term of the Development Agreement; A requirement that the developer complete certain traffic improvements and pay a “Fair Share” contribution to the City’s Industrial Area Traffic Improvement Fund. The final amount of the Fair Share contribution is being assessed as of the writing of this report and will be determined prior to the City Council’s consideration of the project; A requirement that the Developer may pay a fee totaling $1,400,000 in lieu of undergrounding existing utilities on the site or along streets adjacent to the site; A requirement that the developer will pay for, and construct to City standards, a new public street along the west side of the project site, which will run north-south and eventually connect to a future expanded roadway network throughout the SEIQ; Design Review Committee: The Design Review Committee (Williams, Oaxaca and Smith), reviewed the project on February 2, 2021. No members of the public attended the meeting to speak on the item, and the Design Review Committee recommended that the item be forwarded to the Planning Commission as presented.

Public Art: The project is subject to the public art requirement provided in Chapter 17.124 of the Development Code. As an industrial development, this project would typically include artwork that has a minimum value that meets or exceeds one dollar per square foot. While the valuation of public art would be approximately $655,878 (as it is based on building square footage of the project), staff notes that pursuant to the proposed development agreement, all but $100,000 of this amount is proposed to be transferred to the proposed community benefit fee.

CEQA Determination: Pursuant to the California Environmental Act (CEQA), an Environmental Impact Report (EIR) (SCH No. 2020090076), has been prepared for this project. Under CEQA, the purpose of an EIR is to inform the public about any significant impacts to the physical environment resulting from a project, identify ways to avoid or lessen the impacts, identify alternatives, and promote public participation. The contents of the EIR become a planning tool for the Planning Commission and City Council to use in determining the appropriate and best land use for the project site.

The intent of this EIR is to address and evaluate potentially significant impacts of the proposed project and identify feasible mitigation measures and alternatives that may be adopted to reduce or eliminate these impacts. A summary of all of the project-related impacts and the recommended

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mitigation measures is provided in the Final EIR. The following summarizes key points in the environmental review process:

Notice of Preparation and Public Scoping Meeting: The Notice of Preparation (NOP) serves as public notification that an EIR is being prepared and requests comment and input from responsible agencies and other interested parties regarding environmental issues to be addressed in the document. In addition to the NOP, CEQA recommends conducting a scoping meeting for the purpose of identifying the range of potential significant impacts that should be analyzed within the scope of the Draft EIR. The public scoping meeting is to receive public testimony on those issues that the public would like to have addressed in the EIR as it relates to the project and environment.

Accordingly, a notice advertising both the NOP and Public Scoping Meeting was prepared for the project and circulated on September 3, 2020 to the State Clearinghouse (SCH No. 2020090076), public agencies, Native American tribes, those interested parties who had previously requested notification and all property owners within 660 feet of the subject site. The notice advertising the NOP and the public scoping meeting was also published in the Inland Valley Daily Bulletin on September 7, 2020 and made publicly available on the City’s website. The Public Scoping Meeting was held virtually over Zoom on September 17, 2020. No members of the public or any interested party provided comments at the Public Scoping Meeting. The public comment period to respond to the NOP closed on October 3, 2020 and comment letters were received from the Native American Heritage Commission, California Department of Fish and Wildlife, California Department of Transportation, San Bernardino County Department of Public Works, Inland Empire Biking Alliance, South Coast Air Quality Management District (SCAQMD), Cucamonga Valley Water District (CVWD) and the Inland Empire Utilities Agency (IEUA). Written responses to all significant environmental issues raised were prepared and made available in the Draft Environmental Impact Report (DEIR).

AB 52 and SB 18 Compliance: Notification in accordance with AB 52 was sent on December 23, 2020 to tribal communities from a list of six tribes that have requested notification by the city.

Notification in accordance with SB 18 was sent out to thirteen tribal communities on August 24, 2020. In response to these notices, the San Manuel Band of Mission Indians (SMBMI) responded with comments though they did not request consultation. Rather the SMBMI provided language which they requested be made a part of the project mitigations. Accordingly, language from SMBMI has been incorporated into the Mitigation Monitoring and Reporting Program (MMRP).

One other tribe (Gabrieleno Band of Mission Indians – Kizh Nation) held a phone consultation with City staff in January 2021 at which point this tribe requested a tribal monitor be on site during grading activities. Thus, the CEQA document prepared for the project reflects the requested language/mitigation measures.

Draft EIR Preparation and Circulation: Following the NOP and Public Scoping Meeting, a DEIR was prepared and was distributed to Responsible and Trustee agencies, and individuals who had requested to review the DEIR. The DEIR was distributed for a 45-day public review period on June 29, 2021 with the comment period concluding on August 13, 2021. A Notice of Availability including electronic links to the DEIR and all technical appendices was posted at the County, published in the Inland Valley Daily Bulletin, mailed to all property owners within 660 feet, interested parties requesting such notification and posted on the city’s website on June 28, 2021.

Further, and also on June 28, 2021, the DEIR and all technical appendices were provided to the Office of Planning and Research via the online “CEQAnet” portal for distribution to Responsible and Trustee agencies and hard copies of the DEIR and all technical appendices were provided for public review at the following locations:

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Archibald Library – 7368 Archibald Avenue, Rancho Cucamonga, CA 91730; Paul A Biane Library – 12505 Cultural Center Drive, Rancho Cucamonga, CA 91739; Planning Department Public Counter at City Hall – 10500 Civic Center Drive, Rancho Cucamonga, CA 91730.

Comments were received from California Department of Fish and Wildlife (CDFW), South Coast Air Quality Management District (SCAQMD), Cucamonga Valley Water District (CVWD), Southern California Regional Rail Authority (Metrolink), Local Agency Formation Commission (LAFCO) and Mitchell Tsai, Attorney at Law (on behalf of Southwest Regional Council of Carpenters). Notably, prior to the Planning Commission meeting on December 8, 2021, representatives of Mitchell Tsai provided staff with a letter withdrawing their comments and concerns regarding the project. This letter has been included with this staff report as Attachment 12.

Technical appendices and supporting documentation can be referenced on the City’s website under the tab; ”CEQA Documents Available for Review“ under the Current Projects & Planning Initiatives which can be accessed here: https://www.cityofrc.us/community-development/planning

Mitigation Monitoring Reporting Program (MMRP): In compliance with CEQA, a monitoring program has been prepared. The MMRP is a reporting program that identifies each adopted mitigation measure or project design feature that reduces the significance level of a particular impact. The MMRP indicates responsibility and timing milestones for each mitigation measure.

Findings of Fact in Support of Determinations Related to Significant Environmental Impacts: The EIR concludes that upon implementation of the project and all recommended mitigation measures, impacts associated with the project would remain less than significant. No significant and unavoidable impact was identified; thus, it is determined that no Statement of Overriding Consideration is required to be adopted
FISCAL IMPACT:

Fiscal Impact Analysis: The applicant has provided a Fiscal Impact Analysis prepared by DTA (2021), which was peer reviewed by Keyser Marston Associates, Inc. (KMA), a third-party consultant hired by the City. The Fiscal Impact Analysis conducted by DTA concluded the project would result in total recurring revenues of $123,300 with total recurring costs of $79,000 for a total annual recurring surplus to the City of $44,300. After analyzing the DTA study, KMA has determined that the actual anticipated annual recurring surplus to the City is more likely to be approximately $17,900. Considering this, the aforementioned Development Agreement requires that the developer contribute funds toward a Community Benefit Fee in order to offset the costs of the project to the community.

COUNCIL MISSION / VISION / GOAL(S) ADDRESSED:

The development of the project achieves the City Council’s Core Value of “Intentionally embracing and anticipating the future,” and “continuous improvement.” In addition to providing the City with new industrial warehouse facilities which will attract quality tenants, the project also results in the construction of a new public street which will improve future circulation in the SEIQ by providing an additional north-south connection on Napa Street which will connect with the future expanded road network throughout the SEIQ.

ATTACHMENTS:

Attachment 1 - Vicinity Map and Aerial Photograph
Attachment 2 - Project Plans and Uniform Sign Program
Attachment 3 - City Council Ordinance Annexation (DRC2020-00185) and Prezoning

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(DRC2020-00186)
Attachment 4 - City Council Resolution General Plan Amendment (DRC2020-00184) Attachment 5 - City Council Resolution Tentative Parcel Map (SUBTPM20251) Attachment 6 - City Council Design Review (DRC2020-00177) Attachment 7 - City Council Resolution Conditional Use Permit (DRC2021-00317) Attachment 8 - City Council Resolution Uniform Sign Program (DRC2020-00178) Attachment 9 - City Council Ordinance Development Agreement (DRC2020-00175) with Draft Development Agreement
Attachment 10 - City Council EIR Resolution, Findings and Mitigation Monitoring Program Attachment 11 – Fire Protection District Board of Directors Resolution FD2022-001 Attachment 12 - Withdrawal Letter/Letter of Support from Mitchell Tsai Attachment 13 - Design Review Committee Comments
Attachment 14 - December 8 Planning Commission Staff Report Attachment 15 - Conditions of Approval

Hillwood Project
(within Rancho
Cucamonga)
Southern CA Edison Property
(within Rancho Cucamonga)
(Not a part of the proposed
Hillwood Project)
Unincorporated property in Fontana's Sphere
of Influence
(Not a part of the proposed Hillwood Project)
Hillwood Project
(unincorporated property in
Fontana’s Sphere of Influence)
Hillwood Project Site and Neighborhood Map
City of Rancho
Cucamonga
Boundary
Hillwood Project
(within Rancho
Cucamonga)
Attachment 1

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2 1
Plan Set and Uniform Sign Program
Due to file size, this attachment can be accessed through the following link:
https://www.dropbox.com/s/rmj18x2so0q8g8o/Exhibit%20B%20_%20Plan%20Set%20and%20Unifor m%20Sign%20Program.pdf?dl=0
Attachment 2

ORDINANCE NO. 992

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, CONSENTING TO ANNEXATION DRC2020- 00185 AND APPROVING PREZONING DRC2020-00186 IN CONNECTION

WITH THE PROPOSED DEVELOPMENT OF TWO NEW INDUSTRIAL
BUILDINGS TOTALING APPROXIMATELY 655,878 SQUARE FEET ON AN APPROXIMATE 35-ACRE PROJECT SITE LOCATED ETIWANDA AVENUE

NORTH OF NAPA STREET, AND MAKING FINDINGS IN SUPPORT
THEREOF – APNs: 0229-291-23, 46 AND 54.

A. Recitals.

1.WHEREAS, Kimley-Horn and Associates, on behalf of Hillwood Enterprises, L.P. (the “Applicant”), filed an application for the approval of Prezoning DRC2020-00186 (the “Prezoning”), as described in the title of this ResolutionThe Prezoning is part of a proposed development of two new industrial buildings totaling approximately 655,878 square feet on an approximately 35-acre project site located approximately 650 feet east of Etiwanda Avenue and north of Napa Street, APNs: 0229-291-23, 46 and 54 (the “Project Site”); and

2.WHEREAS, the portion of the Project Site located within the City and identified as APN 0229-291- 54 is currently zoned as Industrial Employment (IE); and

3.WHEREAS, Prezoning DRC2020-00186 is depicted in Exhibit “A,” attached hereto and incorporated herein by this reference, and would pre-zone a portion of the Project Site, specifically a 2.9-acre parcel identified as APN: 0229-291-46 and a 0.69-acre portion of a parcel identified as APN: 0229-291-23 currently located within unincorporated San Bernardino County and within the City of Fontana’s Sphere of Influence (the “Annexation Area”), and ultimately incorporate these parcels and portions thereof into the City’s official Zoning Map. To accomplish this objective, the Prezoning would result in the entire Project Site being zonedas Industrial Employment (IE), which would implement the General Plan’s regulating zones across the Project Area; and

4.WHEREAS, the Applicant is expected to submit a petition to annex the unincorporated portions of the Project Site into the City of Rancho Cucamonga. The Applicant has submitted a request to the City to concsent to this annexation, DRC2020-00185 (the “Annexation”). To that end, the City and the Rancho Cucamonga Fire Protection District must consent to the annexation and approve plans of service for their respective agencies; and

5.WHEREAS, on December 8 th, 2021, the Planning Commission of the City of Rancho Cucamonga conducted a duly noticed public hearing on Annexation DRC2020-00185 and Prezoning DRC2020-00186 and voted unanimously to recommend that the City Council consent to Annexation DRC2020-00185 and approve Prezoning DRC2020-00186; and

6.WHEREAS, on January 5 th, 2022, the City Council of the City of Rancho Cucamonga conducted a noticed public hearing and introduced for First Reading of Ordinance 992 adopting Annexation DRC2020- 00185 and Prezoning DRC2020-00186 and concluded said hearing on that date; and

7.WHEREAS, All legal prerequisites prior to the adoption of this Ordinance have occurred.

B. Ordinance.

The City Council of the City of Rancho Cucamonga does ordain as follows:

SECTION 1: This City Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Ordinance are true and correct.

SECTION 2: Based upon the substantial evidence presented to the City Council during the

above-referenced public hearing on January 5 th, 2022, including written and oral staff reports, together with public testimony, the City Council hereby specifically finds as follows:
a. In addition to Annexation DRC2020-00185 and Prezoning DRC2020-00186, the project scope includes: General Plan Amendment (DRC2020-00184), to assign a land use designation of Industrial Employment District to the Annexation Area; Tentative Parcel Map (SUBTPM20251) to create two new parcels; and Design Review (DRC2020-00177), Conditional Use Permit (DRC2021-00317), and Uniform Sign Program (DRC2020-00178) to permit the use, construction and signage of the proposed project. The project also includes a Development Agreement (DRC2021-00180); and b. The Project Site includes APN 0229-291-46 which is currently located within unincorporated San Bernardino County and within the City of Fontana’s Sphere of Influence and currently has a zoning designation of Regional Industrial (I-R) under San Bernardino County and General Industrial (M-2) under the City of Fontana; and
c. The application also requests the Annexation and Prezoning of an additional 0.69-acre portion of a parcel identified as APN: 0229-291-23. This parcel, also currently located within unincorporated San Bernardino County and the City of Fontana’s Sphere of Influence currently has a zoning designation of Regional Industrial (I-R) under San Bernardino County and a zoning designation of Public Utility (P-UC) under the City of Fontana; and
d. Upon approval of the Prezoning and following approval of the Annexation by the Local Agency Formation Commission (LAFCO), both parcels APN: 0229-291-46 and APN: 0229-291-23 will be assigned a zoning designation of Industrial Employment (IE) by the City of Rancho Cucamonga, which is consistent with the existing zoning classification of the remainder of the Project Site which is currently located within the City; and
e. The City Council and Fire Protection District Board must consent to the Annexation and adopt plans for service for the Annexation Area.
f. As reflected in Exhibit “A,” upon approval of the Annexation by LAFCO, these parcels will be assigned a land use designation of Industrial Employment District pursuant to the City of Rancho Cucamonga General Plan with a zoning designation of Industrial employment (IE).

SECTION 3: Based upon the substantial evidence presented to this Council during the above-referenced public hearing and upon the specific findings of facts set forth in Paragraphs 1 and 2 above, this Council hereby finds and concludes as follows:
a. The City Council has independently reviewed the General Plan Consistency Analysis included as Table 4.11-5 in the EIR. The City Council has also considered the changes to the General Plan adopted on December 15, 2021 as the 2020 PlanRC General Plan Update. Based on this comprehensive consistency analysis, the Planning Commission finds that, subject to the City Council’s approval of the related documents and approvals associated with the Project (Annexation DRC2020-00185, Prezoning DRC2020-00186, General Plan Amendment DRC2020-00184, Tentative Parcel Map SUBTPM20251, Design Review (DRC2020-00177), Conditional Use Permit (DRC2021-00317), Uniform Sign Program (DRC2020-00178) and Development Agreement DRC2021-00180, the Annexation and Prezoning would be consistent with the goals, policies and implementation programs of the General Plan and will not conflict with any specific plan applicable to the Project Area. Given that this Prezoning affects parcels located outside of the City and its Sphere of Infuence, the General Plan does not currently address the Annexation Area. The approval of General Plan Amendment DRC2020-00184 will designate the Annexation Area as Industrial Employment under the General Plan and will ensure consistency between the zoning and General Plan. b. Approval of the Annexation and Prezoning would not be materially injurious or detrimental to adjacent properties based on the finding sin the Project’s EIR. c. The findings set forth in this Ordinance reflect the independent judgment of the City Council.

SECTION 4: The Annexation and Prezoning, in addition to the General Plan Amendment, Tentative Parcel Map, Design Review Conditional Use Permit, Uniform Sign Program and Development Agreement (collectively, the “Project”) were environmentally reviewed pursuant to the California Environmental Quality

Act (CEQA) and the State CEQA Guidelines. Pursuant to CEQA Guidelines Section 15060(d), the City determined that an EIR would clearly be required for the Project, and therefore prepared an environmental impact report (EIR) that focused on the potentially significant effects of the Project. By separate Resolution No. 2022-006, the City Council has: (i) made the required CEQA findings and determinations, (ii) certified the Final EIR; and (iii) adopted a Mitigation Monitoring and Reporting Program for the Project. Resolution No. 2022-006is incorporated herein by reference, and made a part hereof as if fully set forth herein. The documents and other materials that constitute the record on which this determination was made are located in the Planning Department and are in the custody of the Planning Director. Further, the mitigation measures set forth therein are made applicable to the Project.

SECTION 5: The City Council hereby adopts Prezoning DRC2020-00186. The Official Zoning Map for the City of Rancho Cucamonga is hereby amended to assign a zoning designation of “Industrial Employment (IE) Pre-District” for the Annnexation Area parcels of land, as shown in Attachment A. Pursuant to Section 17.22.050 of the Rancho Cucamonga Municipal Code, the zoning of the Annexation Area shall become effective at the time the proposed annexation for such area becomes effective. Until such time, the Official Zoning Map shall show the prezoning classification with the label “PRE DISTRICT”

SECTION 6: The City Council hereby consents to the San Bernardino County LAFCO’s approval of an annexation into the City of Rancho Cucamonga and related sphere of influence amendment for the Annexation Area parcels identified as APNs 0229-291-23 and 0229-291-46. The City Council further approves the plan for service for the Annexation Area attached hereto as Exhibit “B”.

SECTION 7: If any section, subsection, sentence, clause, phrase, or word of this Ordinance is, for any reason, deemed or held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or preempted by legislative enactment, such decision or legislation shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Rancho Cucamonga hereby declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, or words thereof, regardless of the fact that anyone or more sections, subsections, clauses, phrases, or words might subsequently be declared invalid or unconstitutional or preempted by subsequent legislation.

SECTION 7.The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be published in the manner prescribed by law.

PASSED, APPROVED, AND ADOPTED this __th day of ________, 2022.

BY: ____________________________________
L. Dennis Michael, Mayor
I, JANICE REYNOLDS, City Clerk of the City of Rancho Cucamonga, do hereby certify that the foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Rancho Cucamonga held on the 5 th day of January, 2022, and was finally passed at a regular meeting of the City Council of the City of Rancho Cucamonga held on the ______ day of ______________, 2022, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAINED: COUNCILMEMBERS:

ATTEST:_________________

______________
City Clerk of the City of Rancho Cucamonga

EXHIBIT A

ZONING MAP AMENDMENT

EXHIBIT B

PLAN FOR SERVICE
5000 Birch Street, Suite 3000 Newport Beach, CA 92660

CITY OF RANCHO CUCAMONGA

PLAN FOR SERVICE
ANNEXATION OF 4.8 ACRES IN CONNECTION WITH

PROPOSED SPEEDWAY COMMERCE CENTER PROJECT
Prepared for:

City of Rancho Cucamonga
10500 Civic Center Drive
Rancho Cucamonga, CA 91730
www.FinanceDTA.com

TABLE

OF CONTENTS

SECTION PAGE
I INTRODUCTION ........................................................ 1

II DESCRIPTION OF PROPOSED SPEEDWAY
COMMERCE CENTER PROJECT AND THE 4.8 ACRE
ANNEXATION AREA .................................................. 3 A Description of the Project Site.........................................3 B Description of the Annexation Area .............................. 4

III PLAN FOR SERVICE BEFORE AND AFTER
ANNEXATION OF 4.8 ACRES .................................... 6 IV General Government and Administrative Services .. 8 A Fire Protection and Emergency Response Services ..9 V Wildland Fire Prevention and Protection .................... 10 VI Law Enforcement .......................................................... 10 VII Library ............................................................................. 10 VIII Parks and Recreation .................................................... 11 IX Animal Control ............................................................... 11 X Street Lighting...................................................................11 XI Landscape Maintenance ............................................... 12 XII Water...................................................................................12 XIII Wastewater .................................................................... 12 XIV Transportation ................................................................ 13 XV Flood Control and Drainage ......................................... 13 XVI Utilities...............................................................................14 XVII Schools ............................................................................ 14 XVIII Solid Waste Management ............................................. 14 XIX ONE-TIME DEVELOPMENT IMPACT FEES .............. 15

SECTION I

INTRODUCTION
www.FinanceDTA.com
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
1 I INTRODUCTION
The Speedway Commerce Center project (the “Project”) is currently under consideration for approval by the City of Rancho Cucamonga (the "City") City Council. The Project site includes an estimated 35.73 acres of vacant land in the eastern portion of the City located approximately

1.3 miles east of Interstate 15 and approximately 1.5 miles north of Interstate 10. An estimated 92% of the Project site is currently located within the City, with the remainder located in unincorporated San Bernardino County (the “County”) within the City of Fontana Sphere of Influence. The Project has submitted a pre-zone application and annexation proposal for the portion of the Project located in the unincorporated County and certain adjacent property to the west to create a logical boundary into the City from the centerline of Napa Street, east of Etiwanda Avenue and west of the San Sevaine Channel.

While all of the Project’s building square footage is to be constructed within 32.83 acres of the Project site that is already located within the City, a remaining 2.9-acre portion of the site consisting solely of a portion of the Project’s parking lot is currently located in the unincorporated County and will need to be annexed into the City. The entire area to be annexed (the “Annexation Area”) will also include 1.9 additional acres that consist of an unmanned parcel owned by Southern Cal Edison (the “SCE Parcel”) on which transmission wires are located, and a portion of the right of way for Napa Street. The intent of this Plan for Service (“PFS”) is to provide the County of San Bernardino Local Agency Formation Commission (“LAFCO”) with sufficient information to assess which public agencies will be responsible for providing municipal services to the Annexation Area once it has been absorbed by the City. DTA is also preparing a separate PFS focusing specifically on the Cucamonga Valley Water District (“CVWD”), which will be annexing not just the Annexation Area, but also the remainder of the Project. As the remainder of the Project is already located in the City, it is not discussed in depth within this Annexation Area PFS, which is why the separate PFS is being prepared to cover the provision of wastewater services by CVWD.

While a standard PFS typically also includes information on the fiscal impacts of an annexation action on the City General Fund and the General Funds of other municipal agencies that will be providing the annexed area, this Annexation Area is different because it is expected to include only very minimal development in terms of a 2.9-acre portion of a parking lot and a 1.9-acre SCE parcel containing only electrical transmission lines. Therefore, it is anticipated that no new revenues will be generated within the Annexation Area, and the services to be provided therein will be minimal. However, DTA has previously prepared a fiscal impact analysis (“FIA”) that has been reviewed and approved by the City that analyzes the impacts of the overall Project on the City General Fund. As this FIA (the “Project FIA”) includes the small portion of the Project that is located in the Annexation Area, it will also be submitted separately from this PFS to the City for review and certification in-lieu of a new FIA analyzing just the Annexation Area.

SECTION I

INTRODUCTION
www.FinanceDTA.com
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
2 In addition, as the fiscal impacts of the Project on the Rancho Cucamonga Fire Protection District (“RCFPD”) and the CHWD were not included in the Project FIA, DTA will also be preparing separate FIAs specifically focusing on the entire Project’s impacts on both of these agencies.

Notably, the CHWD fiscal analysis will be packaged together with the separate PFS for CHWD wastewater services previously discussed because the area to be annexed into CHWD will include the entire 35.73-acre Project site, not just the 4.8-acre Annexation Area.

SECTION IIDESCRIPTION OF

PROPOSED SPEEDWAY

COMMERCE CENTER PROJECT
AND THE 4.8 ACRE

ANNEXATION AREA
www.FinanceDTA.com
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
3 II DESCRIPTION OF PROPOSED SPEEDWAY COMMERCE CENTER PROJECT AND THE 4.8 ACRE ANNEXATION AREA
A Description of the Project Site
The Project site, as depicted in Figure 1 below, encompasses approximately 35.73 acres of vacant land in the eastern portion of the City and is located directly south of the Burlington Northern Santa Fe Railway, directly west of San Sevaine Channel, north of Napa Street in the City and County, and east of the East Etiwanda Creek channel.

Figure 1: Aerial Map for Proposed Project Site
The Project site is proposed to be developed into two industrial buildings totaling approximately 655,878 square feet of new warehouse space and related on-site and off-site improvements. A summary of the land uses and building square footage (“BSF”) associated with each land use in the Project is listed below in Table 1. The conceptual site plan for Buildings A and B within the Project is illustrated in Figure 2 below.

SECTION IIDESCRIPTION OF

PROPOSED SPEEDWAY

COMMERCE CENTER PROJECT
AND THE 4.8 ACRE

ANNEXATION AREA
www.FinanceDTA.com
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
4 Table 1: Proposed Land Uses for the Project
Land Use BSF
Building A - Warehouse 500,648
Building B - Warehouse 155,230
Figure 2: Proposed Speedway Commerce Center Project B Description of the Annexation Area
The proposed Annexation Area consists of 4.8 acres that include 2.9 acres representing the southeast portion of the proposed Speedway Commerce Center project (the “Project”), as well as 1.9 acres made up of an undeveloped parcel containing transmission wires owned by Southern Cal Edison (“SCE”) and a portion of Napa Street right of way. A map delineating the Annexation Area is shown below in Figure 3.

SECTION IIDESCRIPTION OF

PROPOSED SPEEDWAY

COMMERCE CENTER PROJECT
AND THE 4.8 ACRE

ANNEXATION AREA
www.FinanceDTA.com
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
5 Figure 3: Proposed Annexation Area for Speedway Commerce Center Project As reflected in Figures 2 and 3 above, the 2.9-acre portion of the Annexation Area is anticipated to be used solely as a portion of the Project’s parking lot, with the SCE parcel continuing its current use as a transmission tower site.

SECTION IIIPLAN FOR SERVICE

BEFORE AND
AFTER ANNEXATION OF 4.8
ACRESwww.FinanceDTA.com
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
6 III PLAN FOR SERVICE BEFORE AND AFTER ANNEXATION OF 4.8 ACRES As noted previously, the Annexation Area consists of a 4.8-acre portion of the Project and adjacent SCE Site that is currently being serviced by the County that will need to be annexed into the City. However, as neither the City nor the County provide certain required municipal services, the Annexation Area will also be subject to annexations to additional districts, as detailed below. However, as noted previously, the entire Project, as opposed to just the Annexation Area, will be annexed into CVWD to obtain sewer services. As the entire Project encompasses 35.7 acres, which is significantly larger than the 4.8-acre Annexation Area, DTA has prepared an entirely separate PFS covering wastewater services that will be submitted directly to CHWD for review and confirmation, and is not included in this PFS.

The list of municipal services necessary to serve the Annexation Area are the following:

General Government and Administrative Services;
Fire Protection and Emergency Response Services;
Sheriff/Police and Public Safety Services;
Library;
Parks and
Recreation; Animal
Control; Street
Lighting;
Landscape Maintenance;
Water;
Wastewater;
Transportation;
Flood Control and Drainage;
Utilities;
Schools; and
Solid Water Management.

Table 2, below, provides a summary of which public agencies are currently responsible for providing each type of municipal service now, prior to the annexation, as well as which public agency is anticipated to be providing that same service after the annexation. In addition, one- time development impact fees (“DIFs”) are collected by a number of public agencies to fund the capital costs of public facilities, as summarized in Section IV of this Study.

SECTION IIIPLAN FOR SERVICE

BEFORE AND
AFTER ANNEXATION OF 4.8
ACRESwww.FinanceDTA.com
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
7 Table 2: Municipal Services Providers for Proposed Annexation Area 1 Municipal Services Current Municipal Provider Future Municipal Provider After Annexation
General Government and
Administrative Services 2 County of San Bernardino City of Rancho Cucamonga Fire Protection and
Emergency Response
Services
 Fontana Fire Protection District
(“FFPD”) contract with County of San
Bernardino Fire Department; and
 American Medical Response.

Rancho Cucamonga Fire Protection
District (“RCFPD”); and
American Medical Response
Sheriff/Police and Public
Safety
County of San Bernardino Sheriff's
Department
City contract with County of San
Bernardino Sheriff's Department
Library San Bernardino County Public Library Rancho Cucamonga Public Library Parks and Recreation
Regional Facilities
Local Facilities
County of San Bernardino None County of San Bernardino Rancho Cucamonga Community
Services Department
Animal Control San Bernardino County Animal Care and Control
Rancho Cucamonga Animal Care and
Services Department
Street Lighting None
Rancho Cucamonga Municipal
Utility (“RCMU”); and
Citywide street lighting district.

Landscape Maintenance San Bernardino County Rancho Cucamonga Public Works Services Department
Water
Inland Empire Utilities Agency
(“IEUA”) – wholesale; and
Fontana Water Company (“FWC”).

IEUA – wholesale; and
FWC.

Sewer IEUA – regional. IEUA – regional; and Cucamonga Valley Water District.

Transportation
Freeways and
Interchanges
Transit
Cal Trans Omnitrans Cal Trans Omnitrans
1 Some of the municipal services listed may not apply to the Proposed Annexation Area because it is anticipated that only a parking lot and unmanned utility easement will be located within that area. However, should future development plans change, the municipal services providers responsible for managing the public facilities associated with that future development are listed in this table. 2 Including General municipal administration, planning and community development services, economic development, local road operation and maintenance (“O&M”), street lighting O&M, local parks O&M, and human resources, among other services.

SECTION IIIPLAN FOR SERVICE

BEFORE AND
AFTER ANNEXATION OF 4.8
ACRESwww.FinanceDTA.com
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
8 Municipal Services Current Municipal Provider Future Municipal Provider After Annexation
Flood Control and Drainage
Regional Facilities
Local Facilities
San Bernardino County Flood Control
District
San Bernardino County - Public Works
San Bernardino County Flood Control
District
Rancho Cucamonga Public Works
Services Department
Utilities
Cable/Internet
Provider/Phone
Power
Natural Gas
Charter Communications, Spectrum, and
Frontier
Southern California Edison Southern
California Gas Company
Charter Communications, Frontier, and
RCMU
RCMU
Southern California Gas Company
Schools
Etiwanda School District (K-8); and
Chaffey Joint Union High School
District (9-12)
Etiwanda School District (K-8); and
Chaffey Joint Union High School
District (9-12)
Solid Waste Management
Burrtec Waste Management Industries
through franchise agreement with San
Bernardino County Solid Waste
Management Division.

Burrtec Waste Management Industries
through franchise agreement with City of
Rancho Cucamonga.

A written narrative describing the pre-annexation and post-annexation provision of each service listed above follows:

A General Government and Administrative Services
A.1 Before Annexation
The County currently provides general government and administrative services to the Annexation Area. These include certain services that the County only provides in the unincorporated County, such as planning and community development services, economic development, arterial, collector and other local road operation and maintenance (“O&M”), street lighting and local parks O&M and human resources, among other services. In addition, the County provides certain services on a Countywide basis to both cities and the unincorporated County, such as criminal justice services related to jails and courts, which include district attorney, public defender and probation services, as well as health and welfare services and other Countywide functions.

A.2 After Annexation
The City will assume responsibility for all of the administrative and general government services that had been previously provided by the County exclusively for unincorporated County areas.

As discussed above, these would include planning

SECTION IIIPLAN FOR SERVICE

BEFORE AND
AFTER ANNEXATION OF 4.8
ACRESwww.FinanceDTA.com
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
9 and community development services, economic development, local road and street light O&M, etc. within the Annexation Area. The City’s road maintenance responsibilities would include the operations and maintenance of the ½ width of Napa Street that is being annexed into the City. However, the other services currently provided by the County on a Countywide basis, as also discussed above, will continue to be the County’s responsibility within the Annexation Area. These would include criminal justice services, health and welfare services, etc.

B Fire Protection and Emergency Response Services
B.1 Before Annexation
FFPD currently provides the fire protection and emergency response services to the Annexation Area. FFPD, through contract with the San Bernardino County Fire Department, serves approximately 52.4 square miles (“SM”), encompassing 42.4 SM within the limits of the City of Fontana and 10 SM within Fontana’s Sphere of Influence area (“SOI”). The Annexation Area is primarily served by Fire Station 73, located at 14360 Arrow Boulevard in Fontana. American Medical Response provides private ambulance services.

B.2 After Annexation
The RCFPD will provide the fire protection and emergency response services to the Annexation Area after its annexation. RCFPD encompasses approximately 50 SM of service area within the City limits and the City's SOI. The Annexation Area will be served by (i) the Jersey Fire Station, located at 11297 Jersey Boulevard, which is approximately 3 roadway miles west of the Annexation Area, and (ii) Day Creek Fire Station, located at 12270 Firehouse Court, which is approximately 3.3 roadway miles to the northwest of the Annexation Area. Based on its proximity to two existing fire stations, the Annexation Area will be adequately served by fire protection services, and no new or expanded unplanned facilities would be required.

In addition, the entire Project site, including the portion within the Annexation Area, is required to be annexed into Community Facilities District (“CFD”) No. 85-1 as one of the City’s conditions of development approval. CFD No. 85-1 was initially approved by the qualified voters within the CFD in a special election to authorize the levy of a special tax to fund fire suppression services and facilities within the boundaries of Archibald Avenue, Etiwanda Avenue, Highland Avenue and Fourth Street.

The American Medical Response, a private ambulance service, provides ambulance services to the Annexation Area. AMR is located at 7925 Center Avenue in Rancho Cucamonga.

SECTION IIIPLAN FOR SERVICE

BEFORE AND
AFTER ANNEXATION OF 4.8
ACRESwww.FinanceDTA.com
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
10 C Wildland Fire Prevention and Protection
C.1 Before Annexation
FFPD, through a contract with the San Bernardino County Fire Department, currently provides the wildfire prevention and protection services to the Annexation Area.

C.2 After Annexation
RCFPD will provide the wildfire prevention and protection services to the Annexation Area after its annexation.

D Law Enforcement
D.1 Before Annexation
The San Bernardino County Sheriff’s Department (“SBCSD”) provides public safety services to the unincorporated areas.

D.2 After Annexation
Since incorporation in 1977, law enforcement services in the City have been provided through a contract with SBCSD. The closest police station to the Annexation Area is the Victoria Gardens Substation, located at 7743 Kew Avenue, which is approximately

2.5 roadway miles northwest of the Annexation Area. In addition, the Police Department Headquarters (SBCSD Rancho Cucamonga Patrol Station) is located at 10510 Civic Center Drive, which is approximately 3.9 roadway miles northwest of the Annexation Area. Furthermore, a joint facility including a police substation and several other municipal offices, is proposed at the Empire Lakes development located approximately 3.8 roadway miles west of the Annexation Area.

Based on its proximity to these existing and proposed police stations and their projected staffing levels, the Annexation Area will be adequately served by existing police protection services, and no new or expanded unplanned facilities would be required.

E Library
E.1 Before Annexation
Currently, the Annexation Area is served by the San Bernardino County Library system. The nearest County library is the Fontana Lewis Library & Technology Center, located at 8437 Sierra Avenue in Fontana.

E.2 After Annexation
The Rancho Cucamonga Public Library will serve the Annexation Area after its annexation. The closest City library to the Annexation Area is the Paul A. Biane Library, located at 12505 Cultural Center Drive, which is approximately 2.4 roadway miles northwest of the Annexation Area.

SECTION IIIPLAN FOR SERVICE

BEFORE AND
AFTER ANNEXATION OF 4.8
ACRESwww.FinanceDTA.com
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
11 F Parks and Recreation
F.1 Before Annexation
The County Regional Parks Department (“CRPD”) provides regional park services to all residents and employed persons within the County, including located in both incorporated and unincorporated areas. The closest regional park is Cucamonga Guasti Regional Park in Ontario, which includes recreational areas for water sports, hiking and picnicking. But CRPD’s mandate is only to provide regional park facilities, so it does not support the construction, operations or maintenance of local parks anywhere within its jurisdiction, including within the Annexation Area.

F.2 After Annexation
The City’s Community Services Department will operate and maintain the City’s local parks and recreation facilities after annexation. This City Department currently supports the operations and maintenance of over 30 local park sites within the City which are available for use by residents and employed persons located within the Annexation Area., The largest park and recreational facilities operated by this City Department includes the Community Center at Lions East and Lions West, Family Resource Center, Central Park Senior/Community Center, Rancho Cucamonga Sports Center, Epicenter/Sports Complex, and Victoria Gardens Cultural Center.

G Animal Control
G.1 Before Annexation
The San Bernardino County Animal Care and Control Program currently operates two animal shelters within the County, located in Big Bear and Devore, both of which are relatively distant from the Annexation Area.

G.2 After Annexation
The Rancho Cucamonga Animal Care and Services Department will provide animal control services to the Annexation Area after its annexation. The Department’s animal shelter facilities are located at 11780 Arrow Route in the City.

H Street Lighting
H.1 Before Annexation
The Annexation Area presently does not contain any streetlights.

H.2 After Annexation
Upon annexation, RCMU will be responsible for operating and maintaining streetlights in the Annexation Area. The Annexation Area is conditioned by the City to be annexed into SLD No. 1, which is the City’s street lighting finance district,

SECTION IIIPLAN FOR SERVICE

BEFORE AND
AFTER ANNEXATION OF 4.8
ACRESwww.FinanceDTA.com
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
12 I Landscape Maintenance
I.1 Before Annexation
Currently, the County is responsible for the limited amount of landscape maintenance required within the Annexation Area.

I.2 After Annexation
Upon annexation, the City’s Public Works Department will be responsible for providing operations and maintenance services for the landscaping of any publicly owned parkways and medians within the Annexation Area, including operations and maintenance work on the ½ width of Napa Street that is being annexed into the City.

J Water
J.1 Before Annexation
FWC is a local water company currently providing water treatment, storage, and distribution of domestic water to the Annexation Area. FWC owns and operates three water treatment facilities, treating a combination of well and surface water. In 2020, water utilized within the City originated from three main sources; (i) approximately 60% groundwater, (ii) 15% local surface water, and (iii) 25% water from the State Water Project. Groundwater is produced from Chino Basin, Rialto Basin and Lytle Basin, and an unnamed basin. Local surface water from Lytle Creek and imported surface water from the State Water Project originating in Northern California are treated at the Sandhill Water Treatment Plant, a 29 million-gallon-per-day (MGD) treatment plant that is comprised of a 12 MGD Conventional filtration treatment facility and a 17 MGD Diatomaceous Earth filtration treatment facility.

IEUA is a state water contractor for the Metropolitan Water District of Southern California (“MWD”), and is a regional wholesaler that delivers water at an average of

1.5 billion gallons of water per day to a 5,200 square mile service area.

J.2 After Annexation
FWC will continue to be the retail water service provider for the Annexation Area after its annexation, and IEUA will continue to be its wholesale water supplier.

K Wastewater
K.1 Before Annexation
IEUA is a regional wastewater treatment agency and wholesale distributor of imported water that operates wastewater treatment facilities. The entire Project site, including the portion within the Annexation Area, currently does not receive any local wastewater services.

SECTION IIIPLAN FOR SERVICE

BEFORE AND
AFTER ANNEXATION OF 4.8
ACRESwww.FinanceDTA.com
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
13 K.2 After Annexation
IEUA will continue to be the regional wastewater treatment agency for the Annexation Area, while the CVWD will be the local wastewater service provider for the Annexation Area. CVWD currently operates and maintains approximately 421 miles of wastewater collection system ranging from 8 to 36 inches in diameter. Wastewater generated by the Project site would be transported through this collection system and conveyed to IEUA’s RP-1 and RP-4 regional water recycling plants where it is processed into recycled water. IEUA owns and operates a system of regional trunk and interceptor sewers that transport wastewater to the regional wastewater treatment plants. In order to avoid overloading issues at any one facility, wastewater can be diverted from one regional plant to another.

As the entire Project, not just the Annexation Area, will be annexed into CVWD, a PFS and FIA are required to analyze the annexation of the entire Project into CVWD. These two analyses are being prepared separately from this Annexation Area PFS, and will be submitted to CVWD upon their completion.

L Transportation
L.1 Before Annexation
Caltrans currently operates and maintains freeways located in unincorporated County, while, as noted in Section A.1 of this study, arterials, collectors and other local roads are operated and maintained by the County Public Works Department. Omnitrans provide public transit in the unincorporated County.

L.2 After Annexation
Caltrans and Omnitrans will continue to provide freeway and public transit services to the Annexation Area once the annexation has been completed. As noted previously in Section A.2, the City will be responsible for the operations and maintenance of local roads within the Annexation Area.

M Flood Control and Drainage
M.1 Before Annexation
The County Flood Control District provides operations and maintenance services for regional flood control facilities, while any local drainage facilities, such as neighborhood detention basins, channels and bioswales are managed by the County’s Public Works Department.

M.2 After Annexation
The County Flood Control District will continue to manage regional flood control facilities on behalf of the Annexation Area, whereas the City’s Department of Public Works will take over responsibilities for the local drainage facilities cited above.

SECTION IIIPLAN FOR SERVICE

BEFORE AND
AFTER ANNEXATION OF 4.8
ACRESwww.FinanceDTA.com
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
14 N Utilities
N.1 Before Annexation
The current providers of cable television and internet service within the area are Charter Communications, Spectrum and Frontier Communications. Telephone services are also provided by Frontier Communications, whereas electricity is supplied by Southern California Edison and natural gas by Southern California Gas Company.

N.2 After Annexation
Most of the utility services in the Annexation Area will continue to be maintained by the same private parties, with the exception of cable service and electricity, which will be furnished by RCMU.

O Schools
O.1 Before Annexation
The local primary elementary school is being operated by the Etiwanda School District (“ESD”).

High School facilities are the responsibility of Chaffey Joint Union High School District (“CJUHSD”).

O.2 After Annexation
Both primary and secondary school services will continue to be the responsibility of ESD and CJUHSD, respectively.

P Solid Waste Management
P.1 Before Annexation
Burrtec Waste Management Industries currently provides waste and recycling services to the Annexation Area through a franchise agreement with the County Solid Waste Management Division.

P.2 After Annexation
Burrtec Waste Management Industries will continue to provide waste and recycling services to the Annexation Area after its annexation, although its franchise agreement will be executed with the City rather than with the County,

SECTION
IV
City of Rancho Cucamonga
Speedway Commerce Center Plan for Service
November 5, 2021
15 ONE-TIME DEVELOPMENT IMPACT
FEES

IV ONE-TIME DEVELOPMENT IMPACT FEES
Development impact fees (“DIFs”) are one-time fees utilized to fund a project’s fair share of a municipality’s infrastructure and capital needs, and are generally paid upon issuance of building permits and/or Certificates of Occupancy. As noted previously, the Annexation Area consists of

4.8 acres that will include the following anticipated land uses:

2.9 acres representing the southeast portion of the Project that is anticipated to be used solely as a portion of the Project’s parking lot;

1.9 acres of SCE-owned parcel containing transmission wires; and A portion of the Napa Street right of way.

Based on these currently proposed land uses within the Annexation Area, no structures are to be built within the area, so no DIFs are anticipated to be collected within the Annexation Area itself. Only portions of the Project outside of the Annexation Area on which structures are to be built would require the payment of DIFs, and they would be paying DIFs equal to the Project’s fair share of the capital costs of public facilities necessitated by the structures built on the Project site. Notably, if the development plan for the Project changes such that the Annexation Area would include actual development other than the currently anticipated parking lot, DIFs could be collected. However, as DIF levels generally vary dependent upon the land use types being constructed, specific fee levels cannot be assigned to the Annexation Area at this time.
www.FinanceDTA.com

RESOLUTION NO. 2022-001

A RESOLUTION OF THE CITY COUNCIL OF RANCHO CUCAMONGA,
CALIFORNIA, APPROVING GENERAL PLAN AMENDMENT NO.

DRC2020-00184, A REQUEST TO AMEND THE GENERAL PLAN LAND

USE MAP TO ASSIGN A LAND USE DESIGNATION TO TWO PARCELS

PROPOSED TO BE ANNEXED INTO THE CITY WHICH ARE

CURRENTLY LOCATED WITHIN UNINCORPORATED SAN
BERNARDINO COUNTY AND THE CITY OF FONTANA’S SPHERE OF

INFLUENCE FOR PARCELS LOCATED EAST OF ETIWANDA AVENUE

NORTH OF NAPA STREET, AND MAKING FINDINGS IN SUPPORT
THEREOF – APNS: 0229-291-23 AND 0229-291-46.

A. Recitals.

1.WHEREAS, Kimley-Horn and Associates, on behalf of Hillwood Enterprises, L.P. (the “Applicant”), filed an application for General Plan Amendment No. DRC2020-00184 as described in the title of this Resolution (the “General Plan Amendment”). The General Plan Amendment requested by the Applicant would (1) replace the Flood Control/Utility Corridor land use designation on parcel APN 0229-291-54 with a land use designation of Heavy Industrial to be consistent with the remainder of that parcel; and 2) designate the portions of the project area to be annexed into the City (APNs 0229-291-23 AND 0229-291-46) with a Heavy Industrial land use designation.

2.WHEREAS, the Applicant has requested the General Plan Amendment to construct two new industrial warehouse buildings totaling approximately 655,878 square feet combined for warehouse and e-commerce uses (the “Project”).

3.WHEREAS, on December 8, 2021, the Planning Commission of the City of Rancho Cucamonga conducted a duly noticed public hearing on the General Plan Amendment and concluded said hearing on that date at which point the Planning Commission voted unanimously to recommend that the City Council approve General Plan Amendment DRC2020-00184.

4.WHEREAS, on December 15, 2021, prior to the City Council’s consideration of the General Plan Amendment, the City Council adopted the “PlanRC” General Plan Update, which is a comprehensive update to the City’s General Plan. The PlanRC General Plan Update accomplished certain actions requested by the subject General Plan Amendment DRC2020- 00184 as described above. Specifically, the PlanRC General Plan Update eliminated the Floating Park designation and Flood Control/Utility Corridor land use designation within the project area.

The PlanRC General Plan also renamed the Heavy Industrial land use designation to Industrial Employment District; and

5.WHEREAS, the PlanRC General Plan Update redesignated the entirety of APN 0229- 291-54 as Industrial Employment District. Industrial Employment District largely reflects the previously named Heavy Industrial designation in the prior General Plan and permits the proposed uses outlined in the Project.

6.WHEREAS, the subject General Plan Amendment DRC2020-00184 is still necessary in order to assign a land use designation of Industrial Employment District to parcels and portions thereof to be annexed relative to the subject project (APNs 0229-291-23 AND 0229-291-46); and

CITY COUNCIL RESOLUTION NO. 2022-001
GPA DRC2020-00184 – HILLWOOD ENTERPRISES, L.P.

January 5th, 2022

7.WHEREAS, on January 5, 2022, the City Council of the City of Rancho Cucamonga conducted a duly noticed public hearing on the General Plan Amendment and concluded said hearing on that date; and

8.WHEREAS, all legal prerequisites prior to the adoption of this Resolution have occurred.

B. Resolution.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, HEREBY RESOLVES:

1. This Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are true and correct.

2. Based upon the substantial evidence presented to this Council during the above- referenced public hearing on January 5, 2022, including written and oral staff reports, together with public testimony, this Council hereby specifically finds as follows:
a. Following the PlanRC General Plan Update the General Plan Amendment applies to two parcels, APNs 0229-291-46 and a 0.69-acre portion of 0229-291-23 which, together with the other portion of the site, APN 0229-291-54, cumulatively total approximately 35-acres of land, located east of Etiwanda Avenue north of Napa Street. APN: 0229-291-46, which is proposed to be annexed, is currently located within unincorporated San Bernardino County and the City of Fontana Sphere of Influence and is currently designated by San Bernardino County as General Industrial (GI) and the City of Fontana as General Industrial (I-G). APN: 0229-291-54, located within the City of Rancho Cucamonga, has a general plan land use designation of Industrial Employment District. A portion of a third parcel, APN: 0229-291-23, also located within Unincorporated San Bernardino County and the City of Fontana’s Sphere of Influence and which is also proposed to be annexed, is currently designated by San Bernardino County as General (GI) (I-R) and by the City of Fontana as Public Utility (P-UC); and b. The existing Land Use, General Plan and Zoning Designations for the project site and adjacent properties are as follows:

Land Use General Plan Zoning*
Site Vacant
Industrial Employment District (for
portion within City); General
Industrial (GI)/ General Industrial (I-
G) (for portion within
County/Fontana SOI)
Industrial Employment
(IE) District (for portion
within City); Regional
Industrial (IR) (within
County) and General
Industrial (M-2) (for
portion within Fontana
SOI)
North Industrial Industrial Employment District Neo-Industrial (NI) District

CITY COUNCIL RESOLUTION NO. 2022-001
GPA DRC2020-00184 – HILLWOOD ENTERPRISES, L.P.

January 5th, 2022

South
Industrial
(County/Fontana
SOI)
General Industrial (GI), Special
Development (SD)/General
Industrial (I-G) (within
County/Fontana SOI)
Regional Industrial (IR);
Kaiser Commerce
Center Specific Plan
(KC/SP)/General
Industrial (M-2) (within
County/Fontana SOI)
West
Industrial and
East Etiwanda
Creek
Industrial Employment District Industrial Employment
(IE) District
East San Sevaine
Channel
Open Space (OS) and General
Industrial (GI) (within
County/Fontana SOI)
Regional Industrial
(IR)/Open Space-Natural
(OS-N) (within
County/Fontana SOI)
*Prior to the adoption of Ordinance 982, the Industrial Employment (IE) zoning district was referred to as the Heavy Industrial (HI) district and the Neo-Industrial (NI) district was referred to as the General Industrial (GI) district. c. This General Plan Amendment changes the General Plan land use designation for one project related parcel of land (APN: 0229-291-46) and a portion of a second parcel of land (APN: 0229-291-23) to Industrial Employment District; and d. This Project also necessitates amending the zoning map (DRC2020-00186) to assign Pre-Zoning designation of APN: 0229-291-46 and a portion of APN: 0229-291-23 to Industrial Employment (IE).
e. In addition to the subject General Plan Amendment, the Project scope includes:

Annexation (DRC2020-00185) to annex APN: 0229-291-46 and a portion of APN: 0229-291-23 into the City of Rancho Cucamonga; Pre-Zoning (DRC2020-00186) to assign a pre-zoning designation of industrial Employment (IE) to those parcels or portions thereof to be annexed; Tentative Parcel Map (SUBTPM20251) to create two new parcels; and Design Review (DRC2020-00177), Conditional Use Permit (DRC2021-00317) and Uniform Sign Program (DRC2020-00178) to permit the use, construction and signage of the proposed project. The Project scope also includes the proposal by the applicant of a Development Agreement (DRC2021-00175).

3. Based upon the substantial evidence presented to this Council during the above- referenced public hearing on January 5, 2022, including written and oral staff reports, together with public testimony, this Council hereby specifically finds as follows:
a. As originally requested, the General Plan Amendment is in the public interest as it corrects a discrepancy whereas the current project site, which comprises two parcels which are currently designated between two land use designations (General Industrial and Heavy Industrial), would be redesignated under one land use designation of General Industrial. Further, it removes a floating park designation that the City determined was unlikely to be built and unnecessary in an industrial area of the City. These requests were addressed through the adoption of the PlanRC General Plan Update, where the City Council made similar findings in support thereof.

CITY COUNCIL RESOLUTION NO. 2022-001
GPA DRC2020-00184 – HILLWOOD ENTERPRISES, L.P.

January 5th, 2022

b. Approving the General Plan Amendment is in the public interest as it provides a single land use designation of Industrial Employment District across the site, including those parcels, or portions thereof to be annexed into the City. Implementing a land use designation of Industrial Employment District, consistent with other similarly situated properties within the vicinity, complies with General Plan Land Use and Community Character Policy LC-1.2 (Quality of Place) which requires that the City “Ensure that new infill development is compatible with the existing, historic, and envisioned future character and scale of each neighborhood.” The development of the Project, including the construction of a new public street as a condition of approval, will contribute positively to the community character of the surrounding area by permitting significant site plan and aesthetic improvements to an underutilized project site while also improving traffic circulation within the vicinity of the project area.

4. The General Plan Amendment, in addition to the Annexation, Pre-Zoning, Tentative Parcel Map, Design Review, Conditional Use Permit, Uniform Sign Program and Development Agreement (collectively, the “Project”), were environmentally reviewed pursuant to the California Environmental Quality Act (CEQA) and the State CEQA Guidelines. Pursuant to CEQA Guidelines Section 15060(d), the City determined that an EIR would clearly be required for the Project, and therefore prepared an environmental impact report (EIR) that focused on the potentially significant effects of the Project. By separate Resolution No. 2022-006, the City Council has: (i) made the required CEQA findings and determinations, (ii) certified the Final EIR; and (iii) adopted a Mitigation Monitoring and Reporting Program for the Project. Resolution No. 2022-006 is incorporated herein by reference and made a part hereof as if fully set forth herein. The documents and other materials that constitute the record on which this determination was made are located in the Planning Department and are in the custody of the Planning Director. Further, the mitigation measures set forth therein are made applicable to the Project.

5. Based upon the findings and conclusions set forth in paragraphs 1, 2, 3, and 4 above, this Council hereby approves General Plan Amendment DRC2020-00184 subject to each and every condition set forth in the Conditions of Approval, attached hereto and incorporated herein by this reference. The Official General Plan Land Use Map is hereby amended to change the land use designation of the subject project area to Industrial Employment District as shown in Attachment A. City staff is hereby directed to make any other necessary conforming changes to the General Plan in order to facilitate this General Plan Amendment.

6. The City Clerk of the City of Rancho Cucamonga is hereby directed to: (a) certify to the adoption of this Resolution, and (b) forthwith transmit a certified copy of this Resolution, by certified mail, return receipt requested, to the Applicant, at the address identified in City records.

APPROVED AND ADOPTED THIS 5TH DAY OF JANUARY 2022.

CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA
BY:

L. Dennis Michael, Mayor
I, Janice C. Reynolds, City Clerk of the City of Rancho Cucamonga, do hereby certify that the

CITY COUNCIL RESOLUTION NO. 2022-001
GPA DRC2020-00184 – HILLWOOD ENTERPRISES, L.P.

January 5th, 2022

foregoing Resolution was adopted at a regular meeting of the City Council held on the 5th day of January 2022, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ATTEST: _______________________________
City Clerk of the City of Rancho Cucamonga

CITY COUNCIL RESOLUTION NO. 2022-001
GPA DRC2020-00184 – HILLWOOD ENTERPRISES, L.P.

January 5th, 2022

Attachment A

RESOLUTION NO. 2022-002

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO

CUCAMONGA APPROVING TENTATIVE PARCEL MAP
SUBTPM20251, A REQUEST TO SUBDIVIDE AN APPROXIMATE 35-
ACRE PROJECT SITE INTO TWO (2) PARCELS OF LAND RELATED

TO THE CONSTRUCTION OF TWO NEW INDUSTRIAL WAREHOUSE
BUILDINGS LOCATED APPROXIAMTELY 650 FEET EAST OF
ETIWANDA AVENUE NORTH OF NAPA STREET; AND MAKING
FINDINGS IN SUPPORT THEREOF - APNS: 0229-291-46 AND 54.

A. Recitals.

1.WHEREAS, Kimley-Horn and Associates, on behalf of Hillwood Enterprises, L.P., has filed an application for the approval of Tentative Parcel Map SUBTPM20251, as described in the title of this Resolution. Hereinafter in this Resolution, the subject Tentative Parcel Map request is referred to as "the application;" and

2.WHEREAS, on December 8, 2021, the Planning Commission of the City of Rancho Cucamonga conducted a duly noticed public hearing on the application and concluded said hearing on that date at which point the Planning Commission voted unanimously to recommend that the City Council approve SUBTPM20251; and

3.WHEREAS, on January 5, 2022, the City Council of the City of Rancho Cucamonga conducted a duly noticed public hearing on the application and concluded said hearing on that date; and

4.WHEREAS, all legal prerequisites prior to the adoption of this Resolution have occurred.

B. Resolution.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, HEREBY RESOLVES:

1. This Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are true and correct.

2. Based upon the substantial evidence presented to this Council during the above- referenced public hearing on January 5, 2022, including written and oral staff reports, together with public testimony, this Council hereby specifically finds as follows:
a. The approximate 35-acre project site is located approximately 650 feet east of Etiwanda Avenue, north of Napa Street. The project site is largely vacant, with an existing rail spur running in a north-south orientation roughly bisecting the site which serves properties to the south and existing Southern California Edison (SCE) overhead powerlines traversing the site in an east-west orientation. The existing rail spur is proposed to remain, however the existing overhead SCE powerlines are proposed to be relocated, running east-west at the northern property line within the western portion of the project site, at which point the lines would turn south, and near the frontage of the property be made to run roughly parallel to Napa Street within the eastern portion of the project site. The proposed project includes the

CITY COUNCIL RESOLUTION NO. 2022-002
SUBTPM20251 – HILLWOOD ENTERPRISES, L.P.

January 5, 2022

construction of one new north-south street which will be located along the westerly property line of the project area and will be designed to eventually connect to a future east-west street located immediately south of the Metrolink railway and parallel to Napa Street; and b. The existing General Plan Land Use and Zoning Designations for the project site and adjacent properties are as follows:

Land Use General Plan Zoning*
Site Vacant
Industrial Employment District (for
portion within City); General
Industrial (GI)/ General Industrial (I-
G) (for portion within
County/Fontana SOI)
Industrial Employment
(IE) District (for portion
within City); Regional
Industrial (IR) (within
County) and General
Industrial (M-2) (for
portion within Fontana
SOI)
North Industrial Industrial Employment District Neo-Industrial (NI) District
South
Industrial
(County/Fontan
a SOI)
General Industrial (GI), Special
Development (SD)/General
Industrial (I-G) (within
County/Fontana SOI)
Regional Industrial (IR);
Kaiser Commerce
Center Specific Plan
(KC/SP)/General
Industrial (M-2) (within
County/Fontana SOI)
West
Industrial and
East Etiwanda
Creek
Industrial Employment District Industrial Employment
(IE) District
East San Sevaine
Channel
Open Space (OS) and General
Industrial (GI) (within
County/Fontana SOI)
Regional Industrial
(IR)/Open Space-Natural
(OS-N) (within
County/Fontana SOI)
*Prior to the adoption of Ordinance 982, the Industrial Employment (IE) zoning district was referred to as the Heavy Industrial (HI) district and the Neo-Industrial (NI) district was referred to as the General Industrial (GI) district. c. The project is for the development of two new industrial warehouse buildings on two new parcels of land: Building A will total approximately 500,648 square feet including approximately 10,000 square feet of office space, and Building B will total approximately 155,230 square feet and include an office area of approximately 10,000 square feet square feet; and
d. Tentative Parcel Map SUBTPM20251 is for the subdivision of the approximate 35-acre project site into two parcels of land. Proposed Building A, totaling approximately 500,648 square feet will be located on Parcel I which will total an area of approximately 26.73 acres. Building B, totaling approximately 155,230 square feet will be located on Parcel II which will total an area of approximately 8.67 acres. The project will also result in the construction of a

CITY COUNCIL RESOLUTION NO. 2022-002
SUBTPM20251 – HILLWOOD ENTERPRISES, L.P.

January 5, 2022

new north-south public street to be located along the projects westerly boundary and which will connect Napa Street to future road way expansions within the Southeast Industrial Quadrant (SEIQ) of the City. Vehicular access to both parcels will be provided from Napa Street. The new north-south public street will provide additional access to Parcel II; and e. In addition to the subject Tentative Parcel Map, the project scope includes:

Annexation (DRC2020-00185) to annex APN: 0229-291-46 and a portion of APN: 0229-291-23 into the City of Rancho Cucamonga; General Plan Amendment (DRC2020-00184) to assign a land use designation to parcels, and portions thereof to be annexed, and to redesignate portions of the project area from Flood Control/Utility Corridor to Heavy Industrial, and remove a Floating Park designation for APN: 0229-291-54; Pre-Zoning (DRC2020-00186) to assign a pre-zoning designation to those parcels and portions thereof to be annexed; and Design Review (DRC2020-00177), Conditional Use Permit (DRC2021-00317) and Uniform Sign Program (DRC2020-00178) to permit the use, construction and signage of the proposed project. The project scope also includes the proposal by the applicant of a Development Agreement (DRC2021-00180; and

3. Based upon the substantial evidence presented to this Council during the above- referenced meeting and upon the specific findings of facts set forth in paragraphs 1 and 2 above, this Council hereby finds and concludes as follows:
a. The tentative parcel map is consistent with the General Plan, Development Code, and any applicable specific plans. The General Plan permits a variety of land uses within industrial districts, such as warehouses, distribution centers and similar uses. The Development Code, as affected by Ordinance 982, permits Storage Warehouses upon the approval of a Conditional Use Permit.
b. The design or improvements of the tentative parcel map will be consistent with the General Plan, Development Code, and any applicable specific plans. The proposed two parcel tentative parcel map and the proposed industrial warehouse development comply with all requirements of the General Plan and Development Code. Each parcel complies with the 0.5- acre minimum lot size and 100-foot minimum lot width outlined in Table 17.36.040-1 of the Development Code. Additionally, the proposed industrial warehouse development complies with all of the related development standards including building setbacks, lot coverage, height, parking and design; and
c. The site is physically suitable for the type of development proposed. The project site is well suited for the proposed industrial warehouse development as it is located along multiple street frontages, thereby providing multiple points of ingress/egress and emergency services access; and
d. The site is physically suitable for the proposed density of development. The proposed Project complies with applicable size and setback requirements under the Development code.
e. The design of the subdivision is not likely to cause substantial environmental damage and avoidable injury to humans and wildlife or their habitat. An Environmental Impact Report was submitted as part of the review of the project which demonstrated that the project would not have a significant impact on the environment upon implementation of identified mitigation measures; and

CITY COUNCIL RESOLUTION NO. 2022-002
SUBTPM20251 – HILLWOOD ENTERPRISES, L.P.

January 5, 2022

f. The tentative parcel map is not likely to cause serious public health problems.

The subdivision of the project site is not expected to cause serious public health issues, as the proposed tentative parcel map is for the subdivision of the project site into two separate parcels in order to create two separate parcels for two new proposed industrial warehouse buildings.

The review of the project included the evaluation of environmental studies which concluded that the project would not have a significant impact on the environment; and g. The design of the tentative parcel map will not conflict with any easement acquired by the public at large, now of record, for access through or use of the property within the proposed subdivision. The subject property does not contain any easements that would limit access to or use of the project site; and

4. The Tentative Parcel Map, in addition to the General Plan Amendment, Annexation, Pre-Zoning, Design Review, Conditional Use Permit, Uniform Sign Program and Development Agreement (collectively, the “Project”) were environmentally reviewed pursuant to the California Environmental Quality Act, the State CEQA Guidelines, and the City’s Local CEQA Guidelines.

Pursuant to CEQA Guidelines Section 15060(d), the City determined that an EIR would clearly be required for the Project, and therefore prepared an environmental impact report (EIR) that focused on the potentially significant effects of the Project. By separate Resolution No. 2022- 006, the City Council has: (i) made the required CEQA findings and determinations, (ii) certified the Final EIR; and (iii) adopted a Mitigation Monitoring and Reporting Program for the Project.

Resolution No. 2022-006 is incorporated herein by reference, and a made a part hereof as if fully set forth herein. The documents and other materials that constitute the record on which this determination was made are located in the Planning Department and are in the custody of the Planning Director. Further, the mitigation measures set forth therein are made applicable to the Project.

5. Based upon the findings and conclusions set forth in paragraphs 1, 2, 3, and 4 above, this Council hereby approves the application for Tentative Parcel Map SUBTPM20251 subject to each and every condition set forth in the Conditions of Approval, attached hereto and incorporated herein by this reference.

6. The City Clerk of the City of Rancho Cucamonga is hereby directed t: (a) certify to the adoption of this Resolution, and (b) forthwith transmit a certified copy of this Resolution, by certified mail, return receipt requested, to the Applicant, at the address identified in City records.

APPROVED AND ADOPTED THIS 5TH DAY OF JANUARY 2022.

CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA
BY:

L. Dennis Michael, Mayor

CITY COUNCIL RESOLUTION NO. 2022-002
SUBTPM20251 – HILLWOOD ENTERPRISES, L.P.

January 5, 2022

I, Janice C. Reynolds, City Clerk of the City of Rancho Cucamonga, do hereby certify that the foregoing Resolution was adopted at a regular meeting of the City Council held on the 5 th day of January 2022, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ATTEST: _______________________________
City Clerk of the City of Rancho Cucamonga

RESOLUTION NO. 2022-003

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

RANCHO CUCAMONGA, CALIFORNIA, APPROVING DESIGN
REVIEW DRC2020-00177, A REQUEST FOR SITE PLAN AND

ARCHITECTURAL REVIEW OF TWO NEW INDUSTRIAL
BUILDINGS TOTALING 655,878 SQUARE FEET ON AN
APPROXIMATE 35-ACRE PROJECT SITE LOCATED
APPROXIMATELY 650 FEET EAST OF ETIWANDA AVENUE AND
NORTH OF NAPA STREET; AND MAKING FINDINGS IN SUPPORT
THEREOF – APN: 0229-291-46 AND 54.

A. Recitals.

1.WHEREAS, Kimley-Horn and Associates, on behalf of Hillwood Enterprises, L.P., filed an application for the approval of Design Review DRC2020-00177, as described in the title of this Resolution. Hereinafter in this Resolution, the subject Design Review request is referred to as "the application;” and

2.WHEREAS, on December 8, 2021, the Planning Commission of the City of Rancho Cucamonga conducted a duly noticed public hearing on the application and concluded said hearing on that date at which point the Planning Commission voted unanimously to recommend that the City Council approve Design Review DRC2020-00177; and

3.WHEREAS, on January 5, 2022, the City Council of the City of Rancho Cucamonga conducted a duly noticed public hearing on the application and concluded said hearing on that date; and

4.WHEREAS, all legal prerequisites prior to the adoption of this Resolution have occurred.

B. Resolution.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, HEREBY RESOLVES:

1. This Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are true and correct.

2. Based upon the substantial evidence presented to this Council during the above-referenced public hearings on January 5, 2022, including written and oral staff reports, together with public testimony, this Council hereby specifically finds as follows:
a. The approximate 35-acre project site is located approximately 650 feet east of Etiwanda Avenue north of Napa Street; and
b. The project site is largely vacant, with an existing rail spur running in a north- south orientation roughly bisecting the site which serves properties to the south and existing Southern California Edison (SCE) overhead powerlines traversing the site in an east-west orientation. The existing rail spur is proposed to remain, however the existing overhead SCE powerlines are proposed to be relocated, running east-west at the northern property line within

CITY COUNCIL RESOLUTION NO. 21-XX
DESIGN REVIEW DRC2020-00177–HILLWOOD ENTERPRISES, L.P.

January 5, 2022

the western portion of the project site, at which point the lines would turn south, and near the frontage of the property be made to run roughly parallel to Napa Street within the eastern portion of the project site. The proposed project includes the construction of one new north- south street which will be located along the westerly property line of the project area and will be designed to eventually connect to a future east-west street located immediately south of the Metrolink railway and parallel to Napa Street; and
c. The existing Land Use, General Plan and Zoning designations for the project site and adjacent properties are as follows:

Land Use General Plan Zoning*
Site Vacant
Industrial Employment District (for
portion within City); General
Industrial (GI)/ General Industrial (I-
G) (for portion within
County/Fontana SOI)
Industrial Employment
(IE) District (for portion
within City); Regional
Industrial (IR) (within
County) and General
Industrial (M-2) (for
portion within Fontana
SOI)
North Industrial Industrial Employment District Neo-Industrial (NI) District
South
Industrial
(County/Fontan
a SOI)
General Industrial (GI), Special
Development (SD)/General
Industrial (I-G) (within
County/Fontana SOI)
Regional Industrial (IR);
Kaiser Commerce
Center Specific Plan
(KC/SP)/General
Industrial (M-2) (within
County/Fontana SOI)
West
Industrial and
East Etiwanda
Creek
Industrial Employment District Industrial Employment
(IE) District
East San Sevaine
Channel
Open Space (OS) and General
Industrial (GI) (within
County/Fontana SOI)
Regional Industrial
(IR)/Open Space-Natural
(OS-N) (within
County/Fontana SOI)
*Prior to the adoption of Ordinance 982, the Industrial Employment (IE) zoning district was referred to as the Heavy Industrial (HI) district and the Neo-Industrial (NI) district was referred to as the General Industrial (GI) district. d. The project is for the development of two new industrial warehouse buildings on two new parcels of land: Building A will total approximately 500,648 square feet including approximately 10,000 square feet of office space, and Building B will total approximately 155,230 square feet and include an office area of approximately 10,000 square feet square feet. The project requires 183 parking stalls and 79 trailer loading stalls for Building A and 97 parking stalls and 20 trailer loading stalls for Building B. Accordingly, the project provides 275

CITY COUNCIL RESOLUTION NO. 21-XX
DESIGN REVIEW DRC2020-00177–HILLWOOD ENTERPRISES, L.P.

January 5, 2022

parking stalls and 87 trailer loading stalls for Building A, and 108 parking stalls and 20 trailer loading stalls for Building B; and
e. The project also includes an application to subdivide the project site into two new parcels: Parcel I which will total approximately 26.73 acres in size and be developed with Building A, and Parcel II, which will total approximately 8.67 acres in size and be developed with Building B; and
f. The project complies with all requirements of the Development Code including setbacks, parking, design, and landscape coverage; and
g. In addition to Design Review DRC2020-00177, the project scope includes:

Annexation (DRC2020-00185) to annex APN: 0229-291-46 and a portion of APN: 0229-291-23 into the City of Rancho Cucamonga; General Plan Amendment (DRC2020-00184), to assign a land use designation to parcels, and portions thereof, to be annexed; Pre-Zoning (DRC2020- 00186) to assign a pre-zoning designation to those parcels and portions thereof to be annexed; Tentative Parcel Map (SUBTPM20251) to create two new parcels; and Conditional Use Permit (DRC2021-00317) and Uniform Sign Program (DRC2020-00178) to permit the use, construction and signage of the proposed project. The project scope also includes the proposal by the applicant of a Development Agreement (DRC2021-00180).

3. Based upon the substantial evidence presented to this Council during the above- referenced meeting and upon the specific findings of facts set forth in paragraphs 1 and 2 above, this Council hereby finds and concludes as follows:
a. The proposed project is consistent with the General Plan. The proposed industrial warehouse project will be consistent with the General Plan with the approval of General Plan Amendment DRC2020-00184. The project site comprises two parcels: APN:
0229-291-54 and 0229-291-46. APN: 0229-291-54 which is located within the City of Rancho Cucamonga, has a general plan land use designation of Industrial Employment District. APN:
0229-291-46 which is currently located within unincorporated San Bernardino County and within the City of Fontana’s Sphere of Influence and which is proposed to be annexed into the City of Rancho Cucamonga as part of this project, has a general plan land use designation of General Industrial (GI) within San Bernardino County and General industrial (I-G) within the City of Fontana Sphere of Influence. Further, the applicant also proposes to annex a portion of an additional parcel which is not proposed to be developed as part of this development application identified as APN: 0229-291-23 and which currently has a land use designation of General Industrial (GI) within San Bernardino County and Public Utility (P-UC) within the City of Fontana Sphere of Influence. The proposed General Plan Amendment will amend the land use designation of the project site to Industrial Employment District, a land use designation which permits the proposed industrial use. The General Plan Amendment will also amend the portion of APN: 0229-291-23 to be annexed to Industrial Employment District, consistent with similarly situated parcels located within the vicinity of the project; and b. The proposed use is in accord with the objective of the Development Code and the purposes of the district in which the site is located. Storage Warehouses are permitted within the Industrial Employment (IE) District subject to the approval of a Conditional Use Permit. The project will be in compliance with the Zoning Map with approval of the related Pre- Zoning DRC2020-00186, which will amend the zoning designation of the parcels to be annexed

CITY COUNCIL RESOLUTION NO. 21-XX
DESIGN REVIEW DRC2020-00177–HILLWOOD ENTERPRISES, L.P.

January 5, 2022

to a pre-zoning designation of Industrial Employment, which will become effective upon the approval of the annexation; and
c. The proposed use is in compliance with each of the applicable provisions of the Development Code. The project will be in compliance with the Development Code with approval of the related General Plan Amendment DRC2020-00184 and Pre-Zoning DRC2020-00186.

Storage Warehouses are permitted within the Industrial Employment (IE) District upon the approval of a Conditional Use Permit. The project complies with all other development criteria outlined in the Development Code including setbacks, parking and design; and d. The proposed use, together with the conditions applicable thereto, will not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity. The related environmental review outlines potential environmental impacts related to the project and identifies project-specific mitigation measures that reduce these impacts to less-than-significant. The proposed use will not be detrimental to the public health, safety, or welfare, or be materially injurious to properties or improvements in the vicinity; and

4. The Design Review, in addition to the General Plan Amendment, Annexation, Pre- Zoning, Tentative Parcel Map, Conditional Use Permit, Uniform Sign Program and Development Agreement (collectively, the “Project”) were environmentally reviewed pursuant to the California Environmental Quality Act (CEQA), the State CEQA Guidelines. Pursuant to CEQA Guidelines Section 15060(d), the City determined that an EIR would clearly be required for the Project, and therefore prepared an environmental impact report (EIR) that focused on the potentially significant effects of the Project. By separate Resolution No. 2022-006, the City Council has: (i) made the required CEQA findings and determinations, (ii) certified the Final EIR; and (iii) adopted a Mitigation Monitoring and Reporting Program for the Project.

Resolution No. 2022-006 is incorporated herein by reference, and made a part hereof as if fully set forth herein. The documents and other materials that constitute the record on which this determination was made are located in the Planning Department and are in the custody of the Planning Director. Further, the mitigation measures set forth therein are made applicable to the Project.

5. Based upon the findings and conclusions set forth in paragraphs 1, 2, 3, and 4 above, this Council hereby approves the application for Design Review DRC2020-00177 subject to each and every condition set forth in the Conditions of Approval, attached hereto and incorporated herein by this reference.

6. The City Clerk of the City of Rancho Cucamonga is hereby directed to: (a) certify to the adoption of this Resolution, and (b) forthwith transmit a certified copy of this Resolution, by certified mail, return receipt requested to the applicant at the address identified in City records.

APPROVED AND ADOPTED THIS 5TH DAY OF JANUARY 2022.

CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA
BY:

CITY COUNCIL RESOLUTION NO. 21-XX
DESIGN REVIEW DRC2020-00177–HILLWOOD ENTERPRISES, L.P.

January 5, 2022

L. Dennis Michael, Mayor
I, Janice C. Reynolds, City Clerk of the City of Rancho Cucamonga, do hereby certify that the foregoing Resolution was adopted at a regular meeting of the City Council held on the 5th day of January 2022, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ATTEST: _______________________________
City Clerk of the City of Rancho Cucamonga

RESOLUTION NO. 2022-004

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO

CUCAMONGA, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT DRC2021-00317, A REQUEST TO ALLOW CERTAIN LOGISTICAL

WAREHOUSE USES, RELATED TO THE CONSTRUCTION OF TWO NEW

INDUSTRIAL WAREHOUSE BUILDINGS TOTALING APPROXIMATELY
655,878 SQUARE FEET ON CERTAIN PROPERTY LOCATED
APPROXIMATELY 650 FEET EAST OF ETIWANDA AVENUE AND NORTH OF NAPA STREET; AND MAKING FINDINGS IN SUPPORT THEREOF – APNS:
0229-291-46 AND 54.

A. Recitals.

1.WHEREAS, Kimley-Horn and Associates, on behalf of Hillwood Enterprises, L.P., filed an application for the approval of Conditional Use Permit DRC2021-00317 for the following uses at two logistics warehouses at the site described in the title of this resolution: Storage Warehouse, Large Light Manufacturing, and Large Fulfillment/Distribution Center. Hereinafter in this Resolution, the subject Conditional Use Permit request is referred to as "the application;" and

2.WHEREAS, on December 8, 2021, the Planning Commission of the City of Rancho Cucamonga conducted a duly noticed public hearing on the application and concluded said hearing on that date at which point the Planning Commission voted unanimously to recommend that the City Council approve Conditional Use Permit DRC2021-00317; and

3.WHEREAS, on January 5, 2022, the City Council of the City of Rancho Cucamonga conducted a duly noticed public hearing on the application and concluded said hearing on that date; and

4.WHEREAS, All legal prerequisites prior to the adoption of this Resolution have occurred.

B. Resolution.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, HEREBY RESOLVES:

1. This Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are true and correct.

2. Based upon the substantial evidence presented to this Council during the above-referenced public hearing on January 5, 2022, including written and oral staff reports, together with public testimony, this Council hereby specifically finds as follows:
a. The approximate 35-acre project site is located approximately 650 feet east of Etiwanda Avenue, north of Napa Street. The project site is largely vacant, with an existing rail spur running in a north-south orientation roughly bisecting the site which serves properties to the south and existing Southern California Edison (SCE) overhead powerlines traversing the site in an east-west orientation.

The existing rail spur is proposed to remain, however the existing overhead SCE powerlines are proposed to be relocated, running east-west at the northern property line within the western portion of the project site, at which point the lines would turn south, and near the frontage of the property be made to run roughly parallel to Napa Street within the eastern portion of the project site. The proposed project includes the construction of one new north-south street which will be located along the westerly property line of the project area and will be designed to eventually connect to a future east-west street located immediately south of the Metrolink railway and parallel to Napa Street; and

CITY COUNCIL RESOLUTION NO. 2022-004
CUP DRC2021-0031 – HILLWOOD ENTERPRISES, L.P.

January 5, 2022

b. The existing Land Use, General Plan and Zoning Designations for the project site and adjacent properties are as follows:

Land Use General Plan Zoning*
Site Vacant
Industrial Employment District (for
portion within City); General
Industrial (GI)/ General Industrial (I-
G) (for portion within
County/Fontana SOI)
Industrial Employment
(IE) (for portion within
City); Regional Industrial
(IR) (within County) and
General Industrial (M-2)
(for portion within
Fontana SOI)
North Industrial Industrial Employment District Neo-Industrial (NI) South
Industrial
(County/Fontana
SOI)
General Industrial (GI), Special
Development (SD)/General
Industrial (I-G) (within
County/Fontana SOI)
Regional Industrial (IR);
Kaiser Commerce
Center Specific Plan
(KC/SP)/General
Industrial (M-2) (within
County/Fontana SOI)
West
Industrial and
East Etiwanda
Creek
Industrial Employment District Industrial Employment
(IE)
East San Sevaine
Channel
Open Space (OS) and General
Industrial (GI) (within
County/Fontana SOI)
Regional Industrial
(IR)/Open Space-Natural
(OS-N) (within
County/Fontana SOI)
*Prior to the adoption of Ordinance 982, the Industrial Employment (IE) zoning district was referred to as the Heavy Industrial (HI) district and the Neo-Industrial (NI) district was referred to as the General Industrial (GI) district. c. In addition to the subject Conditional Use Permit, the project scope includes: Annexation (DRC2020-00185) to annex APN: 0229-291-46 and a portion of APN: 0229-291-23 into the City of Rancho Cucamonga; General Plan Amendment (DRC2020-00184) to assign a land use designation to parcels, and portions thereof, to be annexed; Pre-Zoning (DRC2020-00186) to assign a pre-zoning designation to those parcels and portions thereof to be annexed; Tentative Parcel Map (SUBTPM20251) to create two new parcels; and Design Review (DRC2020-00177), Conditional Use Permit (DRC2021- 00317) and Uniform Sign Program (DRC2020-00178) to permit the use, construction and signage of the proposed project. The project scope also includes the proposal by the applicant of a Development Agreement (DRC2021-00180); and
d. The project is for the development of two new industrial warehouse buildings on two new parcels of land: Building A will total approximately 500,648 square feet including approximately 10,000 square feet of office space, and Building B will total approximately 155,230 square feet and include an office area of approximately 10,000 square feet square feet; and

CITY COUNCIL RESOLUTION NO. 2022-004
CUP DRC2021-0031 – HILLWOOD ENTERPRISES, L.P.

January 5, 2022

e. The project requires 183 parking stalls and 79 trailer loading stalls for Building A and 97 parking stalls and 20 trailer loading stalls for Building B. Accordingly, the project provides 275 parking stalls and 87 trailer loading stalls for Building A, and 108 parking stalls and 20 trailer loading stalls for Building B; and
f. The project’s compliance with the related development standards is shown in the following tables:

Parking Ratio Required
Parking
Provided
Parking Complies?
Warehouse/storage
and office
1 per 1,000 sf for the first
20,000 sf; 1 per 2,000 sf for
the next 20,000 sf, and 1 per
4,000 sf for remaining sf
Office requires 1 per 250 sf
Building
A: 183
stalls;
Building
B: 97
stalls
Building A:
275;
Building B:
108
YES
Development
Standard Required Proposed Complies?
Building Height
Maximum 35 feet (at front
setback) and
75 feet (1-foot increment
from the front setback
line)
Building A: (var.) 46-58.5 feet
(beyond setback); Building B:
(var.) 38-50.5 feet (beyond
front setback)
YES
Floor Area Ratio
(FAR) 40-50% Building A: 42.9%; Building B:

41.1% YES
Front Building
Setback Min. 25 feet
Building A: 46 feet (Napa St.);
Building B: 39.5 feet (Via
Maris Place)
YES
Street Side
Setback
Min. 25 Feet (Napa Street
for Building B) 69 feet (approx.) YES
Average Depth of
Landscape 25 feet 27 feet (Via Maris Place); 25
feet (Napa St.) YES
Parking Setback Min. 15 feet (var.) 15-31 feet (approx.) YES Interior Side Yard
Setback Min. 5 feet
Building A: 314.5 feet (west
PL), 126 feet (east PL);
Building B: 137.3 (northerly
property line)
YES
Rear Yard
Setback Min. 0 feet Building A: 144 feet (approx.);
Building B: 75.3 YES
Open
Space/Landscape
Standards
5% Building A: 8.3%; Building B:

10.7% YES
Note: the proposed “Alternative Site Plan” proposing only Building A also meets all relevant development standards

CITY COUNCIL RESOLUTION NO. 2022-004
CUP DRC2021-0031 – HILLWOOD ENTERPRISES, L.P.

January 5, 2022

Trailer Loading
Stalls 1 per loading dock
Building
A: 79;
Building
B: 20
Building A:
87;
Building B:
20 YES

3. Based upon the substantial evidence presented to this Council during the above-referenced public hearing and upon the specific findings of facts set forth in Paragraphs 1 and 2 above, this Council hereby finds and concludes as follows:
a. The proposed uses are consistent with the General Plan. Allowing the proposed uses at the proposed location would be consistent with and help achieve the goals, objectives and policies of the general plan and the development code. Storage Warehouses are permitted within the Industrial Employment (IE) District subject to the approval of a Conditional Use Permit. Large Light Manufacturing, and Large Fulfillment/Distribution Center which are permitted subject to the approval of a Minor Use Permit. Allowing the proposed uses at the proposed location would achieve General Plan Goal LC-6 (Active Centers) which provides that he City shall achieve “a rich variety of commercial and mixed-use centers throughout the city, which bring a range of opportunities for shopping, dining, recreations, commerce, employment, arts and culture within easty reach of all neighborhoods.” b. The proposed uses are consistent with the purposes of the development code and the purposes of the applicable zoning district as well as any applicable specific plans or city regulations/standards. The proposed improvements of the site, including building design, height and bulk of buildings, setbacks fencing, landscaping, signage size and location are compatible with the surrounding neighborhood or area. The project meets all relevant development standards including height, setbacks, fencing and landscaping. The buildings design, including bulk and massing, comply with design criteria established by the Development Code. c. The site is physically suitable for the type, density and intensity of the uses being proposed, including access, utilities, and the absence of physical constraints that would make conduct of the use undesirable. Adequate public facilities and services are available to serve the proposed use or will be made available concurrent with the proposed development. The project has street frontage on Napa Street and a new north south street proposed along the westerly boundary of the project area. The site is served, or will be conditioned to be served by, services and utilities provided by Burrtec Waste Industries, Southern California Edison, Rancho Cucamonga Municipal Utility, and all other public and private services that accommodate the proposed project. d. The design, location, size and operating characteristics of the proposd uses would be compatible with the existing and other permitted uses in the vicinity including transportation and service facilities. The operating characteristics of the proposed uses, including traffic, noise, light, and other characteristics, will be in keeping with the character of the neighborhood and other adjacent uses in the vicinity. The project involves the construction of two new industrial warehouse uses of similar scale and characteristics to those within the surrounding vicinity. The proposed use is required to comply with all relevant industrial performance standards pursuant to the Development Code for noise, vibration, particulate matter and air contaminants, odor, and humidity, heat, and glare. Further, the Environmental

CITY COUNCIL RESOLUTION NO. 2022-004
CUP DRC2021-0031 – HILLWOOD ENTERPRISES, L.P.

January 5, 2022

Impact Report prepared for the project identified mitigation measures which when implemented will mitigate traffic characteristics to less than significant levels e. Granting the permit would not constitute a nuisance or be injurious or detrimental to the public interest, health, safety, convenience, or welfare, or materially injurious to persons, property, or improvements in the vicinity and zoning district in which the property is located. The factors to be considered in making this finding include: i) property damage or nuisance arising from noise, smoke, odor, dust, vibration or illumination caused by the use; ii) hazard to persons or property from possible explosion, contamination, fire or flood caused by the use; and iii) significantly increase the volume of traffic or negatively alter the pattern of traffic. The Environmental Impact Report prepared for the project outlines potential environmental impacts related to the project and identifies project-specific mitigation measures that reduce these impacts to less-than-significant. The proposed use will not be detrimental to the public health, safety, or welfare, or be materially injurious to properties or improvements in the vicinity.
f. The proposed uses will not pose an undue burden on city services, including police, fire, streets, and other public utilities, such that the city is unable to maintain its current level of service due to the use. The EIR demonstrates that the project will not cause an impact to public services. The developer and the City have negotiated a development agreement which will result in the developer paying the City a Community Benefit Fee to further offset any impacts to city services, including street facilities.
g. The proposed project has been reviewed in compliance with the California Environmental Quality Act (CEQA). An Environmental Impact Report (SCH: 2020090076) has been prepared for this project.

4. The Conditional Use Permit, in addition to the General Plan Amendment, Annexation, Pre- Zoning, Tentative Parcel Map, Design Review, Uniform Sign Program and Development Agreement (collectively, the “Project”) were environmentally reviewed pursuant to the California Environmental Quality Act (CEQA), the State CEQA Guidelines. Pursuant to CEQA Guidelines Section 15060(d), the City determined that an EIR would clearly be required for the Project, and therefore prepared an environmental impact report (EIR) that focused on the potentially significant effects of the Project. . By separate Resolution No. 2022-006, the City Council has: (i) made the required CEQA findings and determinations, (ii) certified the Final EIR; and (iii) adopted a Mitigation Monitoring and Reporting Program for the Project. Resolution No. 2022-006 is incorporated herein by reference, and made a part hereof as if fully set forth herein. The documents and other materials that constitute the record on which this determination was made are located in the Planning Department and are in the custody of the Planning Director. Further, the mitigation measures set forth therein are made applicable to the Project..

5. Based upon the findings and conclusions set forth in paragraphs 1, 2, 3, and 4 above, this Council hereby approves the application for Conditional Use Permit DRC2021-00317 subject to each and every condition set forth in the Conditions of Approval, attached hereto and incorporated herein by this reference.

CITY COUNCIL RESOLUTION NO. 2022-004
CUP DRC2021-0031 – HILLWOOD ENTERPRISES, L.P.

January 5, 2022

6. The City Clerk of the City of Rancho Cucamonga is hereby directed to: (a) certify to the adoption of this Resolution, and (b) forthwith transmit a certified copy of this Resolution, by certified mail, return receipt requested to the applicant at the address identified in City records.

APPROVED AND ADOPTED THIS 5TH DAY OF JANUARY 2022.

CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA
BY:

L. Dennis Michael, Mayor
I, Janice C. Reynolds, City Clerk of the City of Rancho Cucamonga, do hereby certify that the foregoing Resolution was adopted at a regular meeting of the City Council held on the 5 th day of January 2022, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ATTEST:_______________________________
City Clerk of the City of Rancho Cucamonga

RESOLUTION NO. 2022-005

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO

CUCAMONGA, CALIFORNIA, APPROVING UNIFORM SIGN
PROGRAM DRC2020-00178, A REQUEST TO ESTABLISH A

UNIFORM SIGN PROGRAM RELATED TO A PROPOSED
DEVELOPMENT ON AN APPROXIMATE 35-ACRE PROJECT SITE ON
CERTAIN PROPERTY LOCATED APPROXIAMTELY 650 FEET EAST
OF ETIWANDA AVENUE NORTH OF NAPA STREET; AND MAKING
FINDINGS IN SUPPORT THEREOF – APN: 0229-291-46 AND 0229- 291-54.

A. Recitals.

1.WHEREAS, Kimley-Horn and Associates, on behalf of Hillwood Enterprises, L.P., filed an application for the approval of Uniform Sign Program DRC2020-00178, as described in the title of this Resolution. Hereinafter in this Resolution, the subject Uniform Sign Program request is referred to as "the application;" and

2.WHEREAS, on December 8, 2021, the Planning Commission of the City of Rancho Cucamonga conducted a duly noticed public hearing on the application and concluded said hearing on that date at which point the Planning Commission voted unanimously to recommend that the City Council approve Uniform Sign Program DRC2020-00178; and

3.WHEREAS, on January 5, 2022, the City Council of the City of Rancho Cucamonga conducted a duly noticed public hearing on the application and concluded said hearing on that date; and

4.WHEREAS, all legal prerequisites prior to the adoption of this Resolution have occurred.

B. Resolution.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, HEREBY RESOLVES:

1. This Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are true and correct.

2. Based upon the substantial evidence presented to this Council during the above- referenced public hearing on January 5, 2022, including written and oral staff reports, together with public testimony, this Council hereby specifically finds as follows:
a. The approximate 35-acre project site is located approximately 650 feet east of Etiwanda Avenue north of Napa Street; and
b. The project site is largely vacant, with an existing rail spur running in a north- south orientation roughly bisecting the site which serves properties to the south and existing Southern California Edison (SCE) overhead powerlines traversing the site in an east-west orientation. The existing rail spur is proposed to remain, however the existing overhead SCE

CITY COUNCIL RESOLUTION NO. 21-XX
USP DRC2020-00178 – HILLWOOD ENTERPRISES, L.P.

January 5, 2022

powerlines are proposed to be relocated, running east-west at the northern property line within the western portion of the project site, at which point the lines would turn south, and near the frontage of the property be made to run roughly parallel to Napa Street within the eastern portion of the project site. The proposed project includes the construction of one new north- south street which will be located along the westerly property line of the project area and will be designed to eventually connect to a future east-west street located immediately south of the Metrolink railway and parallel to Napa Street;
c. The existing General Plan Land Use and Zoning Designations for the project site and adjacent properties are as follows:

Land Use General Plan Zoning*
Site Vacant
Industrial Employment District (for
portion within City); General
Industrial (GI)/ General Industrial (I-
G) (for portion within
County/Fontana SOI)
Industrial Employment
(IE) District (for portion
within City); Regional
Industrial (IR) (within
County) and General
Industrial (M-2) (for
portion within Fontana
SOI)
North Industrial Industrial Employment District Neo-Industrial (NI) District
South
Industrial
(County/Fontan
a SOI)
General Industrial (GI), Special
Development (SD)/General
Industrial (I-G) (within
County/Fontana SOI)
Regional Industrial (IR);
Kaiser Commerce
Center Specific Plan
(KC/SP)/General
Industrial (M-2) (within
County/Fontana SOI)
West
Industrial and
East Etiwanda
Creek
Industrial Employment District Industrial Employment
(IE) District
East San Sevaine
Channel
Open Space (OS) and General
Industrial (GI) (within
County/Fontana SOI)
Regional Industrial
(IR)/Open Space-Natural
(OS-N) (within
County/Fontana SOI)
*Prior to the adoption of Ordinance 982, the Industrial Employment (IE) zoning district was referred to as the Heavy Industrial (HI) district and the Neo-Industrial (NI) district was referred to as the General Industrial (GI) district. d. The project is for the development of two new industrial warehouse buildings on two new parcels of land: Building A will total approximately 500,648 square feet including approximately 10,000 square feet of office space, and Building B will total approximately 155,230 square feet and include an office area of approximately 10,000 square feet square feet. The project requires 183 parking stalls and 79 trailer loading stalls for Building A and 97 parking stalls and 20 trailer loading stalls for Building B. Accordingly, the project provides 275

CITY COUNCIL RESOLUTION NO. 21-XX
USP DRC2020-00178 – HILLWOOD ENTERPRISES, L.P.

January 5, 2022

parking stalls and 87 trailer loading stalls for Building A, and 108 parking stalls and 20 trailer loading stalls for Building B; and
e. Uniform Sign Program DRC2020-00178 will establish a Uniform Sign Program for the development. The program contains the location and conceptual design of all signs for the project as well as project monumentation; and
f. In addition to the subject Uniform Sign Program, the project scope includes:

Annexation (DRC2020-00185) to annex APN: 0229-291-46 and a portion of APN: 0229-291-23 into the City of Rancho Cucamonga; General Plan Amendment (DRC2020-00184) to assign a land use designation to parcels, and portions thereof to be annexed; Pre-Zoning (DRC2020- 00186) to assign a pre-zoning designation to those parcels and portions thereof to be annexed; Tentative Parcel Map SUBTPM20251 to create two new parcels, and Design Review (DRC2020-00177), and Conditional Use Permit (DRC2021-00317) to permit the use, construction and signage of the proposed project. The project scope also includes the proposal by the applicant of a Development Agreement (DRC2021-00180; and

3. Based upon the substantial evidence presented to this Council during the above- referenced meeting and upon the specific findings of facts set forth in paragraphs 1 and 2 above, this Council hereby finds and concludes as follows:
a. The proposed uniform sign program is consistent with the development standards for signs as provided in chapter 17.74 (Sign Regulations for Private Property). The proposed signage complies with all related Development Code sign regulation; and b. The design, location, and scale of proposed signs for the integrated development are in keeping with the architectural character of the development. The signs are designed to complement the proposed development including size and scale; and

4. The Uniform Sign Program, in addition to the General Plan Amendment, Annexation, Pre-Zoning, Tentative Parcel Map, Design Review, Conditional Use Permit and Development Agreement (collectively, the “Project”) were environmentally reviewed pursuant to the California Environmental Quality Act (CEQA), the City’s Local CEQA Guidelines, and the State CEQA Guidelines. Pursuant to CEQA Guidelines Section 15060(d), the City determined that an EIR would clearly be required for the Project, and therefore prepared an environmental impact report (EIR) that focused on the potentially significant effects of the Project. By separate Resolution No. 2022-006, the City Council has: (i) made the required CEQA findings and determinations, (ii) certified the Final EIR; and (iii) adopted a Mitigation Monitoring and Reporting Program for the Project. Resolution No. 2022-006 is incorporated herein by reference, and made a part hereof as if fully set forth herein. The documents and other materials that constitute the record on which this determination was made are located in the Planning Department and are in the custody of the Planning Director. Further, the mitigation measures set forth therein are made applicable to the Project.

5. Based upon the findings and conclusions set forth in paragraphs 1, 2, 3, and 4 above, this Council hereby approves the application for Uniform Sign Program DRC2020-00178 subject to each and every condition set forth in the Conditions of Approval, attached hereto and incorporated herein by this reference.

6. The City Clerk of the City of Rancho Cucamonga is hereby directed t: (a) certify to

CITY COUNCIL RESOLUTION NO. 21-XX
USP DRC2020-00178 – HILLWOOD ENTERPRISES, L.P.

January 5, 2022

the adoption of this Resolution, and (b) forthwith transmit a certified copy of this Resolution, by certified mail, return receipt requested to the applicant at the address identified in City records.

APPROVED AND ADOPTED THIS 5TH DAY OF JANUARY 2021.

CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA
BY:

L. Dennis Michael, Mayor
I, Janice C. Reynolds, City Clerk of the City of Rancho Cucamonga, do hereby certify that the foregoing Resolution was adopted at a regular meeting of the City Council held on the 5th day of January 2022, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ATTEST: _______________________________
City Clerk of the City of Rancho Cucamonga

H748-028 -- 4210543.1
ORDINANCE NO. 993

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

RANCHO CUCAMONGA APPROVING DEVELOPMENT
AGREEMENT DRC2021-00175 BETWEEN THE CITY OF
RANCHO CUCAMONGA AND HILLWOOD ENTERPRISES, L.P.,

TO FACILITATE THE DEVELOPMENT OF TWO NEW

INDUSTRIAL BUILDINGS TOTALING APPROXIMATELY
655,878 SQUARE FEET ON AN APPROXIMATE 35-ACRE
PROJECT SITE LOCATED APPROXIMATELY 650 FEET EAST
OF ETIWANDA AVENUE AND NORTH OF NAPA STREET; AND
MAKING FINDINGS IN SUPPORT THEREOF – APN: 0229-291-
46 AND 54.

A. Recitals.

1.WHEREAS, Kimley-Horn and Associates, on behalf of Hillwood Enterprises, L.P. (the “Applicant”), filed an application for and negotiated the terms of Development Agreement DRC2021-00175, as described in the title of this Ordinance and attached hereto as Exhibit 1.

Hereinafter in this Ordinance, the subject development agreement is referred to as the “application" or the “Development Agreement;” and

2.WHEREAS, On December 8, 2021, the Planning Commission of the City of Rancho Cucamonga conducted a duly noticed public hearing on the application and concluded said hearing on that date at which point the Planning Commission voted unanimously to recommend that the City Council approve Development Agreement DRC2021-00175; and

3.WHEREAS, On January 5, 2022, the City Council conducted a duly noticed public hearing, concluded said hearing on that date, and thereafter introduced for first reading this Ordinance ; and

4.WHEREAS, All legal prerequisites prior to the adoption of this Ordinance have occurred.

B. Ordinance.

NOW, THEREFORE, the City Council of the City of Rancho Cucamonga does ordain as follows:

SECTION 1. The City Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Ordinance are true and correct.

SECTION 2. Based upon the substantial evidence presented to the City Council during the above-referenced public hearing on January 5, 2022, including written and oral staff reports, together with public testimony, the City Council hereby specifically finds as follows:
a. The application applies to the approximately 35-acre project site which comprises two parcels, APN: 0229-291-46 and 0229-291-54. The project site is located approximately 650 feet east of Etiwanda Avenue, north of Napa Street. The project site is

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H748-028 -- 4210543.1
largely vacant, with an existing rail spur running in a north-south orientation roughly bisecting the site which serves properties to the south and existing Southern California Edison (SCE) overhead powerlines traversing the site in an east-west orientation. The existing rail spur is proposed to remain; however, the existing overhead SCE powerlines are proposed to be relocated, running east-west at the northern property line within the western portion of the project site, at which point the lines would turn south, and near the frontage of the property be made to run roughly parallel to Napa Street within the eastern portion of the project site. The proposed project includes the construction of one new north-south street which will be located along the westerly property line of the project area and will be designed to eventually connect to a future east-west street located immediately south of the Metrolink railway and parallel to Napa Street; and
b. Concurrent with this application, the Applicant represented that it will apply to the San Bernardino County Local Area Formation Commission for Annexation (DRC2020- 00185) to annex APN: 0229-291-46 and a portion of APN: 0229-291-23 into the City of Rancho Cucamonga, among other conforming changes of organization; General Plan Amendment (DRC2020-00184) to assign a land use designation to parcels, and portions thereof, to be annexed; Pre-Zoning (DRC2020-00186) to assign a pre-zoning designation to those parcels to be annexed; Tentative Parcel Map (SUBTPM20251) to create two new parcels; and Design Review (DRC2020-00177), Conditional Use Permit (DRC2021-00317) and Uniform Sign Program (DRC2020-00178) to permit the use, construction and signage of the proposed project; and
c. Development of the project is governed by the City’s General Plan, Development Code, all entitlements associated with the project, and the subject Development Agreement between the City and Owner’s predecessor in interest; and d. The existing Land Use, General Plan and Zoning Designations for the project site and adjacent properties are as follows:

Land Use General Plan Zoning*
Site Vacant
Industrial Employment District (for
portion within City); General
Industrial (GI)/ General Industrial (I-
G) (for portion within
County/Fontana SOI)
Industrial Employment
(IE) District (for portion
within City); Regional
Industrial (IR) (within
County) and General
Industrial (M-2) (for
portion within Fontana
SOI)
North Industrial Industrial Employment District Neo-Industrial (NI) District
South
Industrial
(County/Fontana
SOI)
General Industrial (GI), Special
Development (SD)/General
Industrial (I-G) (within
County/Fontana SOI)
Regional Industrial (IR);
Kaiser Commerce
Center Specific Plan
(KC/SP)/General
Industrial (M-2) (within
County/Fontana SOI)

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H748-028 -- 4210543.1
West
Industrial and
East Etiwanda
Creek
Industrial Employment District Industrial Employment
(IE) District
East San Sevaine
Channel
Open Space (OS) and General
Industrial (GI) (within
County/Fontana SOI)
Regional Industrial
(IR)/Open Space-Natural
(OS-N) (within
County/Fontana SOI)
*Prior to the adoption of Ordinance 982, the Industrial Employment (IE) zoning district was referred to as the Heavy Industrial (HI) district and the Neo-Industrial (NI) district was referred to as the General Industrial (GI) district. e. The Project is for the development of two new industrial warehouse buildings on two new parcels of land: Building A will total approximately 500,648 square feet including approximately 10,000 square feet of office space and Building B will total approximately 155,230 square feet and include an office area of approximately 10,000 square feet square feet. The Project requires 183 parking stalls and 79 trailer loading stalls for Building A and 97 parking stalls and 20 trailer loading stalls for Building B. Accordingly, the Project provides 275 parking stalls and 87 trailer loading stalls for Building A, and 108 parking stalls and 20 trailer loading stalls for Building B; and f. As part of the Project, and in accordance with the California Environmental Quality Act (“CEQA”), the City has prepared Environmental Impact Report SCH No. 2020090076 (EIR), which analyzed the potential environmental impacts of the Project and related approvals; and
g. Pursuant to Section 17.22.060 of the Development Code, Development Agreements have been determined to be beneficial to the public in that:
i. Development Agreements increase the certainty in the approval of development projects, thereby preventing the waste of resources, reducing the cost of development to the consumer, and encouraging investment in and commitment to comprehensive planning, all leading to the maximum efficient utilization of resources at the least economic cost to the public. ii. Development Agreements provide assurance to the applicant for a development project that upon approval of the Project, the applicant may proceed with the Project in accordance with existing policies, rules and regulations, and subject to conditions of approval, thereby strengthening the public planning process, encouraging private participation in comprehensive planning, and reducing the economic costs of development. iii. Development Agreements enable the City to plan for and finance public facilities, including, but not limited to, streets, sewerage, transportation, drinking water, school, and utility facilities, thereby removing a serious impediment to the development of new housing.”
h. The proposed Development Agreement Amendment is being made and entered into for the Project to ensure that the above three goals are fulfilled; and

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H748-028 -- 4210543.1
i. The Project complies with all requirements of the Development Code including setbacks, parking, design, and landscape coverage; and SECTION 3. Based upon the substantial evidence presented to the City Council during the above-referenced public hearing and upon the specific findings of facts set forth in Sections 1 and 2 above, the City Council hereby finds and concludes as follows:
a. The proposed Project is consistent with the General Plan. The proposed industrial warehouse project will be consistent with the General Plan with the approval of General Plan Amendment DRC2020-00184. The Project site comprises two parcels: APN: 0229-291-54 and 0229-291-46. APN: 0229-291-54 which is located within the City of Rancho Cucamonga and has a general plan land use designation of Industrial Employment District. APN: 0229-291-46 which is currently located within unincorporated San Bernardino County and within the City of Fontana’s Sphere of Influence and which is proposed to be annexed into the City of Rancho Cucamonga as part of this project, has a general plan land use designation by San Bernardino County of General Industrial (GI) and a land use designation by the City of Fontana as General Industrial (I-G). Concurrent with the proposed annexation, the proposed General Plan Amendment will amend the land use designation of the parcels to be annexed to Industrial Employment District, a land use designation which permits the proposed industrial use. b. The proposed use is in accord with the objective of the Development Code and the purposes of the district in which the site is located. Storage Warehouses are permitted within the Industrial Employment (IE) District subject to the approval of a Conditional Use Permit.

Conditional Use Permit DRC2021-00317 was submitted for the operation of a Storage Warehouse. The Project will be in compliance with the Zoning Map with approval of the related Pre-Zoning DRC2020-00186, which will amend the zoning designation of the parcels to be annexed to a pre-zoning designation of Industrial Employment (IE) District. c. The proposed use is in compliance with each of the applicable provisions of the Development Code. The Project will be in compliance with the Development Code with approval of the related General Plan Amendment DRC2020-00184 and Pre-Zoning DRC2020- 00186. Storage Warehouses are permitted within the Industrial Employment (IE) District upon the approval of a Conditional Use Permit. The Project complies with all other development criteria outlined in the Development Code including setbacks, parking and design. d. The proposed use, together with the conditions applicable thereto, will not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity. The related environmental review outlines potential environmental impacts related to the Project and identifies project-specific mitigation measures that reduce these impacts to less-than-significant. The proposed use will not be detrimental to the public health, safety, or welfare, or be materially injurious to properties or improvements in the vicinity.

SECTION 4. The Development Agreement, in addition to the Annexation, Pre-Zoning, General Plan Amendment, Tentative Parcel Map, Design Review, Conditional Use Permit and Uniform Sign Program (collectively, the “Project”) were environmentally reviewed pursuant to the California Environmental Quality Act (CEQA) and the State CEQA Guidelines. Pursuant to CEQA Guidelines Section 15060(d), the City determined that an EIR would clearly be required for the Project, and therefore prepared an environmental impact report (EIR) that focused on the potentially significant effects of the Project. By separate Resolution No. 2022-006, the City Council has: (i) made the required CEQA findings and determinations, (ii) certified the Final EIR; and (iii) adopted a Mitigation Monitoring and Reporting Program for the Project. Resolution No. 2022-

-5-
H748-028 -- 4210543.1
006is incorporated herein by reference, and made a part hereof as if fully set forth herein. The documents and other materials that constitute the record on which this determination was made are located in the Planning Department and are in the custody of the Planning Director. Further, the mitigation measures set forth therein are made applicable to the Project.

SECTION 5. On the basis of the foregoing and the totality of the administrative record before it, the City Council hereby approves Development Agreement DRC2021-00175 as shown in Exhibit 1.

SECTION 6. If any section, subsection, subdivision, paragraph, sentence, clause or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid, or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional, invalid, or ineffective.

SECTION 7.The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be published in the manner prescribed by law.

APPROVED AND ADOPTED THIS __ TH DAY OF ____________2022.

CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA
BY:

L. Dennis Michael, Mayor
I, Janice C. Reynolds, City Clerk of the City of Rancho Cucamonga, do hereby certify that the foregoing Ordinance was adopted at a regular meeting of the City Council held on the __ day of ________ 2022, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ATTEST:_______________________________
City Clerk of the City of Rancho Cucamonga

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H748-028 -- 4210543.1
EXHIBIT 1
Development Agreement

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

Janice C. Reynolds
City Clerk
10500 Civic Center Drive
Rancho Cucamonga, California 91730
SPACE ABOVE THIS LINE FOR RECORDER’S USE
DEVELOPMENT AGREEMENT NO. DRC2021-00175

REGARDING THE SPEEDWAY COMMERCE PROJECT, RANCHO CUCAMONGA,

CALIFORNIA
THIS DEVELOPMENT AGREEMENT (this “Agreement” or this “Development Agreement”) is made and entered into as of the “Effective Date” set forth herein, by and between SPEEDWAY COMMERCE CENTER DEVELOPMENT, LLC, a Delaware limited liability company (“Developer”), and the CITY OF RANCHO CUCAMONGA, a California municipal corporation (“City”).

RECITALS
Developer is owner of the “Site” as set forth herein and generally described as a 35.73-acre site comprising Assessor Parcel Numbers (APNs) 0229-291-54 and 0229-291-46, and has a legal interest in the real property subject to this Agreement. The latter parcel is located in unincorporated San Bernardino County, which Developer seeks to annex into the City of Rancho Cucamonga.

On January 5, 2022, the City Council of the City of Rancho Cucamonga (“Council”) adopted the following resolutions:

Resolution No. 2022-001, approving General Plan Amendment DRC2020-00184; Resolution No. 2022-002, approving Tentative Parcel Map SUBTPM20251; Resolution No. 2022-003, approving Design Review DRC2020-00177; Resolution No. 2022-004, approving Conditional Use Permit DRC2021-00317; Resolution No. 2022-005, approving Uniform Sign Program DRC2020-00178; Resolution No. 2022-006, certifying, after making appropriate findings, an Environmental Impact Report (“EIR”) identified as SCH No. 2020090076.

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On January 5, 2022, the Council introduced Ordinance No. 992 and following second reading adopted Ordinance No. 992, approving Pre-Zoning Amendment DRC2020-00186.

The annexation of the Site includes a jurisdiction boundary change and sphere of influence amendments for two parcels, including APN 0229-291-46 that constitutes part of the Site, located within the County of San Bernardino and within the City of Fontana sphere of influence. In addition, the annexation application is expected to include APN 0229-291-23, a parcel of approximately 0.69-acres, which is not a part of the Site. Developer will be the applicant to LAFCO for the foregoing annexation. The City agrees to take any necessary actions required by State law or LAFCO rules and regulations for submittal of the annexation by Developer to LAFCO.

Collectively, the resolutions identified in section 2 of the recitals and ordinance identified in section 3 of the recitals (collectively, “Project Entitlements”) amended the City’s land use regulations to permit the development and operation of the Site with two high-cube warehouse buildings for a distribution/fulfillment center with ancillary office space, including the 500,648 square foot (“sf”) Building A and 155,230 sf Building B, along with the construction of a new public roadway, internal drive aisles, parking, on-site landscaping, lighting, utility connections, and related infrastructure and improvements.

California Government Code Section 65864, et seq. authorizes cities to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property.

City and Developer mutually desire to enter into this Development Agreement to develop the Project in accordance with the terms set forth herein.

On January 5, 2022, the City Council introduced Ordinance No. 993 (the “Approving Ordinance”), and following second reading adopted Ordinance No. 993, thereby approving this Development Agreement between the City and Developer. The Approving Ordinance is effective as of ________________. All requirements of the California Environment Quality Act have been met with respect to the Project, Project Entitlements, and this Agreement, and this Agreement is consistent with the City’s General Plan.

AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:

Section 1.Definitions. In this Agreement, unless the context otherwise requires, the following terms shall have the following meaning:
“Approving Ordinance” means Ordinance No. 993, which approved this Agreement. “Building A” means the 500,648 sf building identified as “Building A” in the Development Plan. “Building B” means the 155,230 sf building identified as “Building B” in the Development Plan. “City” means the City of Rancho Cucamonga.

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“Community Benefit Fee” means any fee required under section 11(B) of this Agreement. “Developer” means Speedway Commerce Center Development, LLC, a Delaware limited liability company
“Development Plan” means those plans, specifications, and images attached hereto, collectively marked as Exhibit “C” and incorporated herein by this reference. “Effective Date” shall mean the date that the Approving Ordinance becomes effective. “ITE Manual” means the Institute of Traffic Engineers’ Trip Generation Manual, 10th Edition. “LAFCO” means the San Bernardino County Local Area Formation Commission. “Material Handling Equipment” shall mean all equipment intended for use in connection with the Project’s operation for the purpose of loading or unloading goods and materials, including all forklifts.
“MMRP” shall refer to the Mitigation Monitoring and Reporting Program included in the Project’s Final EIR and on file in City’s Planning Department.
“Non-Sort Use” means a fulfillment center that ships large box items that are processed primarily with automation rather than through manual means, as defined in the ITE Manual. The authority to determine in a particular case whether a use is a “Sort Use” or a “Non-Sort Use” shall be vested in the Planning Director and City Engineer of the City and shall be exercised reasonably using the ITE Manual and based on the applicable facts and circumstances. “Project” means the proposed development of the Site, consistent with the terms and conditions of the Project Entitlements.
“Project Entitlements” mean the Resolutions and Ordinance described in recitals sections 2 through 3.
“Site” means the real property that is the subject of the Project Entitlements and as legally described, depicted and identified in Exhibit “A-1” and Exhibit “A-2”. “Sort Use” means a fulfillment center that ships out smaller items, requiring extensive sorting, typically by manual means, as defined in the ITE Manual. The authority to determine in a particular case whether a use is a “Sort Use” or a “Non-Sort Use” shall be vested in the Planning Director and City Engineer of the City and shall be exercised reasonably using the ITE Manual and based on the applicable facts and circumstances.
“Term” means the initial six (6) year term of this Agreement, beginning from the Effective Date, and any extension pursuant to section 6.
“TIA” means the Project’s Traffic Impact Analysis and CEQA Transportation Impact Analysis Warehouse Scenario, E-Commerce Scenario and 100% E-Commerce Scenario TIA and VMT, dated February 18, 2021, prepared by Translutions, Inc., included as an appendix to the

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Environmental Impact Report prepared for the Project and on file in the City’s Engineering Services Department, which is incorporated herein by this reference.

Recitals. The recitals are part of this Agreement and shall be enforceable as any other provision of this Agreement.

Interest of Developer. Developer warrants and represents that, as of the Effective Date, it will have legal title to or an equitable interest in the Site; that it has full legal right to enter into this Agreement; and that the persons executing this Agreement on behalf of Developer have been duly authorized to do so.

Binding Effect of Agreement. Developer hereby subjects the Project and the Site to the covenants, reservations, and restrictions as set forth in this Agreement. The City and the Developer hereby declare their specific intent that the covenants, reservations and restrictions as set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon Developer’s successors and assigns in title or interest to the Project and/or Site. Each and every contract, deed or other instrument hereinafter executed, covering or conveying the Project and/or Site or any portion thereof shall conclusively be held to have been executed, delivered, and accepted subject to the covenants, reservations and restrictions expressed in this Agreement, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instrument.

The City and Developer hereby further declare their understanding and intent that the benefit of such covenants, reservations, and restrictions touch and concern the land by enhancing and increasing the enjoyment and use of the Site by Developer and the future occupants of the Project, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which this Agreement is adopted.

Relationship of Parties. It is understood that the contractual relationship between City and Developer is such that City and Developer are each an independent party and neither is the agent or partner of the other for any purpose whatsoever and neither shall be considered to be the agent or partner of the other for any purpose whatsoever.

Term of Agreement. The Term of this Agreement shall commence on the Effective Date and shall continue for six (6) consecutive calendar years thereafter, unless the Term is otherwise terminated, modified, or extended in accordance with the provisions of this Agreement. So long as there are no material changes to the Project, the Developer is not then in breach beyond the notice and cure periods set forth in this Agreement, and the Developer has made all payments to the City as required pursuant to this Agreement, Developer has an option to extend the Term one time for an additional nine (9) years for a total Term of fifteen (15) years. To exercise this option, Developer must, no less than ninety (90) days’ prior to the expiration of the Term, both: (i) provide City with written notice of the intent to exercise the option and (ii) pay to City two million dollars ($2,000,000.00).

Upon receipt of such notice and payment, City shall provide written confirmation that the Developer’s option to extend the Term has been exercised and accepted. The Term shall not be extended until City provides written notice of confirmation to Developer, which

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notice shall not be unreasonably withheld and shall be provided prior to the expiration of the Agreement provided that Developer has provided required notice and full payment.

Timing of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that failure of the parties to provide for the timing of development resulting 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 Developer shall have the right (without obligation), subject to the provisions of this Development Agreement, to complete the Project in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment.

Assignment. In the event of a proposed transfer of interest in the Site or any portion thereof or in this Agreement by Developer to a transferee, Developer agrees to comply with the following conditions:
(i) At least thirty (30) days prior to any such assignment, Developer shall provide the City with written notice thereof along with written evidence and documentation, of a form and substance reasonably satisfactory to the City, demonstrating the experience, capability, competence, and financial ability of the proposed assignee to carry out and complete the Development Plan and comply with the terms of this Agreement.
(ii) At least thirty (30) days prior to any such assignment, Developer shall also provide evidence that the transferee will assume in writing through an assignment and assumption agreement all remaining obligations of Developer under this Agreement. The assignment and assumption agreement shall be in a form reasonably satisfactory to the City Attorney. (iii) The City Manager shall have consented to the assignment of this Agreement, which consent will not be unreasonably withheld, provided that the City Manager shall consent to any assignment of this Agreement to a transferee if Developer provides satisfactory evidence pursuant to paragraph (i) that the proposed transferee owns property and assets valued at forty million dollars ($40,000,000) or more at that time of the proposed transfer.

Any assignment of this Agreement not made in strict compliance with the foregoing conditions shall constitute an event of default by the Developer pursuant to section 18.

Notwithstanding the foregoing, the terms, covenants and conditions of this Agreement shall be binding upon any transferee whether or not such an assignment and assumption agreement is signed by the assignee upon acquiring the Property.

General Standards and Restrictions Pertaining to Development of the Site. The following specific restrictions shall apply to the use of the Site pursuant to this Development Agreement:

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Developer shall have the right to develop and operate the Project on the Site in accordance with the terms and conditions of this Agreement and the Project Entitlements and City shall have the right to control development of the Site in accordance with the provisions of this Agreement and the Project Entitlements.

The type, density, intensity, configuration of uses, size, and location of buildings and other improvements and provisions for the reservation or dedication of land for public purposes, location of public improvements, together with other terms and conditions of development applicable to the Site, shall be as set forth in this Development Agreement, including the Development Plan, and the Project Entitlements, except as modifications may be made pursuant to section 16.

All public improvements, including landscaping, irrigation, sidewalk, traffic improvements and public streets, as set forth in the Development Plan, Project Entitlements, and this Development Agreement, shall be installed by the Developer in the time and manner described in the Development Plan, Project Entitlements, and this Development Agreement.

Developer and the City acknowledge that a portion of the Site is not currently located within City’s municipal’s limits (“Unincorporated Land”) and that, as to the Unincorporated Land, the Project Entitlements are contingent upon approval of the annexation by LAFCO and completion of annexation of the Unincorporated Land to the City. In the event Developer seeks to record Parcel Map 20251 prior to completion of the annexation, Developer shall produce evidence reasonably satisfactory to the City that the County of San Bernardino (“County”) has approved Tentative Parcel Map 20251 in compliance with all applicable State and County laws and regulations, in addition to applicable City laws and regulations, prior to the City signing the final parcel map and allowing it to be recorded in the Official Records of County. In addition, provided that the Developer produces reasonable evidence that County has approved the precise grading plan or plans for one or both of the buildings on the Site and that Developer has otherwise satisfied technical grading plan check requirements, City shall issue grading permits for one or both of the buildings (including areas within the Unincorporated Land) before completion of annexation. In addition, City is informed that no vertical structures are located within the Unincorporated Land and based on that information agrees to issue building permits for one or both of the buildings before completion of annexation, subject only to Developer complying with City’s standards for issuance of such building permits and any applicable County laws and regulations to City’s reasonable satisfaction.

Effect of City Regulations on Development of Project. Developer is entitled to protections afforded by the development agreement statute, Government Code Section 65864 et seq., including a vested right to develop the Project site in accordance with the rules, regulations and official policies in effect as of the Effective Date. No future modification of City’s code or ordinances, or adoption of any code, ordinance, regulation, whether adopted by the City Council or through the initiative or referendum process, which conflicts with this Agreement shall apply to the Property or modify this Agreement without amendment hereto to so provide by the parties.

However, notwithstanding the foregoing, the City acknowledges that, pursuant to Rancho Cucamonga Municipal Code Section 17.02.020, Ordinance No. 982 does not apply to the Project’s Entitlements, which are governed by the regulations in effect when the applications were deemed

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complete (January 7, 2021), except as expressly addressed herein. This provision does not apply to Conditional Use Permit DRC2021-00317, which covers the uses contemplated by this Agreement, but which was not deemed complete prior to the effective date of Ordinance No. 982.

This paragraph 10.A is intended to confirm the application of Rancho Cucamonga Municipal Code Section 17.02.020 to the Project, which shall continue to apply upon the termination or expiration of this Agreement.

Except as otherwise provided in Section 11.B.vi, the provisions of this section 10 shall not preclude the application to the development of the Site those changes in City ordinances, regulations, plans, or specifications which are specifically mandated and required by changes in state or federal laws or regulations as provided in California Government Code Section 65869.5 or any successor provision or provisions. In the event such changes in the law prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended or performance thereof delayed, as may be necessary to comply with such changes in the law.

The category of Development Impact Fees (“DIF”) applicable to the Project shall be those in effect as of the Agreement’s Effective Date (i.e. new DIF categories which may be adopted by the City after the Agreement’s Effective Date shall not apply to the Project), however the existing DIF and other development fees associated with the construction and development of the Project, including but not limited to land use approvals, development fees, building permits, etc., shall be pursuant to the rates as annually adjusted and in effect at the time application is made for such approvals or permits.

Nothing herein shall prevent the application of health, safety, and accessibility regulations (e.g., fire, building, seismic, plumbing, and electric codes and requirements under the Americans with Disabilities Act or similar accessibility statute) that become applicable to the City as a whole.

The parties acknowledge and agree that the City is restricted in its authority to limit its police power by contract and that the limitations, reservations and exceptions set forth in this section 10 are intended to reserve to the City all of its police power which cannot be so limited.

Developer’s Obligations. In consideration of the rights and benefits Developer is guaranteed under this Agreement, Developer agrees to provide each and every one of the community benefits and other measures set forth in this section 11.

Material Handling Equipment. Developer shall cause the City of Rancho Cucamonga to be designated as the point of sale for the Material Handling Equipment used in the Project’s operations. In addition, Developer shall include a requirement in all tenant leases that tenants shall cause the City of Rancho Cucamonga to be designated as the point of sale for the Material Handling Equipment used in the Project’s operations. City shall be a third party beneficiary to all such terms included in tenant leases. Provided that Developer complies with the requirements herein, Developer shall not be in default of this Agreement if a tenant fails to cause the City of Rancho Cucamonga to be designated as a point of sale for the Material Handling Equipment used in that tenant’s operations.

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Community Benefit Fee. Developer shall pay to City the Community Benefit Fees in the amount and schedule as set forth below. The Community Benefit Fees are intended to address affordable housing demand, fire protection services, environmental justice, and related increases to City services associated with warehouse development.

Community Benefit Fee amount and schedule:

Payment Amount Due
Payment 1 $2,150,000.00 Upon issuance of a grading permit, provided that no grading permit shall be issued until the
fee is paid.

Payment 2 $2,150,000.00 Upon issuance of a certificate of occupancy for either Building A or Building B, provided
that no certificate of occupancy shall be issued
until the fee is paid.

If a Community Benefit Fee payment is scheduled to be due, pursuant to the schedule above, after the Term of this Agreement, then such community benefit fee payment shall automatically become due and owing on the final day of the Term. Developer may pay any of the Community Benefit Fee payments in advance of the scheduled due date, which early payment shall reduce the Consumer Price Index (CPI)-based inflationary increase applied to such payments pursuant to paragraph (v) below.

Up to thirty percent (30%) of the Community Benefit Fees received by City, as identified in paragraph (i) above, shall be refunded to Developer if, within the Term of this Agreement, a Project tenant generates five hundred thousand dollars ($500,000.00) in sales tax to the City annually for any three (3) consecutive years, provided that Developer can demonstrate that the tenant responsible for generating five hundred thousand dollars ($500,000.00) in sales tax received by the City for any three (3) consecutive year period has a lease covering the entire Term of this Agreement. Alternatively, up to fifteen (15%) of the Community Benefit Fees received by City, as identified in paragraph (i) above, shall be refunded to Developer if, within the Term of this Agreement, a Project tenant is a manufacturing business operating within City as of the Effective Date that has relocated to the Site. The refund shall be paid to Developer thirty (30) days following the expiration of the Term. By way of example only, if the tenant of Building A generates five hundred thousand dollars ($500,000.00) during each of years three, four, and five of the Term, then City shall refund to Developer an amount equal to one million two hundred ninety thousand ($1,290,000.00). The City shall have no further reimbursement obligation after this Agreement has expired.

Any Community Benefit Fee payment made after the first anniversary of the Effective Date of this Agreement is considered a deferred Community Benefit Fee payment and is subject to a CPI-based inflationary increase, if any, based on the CPI – All Urban Consumers for Riverside-San Bernardino-Ontario California as published by the U.S. Department of Labor, Bureau of Labor Statistics (or any successor thereto). Under no circumstance will the amount of each deferred Community Benefit Fee payment be lower than the amount identified in the table above.

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The Community Benefit Fee being paid by Developer pursuant to section 11 satisfies all but one hundred thousand dollars ($100,000) of the public arts fees required by Ordinance 912. Developer shall have the right to satisfy the remaining one hundred thousand dollars (100,000) either through the procurement of art or the payment of an in-lieu fee in that amount.

Payment of the Community Benefit Fees above shall fully satisfy any future commercial linkage fee adopted by the City, even if said fees are higher than the amounts specified above.

Late Charges, Interest. If Developer fails to pay a Community Benefit Fee payment by the due date, City shall give written notice to Developer (or its successor) of such delinquency in accordance with section 24. If Developer fails to pay the Community Benefit Fee within thirty (30) days after such notice is served on Developer (the “Period to Cure”) then Developer shall pay a late charge in the amount equal to one quarter of one percent (0.25%) of the Community Benefit Fee due but not paid. The Parties acknowledge and agree that the amount of the costs and expenses that City will incur in the event the Community Benefit Fee is not paid when due is extremely difficult to calculate, and that the late charge set forth in the immediately preceding sentence is a reasonable, good faith estimate of such costs and expenses, but payment of such late charge shall not limit the City’s remedies following any default by Developer under this Agreement. If any Community Benefit Fee, is not paid within the Period to Cure, then such Community Benefit Fee (including any late charge) shall also bear interest, from the due date until paid, at the rate that is the lesser of (i) ten percent (10%) per annum, or (ii) the highest rate permitted by applicable law.

Traffic Improvements. The traffic improvements identified in paragraphs (i) and (ii) below shall be completed to the satisfaction of the City Engineer, no later the date of issuance of the certificate of occupancy of the Project’s first building. In the event that Developer is unable to complete the construction of any improvement by the date of issuance of a certificate of occupancy for the Project’s first building, despite Developer’s commercially reasonable efforts, due to processing, required coordination with other projects, or other issues outside of Developer’s control, then Developer shall issue a bond, satisfactory in form and value to the City Engineer, for the remaining work and shall be obligated to complete the required improvement within one year of issuance of the certificate of occupancy for the Project’s first building. For those improvements identified below requiring coordination and approval by Caltrans, if any, City shall cooperate with Developer on Developer’s efforts to obtain Caltrans approval; however, if Developer is unable to achieve 90% plan check review, as determined by the City Engineer, despite commercially reasonable efforts, due to processing delays by Caltrans, then issuance of grading and building permits for the Project shall not be delayed provided that all other requirements for issuance of grading and building permits have been met. Notwithstanding the foregoing, the City will only issue a temporary certificate of occupancy for the Project until the improvements that require Caltrans approval are completed. Unless the improvements are completed within one year, the temporary certificate of occupancy shall expire, unless an extension is mutually agreed to by both Parties.

Non-Sort Use Improvements. Developer shall construct the following traffic improvements and dedicate the necessary right-of-way consistent with the demands outlined in the Project’s TIA for a Non-Sort Use and determined necessary by the City Engineer:

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Etiwanda Avenue & 6th Street: Install a traffic signal. [DIF] I-15 SB Ramps & Ontario Mills Dr./4th St: Modify the traffic signal to implement a 130-second cycle length and overlap phasing for the WB right turn lane, restripe the SB approach to provide one left turn lane, one through lane, and dual right turn lanes, and modify the traffic signal to implement overlap phasing for NB and SB right turn lanes. [P] Sort Use Improvements. Developer shall construct the following traffic improvements and dedicate the necessary right-of-way consistent with the demands outlined in the Project’s TIA for a Sort Use and determined necessary by the City Engineer:
a. Milliken Ave. & 4th St: Modify the traffic signal to implement overlap phasing on the WB right turn lane & modify the traffic signal to implement overlap phasing for the EB right turn lane; [P] c. Etiwanda Ave. & Arrow Rte: Stripe 2nd SB left turn lane; [P] e. Etiwanda Ave. & Napa St.: Add a northbound right-turn lane with overlap phasing, add overlap phasing to the westbound right-turn lane and add a second westbound left-turn lane;
f. Haven Ave. & 4th St: Modify the traffic signal to implement an optimized cycle length; and
g. Etiwanda Ave. & I-10 EB Ramps: Restripe the eastbound shared left and right-turn lane to a dedicated right-turn lane.

Reimbursement. An improvement identified as [P] in paragraphs (i) and (ii) above is eligible for a 50% reimbursement of the actual costs if first constructed by Developer and the same improvement is also required to be constructed by the Bridge Point development. Developer may receive reimbursement of fifty percent (50%) of the actual cost of these improvements if the improvements are first constructed by Developer and the same improvements are also required to be constructed by the Bridge Point Rancho Cucamonga project located at 12434 4th Street.

Alternatively, if the improvement is first constructed by the Bridge Point Rancho Cucamonga project, then Developer shall pay a reimbursement to the City, which will be passed through to the Bridge Point Rancho Cucamonga project’s developer, equal to fifty percent (50%) of the actual cost of the improvements and is not required to construct the improvements. Improvements identified as [DIF] are currently listed in the City’s Transportation Development Impact Fee Program and are eligible for credit and/or reimbursement up to the amounts identified in the program as of the date of payment of the Transportation Development Impact Fees. If these improvements are constructed by others prior to the development of this project, no credits or reimbursements shall be owed to Developer.

Satisfaction of Conditions of Approval. Developer’s provision of traffic improvements pursuant to this section 11(C) will satisfy any Condition of Approval pertaining to the impacts mitigated by the required traffic improvements and will serve as a substitute for the traffic improvements described above.

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Fair Share Payment in lieu of Remaining Traffic Improvements. In lieu of constructing the opening year and horizon year (2040) traffic improvements outlined in the TIA but not described above, Developer shall have the right to pay a fair share fee into the City’s Industrial Area Traffic Improvement Fund, equivalent to the amounts set forth in Exhibit “B” (the “Fair Share Fee”). The Fair Share Fee shall be due prior to issuance of the first certificate of occupancy for the Project. Developer’s payment of the Fair Share Fee for remaining traffic improvement pursuant to this section 11(D) will satisfy any Condition of Approval pertaining to required contributions to the City’s Industrial Area Traffic Improvement Fund for impacts mitigated by the improvements listed in the TIA but not required to be constructed in section 11(C)(i) or (ii) and such improvement shall not be required to be constructed.

New Public Street. Developer shall construct, consistent with the City’s standards and to the satisfaction of the City Engineer, a new public street on the west side of the Project site from Napa Street to the Project’s northerly property line with APN 0229-291-55, to be classified as an Industrial Collector (66-foot full-width right-of-way), as shown in Exhibit D of this Agreement, including a depiction of the proposed cross-section for the new public street with one travel lane, landscaped parkway, and a sidewalk in each direction. Developer shall be responsible for all costs associated with the design and construction of the new public street. City shall accept dedication of the public street and the related improvements in the same manner as it accepts other similar public improvements constructed as part of private development projects in the City upon completion of the public street and related improvements. Developer shall provide a standard one- year warranty for the improvements, excluding normal roadway wear and tear. No certificate of occupancy for any project component will be issued for the Project until the improvements are completed and accepted by the City which the City shall not unreasonably delay. Developer’s provision of a new public street pursuant to this section 11(E) will satisfy any Condition of Approval pertaining to required provision of a new public street on the west side of the Project site from Napa Street to the Project’s northerly property line with APN 0229-291-55.

Financing Districts. The City may initiate (i) proceedings to form one or more special assessment districts (each, an “Assessment District”) to levy special benefit assessments (the “Special Benefit Assessments”) or (ii) proceedings to form one or more Mello-Roos Community Facilities Act of 1982 (Government Code Sections 53311 et seq.) Community Facilities Districts (each, a “CFD,” and collectively, with the Assessment Districts, the “Districts,” or individually, a “District”) to levy special taxes (the “CFD Taxes”), to finance the maintenance and operation of public streets, parkways, medians, public right-of-ways, public safety, and any other improvements or services benefiting properties within all industrial zones throughout the City (the “Maintenance Services”). Developer shall not oppose the formation of any District or the annexation of lands to any District, and shall vote in favor of any such Special Benefit Assessments or CFD Taxes for a District; provided, however, that in no event shall the annual total, combined amount of the Special Benefit Assessments and CFD Taxes for the Districts exceed seven thousand five hundred dollars and zero cents ($7,500.00) per acre for the Site (the “Max Levy”). The Max Levy shall increase annually by an amount determined necessary to fund the Maintenance Services, but such annual increase shall be no less than two percent (2%) and no more than six percent (6%). Developer shall satisfy its obligations under this paragraph 11(F) prior to the issuance of the first certificate of occupancy for the Project. The provisions of this paragraph 11(F) shall not apply to or affect the validity of any existing Assessment District or CFD applicable to the Site as of the Effective Date.

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Solar Panels and Purchase Agreement. Developer shall install a solar collector system that covers a percentage of the Project’s total roof area, with such percentage based on the formula outlined in Rancho Cucamonga Municipal Code Section 17.76.020(B), as amended by Ordinance No. 982, which requires in part that the renewable energy system shall be built to generate an amount of electricity sufficient to meet the following criteria: (a) annualized building demand based on the approved use; and (b) annualized demand required to charge fully electric vehicles and trucks, assuming that all vehicles and trucks to the site are fully electric; and (c) a reasonable rate of efficiency loss over 10 years. Such percentage shall be established pursuant to a study to be prepared by Developer and approved by the City, with City review time fully reimbursed by the Developer and paid prior to any issuance of the first building permit. The final percentage of required roof area coverage shall be confirmed by the City Engineer. The Rancho Cucamonga Municipal Utility (“RCMU”) and Developer agree to negotiate and execute a power purchase agreement (“Power Purchase Agreement”) within six (6) months of the Effective Date, provided that no Certificate of Occupancy shall be issued for the Project until the power purchase agreement is executed. A sample power purchase agreement is attached as Exhibit “E” to this Agreement.

The solar collector system shall be metered separately from the metered power usage demand of the Project’s two buildings. The Power Purchase Agreement will commit the City to purchase all electricity produced by the Project at market rate for at least 25 years, which market rate shall be specified in the executed Power Purchase Agreement.

RCMU Connection. The Project shall utilize RCMU for electricity and high-speed broadband. Developer shall extend all required infrastructure for electricity and high-speed broadband (“Required Infrastructure”) onto the Project site at the locations identified in Exhibit “F.” “Required Infrastructure” shall include all underground ducts and structures from a point of connection to established RCMU service facilities at the stub out identified in Exhibit “F” in the street or public right of way, surface mounted equipment (except for transformers), and cabling to serve both buildings on the Site. This requirement shall satisfy any Condition of Approval pertaining to the Project’s electric and fiber optic connection to RCMU.

Other City Fees. The Community Benefit Fee being paid by Developer pursuant to section 11 satisfies all but one hundred thousand dollars ($100,000) of the public arts fees required by Ordinance 912. Developer shall have the right to satisfy the remaining one hundred thousand dollars (100,000) either through the procurement of art or the payment of an in-lieu fee in that amount. Otherwise, Developer will be responsible for other applicable existing development fees.

MMRP Compliance Costs. The MMRP includes mitigation measures applicable to the Project that may require City to verify compliance outside of City’s plan check process for the Project. Accordingly, Developer shall reimburse City for all compliance costs, including City staff and consultant time and expenses, incurred in verifying Developer’s compliance with the MMRP, except for such costs associated with mitigation measures that are verified during plan check and recovered by City through development fees. City shall submit an invoice for such costs on an as- needed basis and Developer shall pay the invoice to City within thirty (30) days of receipt.

Undergrounding In-Lieu Fee. Pursuant to Rancho Cucamonga Municipal Code Section

16.36.090, Developer may pay a fee to City in the amount of one million four hundred thousand dollars ($1,400,000.00) in lieu of undergrounding existing distribution and telecommunications facilities on the Site or along streets peripheral to the Site (“Distribution Facilities”). If Developer

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elects to pay the fee in lieu of undergrounding the Distribution Facilities, then City may use such funds for utility undergrounding projects anywhere within the City of Rancho Cucamonga. This requirement shall satisfy any Condition of Approval pertaining to the Project’s utility undergrounding.

Developer’s obligations under this section 11 may extend past the Term of this Agreement.

Therefore, this section 11 shall survive the expiration or termination of the Term; provided, however, that upon termination of this Agreement pursuant to section 27 below, all of Developer’s obligations hereunder shall be terminated and of no further force and effect.

City’s Obligations. The City shall reasonably expedite review and processing of all plans and issuance of all permits associated with the Project. The City shall refund not more than thirty percent (30%) or fifteen percent (15%), as the case may be, of the community Benefit Fee payments identified in section 11(B)(i), consistent with and provided the provisions and conditions of section 11(B)(iii) are satisfied.

Annual Review. During the Term of this Development Agreement, City shall annually review the extent of good faith compliance by Developer with the terms of this Development Agreement. Developer shall file an annual report with the City providing information regarding compliance with the terms of this Development Agreement no later than sixty (60) days prior to the anniversary of the Effective Date. Annual reports shall include all information necessary for the City to assess Developer’s compliance with the terms and provisions of this Agreement. Developer shall have the right to cause the annual report to be filed by any lessee then occupying the Site provided, however, that Developer shall remain primarily responsible for such filing.

Indemnification and Legal Challenge. To the maximum extent permitted by law, Developer agrees to, and shall, defend, indemnify and hold City and its elected officials, officers, contractors serving as City officials, agents, and employees (“Indemnitees”) harmless from liability for damage and/or claims for damage for personal injuries, including death, and claims for property damage, and with respect to all other actions and liabilities for damages caused or alleged to have been caused by reason of Developer’s activities in connection with the construction of the Project or Developer’s operation of the permitted use, and which may arise from the direct or indirect operations of Developer or those of Developer’s contractors, agents, tenants, employees or any other persons acting on Developer’s behalf, which relate to the Developer’s construction of the Project or operation of the permitted use. This indemnity provision applies to all damages and claims for damage, as described above, regardless of whether or not the City prepared, supplied, or approved the plans, specifications, or other documents for the Project. Notwithstanding, the foregoing indemnity shall not include indemnification against (i) suits and actions brought by Developer by reason of City's default or alleged default hereunder, or (ii) suits and actions caused solely by or resulting solely from City's acts or omissions, or (iii) suits and actions arising from the sole negligence or willful misconduct of City; provided further, however, that the foregoing indemnity shall not apply to claims pertaining to City’s operation of those portions of the Site dedicated to City after the dedication thereof.

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In the event of any legal action challenging the validity, applicability, or interpretation of any provision of this Agreement, any of the Project Entitlements including, without limitation, the City’s General Plan, Zoning Ordinance, Design Review, EIR, or any other supporting document relating to the Project, the Developer shall indemnify, defend and hold harmless the Indemnitees, and each of them, with respect to all liability, costs and expenses incurred by, and/or awarded against, the City or any of the Indemnitees in relation to such action. The City shall have the right to select counsel of its choice. The parties hereby agree to cooperate in defending such action. In the event of any litigation challenging the effectiveness of this Agreement, or any portion hereof, this Agreement shall remain in full force and effect while such litigation, including any appellate review, is pending, unless otherwise ordered by the court. Absent issuance of an injunction, the Developer may elect to continue development under this Agreement pending completion of the litigation but it shall do so at its sole risk, and the City shall not be liable for any loss suffered as a result thereof.

Amendments. This Agreement may be amended or canceled, in whole or in part, only by mutual written consent of the parties and then in the manner provided for in California Government Code Section 65868, et seq., or successor provisions thereto.

Minor Amendments to Development Plan. Upon the written application of Developer, minor modifications and changes to the Development Plan, including modifications to the building design or footprint affecting setbacks, parking layout and design, and landscape design may be approved by the Planning Director. Substantial changes in the Development Plan, as determined by the Planning Director, shall be processed through the process required by law to amend or modify the Development Plan. Upon the approval of substantial changes to the Development Plan, Developer and City shall amend this Agreement to memorialize and acknowledge the revised Development Plan.

Enforcement. In the event of a default under the provisions of this Agreement by Developer, City shall give written notice to Developer (or its successor) by registered or certified mail addressed at the address stated in this Agreement, and if such violation is not corrected to the reasonable satisfaction of City within thirty (30) days after such notice is served on Developer, or if not corrected within such reasonable time as may be required to cure the breach or default if said breach or default cannot be cured within said thirty (30) days (provided that acts to cure the breach or default must be commenced within said thirty (30) days and must thereafter be diligently pursued by Developer), then City may, without further notice, declare a default under this Agreement and, upon any such declaration of default, City may bring any action necessary to specifically enforce the obligations of Developer growing out of the operation of this Development Agreement, apply to any court, state or federal, for injunctive relief against any violation by Developer of any provision of this Agreement, or apply for such other relief as may be appropriate.

Event of Default. Developer is in default under this Agreement upon the happening of one or more of the following events or conditions:

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If a material warranty, representation or statement made or furnished by Developer to City set forth herein or in any document incorporated by reference herein is false or proved to have been false in any material respect when it was made;
If a finding and determination is made by City following an annual review pursuant to section 13 hereinabove, upon the basis of substantial evidence, that Developer has not complied in good faith with any material terms and conditions of this Agreement, after notice and opportunity to cure as described in section 17 hereinabove; or A breach by Developer of any of the provisions or terms of this Agreement, after notice and opportunity to cure as provided in section 17 hereinabove.

No Waiver of Remedies. City does not waive any claim of defect in performance by Developer if on periodic review City does not enforce this Agreement. Nonperformance by Developer shall not be excused because performance by Developer of the obligations herein contained would be unprofitable, difficult or expensive or because of a failure of any third party or entity, other than City. Subject to the provisions of Section 20, all other remedies at law or in equity which are not otherwise provided for in this Agreement are available to each party to pursue in the event that there is a breach of this Development Agreement by the other party (subject to applicable notice and cure periods). No waiver by City or Developer of any breach or default under this Development Agreement by the other party shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder.

City Not Liable For Damages. It is acknowledged by the parties that the City would not have entered into this Agreement if it could be held liable in damages under or with respect to this Agreement or the application thereof. Consequently, and except for the payment of attorney’s fees in accordance with this Agreement, the City shall not be liable in damages to the Developer, or to any assignee, transferee or any other person, and the Developer covenants on behalf of itself and its successors in interest not to sue for or claim any damages:

For any breach of this Agreement;
For the taking, impairment or restriction of any right or interest conveyed or provided hereunder or pursuant hereto;
Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement; or For any injury to or interference with the rights of the property owner, allegedly or actually arising out of, or incurred in connection with, the parties entering this Agreement, or their exercise of any rights under this Agreement.

The parties hereby warrant that each enters into this Agreement with the understanding that if the City defaults on its obligations under this Agreement due to an action taken by the electorate of the City in the exercise of the reserved powers of initiative and referendum, this Agreement shall be modified or suspended to the extent required by Government Code Section 65869.5 and the Developer’s right to seek specific performance, a writ of mandate, or other mandatory relief shall

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be limited by such force as the action taken by the electorate may have in light of state law as determined by any court of competent jurisdiction, in which case the Developer’s principal remedy shall lie in reformation of this Agreement
Rights of Lenders Under this Agreement. Should Developer place or cause to be placed any encumbrance or lien on the Project, or any part thereof, the beneficiary (“Lender”) of said encumbrance or lien shall have the right at any time during the term of this Agreement and the existence of said encumbrance or lien to:

Do any act or thing required of Developer under this Agreement, or cure any default of Developer under this Agreement within the time limits set forth in section 17, and any such act or thing done or performed by Lender or cure shall be as effective as if done by Developer; Realize on the security afforded by the encumbrance or lien by exercising foreclosure proceedings or power of sale or other remedy afforded in law or in equity or by the security document evidencing the encumbrance or lien (hereinafter referred to as “a trust deed”); Transfer, convey or assign the title of Developer to the Project to any purchaser at any foreclosure sale, whether the foreclosure sale be conducted pursuant to court order or pursuant to a power of sale contained in a trust deed; and
Acquire and succeed to the interest of Developer by virtue of any foreclosure sale, whether the foreclosure sale is conducted pursuant to a court order or pursuant to a power of sale contained in a trust deed.

Should any Lender require or request an amendment of this Agreement in respect of the rights and remedies granted to a Lender, City hereby agrees to execute and deliver such an amendment so long as the proposed amendment does not materially and adversely affect the rights, powers, and remedies of the City in respect of a default by Developer hereunder.

Notice to Lender. City shall give written notice of any default or breach under this Agreement by Developer to Lender (if known by City) simultaneously with such notice of default City gives to Developer and afford Lender the opportunity after receipt of service of the notice to:

Cure the breach or default within thirty (30) days after service of said notice, where the default can be cured by the payment of money;
Cure the breach or default within thirty (30) days after service of said notice where the breach or default can be cured by something other than the payment of money and can be cured within that time; or
Cure the breach or default in such reasonable time as may be required where something other than payment of money is required to cure the breach or default and cannot be performed within thirty (30) days after said notice, provided that acts to cure the breach or default are commenced within a thirty (30) day period after service of said notice of default on Lender by City and are thereafter diligently continued by Lender.

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Action by Lender. Notwithstanding any other provision of this Agreement, a Lender may forestall any action by City for a breach or default under the terms of this Agreement by Developer by commencing proceedings to foreclose its encumbrance or lien on the Project.

The proceedings so commenced may be for foreclosure of the encumbrance by order of court or for foreclosure of the encumbrance under a power of sale contained in the instrument creating the encumbrance or lien. The proceedings shall not, however, forestall any such action by the City for the default or breach by Developer unless:

They are commenced within thirty (30) days after service on Developer (and on Lender if Lender’s address is provided to the City) of the notice described hereinabove; They are, after having been commenced, diligently pursued in the manner required by law to completion; and
Lender keeps and performs all of the terms, covenants, and conditions of this Agreement requiring the payment or expenditure of money by Developer until the foreclosure proceedings are complete or are discharged by redemption, satisfaction, or payment.

Notice. Any notice required to be given by the terms of this Agreement shall be provided by email or certified mail, return receipt requested, at the address of the respective parties as specified below or at any other such address as may be later specified by the parties hereto.

To Developer: Speedway Commerce Center Development, LLC A Delaware limited liability company
901 Via Piemonte, Suite 175
Ontario, CA 91764
Attention: Scott Morse
With a copy to: Gresham Savage Nolan & Tilden, PC
550 E. Hospitality Lane, Suite 300
San Bernardino, CA 92408
Attention: Mark A. Ostoich
Email: [email protected]
To City: City of Rancho Cucamonga
10500 Civic Center Drive
Rancho Cucamonga, California, 91730
Attention: City Manager
Email: [email protected]
With a Copy to: Richards, Watson & Gershon
350 S. Grand Avenue, 37th Floor
Los Angeles, California 90071
Attention: Nicholas R. Ghirelli
Email: [email protected]

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Attorneys’ Fees. In any proceedings arising from the enforcement of this Agreement or because of an alleged breach or default hereunder, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees and experts’ fees incurred during the proceeding (including appeals) as may be fixed within the discretion of the court.

Binding Effect. This Agreement shall bind, and the benefits and burdens hereof shall inure to, the respective parties hereto and their legal representatives, executors, administrators, successors and assigns, wherever the context requires or admits.

Termination. Notwithstanding any other provision contained herein, this Agreement may be terminated at any time upon the written mutual agreement of both parties.

Applicable Law and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Venue for any action or litigation brought for breach or to enforce any provision of this Agreement shall be the Superior Court of the County of San Bernardino, California.

Partial Invalidity. If any provisions of this Agreement shall be deemed to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.

Recordation. The City Clerk shall record this Agreement in the Official Records of the County Recorder of the County of San Bernardino within ten (10) business days following the Effective Date. Upon the expiration of the terms of this Agreement and the request of the Property Owner, the City will execute and deliver, in recordable form, an instrument confirming that this Agreement is terminated and of no further force or effect.

Force Majeure. In the event that either party hereto shall be delayed or hindered or prevented from performance of any act required hereunder by reason of acts of God, strikes, lockouts, labor troubles, inability to procure materials, riots, insurrection, terrorism, war or other reason of similar nature not the fault of the party delayed in performing the work or doing the acts required under the terms of this Agreement, then the performance of such act shall be excused for the period of the delay caused by the foregoing. Financial inability shall not be deemed an excuse for delay under this section 31.

Integrated Agreement. This Development Agreement consists of this Agreement together with all Exhibits attached hereto, and all of the same are hereby incorporated by reference.

The provisions of this Agreement shall govern over any inconsistent or conflicting provisions set forth in the Exhibits. No representation or promise, verbal or written, not expressly set forth herein shall be binding or have any force or effect.

Time of Essence. Time is of the essence in every provision hereof in which time is a factor.

Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between the City and Developer. The anticipated refinements to the Project may demonstrate that clarifications to this Agreement and the Project Entitlements are appropriate with respect to the implementation of this Agreement and the Project Entitlements. If, when, and as it becomes necessary or appropriate to take implementing

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actions or make such changes, adjustments or clarifications, the Parties may effectuate such actions, changes, adjustments or clarifications through an operating memorandum (“Operating Memorandum”) approved by the parties in writing which references this section. Such Operating Memorandum shall not require public notices and hearings or an amendment to this Agreement unless it is required by sections 15 or 16 above. The City Manager shall be authorized, after consultation with and approval of Developer, to determine whether a requested adjustment, clarification or implementing action (i) may be effectuated pursuant to this section 34 and is consistent with the intent and purpose of this Agreement and the Project Entitlements or (ii) is of the type that would constitute an amendment to this Agreement and thus would require compliance with the provisions of section 15 or section 16 above. The authority to enter into such Operating Memorandum is hereby delegated to the City Manager, and the City Manager is hereby authorized to execute any Operating Memorandum hereunder without further City Council action. [SIGNATURES ON NEXT PAGE]

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IN WITNESS WHEREOF, this Agreement has been executed by the parties and shall be effective on the Effective Date set forth hereinabove.

CITY:

CITY OF RANCHO CUCAMONGA,
a Municipal Corporation
Dated:

By:

L. Dennis Michael
Mayor
DEVELOPER:

SPEEDWAY COMMERCE CENTER
DEVELOPMENT, LLC, a Delaware limited
liability company
Dated:

By:

Print Name:

Title:

ATTEST:

Janice C. Reynolds
City Clerk
Dated:

By:

Print Name:

Title:

Approved as to form:

James L. Markman
City Attorney

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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of San Bernardino )
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)

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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of San Bernardino )
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)

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EXHIBIT “A-1”

LEGAL DESCRIPTION
The Land referred to herein below is situated partly in the City of Rancho Cucamonga, County of San Bernardino, and partly in an unincorporated area in the County of San Bernardino, all in the State of California, and is described as follows:

ALL THOSE PORTIONS OF THE FOLLOWING DESCRIBED LAND LYING WITHIN

THOSE CERTAIN PARCELS OF LAND GRANTED TO KAISER STEEL LAND DEVELOPMENT, INC., A DELAWARE CORPORATION, AND DESCRIBED AS PARCELS NO. 1, 2, 3, AND 4, AND A PORTION PARCEL NO. 6, BY DOCUMENT RECORDED JULY 28, 1994 AS INSTRUMENT NO. 94323332 OF OFFICIAL RECORDS

OF THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, IN THE WEST ONE-HALF OF SECTION 9 AND SECTION 16, TOWNSHIP 1 SOUTH, RANGE 6 WEST,

SAN BERNARDINO MERIDIAN, AND THAT PORTION OF THE EAST ONE-HALF OF SECTION 16, TOWNSHIP 1 SOUTH, RANGE 6 WEST, SAN BERNARDINO MERIDIAN, IN SAID COUNTY, DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 9, SAID CORNER BEING LOCATED IN THE CENTER LINE OF ETIWANDA AVENUE; THENCE NORTH 00°06'43" EAST, 368.12 FEET ALONG THE WEST LINE OF SAID SECTION 9 AND THE

CENTERLINE OF SAID ETIWANDA AVENUE TO THE SOUTHERLY RIGHT OF WAY LINE OF THE ATCHISON TOPEKA AND SANTA FE RAILWAY, 100 FEET IN WIDTH; THENCE NORTH 87°54'59" EAST, 50.04 FEET ALONG SAID SOUTHERLY RIGHT OF

WAY LINE TO THE EASTERLY RIGHT OF WAY LINE OF SAID ETIWANDA AVENUE (50.00 HALF WIDTH) TO THE TRUE POINT OF BEGINNING; THENCE NORTH 87°54'59" EAST, 911.48 FEET ALONG SAID SOUTHERLY RIGHT OF WAY LINE TO

AN ANGLE POINT IN THE NORTHWESTERLY BOUNDARY LINE OF THE REAL

PROPERTY CONVEYED TO NATIONAL CAN CORPORATION BY DEED RECORDED MAY 06, 1965 IN BOOK 6385, PAGE 456 OF OFFICIAL RECORDS OF SAID COUNTY; THENCE SOUTH 60°06'26" WEST, 214.28 FEET ALONG SAID NORTHWESTERLY BOUNDARY TO A ANGLE POINT IN SAID BOUNDARY; THENCE SOUTH 00°07'03" WEST, 554.86 FEET ALONG THE WESTERLY BOUNDARY OF SAID NATIONAL CAN CORPORATION BOUNDARY TO THE SOUTHWEST CORNER OF SAID BOUNDARY; THENCE NORTH 88°57'35" EAST, 1324.24 FEET ALONG THE SOUTHERLY

BOUNDARY OF SAID NATIONAL CAN CORPORATION BOUNDARY TO THE SOUTHEAST CORNER OF SAID BOUNDARY; THENCE NORTH 00°07'03" EAST, 679.03 FEET ALONG THE EASTERLY BOUNDARY OF SAID NATIONAL CAN

CORPORATION BOUNDARY TO THE NORTHEAST CORNER OF SAID BOUNDARY,

SAID NORTHEAST CORNER ALSO BEING ON SAID SOUTHERLY RIGHT OF WAY LINE OF THE ATCHISON TOPEKA AND SANTA FE RAILWAY; THENCE NORTH 87°54'59" EAST, 447.68 FEET ALONG SAID SOUTHERLY RIGHT OF WAY LINE TO A LINE PARALLEL WITH AND DISTANT WESTERLY 100.00 FEET FROM THE SOUTHWEST ONE-QUARTER OF SAID SECTION 9; THENCE SOUTH 00°15'05" WEST, 414.32 FEET ALONG SAID PARALLEL LINE, TO A POINT ON THE SOUTH LINE OF SAID SECTION 9 SAID POINT ALSO BEING ON THE NORTHERLY LINE OF

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SAID SECTION 16; THENCE NORTH 88°57'18" EAST, 100.02 FEET ALONG SAID

NORTHERLY LINE, TO THE NORTHEAST CORNER OF THE NORTHWEST ONE- QUARTER OF SAID SECTION 16; THENCE NORTH 88°57'18" EAST, 200.03 FEET

ALONG THE NORTHERLY LINE OF THE NORTHEAST ONE-QUARTER OF SAID SECTION 16 TO A POINT ON THE EASTERLY LINE OF THE WESTERLY 200.00 FEET OF THE EAST ONE-HALF OF SAID SECTION 16; THENCE SOUTH 00°06'58" WEST, 799.51 FEET TO A POINT ON THE NORTHERLY LINE OF NAPA STREET AS DESCRIBED IN DOCUMENT RECORDED OCTOBER 06, 1995 AS INSTRUMENT NO. 19950348166, AND DOCUMENT RECORDED NOVEMBER 22, 1995 AS INSTRUMENT NO. 19950404553, BOTH OF OFFICIAL RECORDS, SAID POINT ALSO BEING THE

BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 883.00 FEET, A RADIAL LINE THROUGH THE BEGINNING OF SAID NON-TANGENT CURVE BEARS NORTH 23°08'53" WEST; THENCE FOLLOWING (7) SEVEN COURSES ALONG THE NORTHERLY LINE OF SAID NAPA STREET: THENCE SOUTHWESTERLY 36.49 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 02°22'05", TO THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 817.00 FEET, A RADIAL LINE THROUGH THE BEGINNING OF SAID REVERSE CURVE BEARS SOUTH 25°30'58" EAST; THENCE WESTERLY 729.50 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 51°09'34" TO THE BEGINNING OF A REVERSE CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 883.00 FEET, A RADIAL LINE THROUGH THE BEGINNING OF SAID REVERSE CURVE BEARS NORTH 25°38'36" EAST; THENCE WESTERLY 390.98 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 25°22'10"; THENCE NORTH 89°43'34" WEST, 518.43 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 1033.00 FEET; THENCE SOUTHWESTERLY 188.14 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 10°26'06" TO THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 967.00 FEET, A RADIAL LINE THROUGH THE BEGINNING OF SAID REVERSE CURVE BEARS SOUTH 10°09'40" EAST; THENCE WESTERLY 176.47 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 10°27'22"; THENCE NORTH 89°42'18" WEST, 222.48 FEET TO A POINT ON THE EAST LINE OF THAT CERTAIN STRIP OF LAND, 150.00 FEET WIDE, DESCRIBED IN THE RIGHT OF WAY EASEMENT FROM FRANK BORGIA ET UX. TO SOUTHERN CALIFORNIA EDISON COMPANY LTD., RECORDED SEPTEMBER 27, 1938 IN BOOK 1301, PAGE 183 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE NORTH 00°07'03" EAST, 714.03 FEET ALONG SAID EAST LINE TO THE SOUTHERLY LINE OF SAID SECTION 9; THENCE NORTH 00°04'52" EAST, 319.38 FEET TO A POINT ON THE SOUTHERLY LINE OF PARCEL NO. 1 AS CONVEYED TO ROBERT C. RINGHOLZ BY DEED RECORDED NOVEMBER 30, 1948 IN BOOK 2327, PAGE 359 OF OFFICIAL RECORDS OF SAID COUNTY, SAID POINT BEARS 625.52 FEET (625.56 FEET GROUND) EAST ALONG SAID SOUTHERLY LINE FROM THE SOUTHWEST CORNER OF PARCEL NO. 1 OF SAID ROBERT C. RINGHOLZ PROPERTY, SAID SOUTHWEST CORNER BEING ON THE CENTERLINE OF SAID ETIWANDA AVENUE; THENCE SOUTH 87°54'59" WEST, 575.48 FEET

ALONG SAID SOUTHERLY LINE TO THE INTERSECTION OF SAID EASTERLY RIGHT OF WAY LINE OF SAID ETIWANDA AVENUE; THENCE NORTH 00°06'43" EAST, 60.04 FEET ALONG SAID EASTERLY RIGHT OF WAY LINE TO THE TRUE POINT OF BEGINNING.

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EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:

BEING A PORTION OF THE SOUTHWEST ONE-HALF OF SECTION 9 AND A PORTION OF THE NORTHWEST ONE-QUARTER OF SECTION 16, TOWNSHIP 1 SOUTH, RANGE 6 WEST,

SAN BERNARDINO MERIDIAN, SITUATED IN THE CITY OF RANCHO CUCAMONGA,

COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, SAID PORTION ALSO BEING A

PORTION OF THE LAND DESCRIBED IN GRANT DEED TO KAISER STEEL LAND DEVELOPMENT, INC., RECORDED JANUARY 12, 2000 AS INSTRUMENT NO. 20000011988

OF OFFICIAL RECORDS OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 9, SAID CORNER BEING ON THE CENTERLINE OF ETIWANDA AVENUE; THENCE NORTH 00°06'43" EAST, 368.09 FEET ALONG THE WEST LINE OF SAID SECTION 9 AND SAID CENTERLINE TO

THE SOUTHERLY LINE OF THE ATCHISON TOPEKA AND SANTA FE RAILWAY RIGHT- OF-WAY (100 FEET WIDE); THENCE NORTH 87°54'59" EAST 50.04 FEET ALONG SAID SOUTHERLY LINE TO THE EASTERLY LINE OF SAID ETIWANDA AVENUE (50.00 FEET HALF WIDTH), SAID POINT BEING THE POINT OF BEGINNING; THENCE NORTH 87°54'59" EAST, 911.48 FEET CONTINUING ALONG SAID SOUTHERLY LINE TO AN ANGLE POINT

IN THE NORTHWESTERLY LINE OF THE PARCEL OF LAND DESCRIBED IN GRANT DEED TO NATIONAL CAN CORPORATION, RECORDED MAY 06, 1965 IN BOOK 6385, PAGE 456 OF OFFICIAL RECORDS; THENCE SOUTH 60°06'26" WEST 214.28 FEET ALONG SAID NORTHWESTERLY LINE TO AN ANGLE POINT IN SAID PARCEL; THENCE SOUTH 00°07'03" WEST, 554.86 FEET ALONG THE WESTERLY LINE OF SAID PARCEL TO THE SOUTHWEST CORNER OF SAID PARCEL; THENCE SOUTH 88°57'35" WEST, 150.02 FEET

ALONG THE WESTERLY PROJECTION OF THE SOUTHERLY LINE OF SAID PARCEL TO A POINT ON THE EASTERLY LINE OF THAT CERTAIN STRIP OF LAND, 150 FEET WIDE,

DESCRIBED IN RIGHT-OF-WAY EASEMENT, TO SOUTHERN CALIFORNIA EDISON COMPANY, LTD., RECORDED SEPTEMBER 27, 1938 IN BOOK 1301, PAGE 183 OF OFFICIAL RECORDS OF SAID COUNTY; THENCE NORTH 00°07'03" EAST, 272.73 FEET ALONG LAST SAID EASTERLY LINE TO THE SOUTH LINE OF SAID SECTION 9; THENCE NORTH 00°04'52" EAST, 319.38 FEET TO A POINT ON THE SOUTHERLY LINE OF THE LAND DESCRIBED AS PARCEL NO. 1 IN GRANT DEED TO ROBERT C. RINGHOLZ, RECORDED NOVEMBER 30, 1948 IN BOOK 2327, PAGE 359 OF OFFICIAL RECORDS OF SAID COUNTY, SAID POINT BEARS 625.52 FEET (625.56 FEET GROUND) EAST ALONG SAID SOUTHERLY LINE FROM THE SOUTHWEST CORNER OF SAID PARCEL 1 OF SAID ROBERT C.

RINGHOLZ PROPERTY, SAID SOUTHWEST CORNER BEING ON THE CENTERLINE OF ETIWANDA AVENUE; THENCE SOUTH 87°54'59" WEST, 575.48 FEET ALONG LAST SAID SOUTHERLY LINE TO A POINT ON SAID EASTERLY LINE OF ETIWANDA AVENUE; THENCE NORTH 00°06'43" EAST, 60.04 FEET ALONG LAST SAID EASTERLY LINE TO THE POINT OF BEGINNING.

TOGETHER WITH THAT PORTION DESCRIBED AS FOLLOWS:

BEING A PORTION OF THE SOUTHWEST ONE-QUARTER OF SECTION 9 AND A PORTION OF THE NORTHWEST ONE-QUARTER OF SECTION 16, TOWNSHIP 1 SOUTH, RANGE 6

WEST, SAN BERNARDINO MERIDIAN, SITUATED IN THE CITY OF RANCHO

CUCAMONGA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, SAID

PORTION ALSO BEING A PORTION OF THE PARCEL OF LAND DESCRIBED IN GRANT DEED TO NATIONAL CAN CORPORATION, RECORDED MAY 06, 1965 IN BOOK 6385,

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PAGE 456 OF OFFICIAL RECORDS OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT THE SOUTHEAST CORNER OF SAID NATIONAL CAN CORPORATION PARCEL; THENCE SOUTH 88°57'35" WEST, 567.50 FEET ALONG THE SOUTHERLY

LINE OF SAID PARCEL TO A POINT ON A NON-TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 1062.15 FEET, A RADIAL BEARING TO SAID POINT BEARS NORTH 72°53'33" WEST; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 48°02'18" AN ARC LENGTH OF 890.54 FEET TO A POINT ON THE EASTERLY LINE OF SAID PARCEL; THENCE SOUTH 00°07'03" WEST, 641.03 FEET ALONG SAID EASTERLY LINE TO THE POINT OF BEGINNING.

SAID LAND IS ALSO SHOWN AND DESCRIBED AS PARCEL 2 OF CERTIFICATE OF COMPLIANCE NO. 507 RECORDED JANUARY 17, 2002 AS INSTRUMENT NO. 20020026839 OF OFFICIAL RECORDS.

For conveyancing purposes only: APNs 0229-291-45-0-000, 0229-291-46-0-000 and 0229-291-54-0-000.

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EXHIBIT “A-2”

SITE MAP

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EXHIBIT “B”

FAIR SHARE FEES

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EXHIBIT “C”

DEVELOPMENT PLAN
ON FILE IN THE PLANNING DEPARTMENT; TO BE ADDED PRIOR TO RECORDING

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EXHIBIT “D”
New Public Street Depiction
Via Maris Place, AKA Street “A”

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EXHIBIT “E”
Draft Power Purchase Agreement

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT
between

CITY OF RANCHO CUCAMONGA
and
________

INDUSTRIAL ZONING DISTRICT

RENEWABLE POWER PURCHASE AGREEMENT

TABLE OF CONTENT

1. DOCUMENTS INCLUDED..........................................................................................3

2. SELLER’S FACILITY AND COMMERCIAL OPERATION DATE .....................4

3. CONTRACT CAPACITY AND QUANTITY; TERM; CONTRACT PRICE; BILLING; COLLATERAL REQUIREMENT...........................................................6

4. GREEN ATTRIBUTES; RESOURCE ADEQUACY BENEFITS; ERR
REQUIREMENTS .......................................................................................................11

5. REPRESENTATION AND WARRANTIES; COVENANTS .................................12

6. GENERAL CONDITIONS .........................................................................................14

7. INDEMNITY ................................................................................................................18

8. LIMITATION OF DAMAGES...................................................................................18

9. INSURANCE ................................................................................................................19

10. NOTICES ......................................................................................................................22

11. FORCE MAJEURE .....................................................................................................23

12. EVENTS OF DEFAULT AND TERMINATION .....................................................23

13. GOVERNMENTAL CHARGES ................................................................................27

14. RELEASE OF INFORMATION AND RECORDING CONVERSATION...........27

15. ASSIGNMENT .............................................................................................................28

16. GOVERNING LAW ....................................................................................................28

17. DISPUTE RESOLUTION ...........................................................................................29

18. MISCELLANEOUS.....................................................................................................30 APPENDIX A – DEFINITIONS ..............................................................................................................33 APPENDIX B – COMMERCIAL OPERATION DATE CONFIRMATION LETTER....................45 APPENDIX C – FORECASTING REQUIREMENTS..........................................................................47 APPENDIX D – DESCRIPTION OF THE FACILITY.........................................................................48 APPENDIX E – INDUSTRIAL ZONING DISTRICT RENEWABLE PPA MILESTONES AND EXAMPLE ACTION STEPS......................................................................................49 APPENDIX F – NOTICES LIST .............................................................................................................52 APPENDIX G – FORM OF LETTER OF CREDIT..............................................................................54 APPENDIX H – FORM OF CONSENT TO ASSIGNMENT...............................................................58

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The City of Rancho Cucamonga, a municipal corporation organized and existing under the laws of the State of California (“Buyer” or “RCMU”), and _________(“Seller”), a ________________, hereby enter into this Power Purchase Agreement (“Agreement”) made and effective as of the Execution Date. Seller and Buyer are sometimes referred to in this Agreement jointly as “Parties” or individually as “Party.” In consideration of the mutual promises and obligations stated in this Agreement and its appendices, the Parties agree as follows:

ARTICLE ONE. DOCUMENTS INCLUDED
This Agreement includes the following appendices, which are specifically incorporated herein and made a part of this Agreement:

Appendix A Definitions
Appendix B Commercial Operation Date Confirmation Letter Appendix C Forecasting Requirements
Appendix D Description of the Facility
Appendix E Seller’s Milestone Schedule
Appendix F Notices List
Appendix G Form of Letter of Credit
Appendix H Form of Consent to Assignment
This Agreement specifically incorporates herein by reference as if appended hereto the following documents (collectively referred to herein as the “Referenced Documents”):

Industrial Zoning District Renewable PPA Application, submitted by Seller, dated __________
Industrial Zoning District Renewable PPA Generation Forecast, dated _____________ Project Phasing Plan, approved by the City of Rancho Cucamonga on _____________ To the extent any provisions of the Referenced Documents conflict with any other provisions of the Agreement, the other provisions of the Agreement shall control.

ARTICLE TWO. SELLER’S FACILITY AND COMMERCIAL OPERATION DATE This Agreement governs Buyer’s purchase of the Product from the electrical generating facility (hereinafter referred to as the “Facility” or “Project”) as described in this Section.

1.1. Facility Location. The Facility is physically located at:
_____________________________.

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1.2. Facility Name. The Facility is named _____________.

1.2.1. The Facility’s renewable resource is _______.

1.3. Interconnection Point. The Facility is connected to the Rancho Cucamonga Municipal Utility (RCMU’s) electric system at __________ distribution circuit at a service voltage of __12____ kV.

1.4. Delivery Point. The Delivery Point for Energy is the Interconnection Point.

1.5. Facility Description. A description of the Facility, including a summary of its significant components, a drawing showing the general arrangements of the Facility, and a single line diagram illustrating the interconnection of the Facility and loads with the Transmission/Distribution Owner’s electric distribution system, is attached and incorporated herein as Appendix D.

1.6. Commercial Operation.

1.6.1. The Facility’s expected Commercial Operation Date is _______.

1.6.2. Seller shall achieve Commercial Operation no later than the expected Commercial Operation Date specified in Section 2.6.1, which date shall be no later than _______ (__) months from the Execution Date of this Agreement. The expected Commercial Operation Date specified in Section 2.6.1 may be extended for only the following reasons:

1.6.2.1. If Seller has taken all commercially reasonable actions (including but not limited to Seller’s timely filing of all required applications and documents, payment of all applicable fees, and completion of all electric system upgrades needed, if any) to have the Project physically interconnected to the Transmission/Distribution Owner’s distribution system, but fails to secure any necessary commitments from the Transmission/Distribution Owner for such interconnection and upgrades due to delays beyond Seller’s reasonable control, then the expected Commercial Operation Date specified in Section

2.6.1 shall be extended for the number of days necessary to physically interconnect the Facility; provided, however, that such delay may not extend the expected Commercial Operation Date specified in Section 2.6.1 for a period of more than six (6) months; or

1.6.2.2. If Seller has taken all commercially reasonable actions (including but not limited to Seller’s timely filing of all required applications and documents and payment of all applicable fees, if any) to obtain permits necessary to construct and operate the facility but fails to secure any such permits due to delays beyond Seller’s reasonable control, then the expected Commercial Operation Date specified in Section 2.6.1 shall be extended for the number

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of days necessary to secure such permits; provided, however, that such delay may not extend the expected Commercial Operation Date specified in Section

2.6.1 for a period of more than six (6) months; or

1.6.2.3. In the event of Force Majeure, the expected Commercial Operation Date specified in Section 2.6.1 shall be extended on a day-to-day basis for a cumulative period of not more than six (6) months; provided that Seller complies with Section 10.

1.6.2.4. Extensions under Section 2.6.2.1, 2.6.2.2, and 2.6.2.3, to the extent they may occur concurrently, shall run concurrently.

1.6.3. Seller shall provide Notice to Buyer of the Commercial Operation Date of the Facility at least thirty (30) days prior to such date.

1.6.4. Notwithstanding anything in this Agreement, if Seller is unable to achieve Commercial Operation by the expected Commercial Operation Date specified in Section 2.6.1, which may be extended pursuant to Section 2.6.2, then Seller shall either (i) terminate the Agreement, in which case Buyer may retain the full Reservation Deposit, or (ii) pay to Buyer daily delay damages in the amount of twenty cents ($0.20) for each kilowatt of Contract Capacity for each day beyond the expected Commercial Operation Date specified in Section 2.6.1, as may be extended pursuant to Section 2.6.2, that Seller requires to achieve Commercial Operation.

1.6.5. Commercial Operation shall occur only when all of the following conditions have been satisfied:

1.6.5.1. the Facility’s status as an Eligible Renewable Energy Resource is demonstrated by Seller’s receipt of pre-certification from the CEC;

1.6.5.2. the Parties have executed and exchanged the “Commercial Operation Date Confirmation Letter” attached as Appendix B;

1.6.5.3. Seller is in compliance with all applicable requirements of the RCMU Electric Service Rule 22 – Generating Facility Interconnections;

1.6.5.4. Seller has furnished to Buyer all insurance documents required under Section 9;

1.6.5.5. Seller has provided thirty (30) days’ Notice prior to the Commercial Operation Date as required under Section 2.6.3;

1.6.5.6. Seller has obtained all permits necessary to operate the Facility and is in compliance with all Laws applicable to the operation of the Facility;

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1.6.5.7. Seller has successfully installed and tested the Facility at its full Contract Capacity, and the Facility is capable of reliably generating at its full Contract Capacity; and

1.6.5.8. Seller has satisfied the Collateral Requirement set forth in Section 3.9.

1.6.5.9. The City of Rancho Cucamonga has approved the Phasing Plan submitted by Seller for the Facility.

ARTICLE THREE. CONTRACT CAPACITY AND QUANTITY; TERM; CONTRACT PRICE; BILLING; COLLATERAL REQUIREMENT

1.7. Contract Capacity. Pursuant to the Phasing Plan approved by the City of Rancho Cucamonga, the Contract Capacity is as follows:

Phase 1: _____ kW, alternating current (AC).

Phase 2: _____ kW, alternating current (AC).

Phase 3: _____ kW, alternating current (AC).

1.8. Contract Quantity.

1.8.1. The “Contract Quantity” during each Contract Year is the amount set forth in the applicable Contract Year in the “Delivery Term Contract Quantity Schedule,” set forth in Appendix F , which amount is net of Station Use. Seller shall have the option to update the Delivery Term Contract Quantity Schedule one (1) time prior to Commercial Operation Date by an amount not to exceed a five percent (5%) increase or decrease from the Contract Quantity specified as of the Execution Date.

1.8.2. At least ninety (90) days prior to the occurrence of a Phasing Plan Transition Event, Seller shall provide Notice to Buyer that includes the following information (i) the new Contract Capacity consistent with Section 3.1; (ii) the date upon which the changed Contract Capacity will be available to Buyer; and (iii) documentation reasonably satisfactory to Buyer demonstrating that the requirements of the Phasing Plan have been met.

1.8.3. Within thirty (30) days of receiving Notice from Seller pursuant to Section 3.2.2., the City Manager shall cause the Contract Quantity values specified in Appendix F to be modified for the applicable Contract Years consistent with the Phasing Plan, and such modification shall be considered an element of the administration of this Agreement and shall not require the consent of the Parties hereto. Upon such modification, the City Manager shall promptly provide a copy of such revised Appendix F to Seller.

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1.9. Transaction. During the Delivery Term, Seller shall sell and deliver, or cause to be delivered, and Buyer shall purchase and receive, all Product produced by or associated with the Facility that is delivered to the Delivery Point. In no event shall Seller have the right to procure the Product from sources other than the Facility for sale or delivery to Buyer under this Agreement. Buyer shall have no obligation to receive or purchase the Product from Seller prior to the Commercial Operation Date or after the end of the Delivery Term.

1.10. Term of Agreement; Survival of Rights and Obligations.

1.10.1. The term shall commence upon the Execution Date of this Agreement and shall remain in effect until the conclusion of the Delivery Term unless terminated sooner pursuant to Sections 10.4 or 11 of this Agreement (the “Term”).

1.10.2. Notwithstanding anything to the contrary in this Agreement, all of the rights and obligations that this Agreement expressly provides survive termination as well as the rights and obligations that arise from Seller’s or Buyer’s covenants, agreements, representations, and warranties applicable to, or to be performed, at or during any time before or as a result of the termination of this Agreement.

1.11. Delivery Term. Seller shall deliver the Product from the Facility to Buyer for a period of twenty-five (25) Contract Years for all generation technologies. The Delivery Term shall commence on the Commercial Operation Date and continue until the end of the last Contract Year unless the Agreement is terminated sooner pursuant to the terms of the Agreement.

1.12. Contract Price.

1.12.1.Throughout the Delivery Term, and subject to and in accordance with the terms of this Agreement, Buyer shall pay the Contract Price to Seller for the Product based on the amount of Delivered Energy. The Contract Price shall be $__ per MWh of Delivered Energy.

1.12.2. In any Contract Year, if the amount of Delivered Energy exceeds one hundred fifteen percent (115%) of the annual Contract Quantity amount, the Contract Price for such Delivered Energy in excess of one hundred fifteen percent (115%) shall be adjusted to be seventy-five percent (75%) of the applicable Contract Price.

1.12.3. Seller shall curtail production of the Facility in accordance with the applicable Notice after receipt of: (a) Notice from Buyer that Buyer has been instructed by the CAISO or the Transmission/Distribution Owner or any other jurisdictional entity to curtail Energy deliveries; or (b) Notice that Seller has been given a curtailment order or similar instruction in order to respond to an Emergency; or (c) Notice of a Curtailment Order issued by Buyer. Buyer shall have no obligation to pay Seller for

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any Product delivered in violation of this Section 3.6.3. Seller shall assume all liability and reimburse Buyer for any and all costs and charges incurred by Buyer, including but not limited to CAISO penalties, as a result of Seller delivering Energy in violation of the Section 3.6.3. Buyer shall have no obligation to pay Seller for any Product that Seller would have been able to deliver but for the fact of a curtailment pursuant to subsection (a) or (b) of the first sentence of this Section 3.6.3.

1.12.4. Buyer shall have the right, but not the obligation, to issue to Seller a Curtailment Order. Buyer shall pay Seller the Contract Price for the Product Seller would have been able to deliver but for the fact that Buyer issued a Curtailment Order (“Paid Curtailed Product”) as calculated pursuant to Section 3.6.5.

1.12.5. No later than fifteen (15) days after the end of a calendar month in which Buyer issued a Curtailment Order, Seller shall prepare and provide to Buyer a calculation of the amount of Product the Facility would have been able to deliver under Sections

3.6.4 for the applicable month. Seller shall apply accepted industry standards in making such calculation and take into consideration past performance of the Facility, and other relevant information, including but not limited to, Facility availability, weather, water flow, and solar irradiance data for the period of time during the Buyer issued Curtailment Order. Upon Buyer’s request, Seller shall promptly provide to Buyer any additional and supporting documentation necessary for Buyer to audit and verify Seller’s calculation.

1.13. Billing.

1.13.1. The amount of Delivered Energy shall be determined by the meter specified in Section 6.2.1 or Check Meter, as applicable. Buyer has no obligation to purchase from Seller any Energy that is not or cannot be delivered to the Delivery Point, regardless of circumstance. Buyer will not be obligated to pay Seller for any Product that Seller delivers in violation of Section 3.6.3, including any Product Seller delivers in excess of the amount specified in any Curtailment Order.

1.13.2. For the purpose of calculating monthly payments under this Agreement, the amount recorded by the meter specified in Section 6.2.1 or Check Meter, as applicable, will be multiplied by the Contract Price noted in Section 3.6.1, as possibly adjusted under Section 3.6.2, less any Energy produced by the Facility for which Buyer is not obligated to pay Seller as set forth in Section 3.7.1.

1.13.3. On or before the last Business Day of the month immediately following each calendar month, Seller shall determine the amount of Delivered Energy received by Buyer pursuant to this Agreement for each monthly period and issue an invoice showing the calculation of the payment. Seller shall also provide to Buyer: (a) records of metered data sufficient to document and verify the generation of

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Delivered Energy by the Facility during the preceding month; (b) access to any records; and (c) an invoice, in the format specified by Buyer.

1.13.4. In the event an invoice or portion thereof or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due, with Notice of the objection given to the other Party.

Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. In the event adjustments to payments are required as a result of inaccurate meter(s), Buyer in its reasonable discretion shall determine the correct amount of Delivered Energy received under this Agreement during any period of inaccuracy and recompute the amount due from Buyer to Seller for the Delivered Energy delivered during the period of inaccuracy. The Parties agree to use good faith efforts to resolve the dispute or identify the adjustment as soon as possible. Upon resolution of the dispute or calculation of the adjustment, any required payment shall be made within thirty (30) days of such resolution.

1.13.5. All interest paid or payable under this Agreement shall be computed as simple interest using the Interest Rate and, unless specified otherwise in this Agreement, shall be paid concurrently with the payment or refund of the underlying amount on which such interest is payable.

1.14. Title and Risk of Loss. Title to and risk of loss related to the Energy from the Facility shall transfer from Seller to Buyer at the Delivery Point. Seller warrants that it will deliver to Buyer the Product from the Facility free and clear of all liens, security interests, claims, and encumbrances or any interest therein or thereto by any person.

1.15. Collateral Requirement. On or before the Commercial Operation Date, Seller shall post and thereafter maintain a collateral requirement equal to sixty dollars ($60.00) for each kilowatt of Contract Capacity (the “Collateral Requirement”). The Collateral Requirement will be held by Buyer and must be in the form of either cash deposit or Letter of Credit. The Collateral Requirement shall be posted to Buyer and maintained at all times during the Delivery Term. Buyer shall be entitled to draw upon the Collateral Requirement for any damages arising upon Buyer’s declaration of an Early Termination Date as set forth in Section 12.3. In the event that Buyer draws on the Collateral Requirement, Seller shall promptly replenish such Collateral Requirement to the amount specified in this Section 3.9. Buyer shall return the unused portion of the Collateral Requirement to Seller promptly at the end of the Delivery Term, once all payment obligations of the Seller under this Agreement have been satisfied. Buyer shall pay simple interest on cash held to satisfy the Collateral Requirements at the rate and in the manner set forth in Section 3.7.5.

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ARTICLE FOUR.GREEN ATTRIBUTES; RESOURCE ADEQUACY BENEFITS; ERR

REQUIREMENTS

1.16. Green Attributes. Seller hereby provides and conveys all green attributes associated with all electricity generation from the project to buyer as part of the product being delivered. seller represents and warrants that seller holds the rights to all green attributes from the project, and seller agrees to convey and hereby conveys all such green attributes to buyer as included in the delivery of the product from the project.

1.17. Conveyance of Product. Throughout the Delivery Term, Seller shall provide and convey the Product to Buyer in accordance with the terms of this Agreement, and Buyer shall have the exclusive right to the Product. Seller shall, at its own cost, take all actions and execute all documents or instruments that are reasonable and necessary to effectuate the use of the Green Attributes, Resource Adequacy Benefits, if any, and Capacity Attributes, if any, for Buyer’s benefit throughout the Delivery Term.

1.18. WREGIS. Seller shall cause and allow Buyer, or Buyer’s agent, to be the “Qualified Reporting Entity” and “Account Holder” (as such terms are defined by WREGIS) for the Facility within thirty (30) days after the Commercial Operation Date. In the event that Buyer is not the Qualified Reporting Entity, Seller shall, at its sole expense, take all actions necessary and provide any documentation requested by Buyer in support of WREGIS account administration and compliance with the California Renewables Portfolio Standard. Seller, at its sole expense, shall take all necessary steps and submit/file all necessary documentation to ensure that the Facility remains an Eligible Renewable Energy Resource throughout the Delivery Term as outlined in Section 4.5 and that all WREGIS Certificates associated with the Product accrue to Buyer and will satisfy the requirements of the California Renewables Portfolio Standard.

1.19. Resource Adequacy Benefits.

1.19.1. During the Delivery Term, Seller grants, pledges, assigns and otherwise commits to Buyer all of the Contract Capacity, including Capacity Attributes, if any, from the Project to enable Buyer to meet its Resource Adequacy or successor program requirements, as the CAISO or other regional entity may prescribe (“Resource Adequacy Requirements”).

1.19.2. Seller shall cooperate in good faith with and comply with reasonable requests of Buyer to enable Buyer to maximize anyResource Adequacy Benefits attributable to the Facility or any credits that reduce the Resource Adequacy Requirements of the Buyer.

1.20. Eligible Renewable Energy Resource. Seller shall take all actions necessary to achieve and maintain status as an Eligible Renewable Energy Resource (“ERR”) throughout the Delivery Term. Within thirty (30) days after the Commercial Operation Date, Seller shall file an application or other appropriate request with the CEC for CEC

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Certification for the Facility. Seller shall expeditiously seek CEC Certification, including promptly responding to any requests for information from the requesting authority.

ARTICLE FIVE. REPRESENTATION AND WARRANTIES; COVENANTS

1.21. Representations and Warranties. On the Execution Date, each Party represents and warrants to the other Party that:

1.21.1. it is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation;

1.21.2. the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Laws;

1.21.3. this Agreement and each other document executed and delivered in accordance with this Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms;

1.21.4. it is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or becoming Bankrupt; and

1.21.5. there is not pending or, to its knowledge, threatened against it or any of its Affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement.

1.22. General Covenants. Each Party covenants that throughout the Term of this Agreement:

1.22.1. it shall continue to be duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation;

1.22.2. it shall maintain (or obtain from time to time as required, including through renewal, as applicable) all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and

1.22.3. it shall perform its obligations under this Agreement in a manner that does not violate any of the terms and conditions in its governing documents, any contracts to which it is a party, or any Law.

1.23. Seller’s Representations, Warranties and Covenants. In addition to the representations, warranties and covenants specified in Sections 5.1 and 5.2, Seller

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makes the following additional representations, warranties and covenants to Buyer, as of the Execution Date:

1.23.1. Seller has met all applicable legal and regulatory requirements to sell wholesale electricity in California;

1.23.2. Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (i) the Project qualifies and is certified by the CEC as an ERR as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Project’s output delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard.

To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law;

1.23.3. Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement the Renewable Energy Credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in the California Energy Commission’s Enforcement Procedures for the Renewables Portfolio Standard for Local Publicly Owned Electric Utilities adopted on December 22, 2020, and as may be modified by subsequent decision of the California Energy Commission or by subsequent legislation. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law;

1.23.4. Throughout the Delivery Term, Seller shall: (a) own and operate the Facility; (b) deliver the Product to Buyer free and clear of all liens, security interests, claims, and encumbrances or any interest therein or thereto by any individual or entity; and (c) hold the rights to all of the Product;

1.23.5. Seller is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the Buyer in so doing, and is capable of assessing the merits of, and understands and accepts, the terms, conditions and risks of this Agreement;

1.23.6. Throughout the Delivery Term: (a) Seller shall not convey, transfer, allocate, designate, award, report or otherwise provide any or all of the Product, or any portion thereof, or any benefits derived therefrom, to any party other than Buyer; and (b) Seller shall not start-up or operate the Facility per instruction of or for the benefit of any third party, except as required by other Laws;

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1.23.7. The construction of the Facility shall comply with all Laws, including applicable state and local laws, building standards, and interconnection requirements;

1.23.8. No other person or entity, including any other generating facility, has any rights in connection with Seller’s Interconnection Agreement or Seller’s Interconnection Facilities and no other persons or entities shall have any such rights during the Term;

1.23.9. During the Delivery Term, Seller shall not allow any other person or entity, including any other generating facility, to use Seller’s Interconnection Facilities; and

1.23.10. All representations made by Seller in its Industrial Zoning District Renewable PPA Application are true and correct.

1.23.11. Pursuant to the requirements of Section 17.76.020 of Chapter 17.76 of (Alternative Energy Systems and Facilities) of Article IV (Site Development Provisions) of Title 17 (Development Code) of the Rancho Cucamonga Municipal Code, the Contract Capacity, during the applicable phase, is sufficient to meet the annualized customer load.

ARTICLE SIX. GENERAL CONDITIONS

1.24. Interconnection Requirements. During the Delivery Term, Seller shall comply with all contractual, metering, and applicable interconnection requirements, including those set forth in the RCMU Electric Service Rule 22,, Transmission/Distribution Owner’s applicable tariffs, the CAISO Tariff and implementing CAISO standards and requirements, and all Laws so as to be able to deliver Energy to the Delivery Point.

Seller shall provide and maintain during the Delivery Term, at its cost, all data processing gateways or remote intelligence gateways, telemetering equipment and data acquisition services, and associated measuring and recording equipment necessary to meet all applicable WREGIS and RCMU requirements applicable to the Facility during the Delivery Term.

1.25. Metering Requirements.

1.25.1. All Energy from the Project must be delivered through a single revenue quality meter and that meter must be dedicated exclusively to the Project. All Delivered Energy purchased under this Agreement must be measured by the Project’s revenue quality meter(s) to be eligible for payment under this Agreement. Seller shall bear all costs relating to all metering equipment installed to accommodate the Project.

1.25.2. Buyer may, at its sole cost, furnish and install one Check Meter at the interconnection associated with the Facility at a location provided by Seller that is compliant with Buyer’s electric service requirements. The Check Meter may be interconnected with Buyer’s communication network, or the communication

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network of Buyer’s Agent, to permit periodic, remote collection of revenue quality meter data. In the event that Buyer elects to install a Check Meter, Buyer may compare the Check Meter data to the Facility’s revenue meter data. If the deviation between the Facility’s revenue meter data and the Check Meter data for any comparison is greater than 0.3%, Buyer may provide Notice to Seller of such deviation and the Parties shall mutually arrange for a meter check or recertification of the Check Meter or the Facility’s revenue meter, as applicable. Each Party shall bear its own costs for any meter check or recertification. Testing procedures and standards for the Check Meter shall be the same as for a comparable Buyer-owned meter. Parties shall have the right to have representatives present during all such tests. The Check Meter, if Buyer elects to install a Check Meter, is intended to be used for back-up purposes in the event of a failure or other malfunction of the Facility’s revenue meter, and Check Meter data shall only be used to validate the Facility’s revenue meter data and, in the event of a failure or other malfunction of the Facility’s revenue meter, in place of the Facility’s revenue meter until such time that the Facility’s revenue meter is recertified.

1.26. Meter Data. Seller hereby agrees to provide all meter data to Buyer in a form acceptable to Buyer, including any inspection, testing and calibration data and reports.

Seller shall grant Buyer and Buyer’s agent the right to retrieve the meter readings from Seller or Seller’s meter reading agent.

1.27. Standard of Care. Seller shall: (a) maintain and operate the Facility and Interconnection Facilities in conformance with RCMU Rule 22, all Laws, and Prudent Electrical Practices; (b) obtain any governmental authorizations and permits required for the construction and operation of the Facility and Interconnection Facilities; and (c) generate, schedule and perform transmission services in compliance with all applicable RCMU rulesand Prudent Electrical Practices. Seller shall reimburse Buyer for any and all losses, damages, claims, penalties, or liability Buyer incurs as a result of Seller’s failure to obtain or maintain any governmental authorizations and permits required for construction and operation of the Facility throughout the Term of this Agreement.

1.28. Access Rights.

1.28.1. Operations Logs. Seller shall maintain a complete and accurate log of all material operations and maintenance information on a daily basis. Such log shall include, but not be limited to, information on power production, fuel consumption (if applicable), efficiency, availability, maintenance performed, outages, results of inspections, manufacturer recommended services, replacements, electrical characteristics of the generators, control settings or adjustments of equipment and protective devices. Seller shall provide this information electronically to Buyer within twenty (20) days of Buyer’s request.

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1.28.2. Access Rights. Buyer, its authorized agents, employees and inspectors may, on reasonable advance notice under the circumstances, visit the Project during normal business hours for purposes reasonably connected with this Agreement. Buyer, its authorized agents, employees and inspectors must (a) at all times adhere to all safety and security procedures as may be required by Seller; and (b) not interfere with the operation of the Project. Buyer shall make reasonable efforts to coordinate its emergency activities with the safety and security departments, if any, of the Project operator. Seller shall keep Buyer advised of current procedures for contacting the Project operator’s safety and security departments, if any exist.

1.29. Protection of Property. Seller shall be solely responsible for protecting its own facilities from possible damage resulting from electrical disturbances or faults caused by the operation, faulty operation, or non-operation of the Transmission/Distribution Owner's facilities. Buyer shall not be liable for any such damages so caused.

1.30. Forecasting. Seller shall comply with the forecasting in Appendix C.

1.31. Greenhouse Gas Emissions. Seller acknowledges that a Governmental Authority may require Buyer to take certain actions with respect to greenhouse gas emissions attributable to the generation of Energy, including, but not limited to, reporting, registering, tracking, allocating for or accounting for such emissions. Promptly following Buyer’s written request, Seller agrees to take all commercially reasonable actions and execute or provide any and all documents, information, or instruments with respect to generation by the Facility reasonably necessary to permit Buyer to comply with such requirements, if any.

1.32. Reporting and Record Retention.

1.32.1. Seller shall use commercially reasonable efforts to meet the Milestone Schedule set forth in Appendix E and avoid or minimize any delays in meeting such schedule.

Seller shall provide Project development status reports in a format and a frequency, which shall not exceed one (1) report per month, specified by the Buyer. The report shall describe Seller’s progress relative to the development, construction, and startup of the Facility, as well as a Notice of any anticipated change to the Commercial Operation Date and whether Seller is on schedule to meet the Commercial Operation Date.

1.32.2. Seller shall within ten (10) Business Days of receipt thereof provide to Buyer copies of any Interconnection Agreement and all other material reports, studies and analyses furnished by any Transmission/Distribution Owner, and any correspondence with the Transmission/Distribution Owner related thereto, concerning the interconnection of the Facility to the Transmission/Distribution Owner’s electric system or the transmission of Energy on the Transmission/Distribution Owners’ electric system.

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1.32.3. Seller shall provide to Buyer on the Commercial Operation Date, and within thirty (30) days after the completion of each Contract Year thereafter during the Delivery Term, a copy of any inspection and maintenance report regarding the Facility that was also provided to the Transmission/Distribution Owner during the previous Contract Year.

1.33. Tax Withholding Documentation. Upon Buyer’s request, Seller shall promptly provide to Buyer Internal Revenue Service tax Form W-9 and California tax Form 590 (or their equivalent), completed with Seller’s information, and any other documentation necessary for Buyer to comply with its tax reporting or withholding obligations with respect to Seller.

1.34. Modifications to Facility. During the Delivery Term, Seller shall not repower or materially modify or alter the Facility without the written consent of Buyer. Material modifications or alterations include, but are not limited to, (a) movement of the Site, (b) changes that may increase or decrease the expected output of the Facility other than as allowed under Section 3.2, (c) changes that may affect the generation profile of the Facility, (d) changes that may affect the ability to accurately measure the output of Product from the Facility and (e) changes that conflict with elections, information, or requirements specified elsewhere in this Agreement. Material modifications or alterations do not include maintenance and repairs performed in accordance with Prudent Electrical Practices. Seller shall provide to Buyer Notice not less than ninety (90) days before any proposed repowering, modification, or alteration occurs describing the repowering, modification, or alteration to Buyer’s reasonable satisfaction.

1.35. No Additional Incentives. Seller agrees that during the Term of this Agreement it shall not seek additional compensation or other benefits pursuant to the Self-Generation Incentive Program, as defined in CPUC Decision 01-03-073, the California Solar Initiative, as defined in CPUC Decision 06-01-024, Buyer’s net energy metering tariff, or other similar California ratepayer subsidized program relating to energy production with respect to the Facility.

1.36. Site Control. Seller shall have Site Control as of the earlier of: (a) the Commercial Operation Date; or (b) any date before the Commercial Operation Date to the extent necessary for the Seller to perform its obligations under this Agreement and, in each case, Seller shall maintain Site Control throughout the Delivery Term. Seller shall promptly provide Buyer with Notice if there is any change in the status of Seller’s Site Control.

ARTICLE SEVEN. INDEMNITY

1.37. Seller shall indemnify, defend, and hold harmless Buyer and its directors, officers, officials, and employees against and from any and all loss, liability, damage, expense,

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and costs (including without limitation costs and fees of litigation and reasonable attorneys’ fees) of every nature resulting from or arising out of Seller’s performance of its obligations under this Agreement, or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of Buyer.

1.38. Buyer shall not be responsible for any cost of decommissioning or demolition of the Facility or any environmental or other liability associated with the decommissioning or demolition of the Facility without regard to the timing or cause of the decommissioning or demolition. Seller agrees to indemnify, defend, and hold harmless, Buyer for any costs incurred by Buyer if and to the extent that Seller’s actions or inactions causes any or all of them to become required, whether statutorily or otherwise, to bear the cost of any decommissioning or demolition of the Facility or any environmental or other liability associated therewith, including, but not limited to, any investigations, actions, suits, claims, demands, losses, liabilities, penalties, and expenses (including reasonable attorneys’ fees) associated with clean-up costs and defense costs. The indemnity requirements set forth in this Section shall survive the termination of this Agreement.

ARTICLE EIGHT. LIMITATION OF DAMAGES

EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT THERE IS NO

WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. LIABILITY SHALL

BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL

DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER

REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED UNLESS EXPRESSLY HEREIN PROVIDED. NEITHER PARTY SHALL BE LIABLE FOR

CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES,

LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE.

UNLESS EXPRESSLY HEREIN PROVIDED, AND SUBJECT TO THE PROVISIONS OF SECTION 7 (INDEMNITY), IT IS THE INTENT OF THE PARTIES THAT THE

LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES

BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO,

INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE.

ARTICLE NINE. INSURANCE

1.39. Insurance Coverage. Seller shall, at its own expense, starting on the Execution Date and until the end of the Term, and for such additional periods as may be specified below, provide and maintain in effect the following insurance policies and minimum limits of coverage as specified below, and such additional coverage as may be required

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by Law, with insurance companies authorized to do business in the state in which the services are to be performed, with an A.M. Best’s Insurance Rating of not less than A-:VII.

1.39.1. Commercial General Liability Insurance. Commercial general liability insurance, written on an occurrence, not claims-made basis, covering all operations by or on behalf of Seller arising out of or connected with this Agreement, including coverage for bodily injury, broad form property damage, personal and advertising injury, products/completed operations, contractual liability, premises-operations, owners and contractors protective, hazard, explosion, collapse and underground. Such insurance must bear a combined single limit per occurrence and annual aggregate of not less than five million dollars ($5,000,000.00), exclusive of defense costs, for all coverages. Such insurance must contain standard cross-liability and severability of interest provisions. The Seller shall name the Buyer, its officers, officials, employees, and volunteers as additional insureds on the completed operations policy. The completed operations policy shall be as broad as one of the following ISO forms CG 20 37, 2039, or CG 20 40. Completed operations coverage must be maintained for a period of not less than four (4) years after this Agreement terminates. If Seller elects, with Buyer’s written concurrence, to use a “claims made” form of commercial general liability insurance, then the following additional requirements apply: (a) the retroactive date of the policy must be prior to the Execution Date; and (b) either the coverage must be maintained for a period of not less than four (4) years after this Agreement terminates, or the policy must provide for a supplemental extended reporting period of not less than four (4) years after this Agreement terminates. Governmental agencies which have an established record of self-insurance may provide the required coverage through self-insurance.

1.39.2. Workers’ Compensation Insurance. Workers’ compensation insurance with statutory limits, as required by the state having jurisdiction over Seller’s employees, and employer’s liability insurance with limits of not less than: (a) bodily injury by accident - one million dollars ($1,000,000.00) each accident; (b) bodily injury by disease - one million dollars ($1,000,000.00) policy limit; and (c) bodily injury by disease - one million dollars ($1,000,000.00) each employee.

1.39.3. Commercial Automobile Liability Insurance. Commercial automobile liability insurance covering bodily injury and property damage with a combined single limit of not less than one million dollars ($1,000,000.00) per occurrence. Such insurance must cover liability arising out of Seller’s use of all owned, non-owned and hired automobiles in the performance of the Agreement.

1.39.4. Umbrella/excess liability Insurance. Umbrella/excess liability insurance, written on an occurrence, not claims-made basis, providing coverage excess of the underlying employer’s liability, commercial general liability, and commercial automobile liability insurance, on terms at least as broad as the underlying coverage,

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with limits of not less than four million dollars ($4,000,000.00) per occurrence and in the annual aggregate.

1.39.5. Pollution Liability Insurance. If the scope of work involves areas of known pollutants or contaminants, pollution liability coverage will be required to cover bodily injury, property damage, including clean-up costs and defense costs resulting from sudden, and accidental conditions, including the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, hydrocarbons, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water shall be maintained. The limit will not be less than one million dollars ($1,000,000.00) per occurrence or claim, and $2,000,000 policy aggregate for bodily injury and property damage. The policy will endorse RCMU as additional insured. If the contractor maintains broader coverage and/or higher limits than the minimums shown above for all policies, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

1.40. Additional Insurance Provisions.

1.40.1. On or before the later of (a) sixty (60) days after the Execution Date and (b) the date immediately preceding commencement of construction of the Facility, and again within a reasonable time after coverage is renewed or replaced, Seller shall furnish to Buyer certificates of insurance evidencing the coverage required above, written on forms and with deductibles reasonably acceptable to Buyer.

Notwithstanding the foregoing sentence, Seller shall in no event furnish Buyer certificates of insurance evidencing required coverage later than the Commercial Operation Date. All deductibles, co-insurance and self-insured retentions applicable to the insurance above must be paid by Seller. All certificates of insurance must note that the insurers issuing coverage must endeavor to provide Buyer with at least thirty (30) days’ prior written notice in the event of cancellation of coverage.

Buyer’s receipt of certificates that do not comply with the requirements stated in this Section 9.2.1, or Seller’s failure to provide such certificates, do not limit or relieve Seller of the duties and responsibility of maintaining insurance in compliance with the requirements in this Section 9 and do not constitute a waiver of any of the requirements of Section 9.

1.40.2. Insurance coverage described above in Section 9.1 shall provide for thirty (30) days written Notice to Buyer prior to cancellation, termination, alteration, or material change of such insurance.

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1.40.3. Evidence of coverage described above in Section 9.1 shall state that coverage provided is primary and is not excess to or contributing with any insurance or self- insurance maintained by Buyer.

1.40.4. Buyer shall have the right to inspect or obtain a copy of the original policy(ies) of insurance.

1.40.5. All insurance certificates, endorsements, cancellations, terminations, alterations, and material changes of such insurance must be issued, clearly labeled with this Agreement’s identification number and submitted in accordance with Section 10 and Appendix F.

1.40.6. The insurance requirements set forth in Section 9.1 shall apply as primary insurance to, without a right of contribution from, any other insurance maintained by or afforded to Buyer, its subsidiaries and Affiliates, and their respective officers, directors, shareholders, agents, and employees, regardless of any conflicting provision in Seller's policies to the contrary. To the extent permitted by Law, Seller and its insurers shall be required to waive all rights of recovery from or subrogation against Buyer, its subsidiaries and Affiliates, and their respective officers, directors, shareholders, agents, employees and insurers. The commercial general liability insurance required in Section 9.1.1 and the umbrella/excess liability insurance required in Section 9.1.4 must name Buyer, its subsidiaries and Affiliates, and their respective officers, directors, shareholders, agents and employees, as additional insureds for liability arising out of Seller’s construction, use or ownership of the Facility. The Worker’s Compensation policy shall be endorsed with a waiver of subrogation in favor of the Buyer for all work performed by the Seller, its employees, agents and subcontractors.

1.40.7. Seller shall remain liable for all acts, omissions or default of any subcontractor or subsupplier and shall indemnify, defend and hold harmless Buyer for any and all loss or damages, as well as all costs, charges and expenses which Buyer may suffer, incur, or bear as a result of any acts, omissions or default by or on behalf of any subcontractor or subsupplier.

1.40.8. If Seller fails to comply with any of the provisions of this Section 9, Seller, among other things and without restricting Buyer’s remedies under Law or otherwise, shall, at its own cost, act as an insurer and provide insurance in accordance with the terms and conditions of this Section 9. With respect to the required commercial general liability insurance set forth in Section 9.1.1, umbrella/excess liability insurance set forth in Section 9.1.4, commercial automobile liability insurance set forth in Section 9.1.3, and pollution liability insurance set forth in Section 9.1.5 Seller shall provide a current, full and complete defense to Buyer, its subsidiaries and Affiliates, and their respective officers, directors, shareholders, agents, employees, assigns, and successors in interest, in response to a third party claim in the same manner that an insurer with an A.M.

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Best’s Insurance Rating of A-:VII would have, had the insurance been maintained in accordance with the terms and conditions set forth in this Section 9 and given the required additional insured wording in the commercial general liability insurance and umbrella/excess liability insurance, and standard “Who is an Insured” provision in commercial automobile liability form.

ARTICLE TEN. NOTICES
Notices (other than forecasts and scheduling requests) shall, unless otherwise specified herein, be in writing and may be delivered by hand delivery, United States mail, overnight courier service, facsimile, or electronic messaging (e-mail). A notice sent by facsimile transmission or e-mail will be recognized and shall be deemed received on the Business Day on which such notice was transmitted if received before 5 p.m. Pacific prevailing time (and if received after 5 p.m., on the next Business Day) and a notice by overnight mail or courier shall be deemed to have been received on the next Business Day after such Notice is sent or such earlier time as is confirmed by the receiving Party unless it confirms a prior oral communication, in which case any such notice shall be deemed received on the day sent. A Party may change its addresses by providing notice of same in accordance with this provision. All Notices, requests, invoices, statements or payments for this Facility must reference this Agreements identification number.

Notices shall be provided as indicated in Appendix F.

ARTICLE ELEVEN. FORCE MAJEURE

1.41. No Default for Force Majeure. Neither Party shall be in default in the performance of any of its obligations set forth in this Agreement when and to the extent failure of performance is caused by Force Majeure.

1.42. Requirements Applicable to Claiming Party. If a Party, because of Force Majeure, is rendered wholly or partly unable to perform its obligations when due under this Agreement, such Party (the “Claiming Party”) shall be excused from whatever performance is affected by the Force Majeure to the extent so affected. In order to be excused from its performance obligations under this Agreement by reason of Force Majeure:

1.42.1. The Claiming Party, on or before the fourteenth (14 th) day after the initial occurrence of the claimed Force Majeure, must give the other Party Notice describing the particulars of the occurrence; and

1.42.2. The Claiming Party must provide timely evidence reasonably sufficient to establish that the occurrence constitutes Force Majeure as defined in this Agreement.

1.43. Limitations. The suspension of the Claiming Party’s performance due to Force Majeure may not be greater in scope or longer in duration than is required by such Force Majeure. In addition, the Claiming Party shall use diligent efforts to remedy its

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inability to perform. When the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall give the other Party prompt Notice to that effect.

1.44. Termination. Either Party may terminate this Agreement on at least five (5) Business Days’ prior Notice, in the event of Force Majeure which materially interferes with such Party’s ability to perform its obligations under this Agreement and which (a) extends for more than 365 consecutive days, (b) extends for more than a total of 365 days in any consecutive 540-day period, or (c) is consistent with Section 2.6.2.3.

ARTICLE TWELVE. EVENTS OF DEFAULT AND TERMINATION

1.45. Termination. Unless terminated earlier pursuant to Section 11.4 or this Section 12, this Agreement automatically terminates immediately following the last day of the Delivery Term.

1.46. Events of Default. An “Event of Default” means, with respect to a Party, the occurrence of any of the following:

1.46.1. With respect to either Party:

1.46.1.1. A Party becomes Bankrupt;

1.46.1.2. Except for an obligation to make payment when due, if there is a failure of a Party to perform any material covenant or obligation set forth in this Agreement (except to the extent such failure provides a separate termination right for the non-breaching Party or to the extent excused by Force Majeure), if such failure is not remedied within thirty (30) days after Notice thereof from the non-breaching Party to the breaching Party;

1.46.1.3. A Party fails to make any payment due and owing under this Agreement, if such failure is not cured within ten (10) Business Days after Notice from the non-breaching Party to the breaching Party; or

1.46.1.4. Any representation or warranty made by a Party (a) is false or misleading in any material respect when made or (b) becomes false or misleading in any material respect during the Term.

1.46.2. With respect to Seller:

1.46.2.1. Seller fails to take all corrective actions specified in any Buyer Notice, within the time frame set forth in such Notice, that the Facility is out of compliance with any term of this Agreement; provided that if such corrective action falls under a specific termination right under Section 12.2.2, then the time frame, if any, set forth for such right shall apply;

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1.46.2.2. The Facility has not achieved Commercial Operation by the expected Commercial Operation Date specified in Section 2.6.1 and Seller has not elected to pay daily delay damages pursuant to Section 2.6.4;

1.46.2.3. Subject to Section 11, Seller delivers less than eighty percent (80%) of the applicable Contract Quantity from the Facility to Buyer for a period of two (2) consecutive Contract Years;

1.46.2.4. Seller fails to maintain its status as an ERR as set forth in Section 4.5 of the Agreement;

1.46.2.5. Seller abandons the Facility;

1.46.2.6. Seller installs generating equipment at the Facility that exceeds the Contract Capacity and such excess generating capacity is not removed within five (5) Business Days after Notice from Buyer;

1.46.2.7. Seller delivers or attempts to deliver to the Delivery Point for sale under this Agreement product that was not generated by the Facility;

1.46.2.8. Seller fails to install any of the equipment or devices necessary for the Facility to satisfy the Contract Capacity set forth in Section 3.1;

1.46.2.9. An unauthorized assignment of the Agreement, as set forth in Section 15;

1.46.2.10. Seller fails to reimburse Buyer any amounts due under this Agreement;

1.46.2.11. Seller breaches the requirements in Section 6.12 regarding incentives; or

1.46.2.12. Seller fails to maintain the Collateral Requirement set forth in Section

3.9. 1.46.2.13. The annualized customer load associated with the Facility pursuant to Section 17.76.020 of Chapter 17.76 of (Alternative Energy Systems and Facilities) of Article IV (Site Development Provisions) of Title 17 (Development Code) of the Rancho Cucamonga Municipal Code is less than fifty percent (50%) of the Contract Quantity, as measured over a Contract Year.

1.47. Declaration of an Event of Default. If an Event of Default has occurred, the non- defaulting Party shall have the right to: (a) send Notice, designating a day, no earlier

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than five (5) days after such Notice and no later than twenty (20) days after such Notice, as an early termination date of this Agreement (“Early Termination Date”); (b) accelerate all amounts owing between the Parties; (c) terminate this Agreement and end the Delivery Term effective as of the Early Termination Date; (d) collect any Settlement Amount under Section 12.5; and (e) if the defaulting party is the Seller and Buyer terminates the Agreement prior to the start of the Commercial Operation Date, Buyer shall have the right to retain the entire Reservation Deposit.

1.48. Suspension of Performance. If an Event of Default shall have occurred, the non- defaulting Party has the right to immediately suspend performance under this Agreement and pursue all remedies available at Law or in equity against the defaulting Party (including monetary damages), except to the extent that such remedies are limited by the terms of this Agreement.

1.49. Calculation of Settlement Amount.

1.49.1. If either Party exercises a termination right under Section 12.3 after the Commercial Operation Date, the non-defaulting Party shall calculate a settlement amount (“Settlement Amount”) equal to the amount of the non-defaulting Party’s aggregate Losses and Costs less any Gains, determined as of the Early Termination Date. Prior to the Commercial Operation Date, the Settlement Amount shall be Zero dollars ($0).

1.49.2. If the non-defaulting Party’s aggregate Gains exceed its aggregate Losses and Costs, if any, determined as of the Early Termination Date, the Settlement Amount shall be Zero dollars ($0).

1.49.3. The Buyer shall not have to enter into replacement transactions to establish a Settlement Amount.

1.49.4. Buyer shall have the right to draw upon the Collateral Requirement to collect any Settlement Amount owed to Buyer.

1.50. Rights and Remedies Are Cumulative. The rights and remedies of the Parties pursuant to this Section 12 shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.

1.51. Duty to Mitigate. Buyer and Seller shall each have a duty to mitigate damages pursuant to this Agreement, and each shall use reasonable efforts to minimize any damages it may incur as a result of the other Party’s non-performance of this Agreement, including with respect to termination of this Agreement.

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ARTICLE THIRTEEN. GOVERNMENTAL CHARGES

1.52. Governmental Charges. Seller shall pay or cause to be paid all taxes imposed by any Governmental Authority (“Governmental Charges”) on or with respect to the Product or the Transaction arising at the Delivery Point, including, but not limited to, ad valorem taxes and other taxes attributable to the Project, land, land rights or interests in land for the Project. Buyer shall pay or cause to be paid all Governmental Charges on or with respect to the Product or the Transaction from the Delivery Point. In the event Seller is required by Law or regulation to remit or pay Governmental Charges which are Buyer’s responsibility hereunder, Buyer shall reimburse Seller for such Governmental Charges within thirty (30) days of Notice by Seller. If Buyer is required by Law or regulation to remit or pay Governmental Charges which are Seller’s responsibility hereunder, Buyer may deduct such amounts from payments to Seller with respect to payments under the Agreement; if Buyer elects not to deduct such amounts from Seller’s payments, Seller shall reimburse Buyer for such amounts within thirty (30) days of Notice from Buyer. Nothing shall obligate or cause a Party to pay or be liable to pay any Governmental Charges for which it is exempt under the Law.

A Party that is exempt at any time and for any reason from one or more Governmental Charges bears the risk that such exemption shall be lost or the benefit of such exemption reduced; and thus, in the event a Party’s exemption is lost or reduced, each Party’s responsibility with respect to such Governmental Charge shall be in accordance with the first four sentences of this Section.

ARTICLE FOURTEEN. RELEASE OF INFORMATION AND RECORDING

CONVERSATION

1.53. Release of Information. Seller authorizes Buyer to release to the FERC, CEC, CAISO, CPUC, other Governmental Authority, and/or media outlet information regarding the Facility, including the Seller’s name and location, and the size, location and operational characteristics of the Facility, the Term, the ERR type, photographs of the project, the Commercial Operation Date, greenhouse gas emissions data, and the net power rating of the Facility, as requested from time to time pursuant to the CEC’s, CPUC’s or applicable Governmental Authority’s rules and regulations.

1.54. Public Announcements. Seller shall make no public announcement regarding any aspect of this Agreement or the role of Seller in regards to the development or operation of the Project without the prior written consent of Buyer, which consent shall not be unreasonably withheld. Any public announcement by Seller must comply with California Business and Professions Code § 17580.5 and with the Guides for the Use of Environmental Marketing Claims, published by the Federal Trade Commission, as it may be updated from time to time.

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ARTICLE FIFTEEN. ASSIGNMENT

1.55. General Assignment. Except as provided in Sections 15.2 and 15.3, Seller may not assign this Agreement or its rights hereunder without the prior written consent of the Buyer, which consent shall not be unreasonably withheld or delayed so long as among other things (a) the assignee assumes the Seller’s payment and performance obligations under this Agreement, (b) the assignee agrees in writing to be bound by the terms and conditions hereof, (c) Seller delivers evidence satisfactory to Buyer of the proposed assignee’s technical and financial capability to meet or exceed Seller’s obligations hereunder and (d) the Seller delivers such tax and enforceability assurance as Buyer may reasonably request.

1.56. Assignment to Financing Providers. Seller may assign this Agreement as collateral for any financing or refinancing of the Project (including any tax equity or lease financing) with the prior written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Parties agree that, the consent provided to Buyer in accordance with this Section 15.2 shall be in a form substantially similar to the Form of Financing Consent attached hereto as Appendix H; provided that (a) Buyer shall not be required to consent to any additional terms or conditions beyond those contained in Appendix H, including extension of any cure periods or additional remedies for financing providers, and (b) Seller shall be responsible at Buyer’s request for Buyer’s reasonable costs and attorneys’ fees associated with the review, negotiation, execution and delivery of documents in connection with such assignment.

1.57. Notice of Change in Control. Except in connection with public market transactions of the equity interests or capital stock of Seller or Seller’s Affiliates, Seller shall provide Buyer notice of any direct change of control of Seller (whether voluntary or by operation of Law).

ARTICLE SIXTEEN. GOVERNING LAW
This agreement and the rights and duties of the parties hereunder shall be governed by and construed, enforced, and performed in accordance with the laws of the State of California, without regard to principles of conflicts of law. To the extent enforceable at such time, each party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this agreement.

ARTICLE SEVENTEEN. DISPUTE RESOLUTION

1.58. Intent of the Parties. The sole procedure to resolve any claim arising out of or relating to this Agreement is the dispute resolution procedure set forth in this Section 17, except that either Party may seek an injunction in Superior Court in San Bernardino County, California if such action is necessary to prevent irreparable harm, in which case both Parties nonetheless will continue to pursue resolution of all other aspects of the dispute by means of this procedure.

CITY COUNCIL ORDINANCE NO.

DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022

1.59. Management Negotiations.

1.59.1. The Parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement by prompt negotiations between each Party’s authorized representative, or such other person designated in writing as a representative of the Party (each a “Manager”). Either Manager may request a meeting, to be held in person or telephonically, to initiate negotiations to be held within ten (10) Business Days of the other Party’s receipt of such request, at a mutually agreed time and place.

1.59.2. All communication and writing exchanged between the Parties in connection with these negotiations shall be deemed inadmissible as evidence such that it cannot be used or referred to in any subsequent judicial or arbitration process between the Parties, whether with respect to this dispute or any other.

1.59.3. If the matter is not resolved within forty-five (45) days of commencement of negotiations under Section 17.2.1, or if the Party receiving the written request to meet refuses or does not meet within the ten (10) Business Day period specified in Section 17.2.1, either Party may initiate arbitration of the controversy or claim according to the terms of Section 17.3.

1.60. Arbitration Initiation. If the dispute cannot be resolved by negotiation as set forth in Section 17.2 above, then the Parties shall resolve such controversy through arbitration (“Arbitration”). The Arbitration shall be adjudicated by one retired judge or justice from the JAMS panel. The Arbitration shall take place in San Bernardino County, California, and shall be administered by and in accordance with JAMS’ Commercial Arbitration Rules. If the Parties cannot mutually agree on the arbitrator who will adjudicate the dispute, then JAMS shall provide the Parties with an arbitrator pursuant to its then-applicable Commercial Arbitration Rules. The arbitrator shall have no affiliation with, financial or other interest in, or prior employment with either Party and shall be knowledgeable in the field of the dispute. Either Party may initiate Arbitration by filing with the JAMS a notice of intent to arbitrate at any time following the unsuccessful conclusion of the management negotiations provided for in Section

17.2. ARTICLE EIGHTEEN. MISCELLANEOUS

1.61. Severability. If any provision in this Agreement is determined to be invalid, void or unenforceable by any court having jurisdiction, such determination shall not invalidate, void, or make unenforceable any other provision, agreement or covenant of this Agreement. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

CITY COUNCIL ORDINANCE NO.

DEVELOPMENT AGREEMENT DRC2021-00175 – CITY OF RANCHO CUCAMONGA January 5, 2022

1.62. Counterparts. This Agreement may be executed in one or more counterparts each of which shall be deemed an original and all of which shall be deemed one and the same Agreement. Delivery of an executed counterpart of this Agreement by facsimile or PDF transmission will be deemed as effective as delivery of an originally executed counterpart. Each Party delivering an executed counterpart of this Agreement by facsimile or PDF transmission shall also deliver an originally executed counterpart, but the failure of any Party to deliver an originally executed counterpart of this Agreement shall not affect the validity or effectiveness of this Agreement.

1.63. General. No amendment to or modification of this Agreement shall be enforceable unless reduced to writing and executed by both Parties. This Agreement shall not impart any rights enforceable by any third party other than a permitted successor or assignee bound to this Agreement. Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default. The term “including” when used in this Agreement shall be by way of example only and shall not be considered in any way to be in limitation. The headings used herein are for convenience and reference purposes only.

1.64. Interpretation. Whenever this Agreement specifically refers to any Law, tariff, Governmental Authority, regional reliability council, Transmission/Distribution Owner, or credit rating agency, the Parties hereby agree that the references also refers to any successor to such Law, tariff or organization.

1.65. Construction. The Agreement will not be construed against any Party as a result of the preparation, substitution, or other event of negotiation, drafting or execution thereof.

1.66. Forward Contract. The Parties acknowledge and agree that this Agreement constitutes a “forward contract” within the meaning of the U.S. Bankruptcy Code, and Buyer and Seller are “forward contract merchants” within the meaning of the U.S. Bankruptcy Code. Each Party further agrees that, for all purposes of this Agreement, each Party waives and agrees not to assert the applicability of the provisions of 11 U.S.C. § 366 in any Bankruptcy proceeding wherein such Party is a debtor. In any such proceeding, each Party further waives the right to assert that the other Party is a provider of last resort to the extent such term relates to 11 U.S.C. §366 or another provision of 11 U.S.C. § 101-1532.

1.67. Change in Electric Market Design. If a change in the CAISO Tariff renders this Agreement or any provisions hereof incapable of being performed or administered, then any Party may request that Buyer and Seller enter into negotiations to make the minimum changes to this Agreement necessary to make this Agreement capable of being performed and administered, while attempting to preserve to the maximum extent possible the benefits, burdens, and obligations set forth in this Agreement as of the Execution Date. Upon delivery of such a request, Buyer and Seller shall engage in