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HomeMy WebLinkAbout2024 PC 22-24 OC RECLAMATIONDEVELOPMENT AGREEMENT OO1O-24 RESOLUTION NO. PC 22.24 A RESOLUTION OF THE PLANNING COMMISSION RECOMMENDING THE CITY COUNCIL APPROVE AN ORDINANCE ADOPTING DEVELOPMENT AGREEMENT NO. OO1O-24 TIJAT PROVIDES A PUBLIC BENEFIT TO THE CITY IN THE FORM OF THE DEDICATION OF A NATURALIZED FORMER SAND AND GRAVEL PIT TO THE CITY OF ORANGE AS PERMANENT OPEN SPACE AT 5093 E. SANTIAGO CANYON ROAD APPLICANT: OC RECLAMATION, LLC WHEREAS, Section 65864 through 65869.5 of the California Government Code authorizes cities to enter into development agreements with any person having a legal or equitable interest in real property for the development of such property; and WHEREAS, Orange Municipal Code (OMC) Section 17.44.100 authorizes the Planning Commission to review and make a recommendation to the City Council on Development Agreements; and WHEREAS, the City recognizes that the natural qualities and habitat value of the lormer sand and gravel mining pit commonly known as the "Chandler Pit" are important to the ecological success of the Santiago Creek corridor, as well as the quasi-rural wildland environs of East Orange; and WHEREAS, the City supports expansion of the existing nursery with building materials and landscape supply to maintain the viability of a local business in exchange for the public benefit ofopen space preservation; and WHEREAS, the Planning Commission. having considered the proposed Ordinance at a public hearing held on August 5, 2024, including review of the staff report and having received public testimony on the item, has determined the proposed amendment is justified and recommends approval thereof. NOW' THEREFORE, BE IT RESOLVED that the Planning Commission recommends the City Council approve the subject Ordinance included as Attachment A to this Resolution. attached hereto, based on the following finding: DEVELOPMENT AGREEMENT OOIO.24 SECTION 1- FINDING 1. The proposed Ordinance supports the objectives of the General Plan Vision Statement which include the protection of the Santiago Creek watershed and other natural and open space resources. It also supports the goals and policies of the Natural Resources Element pertaining to the protection of scenic and natural features and protection of the Santiago Creek in open space areas of Orange. SECTION 2.ENVIRONMENTAL REVIEW The proposed action is exempt from the California Environmental Quality Act (CEQA) pursuant to State CEQA Guidelines Section 15305 (Minor Alterations in Land Use Limitations), Section 15307 (Actions by Regulatory Agencies for the Protection of Natural Resources), and Section 15308 (Actions by Regulatory Agencies for Protection of the Environment) because it accommodates the storage and sale of building materials and landscape supplies on portions of a commercial nursery site that are already paved or are unpaved but in a disturbed, non-native condition and retains a former sand and gravel pit in a naturalized condition that has evolved since excavation ceased, to include wetlands and habitat for flora and fauna associated with the Santiago Creek corridor. For this reason, no further CEQA documentation is required. ADOPTED this 5th day of Augwt2024. David V, Planning Commission Chair I hereby certiff that the foregoing Resolution was adopted by the Planning Commission of the City of Orange at a regular meeting thereof held on the 5th day of August 2024, by the following vote: AYES: NOES: ABSENT Anna Pehoushek Assistant Community Development Director Yazquez, Vejar, Martinez, Maldonado, Tucker, Leslie None McCormack EXHIBIT A RESOLUTION NO. PC 22.24 DRAFT ORDINANCE DEVELOPMENT AGREEMENT NO. OO1O-24 ORDINANCE NO. 16-24 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ORANGE APPROVING A DEVELOPMENT AGREEMENT NO. OO1O-24 BY AND BETWEEN THE CITY OF ORANGE AND OC RECLAMATION, A CALIFORNIA LIMITED LIABILITY COMPANY APPLICANT: OC RECLAMATION, LLC WHEREAS, Section 65864 through 65869.5 of the California Government Code authorizes cities to enter into development agreements with any person having a legal or equitable interest in real property for the development of such property; and WHEREAS, the City Council of the City of Orange has adopted Chapter 17.44 of the Orange Municipal Code which establishes procedures for the processing and approval of development agreements; and WHEREAS, OC Reclamation, LLC ("Applicant") has requested expansion of the existing Blue Ribbon nursery with building materials and landscape supply, located at 5093 E. Santiago Canyon Road (altemate addresses 1425 North Santiago Boulevard and l92l Old Country Park Road) to maintain the viability of a local business in exchange for the public benefit of open space preservation of the area designated as the "Chandler Pit" ("Project")'; and WHEREAS, the Planning Commission recommended approval of the Project and determined that the Project is categorically exempt from the provisions of the California Environmental Quality Act ("CEQA") pursuant to CEQA Guideline 15332 because: (a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. (b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. (c) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. (d) The site can be adequately served by all required utilities and public services; and WHEREAS, an application for a Development Agreement between the City and OC Reclamation ("Development Agreement") and associated approvals for the Project was filed by OC Reclamation, LLC as authorized by the City of Orange Municipal Code; and WHEREAS, the Development Agreement application was processed in the time and manner consistent with state and local law; and WHEREAS, the City Council conducted a duly advertised public hearing on at which time interested persons had an opportunity to testifr either in support of or opposition to the Development Agreement. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES ORDAIN AS FOLLOWS: SECTION I: The City Council finds that a public hearing has been held before this City Council pursuant to the procedures described in Chapter 17.44 of the Orange Municipal Code. At the hearing, the City Council has considered testimony presented by the public and the Planning Commission's recommendation to approve the Development Agreement No. 0010-24 between the City of Orange and OC Reclamation, LLC (Development Agreement). SECTION II: The City Council hereby finds that the Development Agreement between the City of Orange and OC Reclamation: A. Is consistent with the objectives, policies, general land uses, and programs specified in the General Plan; and Is compatible with the uses authorized in, and the regulations prescribed for, the zoning district in which the real property is and will be located; and is in conformity with and will promote public necessity, public convenience, general welfare, and good land use practices; and C. Will be beneficial to the health, safety, and general welfare; and D. Will not adversely affect the orderly development of property or the preservation of property values; and E. Will promote and encourage the development of the proposed project by providing a greater degree of requisite certainty. SECTION III: The City Council hereby approves the Development Agreement No. 0010-24 in the form attached hereto and incorporates the Agreement herein by this reference. Within ten (10) days after this Ordinance takes effect, the City Council shall execute the Development Agreement SECTION TV: Within ten (10) days after the execution of the Development Agreement by all parties, the City Clerk is directed to record the Development Agreement pursuant to the terms of this B 2 Agreement. SECTION V If any section, subdivision, paragraph, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each section, subdivision, paragraph, sentence, clause and phrase thereof, irrespective of the fact that any one (or more) section, subdivision, paragraph, sentence, clause or phrase had been declared invalid or unconstitutional. The City Clerk is hereby directed to certifu the adoption of this Ordinance and cause the same to be published as required by law. This Ordinance shall take effect thirty (30) days from and after the date of its final passage. ADOPTED this _ day of 2024 Daniel R. Slater, Mayor, City of Orange ATTEST: Pamela Coleman, City Clerk, City of Orange APPROVED AS TO FORM: Mike Vigliotta, City Attomey STATE OF CALIFORNIA ) COLINTY OF ORANGE ) crTY oF ORANGE ) I, PAMELA COLEMAN, City Clerk of the City of Orange, California, do hereby certify that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the 2024, and thereafter at the regular meeting of said City Council duly 3 _ day of SECTION VI: held on the _ day of to wit: AYES: NOES: ABSENT: ABSTAIN: COUNCILMEMBERS: COLINCILMEMBERS: COLNCILMEMBERS: COLNCILMEMBERS: 2024 was duly passed and adopted by the following vote, Pamela Coleman, City Clerk, City of Orange 4 EXHIBIT A ORDINANCE NO. 16.24 DEVELOPMENT AGREEMENT EXEMPT FROM RECORDER'S FEES Pursuant to Government Code S$ 6103 and27383 Recording requested by and when recorded return to: City Clerk City of Orange 300 East Chapman Avenue Orange, CA 92866 (SPACE ABOVE FOR RECORDER'S USE) DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF ORANGE, a California municipal corporation, and OC RECLAMATION LLC, a California limited liability company DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement") is entered into as of the _ day of 2024 ("Agreement Date"), by and between OC Reclamation LLC, a Califomia limited liability company ("OWNER"), and the City of Orange, a Califomia municipal corporation, organized and existing under the laws of the State of Califbrnia ("CITY"), pursuant to the authority of California Govemment Code Sections 65864 through 65869.5 ("Development Agreement Legislation") and California Constitution Article XI, Section 7 as implemented through Orange Municipal Code Chapter 17.44. RECITALS This Agreement is predicated upon the following facts: A. These Recitals refer to and utilize certain capitalized terms which are defined in this Agreement. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. The Development Agreement Legislation authorizes CITY to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property in order to, among other matters, ensure high quality development in accordance with comprehensive plans; provide certainty in the approval of development projects so as to avoid the waste of resources and the escalation in the cost of development to the consumer; provide assurance to the applicants for development projects that they may proceed with their projects in accordance with existing policies, rules and regulations and subject to conditions of approval, in order to strengthen the public planning process and encourage private participation in ctmprehensive planning and reduce the private and public economic costs of development; and provide for reimbursements to OWNER for the construction and financing of certain public infrastructure improvements. C. OWNER has a legal and equitable interest in, and presently operates a building materials and landscape supply sales business and green waste transfer facility from certain real property located at 1425 N. Santiago Boulevard, Orange, California (the "Property"). D. OWNER operates the business from the Property pursuant to Conditional Use Permit No. 1744, as modified by Resolution No. PC 18-95, approved by the CITY Planning Commission on June 5, 1995 (collectively, the "CUP"), and all associated or applicable CITY approvals granted or provided therewith (the "Existing Project Approvals"). E. CITY and OWNER desire to enter into a binding agreement for purposes of the expansion of a building materials and landscape supply sales business (the "Project"), which involves, among other things: (i) identiffing the terms, conditions, and regulations for the development and use of the Property; (ii) reflecting a lot line adjustment to the Property and dedication of a portion of the Property to CITY; (iii) modifuing the CUP to reflect the lot line adjustment to the Property and adjustment to the terms and limitation thereof related to the operation of the business upon the Property; and (iv) identiffing the obligations of each party hereto related to the Project (defined herein below) on the terms and conditions set forth herein. F. The parties hereto adopt this Agreement in order to create a Project and a physical environment that will conform to and complement the goals of CITY, consistent with the elements and policies of CITY's General Plan. G. In consideration of the substantial public benefits to be provided by OWNER and the Project, and in order to strengthen the public financing and planning process and reduce the economic costs of development, by this Agreement CITY intends to give OWNER assurance that OWNER can proceed with the development of the Project pursuant to the terms and conditions of this Agreement and in accordance with CITY's General Plan, ordinances, policies, rules and regulations existing as of the Effective Date. In reliance on CITY's covenants in this Agreement concerning the Development of the Property, OWNER has and will in the future incur substantial costs in site preparation and the construction and installation of infrastructure and facilities in order to make the Project feasible. H. All actions taken by CITY have been duly taken in accordance with all applicable legal requirements, including the California Environmental Quality Act (Califomia Public Resources Code Sections 21000, et seq.) ("CEQA"), and all other requirements for notice, public hearings, findings, votes and other procedural matters. I. Pursuant to Section 65867.5 of the Development Agreement Legislation, the City Council has found and determined that: (i) this Agreement and the Existing Project Approvals implement the goals and policies of CITY's General Plan, provide balanced and diversified land uses and impose appropriate standards and requirements with respect to land development and usage in order to maintain the overall quality of life and the environment within CITY; (ii) this Agreement is in the best interests of and not detrimental to the public health, safety and general welfare of CITY and its residents; (iii) adopting this Agreement is consistent with CITY's General Plan and constitutes a present exercise of the CITY's police power; and (iv) this Agreement is being entered into pursuant to and consistent with the requirements of Section 65867 of the Development Agreement Legislation and Orange Municipal Code Chapter 17.44. J. CITY and OWNER agree that it may be beneficial to enter into additional agreements or to modify this Agreement with respect to the implementation of the separate components of the Project when more information concerning the details of each component is available, which shall in no event reduce or otherwise minimize OWNER's current operation of or rights related to the Project and that this Agreement should expressly allow for such contemplated additional agreements or modifications to this Agreement. NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, as it applies to CITY, pursuant to Califomia Constitution Article XI, Section 7, and in consideration of the foregoing recitals of fact, all of which are expressly incorporated into this Agreement, the mutual covenants set forth in this Agreement and for other consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: l. Definitions. The fo llowing words and phrases are used as defined terms throughout this Agreement, and each defined term shall have the meaning set lbrth below 2 1.1 Authorizing Ordinance.The "Authorizing Ordinance" means Ordinance No approving this Agreement. 1.2 Citv Council. "City Council" means the duly elected and constituted city council of the CITY. 1.3 Dedicated Propertv. "Dedicated Property" means that portion of the Property identified as Parcel 2 reflected in the Site Map on Exhibit B, resulting from the Lot Line Adjustment, which is dedicated by OWNER to CITY pursuant to this Agreement. 1.4 Development. "Development" means the improvement of the Property for purposes of completing the Project, including, without limitation: grading, construction of facilities related to the business and the Project, construction of new or modification to existing perimeter fences or barriers, the construction of structures and buildings, and the installation of landscaping. 1.5 Effective Date. "Effective Date" means the date that the Authorizing Ordinance becomes effective. 1.6 Existinq Regulations. "Existing Regulations" means those ordinances, rules, regulations, policies, requirements, guidelines, constraints or other actions of the CITY, other than site-specific Project Approvals, which purport to affect, govern or apply to the Property or the implementation of the Development. 1.7 Modified CUP. "Modified CUP" shall mean the CUP as modified by the terms of this Agreement, as more particularly described in Section 3.1 and adopted by Resolution No. -of the City Council. 1.g owNER. "owNER" is oc Reclamation LLC, a California limited liability company or its assignee. 1.9 OWNER Propertv. "OWNER Property" means that portion of the Property identifiedas..Parce11,'i,@,resultingfromtheLotLineAdjustmentandwhichisretained by OWNER. 1.10 Proiect. "Project" shall have the meaning set forth in Recital E. 1.1 1 Proiect Approvals. "Project Approvals" means any and all permits, licenses, consents, rights and privileges, and other actions approved or issued by CITY on or before the Effective Date, including but not limited to the Authorizing Ordinance, Lot Line Adjustment No._, adopted by Resolution No. _ of the City Council, the Modified CUP, adopted by Resolution No. _ of the City Council, and all other permits, licenses, consents, rights, and privileges, and other actions approved or issued by CITY in connection with or related to the Development on or before the Effective Date. l.l2 Propertv. "Property" means the real property described in Exhibit A and depicted on the Site Map on Exhibit B. J 2. Term and Termination. 2.1 The Term of this Agreement shall commence on the Effective Date and shall extend for a period of two (2) years thereafter, terminating on the second anniversary of the Effective Date, subject to specific extensions, revisions and termination provisions of this Agreement as mutually agreed to in writing by the parties hereto. The Project Approvals and continuing obligations, covenants, and restrictions contained in Section 3 and 6 of this Agreement are valid and shall not expire or otherwise be affected by the termination or expiration of the Term of this Agreement (as such Term may be extended) and shall continue indefinitely. 2.2 This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (i) if termination occurs pursuant to any specific provision of this Agreement; or (ii) completion of the Project pursuant to the terms of this Agreement and the CITY's issuance of all required permits and acceptance of all dedications and improvements required to complete Development of the Project. 2.3 The termination or expiration of this Agreement shall not affect in any manner the rights or obligations arising independently from any Project Approvals or future approvals from or granted by the CITY related to the Project or other land use approvals approved concurrently or subsequent to the approval of this Agreement. 2-4 From and following the Effective Date, the Development, and City actions on applications for subsequent Development approvals affecting the Property, shall be subject to the terms and provisions of this Agreement. The provisions of this Agreement, to the extent permitted by law, constitute covenants that shall run with the Property for the benefit thereof, and the benefits and burdens of this Agreement shall bind and inure to the benefit of the parties and all successors in interest to the parties hereto. 3. Description of Development. 3.1 Development and Control of Development. 3.1.1 Proiect. During the Term of this Agreement, OWNER shall have the vested right to implement the Development pursuant to this Agreement and to complete the Project. The parties acknowledge and confirm that the Project shall include: 3.1.1.1 Prior to execution of this Agreement, the CITY has approved, or will approve, an Amendment to the Orange ZoningCode to reaffirm and reflect OWNER's historical and future operations and use of the Property as contemplated by this Agreement. In addition, prior to execution of this Agreement, the CITY has approved, or will approve the Modified CUP which shall provide for, include, or reflect: (i) that there is no limitation on the percentage of retail sales that are, or may be, conducted on the OWNER Property involving building materials and landscape supplies and OWNER has the right and authority to conduct operations and retail sales Monday through Sunday from 6:00 am to 8:00 pm on or from the OWNER Property in a manner consistent with similar material storage businesses; (ii) removal of any signage limitations related to the operations on or from the OWNER Property, subject to generally similar signage requirements under current Law applicable to commercial 4 and industrial zoned properties located within the CITY; (iii) the right and authority of OWNER to utilize all, or any portion, of the OWNER Property for its business and operations, and OWNER's future business and operations, including, without limitation, green waste supply, sales, and materials operation (but excluding rock crushing operations) and storage located in, on, or about the OWNER Property; (iv) the extension of the duration of the CUP to be perpetual (regardless of whether there is any cessation or suspension in operations thereupon), unless OWNER is in breach of the terms of the Modified CUP in which case CITY shall provide OWNER with written notice of such breach and upon receipt thereof OWNER shall have forty-five (45) days to cure such stated breach (if such stated breach is not capable of cure within such forty-five (45) days following OWNER's diligent pursuit of cure, then OWNER shall have such additional time necessary to pursue cure of such default); (v) OWNER shall have the right to remove from the OWNER Property any non-green waste material inadvertently accepted for processing within thirfy (30) days (rather than seven (7) days) of such discovery; (vi) all stormwater, runoff, or other surface water accumulated or derived (whether in whole or in part) on, in or about the OWNER Property shall continue to drain or discharge, or may be directed to drain and discharge, into the abandoned "Chandler Pit" located on the Dedicated Property, which right of discharge shall be reserved and reflected in the recorded deed or document(s) of transfer and dedication contemplated by Section 6.1; and (vii) parking, including overnight parking, of OWNER's delivery trucks on or about the OWNER Property. 3.1.1.2 Subject to OWNER receiving all necessary or appropriate approvals, consents, permits, licenses, waivers, or other items or things required for the Project, OWNER will dedicate to the CITY the Dedicated Property as contemplated by Section 6.1. 3.1.1.3 The ratification by the CITY and City Council of the Project Approvals and all other approvals, consents, permits, licenses, and acknowledgements involving or related to the Project. 3.1.2 Permits and Future Proiect Approvals. CITY shall accept and timely process without the imposition and assessment of any filing fees or other charges of any kind, in the normal and legal manner for processing such matters, all applications for Future Project Approvals called for or required under this Agreement or otherwise reasonably necessary for the Project. 3.2 Rules. Reeulations and Official Policies. Except as otherwise specified in this Agreement and the Project Approvals, the rules, regulations and official policies governing the permitted uses of the Property, the density and intensity of use of the Property, the provisions for reservation or dedication of land for public purposes and the design, improvement and construction standards and specifications applicable to Development of the Property shall be the Project Approvals and those Existing Regulations not inconsistent with the Project Approvals which were in full force and effect as of the Effective Date of this Agreement. 5 3.3 ReservedAuthority. 3.3.1 Uniform Codes. This Agreement shall not prevent CITY from applying new rules, regulations and policies relating to uniform codes (such as the Uniform Building Code, National Electrical Code, Uniform Mechanical Code or Uniform Fire Code, as amended) adopted by the State of California, which new rules and regulations are necessary to preserve the health and safety of the residents of CITY or which the CITY is required by state law to apply. 3.3.2 State and Federal Laws and Resulations 3.3.2.1 Precedence of State and Federal Laws. In the event that state or federal laws or regulations prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations; provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. If the purpose and intent of this Agreement are materially and adversely affected by such state and federal laws or regulations, then, subject to all other rights and remedies contained herein, including, without limitations contained in Section 6.4,the parties shall in good faith, unwind this Agreement and in such case, the parties shall diligently work together to restore each party to the position and condition each existed as of the Effective Date. 3.3.2.2 Subsequent Amendment to Auth s Statutes. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Legislation in effect as of the Effective Date. Accordingly, to the extent that subsequent amendments to the Government Code would affect the provisions of this Agreement, such amendments shall not be applicable to this Agreement unless necessary for this Agreement to be enforceable or required by law or unless this Agreement is modified pursuant to the provisions set forth in this Agreement and Government Code Section 65868 as in effect on the Agreement Date. 3.3.3 Resulation for Health and Safetv. Subject to the terms of this Agreement, CITY shall have the right to apply regulations (including amendments to the Existing Regulations) adopted by the CITY after the Effective Date, in connection with any Project Approvals, or deny, or impose conditions of approval on, any Project Approvals provided that such application to the Development is required to protect the physical health and safety of existing or future residents or occupants of the Property, or any portion thereof or any lands adjacent thereto. OWNER may protest the imposition of any such emergency regulations or conditions to the City Council or as otherwise provided by CITY rules or regulations while continuing to construct the Development and exercise such rights, privileges, and claims contemplated herein. 3.3.4 Procedure For Application of New Regulations. The CITY shall not apply to the Project any regulation, law, program, ordinance or action under Section 3.3.1, 3.3.2, or 3.3.3 (except for emergency ordinances adopted to protect health and welfare as set forth therein) which is not an Existing Regulation ("New Regulation") without providing at least thirty (30) days' prior written notice to OWNER of the CITY's intent to apply such New Regulation to the Project. OWNER shall have ninety (90) days from the date of such notice to review and evaluate the New Regulation and to serve CITY with a written protest ("Protest") against the 6 application of the New Regulation to the Project. If the OWNER timely provides the Protest to CITY, then CITY will not apply the New Regulation to the Project until the City Council makes a finding, after a duly noticed public hearing, that such New Regulation does not conflict with the Existing Regulations as applied to the Project and is required (as opposed to permitted) to comply with state or federal laws or regulations after taking into consideration all reasonable alternatives. OWNER may elect to continue to construct the Development after receipt of notice of the applicability of any New Regulation described in this Section 3.3.4 to such construction. The provisions of this Section 3.3.4 shall in no way limit or otherwise waive the restrictions and limitations applicable to the CITY and the City Council involving any subsequent or future actions, rules, enactments, ordinances, or determinations with respect to the Project or the Property. 3.4 Vested Riehts. By entering into this Agreement and relying thereon, OWNER obtains vested rights to proceed with the Project in accordance with the terms and conditions of this Agreement, and in accordance with, and to the extent of, the Project Approvals. By entering into this Agreement and relying thereon, CITY secures significant public benefits which enhance the public health, safety and welfare, a partial listing of which benefits is set forth in Section 6. 3.5 No Conflicting Enactments. Neither the City Council nor any other agency of the CITY shall enact a rule, regulation, ordinance, or other measure applicable to the Property that is inconsistent or conflicts with the terms of this Agreement. 3.5.1 It is the intent of OWNER and the CITY that no moratorium or other limitation (whether relating to the Development of all or any part of the Development and whether enacted by initiative or otherwise) affecting the CUP, or the Modified CUP, parcel or subdivision maps (whether tentative, vesting tentative, or final), lot line adjustments, site development permits, pr.iir. plans, site development plans, building permits, occupancy certificates, or other entitlements to use approved, issued, or granted within the CITY, or portions of the CITY, shall apply to the Development and the Project to the extent such moratorium or other limitation would restrict OWNER's right to develop and use the OWNER Property as provided by this Agreement in such order and at such rate as OWNER deems appropriate as limited or regulated by this Agreement. The CITY agrees to cooperate with OWNER in order to keep this Agreement in full force and effect. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, the parties hereby agree to reasonably 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. The hling of any third-party lawsuit(s) against CITY or OWNER relating to this Agreement, the Project Approvals or to other development issues affecting the OWNER Property or the Property shall not delay or stop the Development, processing, or construction of the Development, unless the third party obtains a court order preventing the activity. 3.5.2 CITY represents that there are no rules, regulations, ordinances, policies or other measures of the CITY in force as of the Agreement Date or will be adopted hereafter that would interfere with the Development and use of all or any part of the Project according to the Project Approvals and this Agreement. The parties understand and acknowledge that the Agreement is consistent with CITY's General Plan and zoning for the Property, subject to any Project Approvals as of the Agreement Date. In the event of any inconsistency between any 1 Existing Approval, Project Approval, this Agreement, and any applicable rules, regulations, ordinances, policies or other measures of the CITY (whether currently existing or existing in the future), the provisions of this Agreement shall control. 4. Transfers and Assrgnlqe4tq 4.1 Rieht to Assien. OWNER shall have the right to sell, assign or otherwise transfer all or any portion of its interests in the OWNER Property together with all its right, title and interest in this Agreement, orthe portion thereof which is subject to transfer (the "Transferred Property") to another party ("Transferee") at any time during the Term of this Agreement; provided, however, that any such transfer or assignment must be pursuant to a sale, assignment or other transfer of the interest of OWNER in the OWNER Property, or a portion thereof. In the event of any such sale, assignment, or other transfer (i) OWNER shall notify CITY thirty (30) days prior to such event of the name of the Transferee, together with the corresponding entitlements being transferred to such Transferee; and (ii) the agreement between OWNER and the Transferee pertaining to such transfer shall provide that either OWNER or the Transferee shall be liable for ihe performance of those obligations of OWNER under this Agreement which relate to the Transferred Property, if any. Each Transferee and OWNER shall notiff CITY in writing which entity shall be liable for the performance of each respective obligation hereunder within thirty (30) daysprior to the date of any sale, assignment or transfer pursuant to this subsection. Owner shall be released from any obligations assumed by a Transferee. 4.2 Effect of Noncompliance. From and after the assumption of obligations under this Agreement by a Transferee pursuant to Section 4.1, noncompliance by any such Transferee with the terms and conditions of this Agreement assumed by such Transferee shall entitle CITY to pursue any and all of its rights under this Agreement so assumed against such Transferee, but such noncompliance shall not be deemed a default or grounds for termination hereof with respect to, or constitute cause for CITY to initiate enforcement action against, other persons then owning or holding interest in the OWNER Property or any portion thereof and not themselves in default hereunder. Similarly, noncompliance by OWNER with respect to any terms and conditions of this Agreement not assumed by such Transferee shall entitle CITY to pursue any and all of its rights under this Agreement retained by OWNER against OWNER, but such noncompliance by OWNER shall not be deemed a default or grounds for termination hereof with respect to, or constitute cause for CITY to initiate enforcement action against, such Transferee or other persons then owning or holding interest in the Property or any portion thereof and not themselves in default hereunder. 4.3 Rights of Successors and Assigns. Except as otherwise set forth in this Agreement, a Transferee shall have all of the same rights, benefits and obligations of OWNER under this Agreement. 5. Revisions to Development Agreement. 5.1 Initiation of Amendment. Either party may propose an amendment to this Agreement when that party believes it would be beneficial to enter into additional agreements or modification of this Agreement in connection with the implementation of the separate components of the Project; provided, however, any additional agreements or modifications of this Agreement 8 shall in no event reduce, terminate, limit, infringe, alter, or amend this Agreement without the express written consent of duly authorized representatives of each party hereto. 5.2 Procedure. Except as set forth in Section 5.5 below, the procedure for proposing and adopting an amendment to this Agreement shall be the same as the procedure followed for entering into this Agreement in the first instance. 5.3 Cancellation. Either party may propose cancellation to this Agreement. 5.4 Consent. Except as expressly provided in this Agreement, any amendment to or cancellation of this Agreement shall require the express written consent of a duly authorized representative of each of the parties. No amendment to or cancellation of all or any provision of this Agreement shall be effective unless set forth in writing and signed by duly authorized representatives of each party. 5.5 Consent of OWNER. Where a Transferee of OWNER applies for an amendment to this Agreement, the written consent of OWNER shall always be required before CITY approval of the amendment unless the assignee has assumed all obligations under this Agreement. Further, a Transferee shall not be required to approve an amendment to this Agreement. The recordation of this Agreement shall serve as notice to all assignees of the provisions of this Agreement. 5.6 Operating Memoranda. The parties acknowledge that refinements and further development of the Project may demonstrate that changes are appropriate with respect to the details and performance of the parties under this Agreement. The parties desire to retain a certain degree of flexibility with respect to the details of the Development and with respect to those items covered in general terms under this Agreement. If and when the parties mutually find that changes, adjustments, or clarifications are appropriate to further the intended purposes of this Agreement, they may, unless otherwise required by law, effectuate such changes, adjustments, or clarifications without amendment to this Agreement as specified in the Project Approvals or through operating memoranda mutually approved by the parties. The Orange City Manager and any corporate officer or other person designated for such purpose in a writing signed by a corporate officer on behalf of OWNER are authorized to execute such operating memoranda contemplated herein. After execution, such operating memoranda shall be attached hereto as addenda and become a part hereof and may be further changed and amended from time to time as necessary, with further written approval by the parties. Unless otherwise required by law or by the Project Approvals, no such changes, adjustments, or clarifications shall require prior notice or hearing. 5.7 Reservation of Rights. This Section shall not limit CITY's or OWNER's remedies as provided by Section 10. 6.Oblieations of CITY;of OWNER. The direct and indirect benefits CITY, and its existing and future residents, will receive pursuant to the implementation ofthe Agreement include, but are not limited to, the following: 6.1 Dedication to CITY. Concurrently upon execution of this Agreement and issuance and provision of all Project Approvals or other CITY approvals required or necessary in connection with the full use and enjoyment of the Project, OWNER agrees to dedicate its full t-ee simple interest in the Dedicated Property, commonly known as the "Chandler Pit," to CITY via a 9 deed of trust or similar conveyance instrument approved by the City Attorney. The Dedicated Property shall be conveyed and transferred to CITY in its "AS-IS," "WHERE IS, WITH ALL FAULTS" condition, with deed restrictions contemplated herein, and subject to the tems elsewhere contained in this Section 6. CITY covenants and agrees, and accepts the Dedicated Property subject to restrictions, that if at any time, and for any reason, following dedication of the Dedicated Property to the CITY, the Dedicated Property undergoes any zoning change from its current "Sand and Gravel" zoning designation to a designation other than "open space" or related land use designation that perpetually maintains the Dedicated Property as undeveloped open space, or the Dedicated Property is conveyed to a third-party other than for open space purposes or there is any filling of the pits or other material change in the topography or elevations in, on, or about the Dedicated Property, the OWNER shall have the unconditional and irrevocable right to purchase the Dedicated Property for One Dollar ($1.00). The OWNER's right to purchase the Dedicated Property pursuant to the preceding sentence is personal to, and shall remain at all times vested in, OWNER (or OWNER's assignee) and is unaffected by any sale of the OWNER Property. The parties agree that the foregoing covenants and restrictions contained herein affecting the Dedicated Property are a material inducement to OWNER agreeing to enter into this Agreement and shall run with the land and will be included in the deed or other document(s) of conveyance and dedication (whether recorded or unrecorded) affecting the Dedicated Property. CITY confirms that the Dedicated Property is not, and will not at any time, be designated, declared, characterrzed, listed, or otherwise treated or identified in any form, manner or capacity as "surplus" property or other similar designation or treatment for any federal, state, or CITY law, statute, regulation, ordinance, or order (including, without limitation, the Surplus Land Act). CITY covenants and agrees that it will not take any action, or cause any action to be taken (directly or indirectly) that avoids, contradicts, or circumvents the restrictions and obligations hereunder or that will, or will likely, impair, limit, prohibit, delay, or adversely affect OWNER's rights under this Section 6.1 or elsewhere in this Agreement. 6.2 Assurances to OWNER. The parties further acknowledge that the public benefits to be provided by OWNER to CITY pursuant to this Agreement are in consideration for and reliance upon assurances that the Property will be developed in accordance with the Project Approvals and this Agreement. Accordingly, while recognizing that the Development of the Property may be affected by exercise of the authority and rights reserved and excepted as provided in this Agreement, OWNER desires assurances that CITY will not, and CITY agrees that it will not further restrict or limit the development of the Property in violation of this Agreement except in strict accordance with the Reserved Authority and subject to the protections contained herein. 6.3 Fees and Costs Waiver. CITY unconditionally agrees to waive any and all fees. costs, charges, interest, assessments, amounts, and other financial obligations of any kind or nature attributable to the Project, Project Approvals, the OWNER Property, and all future approvals from or granted by the CITY or City Council related to or affecting the Project, the OWNER Property, the Modified CUP (as modified by this Agreement), or any other land use improvements, enhancements, public works improvements, or approvals approved concurrently or subsequent to the approval of this Agreement related to or affecting the Project, the Modified CUP, OWNER Property, and OWNER's use and operation of its business. 6.4 Remedy. CITY covenants and acknowledges that at any time during the term of this Agreement or following termination or expiration hereof, should the CITY or City Council l0 (directly or indirectly) commence, pursue, enact, adopt, introduce, approve, apply, or enfbrce any action or otherwise cause or allow any action to be taken, that revokes, suspends, limits, or otherwise adversely affects OWNER's operations or use of the OWNER Property under the Modified CUP, or OWNER's operations or use of the Property under the CUP, except and solely as a direct result of a material breach by OWNER of the terms of the Modified CUP or CUP, as the case may be, which material breach is not cured by OWNER within a reasonable period of time, then the Property will immediately revert to the zoning designation as existed prior to the execution of this Agreement and the OWNER shall have the unconditional and irrevocable right to purchase the Dedicated Property for One Dollar ($ 1.00). All costs, fees, and expenses involving or related to the sale, transfer, and conveyance of the Dedicated Properfy to OWNER as contemplated herein shall be paid exclusively by the CITY and the assessed value of the Property shall be established and set at the assessed value of the Property as existed on the execution of this Agreement. The parties agree that the foregoing covenants and restrictions contained herein affecting the Dedicated Property shall run with the land and will be included in the deed or other document(s) of conveyance and dedication (whether recorded or unrecorded) affecting the Dedicated Property. 6.5 Disclaimers Bv OWNER. Except as expressly set forth in this Agreement, it is understood and agreed that OWNER and OWNER's agents or employees have not at any time made and are not now making, and they specifically disclaim, any warranties, representations or guaranties of any kind or character, express or implied, with respect to the Dedicated Property, including, but not limited to, warranties, representations or guaranties as to (a) matters of title (other than OWNER's warranty of title to be contained in the transfer deed), (b) environmental matters relating to the Property or any portion thereof, including, without limitation, the presence of Hazardous Materials in, on, under or in the vicinity of the Dedicated Property, (c) geological conditions, including, without limitation, subsidence, subsurface conditions, water table, underground water reservoirs, limitations regarding the withdrawal of water, and geologic faults and the resulting damage of past and/or future faulting, (d) whether, and to the extent to which the Dedicated Property or any portion thereof is affected by any stream (surface or underground), body of water, wetlands, flood prone area, flood plain, floodway or special flood hazard, (e) drainage, (f) soil conditions, including the existence of instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of any undershoring, (g) the presence of endangered species or any environmentally sensitive or protected areas, (h) zoning or building entitlements to which the Dedicated Property or any portion thereof may be subject, (i) the availability of any utilities to the Dedicated Property or any portion thereof including, without limitation, water, sewage, gas and electric, O usages of adjoining property, (k) access to the Dedicated Property or any portion thereof, (l) the value, compliance with the plans and specifications, size, location, age, use, design, quality, description, suitability, structural integrity, operation, title to, or physical or financial condition of the Dedicated Property or any portion thereof, or any income, expenses, charges, liens, encumbrances, rights or claims on or affecting or pertaining to the Dedicated Property or any part thereof, (m) the condition or use of the Dedicated Property or compliance of the Dedicated Property with any or all past, present or future federal, state or local ordinances, rules, regulations or laws, building, fire or zoning ordinances, codes or other similar laws, (n) the existence or non-existence of underground storage tanks, surface impoundments, or landfills, (o) any other matter affecting the stability and integrity of the Dedicated Property, (p) the potential for further development of the Dedicated Property, (q) the il merchantability of the Dedicated Property or fitness of the Dedicated Property for any particular purpose, or (r) any other matter or thing with respect to the Dedicated Property. 6.6 OWNER Release from Liabilitv. CITY confirms and acknowledges that it has inspected and is familiar with the various features, conditions, elements, attributes, characteristics, and history of the Dedicated Property and conducted any such investigation and study on and of the Dedicated Property as CITY deems necessary, and CITY hereby FOREVER RELEASES AND DISCHARGES OWNER from all responsibility and liability, including without limitation, liabilities under the Comprehensive Environmental Response, Compensation and Liability Act Of 1980 (42 U.S.C. Sections 9601 et seq.), as amended ("CERCLA"), the Resource Conservation and Recovery Act(42 U.S.C. Section 9601 et seq.), as amended, and the Oil Pollution Act (33 U.S.C. Section 2701 et seq.) regarding the condition, valuation, salability or utility of the Dedicated Property, or its suitability for any purpose whatsoever (including, but not limited to, with respect to the presence in the soil, air, structures and surface and subsurface waters, of Hazardous Materials or other materials or substances that have been or may in the future be determined to be toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Dedicated Property under current or future federal, state and local laws, regulations or guidelines, and any structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the Dedicated Property). CITY further hereby WAIVES (and by executing this Agreement is deemed to have WAIVED) any and all objections and complaints (including, but not limited to, federal, state and local statutory and common law based actions, and any private right of action under any federal, state or local laws, regulations or guidelines to which the Dedicated Property is or may be subject, including, but not limited to, CERCLA) concerning the physical characteristics and any existing conditions of the Dedicated Property. CITY further hereby assumes the risk of changes in applicable laws and regulations relating to past, present and future environmental conditions on the Dedicated Property and the risk that adverse physical characteristics and conditions, including, without limitation, the presence of Hazardous Materials or other contaminants, may not have been revealed by its investigation. In furtherance of the foregoing, at such time as CITY takes title to the Dedicated Property and at all times thereafter, CITY unconditionally releases OWNER from all liability relating to the Dedicated Property, including, without limitation, any known or unknown claims, losses, or damages that CITY may have against OWNER with respect to the Dedicated Property. Buyer expressly waives any and all rights which it may have under Califomia Civil Code Section 1542, which provides: ..A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER. WOULD HAVE MATEzuALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." 12 CITY understands and acknowledges the purpose and consequences of the proceeding release and confirms that the provisions have been freely bargained for by the parties and constitute material consideration to OWNER to execute this Agreement. 7. Indemnification. 7.1 Defense Obligations. Except to the extent of the negligence or willful misconduct of the Indemnified Parties (as defined below), OWNER, and with respect to the portion of the Property transferred to them, the Transferee(s), agree during the term of this Agreement, to defend CITY and its agents, officers, and employees (the "Indemnified Parties") from and against any claims, including claims for attorneys' fees, or proceeding against the Indemnified Parties to set aside, void or annul the approval of this Agreement or the Project Approvals to the extent caused by the wrongful acts of OWNER. 7.2 Notification Oblieation. CITY agrees to timely take all actions necessary or required to uphold the validity and enforceability of this Agreement, the Project Approvals, and the Existing Regulations and shall promptly notify OWNER of any claim, action or proceeding brought challenging any provision of this Agreement or the Project Approvals. Should the CITY fail to promptly and timely notify OWNER or cooperate fully or decide to terminate this Agreement, OWNER shall be relieved of its defense and indemnity obligations hereunder. 7.3 Selection of Counsel; Costs of Defense. OWNER and the CITY shall select joint legal counsel to conduct such defense which legal counsel shall represent both OWNER and the CITY in defense of such action. OWNER and CITY shall meet and confer to determine the reasonable estimate of the costs of defense of any such claim or action and OWNER shall deposit a sufficient portion of said amount with the CITY to ensure CITY that it will have sufficient funds to pay the costs of defense until a further deposit is required, if any. The CITY will draw down on such funds to pay for costs of defense and may require additional deposits if it appears that the costs of defense will exceed the amount on deposit. The CITY shall refund, without interest, any unused portions of the deposit once the claim or action is finally concluded. 1.4 Defense and Settlement. OWNER shall have the right to direct the prosecution, strategy and settlement of any defense hereunder in consultation with the CITY, provided however, that CITY and OWNER agree not to unreasonably withhold or delay approval of the settlement of any claim or action which does not significantly impair the rights and obligations of either party under this Agreement or the Project Approvals. 7.5 Survival of Provisions. The indemnities set forth in this Section shall survive any closing, rescission, ortermination of this Agreement, and shall continue to be binding and in full force and effect in perpetuity with respect to the Indemnified Parties and their successors. 8. Relationship of Parties. The contractual relationship between CITY and OWNER is such that OWNER is independent from and not an agent or employee of CITY. CITY and OWNER hereby renounce the existence of any form ofjoint venture or partnership between them, and agree that nothing contained in this Agreement or in any document executed in connection with the Project shall be construed as making CITY and OWNER joint venturers or partners. l3 9. Intentionallv Left Blank. 10. Events of It: Remedies.Unless amended or canceled as provided in Section 5 or modified or suspended pursuant to Government Code Section 65869.5, or terminated pursuant to this Section 10, this Agreement is enforceable by either party hereto. 10.1 Defaults bv OWNER. If CITY determines on the basis of substantial evidence that OWNER has not materially complied in good faith with the terms and conditions of this Agreement, CITY shall, by written notice to OWNER, speciff the manner in which OWNER has failed to so comply and state the steps OWNER must take to bring itself into compliance ("First Default Notice"). CITY and OWNER shall meet in good faith for the purpose of resolving any disputes within fifteen (15) days of OWNER's receipt of written notice of default from CITY. If the CITY determines that following these meetings, OWNER is not taking necessary steps to cure such default, it shall provide notice of same to OWNER ("Second Default Notice") and if, within thirty (30) days after the effective date of such notice OWNER has failed to so comply or OWNER does not commence all steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then OWNER may be deemed to be in default under the terms of this Agreement and CITY may initiate the process to terminate this Agreement pursuant to Government Code Section 65868. In the event of default by OWNER, except as provided in Section 10.3, CITY's sole remedy for any breach of this Agreement by OWNER shall be CITY's right to terminate this Agreement. 10.2 Defaults bv CITY. If OWNER determines on the basis of substantial evidence that CITY has not complied in good faith with the terms and conditions of this Agreement, OWNER shall, by written notice to CITY, specify the manner in which CITY has failed to so comply and state the steps CITY must take to bring itself into compliance. CITY and OWNER shall meet in good faith for the purpose of resolving any disputes within fifteen (15) days of CITY's receipt of written notice of default from OWNER. If the OWNER determines that following these meetings, CITY is not taking necessary steps to cure such default, it shall provide notice of same to CITY and if, within thirty (30) days after the effective date of such notice, CITY has failed to so comply or CITY does not commence all steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then CITY shall be deemed to be in default under the terms of this Agreement and OWNER may initiate the process to terminate this Agreement and, in addition, may pursue any other remedy available at law or equity, including specific performance as long as such remedy is consistent with Section 10.3. 10.3 Specific Performance Remedv 10.3.1 OWNER's Remedies.Due to the size, nature and scope of the Project, it will not be practical or possible to restore the Property to its natural condition once implementation of this Agreement and the Project Approvals have begun. After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the Property and provide for other benehts. OWNER has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately l4 compensate OWNER for such efforts. For the above reasons, CITY and OWNER agree that damages alone would not be an adequate remedy if CITY fails to carry out its obligations under this Agreement and that, in addition to any all other remedies OWNER may have at law or in equity, including, without limitation, claims for general, special or compensatory damages for any default under this Agreement, OWNER shall have the right to seek and obtain specific performance or injunctive relief as a remedy for any breach of this Agreement. OWNER may seek to enjoin any threatened or attempted violation of this Agreement or enforce by specific performance the obligations and rights of OWNER. No remedy or election thereof shall limit or otherwise restrict OWNER from pursuing any or all other remedies available hereunder, or at law or in equity, without the need to provide a bond. 10.3.2 CITY's Remedies. CITY's remedy of terminating this Agreement shall be sufficient if OWNER fails to carry out its obligations hereunder. Notwithstanding the above, CITY may not seek specific performance to require OWNER to construct the Development except to the extent that OWNER becomes otherwise obligated under this Agreement to construct any or all of the public facilities identified in the Development Plan. Nothing contained in this Agreement shall prevent OWNER from enforcing the right to seek a refund or return of a deposit made, or a fee paid, to the CITY in accordance with the provisions of the Existing Rules. 10.4 Institujtoadleg4lAelian. OWNER may institute legal action to cure, correct or remedy any default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, or to obtain any other remedies consistent with this Agreement. Such legal action shall be heard by a referee approved by the Orange County Superior Court pursuant to the applicable procedures of California Code of Civil Procedure ("CCP") Sections 638, et seq. OWNER and CITY shall agree upon a single referee who shall then try all issues, whether of fact or law, and report a finding and judgment thereon and issue all legal and equitable relief appropriate under the circumstances of the controversy before it. If OWNER and CITY are unable to agree on a referee within ten ( 10) days of a written request to do so by either party hereto, either party may seek to have one appointed pursuant to CCP Section 640. The cost of such proceeding shall initially be borne equally by the parties. Any referee selected pursuant to this Section 10.4 shall be considered a temporary judge appointed pursuant to California Constitution Article VI, Section 21. 10.5 Estoppel Certificates. Either party may at any time deliver written notice to the other party requesting an estoppel certificate ("Estoppel Certificate") stating: 10.5.1 The Agreement is in full force and effect and is a binding obligation of the parties; 10.5.2 The Agreement has not been amended or modified either orally or in writing or, if so amended, identi$,ing the amendments; and 10.5.3 No default in the performance of the requesting party's obligations under the Agreement exists or, if a default does exist, the nature and amount of any default. A party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting party within thirty (30) days after receipt of the request. The City Manager or any 15 person designated by the City Manager may sign the Estoppel Certificate on behalf of the CITY. Any officer of OWNER may sign on behalf of OWNER. An Estoppel Certificate may be relied on by assignees and mortgagees. In the event that one party requests an Estoppel Certificate from the other, the requesting party shall reimburse the other party for all reasonable and direct costs and fees incurred by such party with respect thereto. I l Waivers and Delavs. 1 1.1 No Waiver. Failure by a party to insist upon the strict perforrnance of any of the provisions of this Agreement by the other party, and failure by a party to exercise its rights upon a default by the other parfy hereto, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. ll.2 Third Parties. Non-perfornance shall not be excused because of a failure of a third person, except as provided in Section I 1.3. 11.3 Force Maieure. OWNER and CITY shall not be deemed to be in default where failure or delay in performance of any of their obligations under this Agreement is caused by floods, earthquakes, epidemics, other Acts of God, fires, wars, riots, or similar hostilities, strikes and other labor difficulties beyond OWNER or CITY control, including government regulations (including, without limitation, local, state and federal environmental and natural resource regulations), voter initiative or referenda, moratoria (including, without limitation, any "development moratorium" as that term is applied in Govemment Code Section 66452.6) or judicial decisions. ll.4 Extensions. The Term of this Agreement and the time for performance by OWNER or CITY of any of its obligations hereunder or pursuant to the Project Approvals shall be extended by the period of time that any of the events described in Section I 1.3 or this Section 1 1.4 exist and/or prevent performance of such obligations; provided that, in no event shall any such extension exceed a total of twenty-four (24) months without the prior approval, in their sole and complete discretion, of both OWNER and CITY. Subject to this limit, the Term shall be extended for delays arising from the following events for a time equal to the duration of each delay which occurs during the Term: 11.4.1 Litisation.The period of time after the Effective Date during which litigation related to the Project Approvals, which has the actual effect of delaying implementation of the Project, is pending, including any litigation pending on the Agreement Date. This period shall include any time during which appeals may be filed or are pending; 11.4.2 Referenda. Any referenda or petition initiative which would invalidate or delay the implementation of the Project Approvals; or 11.4.3 Government Agencies.Any delay resulting from the acts or omissions of the CITY or any other governmental agency or public utility and beyond the reasonable control of OWNER. 11.5 Notice of Delav. Each party shall give notice to the other of any delay that either party believes to have occurred as a result of the occurrence of any of the events described in 16 Section 1 1 .3 or I I .4. Such notice shall be provided as soon as either party becomes aware of any such delay, and in no event shall notice of a delay of any length be given later than sixty (60) days after the end of the delay or it shall be deemed waived. 12. General Provisions I2.l Binding Covenants. The provisions of this Agreement, to the extent permitted by law, shall constitute covenants which shall run with the Property for the benefit thereof, and the benefits and burdens of this Agreement shall bind and inure to the benefit of the parties and all successors in interest to the parties hereto. 12.2 Notices. All notices required or provided for under this Agreement shall be in writing and either (i) delivered in person; (ii) sent by certified mail, postage prepaid, retum receipt requested; or (iii) sent by independent courier service or overnight delivery service. Notices required to be given to CITY shall be addressed as follows: City of Orange, City Manager 300 E. Chapman Avenue Orange, CA 92866 Attn: City Manager OC Reclamation, LLC 17392 Daimler Street Irvine, Calilomia 92614 Attn: Jeff Baran With a copy to: Varner & Brandt LLP 3750 University Avenue, Suite 610 Riverside, California 92501 Attn: Nathan Heyde Any notice given as required herein shall be deemed given only if in writing and upon delivery by one of the methods set forth above. A party may change its address for notices by giving notice in writing to the other party as required herein and thereafter notices shall be addressed and transmitted to the new address. 12.3 Attorneys' Fees. If legal action is brought by either party against the other for breach of this Agreement or to compel performance under this Agreement, the prevailing party 17 With a copy to: City of Orange 300 E. Chapman Avenue Orange, CA 92866 Attn: City Attorney Notices required to be given to OWNER shall be addressed as follows: shall be entitled to an award of its costs, including reasonable attorneys' fees, and shall also be entitled to recover its contribution for the costs of the referee referred to in Section 10.4 above as an item of damage and/or recoverable costs. If CITY is the prevailing party and uses in-house counsel in the litigation, it shall be entitled to recover attorneys' fees at the hourly rate that OWNER is being charged by its attorney or at the in-house counsel's fully burdened rate, whichever is higher. 12.4 Recording. This Agreement and any amendment or cancellation hereto shall be recorded by the City Clerk, in the Official Records of Orange County within ten (10) days after the Effective Date, as provided in Section 65868.5 of the Development Agreement Legislation. 12.5 Severabilitv of Terms. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to enforce. 12.6 Rules of Construction and Miscellaneous Terms. 12.6.1 Interrrretation and Governing Law. The language in all parts of this Agreement shall, in all cases, be construed as a whole and in accordance with its fair meaning. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. The parties understand and agree that this Agreement is not intended to constitute, nor shall be construed to constitute, an impermissible attempt to contract away the legislative and governmental functions of the CITY, and in particular, the CITY's police powers. In this regard, the parties understand and agree that this Agreement shall not be deemed to constitute the surrender or abnegation of the CITY's governmental powers over the Property. 12.6.2 Section Headinss. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 12.6.3 Gender. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory,"may" is permissive. 12.6.4 Joint and Several Liabilitv. If there is more than one signatory to this Agreement, their obligations are joint and several. 12.6.5 Time of Essence. Time is of the essence regarding each provision of this Agreement of which time is an element. 12.6.6 Recitals. All Recitals set forth herein are incorporated in this Agreement as though fully set forth herein. 12.6.7 Entire Agreement. This Agreement, together with the Development Plan, constitutes the entire agreement between the parties with respect to the subject matter hereof, and the Agreement supersedes all previous negotiations, discussion and agreements between the parties, and no parol evidence of any prior or other agreement shall be permitted to contradict or vary the terms hereof. l8 12.6.8 Not for Benefit Third Parties.This Agreement and all provisions hereof are for the exclusive benefit of CITY and OWNER and its Development Transferee(s) and shall not be construed to benefit or be enforceable by any third party. 13.2 Encumbrances and Lenders' Rights. 13.2.1 OWNER and CITY hereby agree that this Agreement shall not prevent or limit any owner of any interest in the Property, or any portion thereof, at any time or from time to time in any manner, at its or their sole discretion, from encumbering the Property, the improvements thereon, or any portion thereof with any mortgage, deed of trust sale and leaseback arrangement or other security device. CITY acknowledges that any Lender (as hereinafter defined) may require certain interpretations of or modifications to the Agreement or the Project and CITY agrees, upon request, from time to time, to meet with the property owner(s) and/or representatives of such Lenders to negotiate in good faith any such request for interpretation or modification. CITY further agrees that it will not unreasonably withhold its consent to any such requested interpretation or modification to the extent such interpretation or modification is consistent with the intent and purpose of this Agreement. A default under this Agreement shall not defeat, render invalid, diminish or impair the lien of any Lender. 13-2.2 The mortgagee of a mortgage, or beneficiary of a deed of trust, or holder ofany other security interest in the Property or any portion thereofand their successors and assigns, including without limitation the purchaser at a judicial or non-judicial foreclosure sale, or a person or entity which obtains title by deed-in-lieu of foreclosures ("Lender") shall be entitled to receive a copy of any First Default Notice, as defined in Section 10.1, at the name and address Lender has provided to the City Clerk of the CITY. As a pre-condition to the institution of any legal proceedings or termination proceedings, the CITY shall deliver to all such Lenders written notification of any Second Default Notice. The Second Default Notice shall specifu in detail the alleged default and the suggested means to cure it. Each such Lender shall have the right, at its sole option, to cure such default within seventy-five (75) days of receipt of the Second Default Notice or, if such default cannot be reasonably cured within seventy-five (75) days, to commence and diligently pursue a cure of such default, in which case CITY shall not terminate this Agreement or otherwise institute legal proceedings. Within twenty (20) days of receipt of the Second Default Notice, such Lenders shall provide written notice to the CITY as to whether such Lender intends to cure the default. If the CITY does not receive such notice within twenty (20) days, the Lender shall be deemed to have elected not to cure and the CITY may pursue all available remedies provided to it under this Agreement. [Signature Page FollowsJ l9 13. Effect of Asreement on Title. 13.1 Effect on Title. OWNER and CITY agree that this Agreement shall not continue as an encumbrance against any portion of the Property as to which this Agreement has terminated. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year dated below. Dated:2024 CITY THE CITY OF ORANGE, a California municipal corporation By Dan Slater, Mayor ATTEST: Pamela Coleman, City Clerk APPROVED AS TO FORM: Michael Vigliotta, City Attorney Dated 2024 OWNER OC RECLAMATION, LLC, a California limited liability company Name Ifc' By Signature Page to Development Agreement INotary Acknowledgments Attachedl Exhibit A The Property Exhibit B Site Map