HomeMy WebLinkAboutORD 27-24 DEVELOPMENT AGREEMENT 0010-24 / CITY AGREEMENT NO. 7765 - OC RECLAMATION LLCORDINANCE NO.27-24
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF ORANGE APPROVING A
DEVELOPMENT AGREEMENT NO. 0010-24 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, 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,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 (alternate addresses 1425 North Santiago Boulevard and 1921 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, the City Council conducted a duly advertised public hearing on September
10, 2024, at which time interested persons had an opportunity to testify 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 Development Agreement No. 0010-24 between the
City of Orange and OC Reclamation, LLC (Development Agreement).
SECTION II:
The City Council hereby finds, as recommended by the Planning Commission, 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
B. 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;
C. Is in conformity with and will promote public necessity, public convenience,
general welfare, and good land use practices; and
D. Will be beneficial to the health, safety, and general welfare consistent with the
policy of thee City with respect to development agreements, as provided in
Section 17.44.200 of the Orange Municipal Code; and
E. Will not adversely affect the orderly development of property or the preservation
of property values; and
SECTION III:
The City Council hereby approves Development Agreement No. 0010-24 in the form
attached hereto and incorporates the Agreement herein by this reference.
SECTION IV:
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
Agreement.
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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.
SECTION VI:
The City Clerk is hereby directed to certify 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 24th day of September, 2024.
iel R. Slater, Mayor, City of Orange
ATT'ST:
41:2409tOtki
Pamela Coleman, City Clerk, City of Orange
APPROVED AS TO FORM:
Mike Vigliotta, City Attorney, City of Orange
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STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY 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
10th day of September, 2024, and thereafter at the regular meeting of said City Council duly held
on the 24th day of September, 2024 was duly passed and adopted by the following vote,to wit:
AYES: COUNCILMEMBERS:
Barrios,Dumitru,Tavoularis,Gutierrez,Bilodeau,Gyllenhammer,Slater
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
ABSTAIN: COUNCILMEMBERS: None
Pamela Coleman, City Clerk, City of Orange
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Recorded in Official Records, Orange County
Hugh Nguyen, Clerk-Recorder
II Ii II IIIi I J!II III III,
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0.00 0.00 0.00 0.00 87.00 0.00 0.000.000.00 0.00
MAR-17b5
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code§§6103 and 27383
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 10th
day of November, 2024 ("Agreement Date"), by and between OC Reclamation LLC, a California
limited liability company("OWNER"),and the City of Orange,a California municipal corporation,
organized and existing under the laws of the State of California("CITY"),pursuant to the authority
of California Government 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 comprehensive
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) identifying 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) modifying 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)identifying 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(California 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 California 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:
I. Definitions. The following words and phrases are used as defined terms throughout this
Agreement, and each defined term shall have the meaning set forth below.
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1.1 Authorizing Ordinance. The "Authorizing Ordinance" means Ordinance No.
27-24 approving this Agreement.
1.2 City Council. "City Council" means the duly elected and constituted city council
of the CITY.
1.3 Dedicated Property. "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 Existing 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. 11572
of the City Council.
1.8 OWNER. "OWNER" is OC Reclamation LLC, a California limited liability
company or its assignee.
1.9 OWNER Property. "OWNER Property" means that portion of the Property
identified as"Parcel I"in Exhibit B,resulting from the Lot Line Adjustment and which is retained
by OWNER.
1.10 Project. "Project" shall have the meaning set forth in Recital E.
1.11 Project 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.
2024-06. adopted by Resolution No. 11572 of the City Council, the Modified CUP, adopted by
Resolution No. 11572 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.
1.12 Property. "Property"means the real property described in Exhibit A and depicted
on the Site Map on Exhibit B.
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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 Project. 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 Zoning Code 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
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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 thirty (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 Project 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, Regulations 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.
3.3 Reserved Authority.
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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 Regulations.
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 Authorizing 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 Regulation for Health and Safety. 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
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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 Rights. 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,
precise 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 filing 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
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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 Assignments.
4.1 Right to Assign. 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,or the 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
the performance of those obligations of OWNER under this Agreement which relate to the
Transferred Property, if any. Each Transferee and OWNER shall notify CITY in writing which
entity shall be liable for the performance of each respective obligation hereunder within thirty (30)
days prior 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
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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. Obligations of CITY; Obligations of OWNER. The direct and indirect benefits CITY.
and its existing and future residents,will receive pursuant to the implementation of the 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 fee 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 terms
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, characterized, 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
10
(directly or indirectly) commence,pursue, enact, adopt, introduce, approve, apply,or enforce 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 Property 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 By 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, (j) usages of adjoining property, (k) access to the
Dedicated Property or any portion thereof, (1) 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
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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 Liability. 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 California 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
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY."
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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 Obligation. 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.
7.4 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, or termination 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 of joint 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.
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9. Intentionally Left Blank.
10. Events of Default; 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 by 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, specify 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 by 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 Remedy.
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
benefits. 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
14
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 Institution of Legal Action. 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, identifying the amendments; and
10.5.3 No default in the performance of the requesting parry'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.
11. Waivers and Delays.
11.1 No Waiver. Failure by a party to insist upon the strict performance 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 party hereto,shall not constitute a waiver of such parry's right to demand strict
compliance by such other party in the future.
11.2 Third Parties. Non-performance shall not be excused because of a failure of a
third person, except as provided in Section 11.3.
11.3 Force Majeure. 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 Government Code Section 66452.6) or
judicial decisions.
11.4 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 11.3 or this Section 11.4
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 Litigation. 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 Delay. 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 11.3 or 11.4. 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.
12.1 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,return 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
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:
OC Reclamation, LLC
17392 Daimler Street
Irvine,California 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
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 Severability 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 Interpretation 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 Headings. 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 Liability. 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.
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12.6.8 Not for Benefit of 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. Effect of Agreement 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.
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
of any other security interest in the Property or any portion thereof and 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 specify 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 Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year dated below.
Dated: C l//Z7 , 2024 CITY
THE CITY OF ORANGE,
a California municipal corporation
By:
D e R. Slater, Mayor
ATTEST:
Pamela Coleman, City Clerk
APPROVED AS TO FORM:
Mike Vigliotta, City A orney
Dated: <<! /L 4 , 2024 OWNER
OC RECLAMATION, LLC,
a California limited liability co y
By:
Name: Trevor Wood
Its: President
Signature Page to Development Agreement
[Notary Acknowledgments Attached]
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of a%>?�-►J4a'E
On \\•S - Zp2` before me, '.
(insert name and title of the officer)
personally appeared \ o?... •off
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. a • P.O'MALLE`I
Notary Public.California ss
��:: .tY County
`Y. f- Orange .
I i'yq�' Commission 1242Q76•t
—r•= My Comm_Expiros Doc 2,2026 I
Signature (Seal)\ „1 l 1
ACKNOWLEDGMENT
i A notary public or other officer completing this j
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 Orc e_ )
On IVOvet(1 r � o"?O L4 before me, �Jc:�, t�. kcK_�oy � � r (�i `►c-
(ins rt name and title of the officer)
•
personally appeared �4,n�e� , 3\&- - ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/afe
subscribed to the within instrument and acknowledged to me that he/she/they-executed the same in
his/t or/the+r authorized capacity(ies), and that by hisfherfteir signature(s-) on the instrument the
person(e), or the entity upon behalf of which the person(a)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.
pt'•.„ SALLY R.TREJO
a Notary Public-California
1 4x; . - Orange County _
' `NI f." Commission I 2442770
tru • My Comm.Expires Apr 24,2027
Signature `- . gyp (Seal)
Exhibit A
The Property
EXHIBIT "A" SHEET 1 OF 4 SHEETS
CITY OF ORANGE
LOT LINE ADJUSTMENT LL 2024-06
(Legal Description)
Existing Parcels Proposed Parcels
Owner (APN)(S) Referenced Number
OC RECLAMATION. LLC, 370 231-OS PARCEL 1
370-231-13
a California limited liability company 370-231-15 PARCEL 2
PARCEL 1:
In the City of Orange. County of Orange, State of California, being a portion of Lot 5, Block"A"of the land of OGE
and Bond. as shown on a Map recorded in Book 3. Pages 430 and 431 of Miscellaneous records of Los Angeles
County. California.together with a portion of that land described in Grant Deed recorded February 15, 1956 as
Instrument No. 3398-400 of Official Records, in the office of the County Recorder of said County, being more
particularly described as follows
COMMENCING at the Northwest corner of the land conveyed to L. Warner Taylor by deed recorded in Book 526
at Page 240 of Deeds, records of Los Angeles County. California, said corner also being the centerline intersection
of Santiago Canyon Road and Santiago Boulevard as shown on Record of Survey filed in Book 291. Page 38 of
Record of Surveys, Records of Orange County.
Thence northerly along the centerline of Santiago Boulevard. North 17°51'36" West, a distance of 786.15 feet
Thence North 16°21'09"West. a distance of 40 72 feet
Thence easterly leaving said centerline of Santiago Boulevard, North 73°38'51" East, a distance of 30.00 feet to
the easterly right of way of the 30.00 foot half-width of Santiago Boulevard, said point also being the TRUE POINT
OF BEGINNING
Thence easterly leaving said easterly right of way. North 72'08'24" East, a distance of 73.94 feet,
Thence South 17°51'36" East. a distance of 220.60 feet.
Thence South 21°04'12" East a distance of 217.87 feet:
Thence South 47°40'42" East. a distance of 71.01 feet,
Thence North 79°19'25" East. a distance of 129.51 feet:
Thence South 72°27'44" East. a distance of 45 59 feet p� LAB
C4 s sue,
Thence South 54`44'41" East. a distance 54.42 feet: 4`" Fro
Thence North 66°22'40" East, a distance of 191.64 feet. ~ '"
* No 9029 *
Thence North 64°56'47" East. a distance of 9.78 feet. 9T� 2-Zr
OF CAL,F
Thence North 28°55'56" East, a distance of 51.28 feet.
Thence North 14°19'50"West, a distance of 93.97 feet:
PREPARED BY ME OR UNDER MY SUPERVISION
JfAW (MJ L
THOMAS M CASELDINE DATE
P.L.S.NO.9029
K,/J,/.M544UPV1'"ictaksiu WA Ea 4.f'/4w'O/wq
EXHIBIT "A" SHEET 2 OF 4 SHEETS
CITY OF ORANGE
LOT LINE ADJUSTMENT LL 2024-06
(Legal Description)
Existing Parcels Proposed Parcels
Owner (APN)(S) Referenced Number
OC RECLAMATION. LLC. 370-231-08 PARCEL 1
370-231-13 PARCEL 2
a California limited liability company 370-231-15
Thence North 8'18'56" East, a distance of 20.16 feet.
Thence North 20°43'20" East. a distance of 14.21 feet;
Thence North 35°40'40" East, a distance of 27.93 feet:
Thence North 43°47'29" East, a distance of 27.33 feet to the easterly line of said Lot 5.
Thence southerly along said easterly line, South 17°09'39"East. a distance of 295.00 feet to the northerly right of
way of Santiago Canyon Road as shown on said Record of Survey,
Thence southwesterly along said right of way, South 63°59'15"West,a distance of 439.37 feet to the beginning of
a tangent curve, concave northwesterly and having a radius of 2341.00 feet.
Thence southwesterly along said curve, through a central angle of 04°40'34", an arc distance of 191.05 feet to said
easterly nght of way of Santiago Boulevard:
Thence northerly along said right of way, North 17°51'36"West, a distance of 713.99 feet:
Thence North 16°21'09"West, a distance of 40.33 feet to said TRUE POINT OF BEGINNING.
Containing an area of 3.71 Acres, more or less
As shown on Exhibit"B"attached hereto and by this reference made a part hereof
Subject to: Covenants, conditions, restrictions. reservations, easements and Right of Ways of record, if any
m
PREPAAR__ED�BY ME OR��UNDER MY SUPERVISION * No 9029
THOMAS M CASELDINE DATE
P L S NO 9029
SEE SHEET 3 FOR PARCEL 2 LEGAL DESCRIPTION q,,sUfISS1014,1[EG4SYU/C[.1 Eo.4-,flww67ow
EXHIBIT "A" SHEET 3 OF 4 SHEETS
CITY OF ORANGE
LOT LINE ADJUSTMENT LL 2024-06
(Legal Description)
Owner I Existing Parcels Proposed Parcels
(APN)(S) Referenced Number
OC RECLAMATION, LLC. I 370-231-08 PARCEL 1
370-231-13
a California limited liability company 370 231 15 PARCEL 2
PARCEL 2:
In the City of Orange. County of Orange, State of California, being a portion of Lot 5. Block "A"of the land of OGE
and Bond. as shown on a Map recorded in Book 3. Pages 430 and 431 of Miscellaneous records of Los Angeles
County. California, together with a portion of that land described in Grant Deed recorded February 15, 1956 as
instrument No. 3398-400 of Official Records, in the office of the County Recorder of said County, being more
particularly described as follows
COMMENCING at the Northwest corner of the land conveyed to L. Warner Taylor by deed recorded in Book 526
at Page 240 of Deeds, records of Los Angeles County, California, said corner also being the centerline intersection
of Santiago Canyon Road and Santiago Boulevard as shown on Record of Survey filed in Book 291, Page 38 of
Record of Surveys. Records of Orange County.
Thence northerly along the centerline of Santiago Boulevard, North 17°51'36"West ,a distance of 786,15 feet.
Thence North 16°21'09"West. a distance of 40.72 feet,
Thence easterly leaving said centerline of Santiago Boulevard. North 73'38'51" East. a distance of 30.00 feet to
the easterly right of way of the 30.00 foot half-width of Santiago Boulevard, said point also being the TRUE POINT
OF BEGINNING;
Thence easterly leaving said easterly right of way, North 72°08'24" East, a distance of 73.94 feet:
Thence South 17°51'36" East, a distance of 220.60 feet:
Thence South 21°04'12"East. a distance of 217.87 feet.
Thence South 47°40'42"East, a distance of 71.01 feet.
Thence North 79°19'25" East. a distance of 129.51 feet.
Thence South 72°27'44"East. a distance of 45.59 feet:
Thence South 54"44'41" East. a distance 54.42 feet, 5 M c'°sFot
Thence North 66"22'40" East. a distance of 191.64 feet ,- m
* No.9029
Thence North 64°56'47" East, a distance of 9.78 feet. 1�
/�.�
Thence North 28°55'56" East. a distance of 51.28 feet. OF cm.\\�&-
Thence North 14'19'50"West, a distance of 93.97 feet: PREPARED BY ME OR UNDER MY SUPERVISION
1A JAL /0-001-t4
THOMAS CASELDINE DATE
P L S NO 9029
rSoo-YIPLf Yy E61f.4YU1fU FAA A.9hhv al OW
EXHIBIT "A" SHEET 4 OF 4 SHEETS
CITY OF ORANGE
LOT LINE ADJUSTMENT LL 2024-06
(Legal Description)
Existing Parcels Proposed Parcels
Owner
(APN)(S) Referenced Number
OC RECLAMATION. LLC. 370-231 08 PARCEL 1
370-231-13 PARCEL 2
a California limited liability company 370-231-15
Thence North 8'18'56" East, a distance of 20.16 feet.
Thence North 20°43'20" East, a distance of 14.21 feet,
Thence North 35°40'40" East. a distance of 27.93 feet.
Thence North 43'47'29" East. a distance of 27.33 feet to the easterly line of said Lot 5.
Thence northerly along said easterly line, North 17°09'39"West. a distance of 860.62 feet to the northerly line of
Deed recorded February 15, 1956 as Instrument No 3398-400. in the office of the County Recorder of said
County.
Thence southwesterly along said northerly line. South 49°27'01" West,a distance of 665.06 feet to the easterly
right of way of said Santiago Boulevard as shown on said Record of Survey;
Thence southerly along said easterly right of way, South 09'49'58" East, a distance of 118.33 feet;
Thence South 10°12'44"West a distance of 11.18 feet.
Thence South 16°21'09" East. a distance of 99.35 feet to said TRUE POINT OF BEGINNING.
Containing an area of 11.68 Acres, more or less
As shown on Exhibit"B"attached hereto and by this reference made a part hereof.
Subject to: Covenants. conditions, restrictions, reservations, easements and Right of Ways of record, if any.
\c, Cd/sF�o c2
if
PREPARED BY ME OR UNDER MY SUPERVISION 1N9\ NO 9D2 �\9 P
�� l.kttla�••,, �� 01-2.4 F CAS\f�
THOMAS M CASEL DINE DATE
P I S NO 9029
rs•so.,,Y.MYfNf EGfSYUlfU!u n•Shen 04 e+y
Exhibit B
Site Map
EXHIBIT "B" SHEET 1 OF 2 SHEETS
LOT LINE ADJUSTMENT LL 2024-06
(MAP)
Owner Existing Parcels Proposed Parcels
(APN)(S) Referenced Number
OC RECLAMATION. LLC, 370 231-08 PARCEL 1
370-231-13
a California limited liability company 1 370-231-15
PARCEL 2
CURVE TABLE LINE TABLE LINE TABLE
CURVE# DELTA RADIUS LENGTH LINE# BEARING LENGTH LINE 4 BEARING LENGTH
C1 4°40'34" 2341.00' 191.05' L1 (N16'21'09"W) 40 72' L12 N28'55'56"E 51.28'
L2 N73°38'51"E 30.00' L13 I N14'19'50"W 93.97'
L3 N72'08'24"E 73.94' L14 I N8°18'56"E 20.16'
L4 S17°51'36"E 220.60' L15 N20"4320"E 14.21'
L5 S21°04'12"E 217.87' L16 N35'40'40"E 27.93'
L6 547°40'42"E 71.01' L17 N43'4779"E 27.33'
L7 N79°19'25"E 129.51' L18 N16.21'09'W 40.33'
L8 S72°27'44"E 45.49' L19 S9°49'58"E 118.33'
L9 S54"44'41"E 54.42' L20 S10'12'44'W 1118'
L10 N66°22'40"E 191.64' L21 S16'21'09"E 13968'
L11 N64°56'47"E 9.78' L22 S16'21'09"E 99.35'
SCALE:
1•=200'
PREPARED BY ME OR UNDER MY SUPERVISION
CAL LAND
C4slo
Ci
f m �
rKd
THOMAS M.CASELDINE DATE OF CAL
P L S NO 9029 4 i,A,34,4SIw° A EGUMUAu, L,A.S..,,04,
EXHIBIT "B" SHEET 2 OF 2 SHEETS
LOT LINE ADJUSTMENT LL 2024-06
(MAP)
I Existing Parcels Proposed Parcels
Owner I (APN)(S) Referenced Number
OC RECLAMATION, LLC. 370-231-08 PARCEL 1
370-231-13
a California limited liability company 370-231-15 PARCEL 2
-
\ _ -- -\-- ____�_
,_ ---� k
E'LY LINE OF LOT
a`` {-5A,NBDLOBCOKND"A"OGE
\'y e''. �y
4 AI
'LY LINE DESCRIBED IN
DEED RECORDED 02/15/1956
t \ AS INST NO 3398-400.IN
\ THE OFFICE OF THE COUNTY
\ t RECORDER.COUNTY OF W
W
\ ap to
ORANGE,STATE OF %'
T P.O B L20 R1) CALIFORNIA. •a • /14 enA
PCL.1 3 PCL.2 t L21R1) �,b %m l y
L2*� 1►� t�1p l�' >
V
'*',T
L1'� Q, i U
o. N Cr
E'LY RIGHT OF WAY OF 44 APN:370-231-13 Pail
SANTIAGO BOULEVARs tP L17 I I
5, Z PARCEL 2
L I- N p ' SCALE-' L15 ,
lies . - 1-.250%
yc \� L14 - -
w
L ul " ( 1.3 Le �\0 " //
....\'' -.
-0 P `S-- 4111111 3.71 AC +/-
49 'ARCEL 1 iikNl
LOT LINE �� AP 370-231-08 N t6 4' „--
TO
BE ADJUSTED N 310-'2.$ 41 t`3®�
w 6.....b9
p� LY RIGHT OF W Y OF
DEED RECORDED 02/15/1956 .1 l5 (l0
AS INST NO.3398-400.IN THE ; 30, R» rt. SANTIAGO CANYON RD
OFFICE OF THE COUNTY r�1 G� OG ' 'LY LINE OF THE LAND CONVEYED
RECORDER.O C CA t' �C 5o0.00
'G TO L WARNER TAYLOR BY DEED
S21'20'11-E(Ft) -ECORDED JAN 31, 1889 IN BOOK
_ _ /526.PAGE 240 OF DEEDS
P.O. . LOT LINE TO BE REMOVL-
\
PCL.1 8i PCL.2 t C/L INT.OF SANTIAGO CANYON RD.d i
-- -/ ,SANTIAGO BLVD
LEGEND
12 ;.„.„ LLANDS' — — Existing line to be adjusted
MCA SF� — Existing line to De remain
o Proposed parcel line
m A () Indicates record data as noted
PREPARED BY ME OR UNDER MY SUPERVISION * No 9029 * R1 Indicates record data per RSB 291/38
,// /1 Nl, �Q T.P.O.B. Indicates true point of beginning
l L / _, J /0-,i. j_ 9?F OF \��� P.O.0 Indicates point of commencement
�J�,�'Yff!!! ltlluu��o1.,�. !X CAL PCL.# Indicates parcel number
THOMAS M CASELDINE DATE
P L S NO 9029 SEE SHEET 1 FOR DATA TABLES
w-"/Tt$5ISLNi!HLEO4 S1u.44L4.1 S.rr II SW'al Aft,