Agenda packet — Orange City Council, September 10, 2024 (part 2 of 3)

Description of Work Performed:

Car show

UNIT PRICE PER
HOUR

NUMBER OF

EMPLOYEES OR

EQUIPMENT

HOURS ACTUAL FINAL COST
1 PUBLIC WORKS MAINT LEADWORKER $59S/$89OT $ 96.00 1 5 $ 480.00 2 PUBLIC WORKS MAINT WORKER II $41S/$62OT 62.00$ 1 5 $ 310.00 3 PUBLIC WORKS MAINT WORKER II $41S/$62OT 62.00$ 1 1 $ 62.00 5 -$ $ - 6 -$ $ - 7 -$ $ - 852.00$
1 -$ -$
2 -$ -$
3 -$ -$
-$
1 F-150 Pickup Truck, $28.65 28.65$ 1 5 $ 143.25 2 F-250 Pickup Truck, $28.65 28.65$ 1 1 $ 28.65 171.90$
1 One no parking sign at the entrance - post on 9/25/24 morning 100.00$ 1 100.00$ 2 Misc. city owned traffic control devices - a few type 3 100.00$ 1 100.00$ 3 -$ -$
200.00$
1,223.90$

MATERIALS SUBTOTAL
EST. TOTAL

MATERIALS
Orange Elks Lodge - Lemon parking lot closure 9/28/24. Post One no parking sign at the lot entrance on 9/25. Set up barricade on 9/28 early morning (2.5 hours minimum with 2 staff). Pick up barricade 9/28 2.5 hrs. min. - 2 staff

CITY EQUIPMENT AND VEHICLES SUBTOTAL

CONTRACT LABOR SUBTOTAL

CITY LABOR SUBTOTAL

CITY EQUIPMENT AND VEHICLES

CITY LABOR

CONTRACT LABOR
C:\Users\atruong\Documents\event cost analysis\Elks Lodge 9-28 207 Agenda Item
City Council
Item #: 8.1. 9/10/2024 File #: 24-0478
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director

1. SUBJECT
Public Hearing to consider introduction and First Reading of an ordinance amending Title 17 of the Orange Municipal Code to update homeless shelter regulations and definition; and finding of CEQA exemption. Ordinance No. 25-24.

2. SUMMARY
The proposed ordinance updates provisions in the Orange Municipal Code related to homeless shelters in a manner that acknowledges the different service needs of un-housed families and un- housed individuals. Revisions also include an update to the Code definition of Homeless Shelter.

3. RECOMMENDED ACTION

1. Conduct and close Public Hearing.

2. Introduce and conduct First Reading of Ordinance No. 25-24. An Ordinance of the City Council of the City of Orange amending Title 17 of the Orange Municipal Code regarding homeless shelter regulations.

3. Find that the Ordinance is exempt from the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15305 (Minor Alterations in Land Use Limitations).

4. FISCAL IMPACT
None.

5. STRATEGIC PLAN GOALS
Goal 3: Enhance and promote quality of life in the community e: Develop and strengthen collaborative partnerships to enhance and promote quality of life programs, projects, and services.

Goal 1: Provide for a safe community
e: Develop and implement effective community outreach services and programs to promote public safety.

6. DISCUSSION AND BACKGROUND
In recent years the City of Orange has engaged extensively in addressing the needs of the community’sun-housed population. While there are land use accommodations for homeless shelters in the Zoning Ordinance, the City has also engaged in a range of services and support activities including providing a location and financial support for the HUB Homeless Resource Center, financial support for navigation centers in Buena Park and Placentia, provided dedicated staff in the Police City of Orange Printed on 9/5/2024Page 1 of 2
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208
Item #: 8.1. 9/10/2024 File #: 24-0478
support for navigation centers in Buena Park and Placentia, provided dedicated staff in the Police Department’sHomeless Engagement, Assistance & Resource Team (HEART), collaborated with the County of Orange on establishing the Be Well facility, and provided financial assistance to the HomeAid Citrus Family Shelter. Through this varied engagement with homeless issues and services, the need to refine operational criteria for homeless shelters has become apparent to enable service providers to better address the needs of their clients. Those opportunities to create a stronger alignment between the Zoning Ordinance and operational needs of homeless shelter providers are reflected in the proposed ordinance.

The proposed Code amendments have been crafted, primarily, to reflect proven orderly and effective shelter operations and to better accommodate the needs of sheltering un-housed families. Code revisions are informed by feedback from family shelter operators and service providers, along with staff observations of the City’sfamily shelter. The amendments also recognize that shelters for un- housed individuals without children and those for families warrant criteria tailored to the populations each serve. Detailed information about the proposed Code changes is provided in Attachment 4.

In addition to the revised operational standards, the proposed Ordinance also updates the Code definition of “HomelessShelter”to include the synonymous term “EmergencyShelter”as referenced in state law.

7. ADVISORY BOARD ACTION
Planning Commission
The Planning Commission conducted a public hearing for the Ordinance on August 5, 2024 and recommended approval to the City Council by a 6-0 vote. Meeting minutes are provided as Attachment 5.

8. ENVIRONMENTAL REVIEW
Categorical Exemption: This action is exempt from the California Environmental Quality Act (CEQA) pursuant to, but not limited to, State CEQA Guidelines Section 15305 (Minor Alterations in Land Use Limitations) because it consists of minor adjustments to operational criteria and the definition of homeless shelters. For this reason, no further CEQA documentation is required.

9. ATTACHMENTS
· Attachment 1 Ordinance No. 25-24 (Clean)
· Attachment 2 Ordinance No. 25-24 (Redlined)
· Attachment 3 Planning Commission Resolution No. PC 20-24 · Attachment 4 Planning Commission Staff Report, August 5, 2024 · Attachment 5 Planning Commission Minutes, August 5, 2024 City of Orange Printed on 9/5/2024Page 2 of 2
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209
Agenda Item
City Council
Item #: 8.1. 9/10/2024 File #: 24-0478
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director

3. RECOMMENDED ACTION

1. Conduct and close Public Hearing.

3. Find that the Ordinance is exempt from the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15305 (Minor Alterations in Land Use Limitations).

4. FISCAL IMPACT
None.

Goal 1: Provide for a safe community
e: Develop and implement effective community outreach services and programs to promote public safety.

6. DISCUSSION AND BACKGROUND
In recent years the City of Orange has engaged extensively in addressing the needs of the community’sun-housed population. While there are land use accommodations for homeless shelters in the Zoning Ordinance, the City has also engaged in a range of services and support activities including providing a location and financial support for the HUB Homeless Resource Center, financial support for navigation centers in Buena Park and Placentia, provided dedicated staff in the Police City of Orange Printed on 9/5/2024Page 1 of 2
powered by Legistar™
210
Item #: 8.1. 9/10/2024 File #: 24-0478
support for navigation centers in Buena Park and Placentia, provided dedicated staff in the Police Department’sHomeless Engagement, Assistance & Resource Team (HEART), collaborated with the County of Orange on establishing the Be Well facility, and provided financial assistance to the HomeAid Citrus Family Shelter. Through this varied engagement with homeless issues and services, the need to refine operational criteria for homeless shelters has become apparent to enable service providers to better address the needs of their clients. Those opportunities to create a stronger alignment between the Zoning Ordinance and operational needs of homeless shelter providers are reflected in the proposed ordinance.

AN ORDINANCE OF THE CITY COUNCIL

OF THE CITY OF ORANGE AMENDING
TITLE 17 OF THE ORANGE MUNICIPAL

CODE REGARDING HOMELESS SHELTER

REGULATIONS

WHEREAS, on March 27, 2012 , the City Council of the City of Orange adopted Ordinance No. 06-12 to amend Title 17 to define “homeless shelter” and codify permissible locations, zoning and development standards for homeless shelters within the City , in accordance with Senate Bill 2 (“SB 2”) and in compliance with stated goals contained in the City’s adopted Housing Element; and

WHEREAS, the City Council thereafter amended those regulations to make certain clarifications by Ordinance No. 03-19 in 2019; and

WHEREAS, staff is recommending certain changes to Title 17 in order to update regulations regarding to provide additional flexibility for organizations within the City serving the City’s homeless populations; and

WHEREAS, the Planning Commission, having considered the proposed changes to the OMC at a public hearing held on August 5, 2024, and having received public testimony on the item, determined the proposed ordinance serves the City’s best interests and furthers the public health, safety and general welfare and recommends City Council approval thereof; and

WHEREAS, the City Council, having considered the proposed changes to the OMC at a public hearing held on August 5, 2024, and having received public testimony on the item, desires to adopt the proposed ordinance.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE
DOES HEREBY ORDAIN AS FOLLOWS:

SECTION I:

The definition of “Homeless Shelter” contained in Section 17.04.027 shall be amended to read as follows:

“"Homeless shelter" means a building that provides immediate and short -term overnight sleeping accommodations for homeless persons or families, with limited onsite supporting services. No person or family may be denied shelter at this facility due to the inability to pay.

Temporary shelters established in response to an emergency or disaster (such as flood, fire or cold-weather occurrences), or temporary shelters ancillary to a church use do not fall within this definition. As used in this Code, “homeless shelter” shall have the same meaning as “emergency shelter,” as contained in State law. Notwithstanding, these uses shall comply with federal, state and local regulations as applicable.”
212
2 SECTION II:

Section 17.13.040 (JJ) shall be amended to read as follows:

JJ. Homeless Shelter. Facilities meeting the definition of a homeless shelter pursuant to Section 17.04.027 are permitted uses, subject to the requirements listed below and the development standards of the underlying zoning district.

2. Overnight occupancy shall be limited as follows:
a. For shelters serving individuals without children, one bed per minimum of 70 square feet of sleeping area and shall be provided in accordance with Building Code requirements.
b. For shelters serving individuals with children under the age of 18, one bed per minimum of 70 square feet of sleeping area shall be provided for the first adult, with one bed per minimum of 50 square feet per adult or child living together as a family in accordance with Building Code requirements.

Children under the age of 24 months shall be exempt from the required floor area.
c. Maximum occupancy per facility shall be limited to 150 beds or fewer. For purposes of determining maximum occupancy, one shelter client per bed is assumed.
d. Pets may be allowed at the discretion of the shelter operator provided that they are contained in a crate.

3. Services and facilities shall be provided for homeless shelters as follows:
a. A client intake and waiting area shall be provided and shall be adequately sized to accommodate waiting clients. The intake area may be indoors or outdoors. If outdoors, the location shall not be adjacent to the public right-of- way, shall be visually scree ned, and shall provide protection from the sun/rain.
b. The facility shall provide a sleeping area, and separate restrooms and showers for males and females. A minimum of one restroom and one shower for every 20 clients shall be provided, and shall comply with Building Code requirements.
c. Other on-site services that are permitted include:
i. Laundry facilities.
ii. Kitchen, food preparation, and dining areas.
213
3 iii. Storage areas to secure client belongings.
iv. A private area for providing referral services to assist shelter clients in entering programs aimed at obtaining permanent shelter and income.

Referral services refers to the initial assessment of a homeless client to identify the areas in which assistance is needed, and connecting clients with appropriate off-site programs and services depending on their need. v. Other similar services for homeless clients, as determined by the Community Development Director.

Other services may be permitted, conditionally permitted or not permitted based on Table 17.13.030. For uses that are not listed in Table 17.13.030, the Community Development Director has the authority to make the determination per Section

17.13.040. All services shall be provided within the shelter building.

4. Prior to occupancy, a written operational plan for the facility shall be submitted to the Community Development Director for approval. If site plan review and/or design review applies, then the operational plan should be submitted and reviewed concurrently with those applications. The operational plan shall contain the name, address, phone number and driver’s license number of the owner, operator, and facility manager; and specific procedures for complying with the following requirements:
a. Length of Stay/Hours of Operation.
i. Clients without children shall be limited to use of the facility between the hours of 5:00 p.m. and 9:00 a.m. Clients must vacate the facility each morning. An exception shall be made for episodes of illness verified by shelter staff. Clients shall not use the facility for more than 90 nights within a 120 consecutive day period. A curfew of 10:00 p.m. or earlier shall be established and strictly enforced, and clients shall not be admitted after curfew.
ii. Clients with children shall be limited to use of the facility between the hours of 2:00 p.m. and 9:00 a.m. Clients must vacate the facility each morning. An exception shall be made for public school holidays and seasonal breaks and episodes of illness verified by shelter staff. Clients shall not use the facility for more than a consecutive 120 day period. A curfew of 10:00 p.m. or earlier shall be established and strictly enforced, and clients shall not be admitted after curfew.
iii. During episodes of extreme weather including periods of excessive heat, cold, or rain facility operators may allow clients to use the facility outside of standard operating hours provided that the facility maintains its standard staffing.
b. Staff and Training. The plan shall describe the staffing plan and required staff training programs. A minimum of two staff persons shall be on duty when the facility is open, with additional staffing as needed to ensure a secure facility and reasonable operations. One staff member for every 25 beds is recommended. Facility staff shall be trained in operating procedures, safety 214
4 plans, and assisting clients with referral services. The facility shall not employ staff who have been convicted of a felony or who are required to register as a sex registrant under Penal Code Section 290. The plan shall describe procedures for ensuring shelter staff meet these requirements. c. Safety and Security. The plan shall describe facility rules and procedures for maintaining a safe environment within and outside of the shelter, including the following:
i. The facility shall establish and enforce a strict code of conduct. Facility rules shall prohibit weapons and the use, sale or distribution of alcohol or illegal drugs.
ii. Procedures shall be established for designating and securing separate areas within the facility for male, female, and family shelter clients. iii. Procedures shall be established for client intake. The facility shall screen incoming clients for compatibility with the facility type and shall maintain a client roster or other system of identifying and tracking incoming clients. During intake, basic cli ent information shall be collected including name, last physical address, driver’s license or other identification number (if available), and whether or not the person has been convicted of a felony or is required to register as a sex registrant under Penal Code Section 290. The roster shall be provided to the Orange Police Department on a quarterly basis. No more than one person who is required to register as a sex registrant under Penal Code Section 290 shall be allowed to stay at the facility at any one time. iv. Procedures shall be established for responding to emergencies and incidents including expelling clients from the facility. Re -admittance policies for clients who have previously been expelled from the facility shall also be established.
v. Procedures shall be established for securing client belongings.

Of the staff required to be onsite, at least one staff person dedicated solely to shelter security shall be on duty when the facility is in use. Depending on facility size and operations, additional security personnel may be required. d. Facilities shall be maintained in good working order. Indoor and outdoor use areas shall be clean and orderly. Litter shall be removed in and around the facility in a timely manner.
e. A “good neighbor policy” shall be established whereby clients are instructed to be considerate of neighbors and refrain from behavior that is disruptive to the surrounding community. The operational plan shall include a written protocol for ongoing communi cations with the City and the surrounding neighborhood, and for responding to neighborhood complaints. f. The shelter shall give priority for shelter accommodations and services to individuals with connections to the Orange community.
215
5 Approval of the operational plan will be considered by the Community Development Director in consultation with the Orange Police Chief. The approval is ministerial and shall be denied if the facility does not meet the standards in this section. If already issued, the approval shall be revoked if the facility is found to be out of compliance with the standards in this section or its approved operational plan. Appeals of the Community Development Director’s decision may be requested, in accordance with Section 17.08.050.

5. Exterior security lighting shall be provided. Building lighting shall comply with the City’s Building Security Ordinance No. 7 -79, Section 15.52.090(J)(2). Parking lots shall be lit in compliance with Section 15.52.090(J)(3).

6. Required Off-street Parking and Bike Racks. Parking spaces shall be striped and bike racks shall be provided as specified in Chapter 17.34. a. For shelters serving individual adults, one parking space per six beds, plus one space per staff person.
b. For shelters serving families with children, one parking space per 12 beds, plus one space per staff person.

7. The facility shall comply with all other laws, rules and regulations that apply, including building and fire codes and shall be subject to City inspections prior to operational plan approval. In addition, the City may inspect the facility at any time for compliance with the facility’s operational plan and other applicable laws and standards.

9. Design Review Required. Design review is required if the project meets the criteria established in Section 17.10.070. DRC’s discretion in requiring conditions of approval and approving homeless shelters is limited to ensuring compliance with applicable design-related standards and guidelines.

SECTION III:

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.

216
6 SECTION IV:

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 ____ 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 Attorney

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 ___ day of _____________, 2024, and thereafter at the regular meeting of said City Council duly held on the ___ day of ____________, 2024 was duly passed and adopted by the following vote, to wit:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange
217
ORDINANCE NO. 25-24

AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF ORANGE AMENDING TITLE 17

OF THE ORANGE MUNICIPAL CODE

REGARDING HOMELESS SHELTER

REGULATIONS

WHEREAS, on March 27, 2012 , the City Council of the City of Orange adopted Ordinance No. 06-12 to amend Title 17 to define “homeless shelter” and codify permissible locations, zoning and development standards for homeless shelters within the City , in accordance with Senate Bill 2 ( “SB 2”) and in compliance with stated goals contained in the City’s adopted Housing Element; and

WHEREAS, the City Council thereafter amended those regulations to make certain clarifications by Ordinance No. 03-19 in 2019; and

WHEREAS, the Planning Commission, having considered the proposed changes to the OMC at a public hearing held on ________, and having received public testimony on the item, determined the proposed ordinance serves the City’s best interests and furthers the public health, safety and general welfare and recommends City Council approval thereof; and

WHEREAS, the City Council, having considered the proposed changes to the OMC at a public hearing held on ________, and having received public testimony on the item, desires to adopt the proposed ordinance.

NOW, TH EREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES HEREBY ORDAIN AS FOLLOWS:

SECTION I:

The definition of “Homeless Shelter” contained in Section 17.04.027 shall be amended to read as follows:

Temporary shelters established in response to an emergency or disaster (such as flood, fire or cold-weather occurrences), or temporary shelters ancillary to a church use do not fal l within this definition. As used in this Code, “homeless shelter” shall have the same meaning as “emergency shelter,” as contained in State law. Notwithstanding, these uses shall comply with federal, state and local regulations as applicable.”
218
2 SECTION II:

Section 17.13.040 (JJ) shall be amended to read as follows:

2. Overnight occupancy shall be limited toas follows:
a. For shelters serving individuals without children, one bed per minimum of 70 square feet of sleeping area and shall be provided in accordance with Building Code requirements.
b. For shelters serving individuals with children under the age of 18, one bed per minimum of 70 square feet of sleeping area shall be provided for the first adult, with one bed per minimum of 50 square feet per adult or child living together as a family in accordance with Building Code requirements. Children under the age of 24 months shall be exempt from the required floor area. c. Maximum occupancy per facility shall be limited to 150 beds or fewer . For purposes of determining maximum occupancy, one shelter client per bed is assumed.
d. Pets may be allowed at the discretion of the shelter operator provided that they are contained in a crate.

3. Services and facilities shall be provided for homeless shelters as follows:
a. A client intake and waiting area shall be provided and shall be adequately sized to accommodate waiting clients. The intake area may be indoors or outdoors. If outdoors, the location shall not be adjacent to the public right -of-way, shall be visually screened, and shall provide protection from the sun/rain. b. The facility shall provide a sleeping area, and separate restrooms and showers for males and females. A minimum of one restroom and one shower for every 20 clients shall be provided, and shall comply with Building Code requirements.
c. Other on-site services that are permitted include:
i. Laundry facilities.
ii. Kitchen, food preparation, and dining areas.
iii. Storage areas to secure client belongings.
219
3 iv. A private area for providing referral services to assist shelter clients in entering programs aimed at obtaining permanent shelter and income.

17.13.040. All services shall be provided within the shelter building.

4. Prior to occupancy, a written operational plan for the facility shall be submitted to the Community Development Director for approval. If site plan review and/or design review applies, then the operational plan should be submitted and reviewed concurrently with those applications. The operational plan shall contain the name, address, phone number and driver’s license number of the owner, operator, and facility manager; and specific procedures for complying with the following requirements:
a. Length of Stay/Hours of Operation.
i. Clients without children shall be limited to use of the facility between the hours of 5:00 p.m. and 9:00 a.m. Clients must vacate the facility each morning. An exception shall be made for episodes of illness verified by shelter staff. Clients shall not use the facility for more than 4590 nights within a 120 consecutive day period. A curfew of 10:00 p.m. or earlier shall be established and strictly enforced, and clients shall not be admitted after curfew.
ii. Clients with children shall be limited to use of the facility between the hours of 2:00 p.m. and 9:00 a.m. Clients must vacate the facility each morning. An exception shall be made for public school holi days and seasonal breaks and episodes of illness verified by shelter staff. Clients shall not use the facility for more than a consecutive 120 day period. A curfew of 10:00 p.m. or earlier shall be established and strictly enforced, and clients shall not be admitted after curfew.
iii. During episodes of extreme weather including periods of excessive heat, cold, or rain facility operators may allow clients to use the facility outside of standard operating hours provided that the facility maintains its standard staffing.
b. Staff and Training. The plan shall describe the staffing plan and required staff training programs. A minimum of two staff persons shall be on duty when the facility is open, with additional staffing as needed to ensure a secure facility and reasonable operations. One staff member for every 25 beds is recommended. Facility staff shall be trained in operating procedures, safety plans, and assisting clients with referral services. The facility shall not employ staff who have been convict ed of a felony or who are required to register as a 220
4 sex registrant under Penal Code Section 290. The plan shall describe procedures for ensuring shelter staff meet these requirements. c. Safety and Security. The plan shall describe facility rules and procedures for maintaining a safe environment within and outside of the shelter, including the following:
i. The facility shall establish and enforce a strict code of c onduct. Facility rules shall prohibit weapons and the use, sale or distribution of alcohol or illegal drugs.
ii. Procedures shall be established for designating and securing separate areas within the facility for male, female, and family shelter clients. iii. Procedures shall be established for client intake. The facility shall screen incoming clients for compatibility with the facility type and shall maintain a client roster or other system of identifying and tracking incoming clients.

During intake, basic client information shall be collected including name, last physical address, driver’s license or other identification number (if available), and whether or not the person has been convicted of a felony or is required to register as a sex registrant under Penal Code Section 290.

The roster shall be provided to the Orange Police Department on a quarterly basis. No more than one person who is required to register as a sex registrant under Penal Code Section 290 shall be allowed to stay at the facility at any one time.
iv. Procedures shall be established for responding to emergencies and incidents including expelling clients from the facility. Re -admittance policies for clients who have previously been expelled from the facility shall also be established.
v. Procedures shall be established for securing client belongings.

Approval of the operational plan will be considered by the Community Development Director in consultation with the Orange Police Chief. The approval is ministerial and shall be denied if the facility does not meet the standards in this section. If 221
5 already issued, the approval shall be revoked if the facility is found to be out of compliance with the standards in this section or its approved operational plan.

Appeals of the Community Development Director’s decision may be requested, in accordance with Section 17.08.050.

6. Required Off-street Parking and Bike Racks. Parking spaces shall be striped and bike racks shall be provided as specified in Chapter 17.34.
a. For shelters serving individual adults, Oneone parking space per six beds, plus one space per staff person. Parking stalls shall be striped and bike racks shall be provided as specified in Chapter 17.34.
b. For shelters serving families with children, one parking space per 12 beds, plus one space per staff person.

SECTION III:

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 Ordinan ce. 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 IV:

Daniel R. Slater, Mayor, City of Orange

ATTEST:

Pamela Coleman, City Clerk, City of Orange

223
7 APPROVED AS TO FORM:

Mike Vigliotta, City Attorney

STATE OF CALIFORNIA )

COUNTY OF ORANGE )

CITY OF ORANGE )

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange
224
RESOLUTION NO. PC 20-24

A RESOLUTION OF THE PLANNING COMMISSION

RECOMMENDING THE CITY COUNCIL APPROVE AN

ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ORANGE AMENDING TITLE 17 REGARDING

HOMELESS STTELTER REGULATIONS
APPLICANT: CITY OF ORANGE
WHEREAS, Orange Municipal Code (OMC) Section 17.13.040 sets forth the Special Use Regulations for homeless shelters, including operating criteria related to floor area per bed, maximum number of beds allowed, maximum length of stay, operating hours, parking requirements, and specifications for the provision of services and facilities; and WHEREAS, the City wishes to bring the language in the OMC into alignment with the operational needs of local shelter and service providers as demonstrated by the orderly and effective operation in recent years ofshelters and support services for un-housed individuals and families in the City of Orange; and
WHEREAS, the City recognizes that the operational needs of shelters serving un-housed individuals are different from those serving un-housed families with children; and WHEREAS, the City strives to provide homeless shelter operating criteria that provide un-housed individuals and families with stability in order to work with service providers to identif longer-term housing options, employment, and conditions that support children to succeed in school;
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:
225
SECTION 1- FINDING
l The Homeless Shelter Ordinance update implements General Plan Housing Element Policy Action Item 48 by contributing to a comprehensive approach to addressing homelessness by providing operating criteria for shelters that enables service providers to better serve clients and provide a stable environment in which un-housed individuals and families can work with service providers to identiff longer-term housing options, employment, and conditions that support children to succeed in school.

SECTION 2-ENVIRONMENTAL REVIEW
The subject Ordinance is exempt from the California Environmental Quality Act (CEQA) pursuant to State CEQA Guidelines Section 15305 (Minor Alterations to Land Use Limitations) because it consists of minor adjustments to operational criteria and the definition of homeless shelters. For this reason, no further CEQA documentation is required.

ADOPTED this 5th day of August2024
azquez
Planning Commission Chair
I hereby certifu 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:

Yazqtez, Vejar, Martinez, Maldonado, Tucker, Leslie
None
McCormack
Anna Pehoushek
Assistant Community Development Director
226

EXHIBIT A
RESOLUTION NO. PC 20.24
DRAFT

HOMELESS SHELTER ORDINANCE AMENDMENT
227
ORDINANCE NO. -24

AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF ORANGE AMENDING TITLE 17

OF THE ORANGE MUNICIPAL CODE

REGARDING HOMELESS SHELTER

REGULATIONS
WHEREAS, on March 27, 2072, the City Council of the City of Orange adopted Ordinance No. 06-12 to amend Title 17 to define "homeless shelter" and codiff permissible locations, zoning and development standards for homeless shelters within the City, in accordance with Senate Bill 2 ("SB 2") and in compliance with stated goals contained in the City's adopted Housing Element; and
WHEREAS, the City Council thereafter amended those regulations to make certain clarifications by Ordinance No. 03-19 in 2019; and
WHEREAS, staff is recommending certain changes to Title 17 in order to update regulations regarding to provide additional flexibility for organizations within the City serving the City's homeless populations; and
WHEREAS, the Planning Commission, having considered the proposed changes to theoMCatapublichearingheldon-)andhavingreceivedpublictestimonyonthe item, determined the proposed ordinance serves the City's best interests and furthers the public health, safety and general welfare and recommends City Council approval thereof; and WHEREAS, the City Council, having considered the proposed changes to the OMC at apublic hearing held on and having received public testimony on the item, desires to adopt the proposed ordinance

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE
DOES HEREBY ORDAIN AS FOLLOWS:

SECTION I:

The definition of "Homeless Shelter" contained in Section 17.04.027 shall be amended to read as follows:
""Homeless shelter" means a building that provides immediate and short-term overnight sleeping accommodations for homeless persons or families, with limited onsite supporting services. No person or family may be denied shelter at this facility due to the inability to pay.

Temporary shelters established in response to an emergency or disaster (such as flood, fire or cold-weather occurences), or temporary shelters ancillary to a church use do not fall within this definition. As used in this Code, "homeless shelter" shall have the same meaning as "emergency shelter," as contained in State law. Notwithstanding, these uses shall comply with federal, state and local regulations as applicable."
228
Section 17.13.040 (JO shalt be amended to read as follows:

1. Homeless shelters shall be located at least 500 feet from any residential use or residentially-zoned property, public or private park, or public or private kindergarten through 12fr grade curriculum school, as measured from the closest property line. In addition, homeless shelters shall be located at least 275 feetfrom any other homeless shelter, as measured from the closest property line. Homeless shelters shall be located within one-half mile of a transit stop. 2, Overnight occupancy shall be limited as follows:
a. For shelters serving individuals without children, one bed per minimum of 70 square feet of sleeping area and shall be provided in accordance with Building Code requirements.
b. For shelters serving individuals with children under the age of 18, one bed per minimum of 70 square feet of sleeping area shall be provided for the first adult, with one bed per minimum of 50 square feet per adult or child living together as a family in accordance with Building Code requirements. Children under the age of 24 months shall be exempt from the required floor area. c. Maximum occupancy per facility shall be limited to 150 beds or fewer. For purposes of determining maximum occupancy, one shelter client per bed is assumed.
d. Pets may be allowed at the discretion of the shelter operator provided that they are contained in a crate.

3. Services and facilities shall be provided for homeless shelters as follows:
^. A client intake and waiting area shall be provided and shall be adequately sized to accommodate waiting clients. The intake area may be indoors or outdoors. If outdoors, the location shall not be adjacent to the public right-of-way, shall be visually screened, and shall provide protection from the surVrain. b. The facility shall provide a sleepingarea, and separate restrooms and showers for males and females. A minimum of one restroom and one shower for every 20 clients shall be provided, and shall comply with Building Code requirements.
c. Other on-site services that are permitted include:
i. Laundry facilities.
ii. Kitchen, food preparation, and dining areas.
iii. Storage areas to secure client belongings.
2 SECTION II:
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iv. A private area for providing referral services to assist shelter clients in entering programs aimed at obtaining permanent shelter and income.

Referral services refers to the initial assessment of a homeless client to identifu the areas in which assistance is needed, and connecting clients with appropriate off-site programs and services depending on their need. v. Other similar services for homeless clients, as determined by the Community Development Director.

17.13.040. All services shall be provided within the shelter building.

Length of Stay/Hours of Operation.
i. Clients without children shall be limited to use of the facility between the hours of 5:00 p.m. and 9:00 a.m. Clients must vacate the facility each morning. An exception shall be made for episodes of illness verified by shelter staff. Clients shall not use the facility for more than 90 nights within a I20 consecutive day period. A curfew of l0:00 p.m. or earlier shall be established and strictly enforced, and clients shall not be admitted after curfew.
ii. Clients with children shall be limited to use of the facility between the hours of 2:00 p.m. and 9:00 a.m. Clients must vacate the facility each morning. An exception shall be made for public school holidays and seasonal breaks and episodes of illness verified by shelter staff. Clients shall not use the facility for more than a consecutive 120 day period. A curfew of 10:00 p.m. or earlier shall be established and strictly enforced, and clients shall not be admitted after curfew.
iii. During episodes of extreme weather including periods of excessive heat, cold, or rain facility operators may allow clients to use the facility outside of standard operating hours provided that the facility maintains its standard staffing.
b. Staff and Training. The plan shall describe the staffing plan and required staff training programs. A minimum of two staff persons shall be on duty when the facility is open, with additional staffing as needed to ensure a secure facility and reasonable operations. One staff member for every 25 beds is recommended. Facility staff shall be trained in operating procedures, safety plans, and assisting clients with referral services. The facility shall not employ staff who have been convicted of a felony or who are required to register as a 230
sex registrant under Penal Code Section 290. The plan shall describe procedures for ensuring shelter staff meet these requirements. c. Safety and Security. The plan shall describe facility rules and procedures fbr maintaining a safe environment within and outside of the shelter, including the following:
i. The facility shall establish and enfbrce a strict code of conduct. Facility rules shall prohibit weapons and the use, sale or distribution of alcohol or illegal drugs.
ii. Procedures shall be established for designating and securing separate areas within the facility for male, female, and family shelter clients. iii. Procedures shall be established for client intake. The facility shall screen incoming clients for compatibility with the facility type and shall maintain a client roster or other system of identifuing and tracking incoming clients.

During intake, basic client information shall be collected including name, last physical address, driver's license or other identification number (if available), and whether or not the person has been convicted of a felony or is required to register as a sex registrant under Penal Code Section 290.

The roster shall be provided to the Orange Police Department on a quarterly basis. No more than one person who is required to register as a sex registrant under Penal Code Section 290 shall be allowed to stay at the facility at any one time.
iv. Procedures shall be established for responding to emergencies and incidents including expelling clients from the facility. Re-admittance policies for clients who have previously been expelled from the facility shall also be established.
v. Procedures shall be established for securing client belongings.

Approval of the operational plan will be considered by the Community Development Director in consultation with the Orange Police Chief. The approval is ministerial and shall be denied if the facility does not meet the standards in this section. If 4 231
already issued, the approval shall be revoked if the facility is found to be out of compliance with the standards in this section or its approved operational plan.

Appeals of the Community Development Director's decision may be requested, in accordance with Section 17.08.050.

5. Exterior security lighting shall be provided. Building lighting shall comply with the City's Building Security Ordinance No. 7-79, Section 15.52.090(J)(2). Parking lots shall be lit in compliance with Section 15.52.090(JX3).

6. Required Off-street Parking and Bike Racks. Parking spaces shall be striped and bike racks shall be provided as specified in Chapter 17.34.
a. For shelters serving individual adults, one parking space per six beds, plus one space per staffperson.
b. For shelters serving families with children, one parking space per 12 beds, plus one space per staffperson.

7. The facility shall comply with all other laws, rules and regulations that apply, including building and fire codes and shall be subject to City inspections prior to operational plan approval. In addition, the City may inspect the facility at any time for compliance with the facility's operational plan and other applicable laws and standards.

8. Minor Site Plan Review Required. Minor site plan review is required if the project meets the criteria established in Section 17.10.060(D) or (E). The Community Development Director's discretion in requiring conditions of approval and approving homeless shelters under minor site plan review is limited to ensuring that the site plan complies with applicable site design-related standards. g. Design Review Required. Design review is required if the project meets the criteria established in Section 17.10.070. DRC's discretion in requiring conditions of approval and approving homeless shelters is limited to ensuring compliance with applicable design-related standards and guidelines.

SECTION III:

SECTION IV:

The City Clerk is hereby directed to certiff 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.
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ADOPTED this _ day of
ATTEST:

Pamela Coleman, City Clerk, City of Orange
2024
Daniel R. Slater, Mayor, City of Orange
6 233
APPROVED AS TO FORM:

Mike Vigliotta, City Attorney

STATE OF CALIFORNIA

COUNTY OF ORANGE

CITY OF ORANGE
I, PAMELA COLEMAN, City Clerk of the City of Orange, Califomia, do hereby certifr that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the _ day of 2024, and thereafter at the regular meeting of said City Council duly held on the _ day of
following vote, to wit:
2024 was duly passed and adopted by the
)
)
)
AYES:

NOES:

ABSENT:

ABSTAIN
COUNCILMEMBERS:

COUNCILMEMBERS:

COLINCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange
7 234
Agenda Item
Planning Commission
Item #: 4.2. 8/5/2024 File #: 24-0450
TO: Chair and Members of the Planning Commission
FROM: Anna Pehoushek, Assistant Community Development Director

1. SUBJECT
Public Hearing to consider an ordinance amending Title 17 of the Orange Municipal Code to update homeless shelter regulations and definition and finding of CEQA exemption.

3. RECOMMENDED ACTION

1. Conduct and close Public Hearing.

2. Adopt Planning Commission Resolution No. 20-24. A Resolution of the Planning Commission recommending that the City Council approve an ordinance of the City Council of the City of Orange amending Title 17 of the Orange Municipal Code regarding homeless shelter regulations.

3. Find that the Ordinance is exempt from the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15305.

4. AUTHORIZING GUIDELINES
Orange Municipal Code (OMC) Section 17.08.020 authorizes the Planning Commission to review and make a recommendation to the City Council on Zoning Ordinance amendments.

5. PROJECT BACKGROUND
In recent years the City of Orange has engaged extensively in addressing the needs of the community’sun-housed population. While there are land use accommodations for homeless shelters in the Zoning Ordinance, the city has also engaged in a range of services and support activities including providing a location and financial support for the HUB Homeless Resource Center, financial support for navigation centers in Buena Park and Placentia, provided dedicated staff in the Police Department’sHomeless Engagement, Assistance & Resource Team (HEART), collaborated with the County of Orange on establishing the Be Well facility, and provided financial assistance to the HomeAid Citrus Family Shelter. Through this varied engagement with homeless issues and services, the need to refine operational criteria for homeless shelters has become apparent to enable service providers to better address the needs of their clients. Those opportunities to create a stronger alignment between the Zoning Ordinance and operational needs of homeless shelter providers are reflected in the proposed ordinance.

6. PROJECT DESCRIPTION
The proposed ordinance represents a refinement of current code provisions that establish operating criteria for homeless shelters to acknowledge that shelters for un-housed individuals without children City of Orange Printed on 8/1/2024Page 1 of 4
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criteria for homeless shelters to acknowledge that shelters for un-housed individuals without children and those for families warrant criteria tailored to the populations each serve. Specifically, the ordinance includes the following:
· A reduction in the per person floor area requirement for families from 70 sq. ft. per individual to 70 sq. ft. per person for the first adult and 50 sq. ft. per person for additional adult or child.

Children under 24 months of age would be exempt from the floor area requirement. · Modified length of stay and hours of operations as follows:
o For shelters housing individuals the length of stay would increase from 45 to 90 nights within a 120 consecutive day period.
· New provisions addressing shelters serving families as follows:
o A new standard of 120 consecutive days (with no limitation on the number of nights) is established.
o Clients may be present at the shelter during daytime hours in the case of illness, public school holidays and seasonal breaks.
o Clients may be onsite between the hours of 2:00 p.m. and 9:00 a.m. in order for families to return to the shelter following the end of the school day. o Reduced parking requirements from one space per six beds to one space per 12 beds. · New provisions allowing shelter operators to let clients to occupy the facility outside of standard operation hours during periods of extreme heat/cold or inclement weather. · A new allowance for crated pets at the discretion of the shelter operator.

7. ANALYSIS AND STATEMENT OF THE ISSUES
The proposed ordinance has been crafted, primarily, to reflect actual orderly and effective shelter operations and to better accommodate the needs of sheltering un-housed families. Feedback from family shelter operators and service providers, along with staff observation, reveal the following challenges with the current provisions of the Code:
· The current limitations on length of shelter stay within a 120 day timeframe is not practical given the time that is typically needed for service providers to work with clients to identify a longer-term housing option, job search, or connect with other services that enable them to reach a point of greater life stability. The proposed modifications to length of stay reflect a more realistic timeframe. Additionally, the existing code does not differentiate between length of stay for individuals versus families. The code revisions provide for an un-interrupted stay in City of Orange Printed on 8/1/2024Page 2 of 4
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an effort to maximize stability for children.
· Periods of extreme weather are not currently addressed in the Code. The proposed ordinance provides flexibility for shelter operators to provide shelter in inclement weather. · The current per person floor area requirement provides generous space for a family in a shelter setting. The proposed reduction in floor area per person in a family setting continues to provide a comfortable living space for a family and is also consistent with the Building Code per person floor area standard for occupancy of a bedroom. In addition to this reduction, providing a floor area requirement exemption for infants and toddlers is appropriate given the reality that young children commonly sleep with a parent in a shelter setting. · The typical school day ends mid-afternoon leaving families with school-age children without a place to go for two or three hours before the shelter open. Oftentimes, this leaves shelter patrons passing time in their vehicles and children without a reliable space to do schoolwork.

Similarly, illness, the holidays and vacation periods in the academic calendar leave families without a place for their children to go. The proposed Code revisions adjust shelter operating hours to better reflect the school day and academic calendar and instances of illness. · It is not uncommon for un-housed individuals and families to have pets. The proposed ordinance accommodates contained pets at the discretion of the shelter operator. · Because many un-housed families do not have a car, or those who do have one car that accommodates multiple family members, an adjustment to the parking requirement per bed for family shelters is warranted.

8. PUBLIC NOTICE
On July 25, 2024 a notice was published in the Anaheim Bulletin newspaper for a public hearing before the Planning Commission on August 5, 2024.

9. ENVIRONMENTAL REVIEW
Categorical Exemption: This action is exempt from the California Environmental Quality Act (CEQA) pursuant to, but not limited to, State CEQA Guidelines Section 15305 (Minor Alterations in Land Use Limitations) because it consists of minor adjustments to operational criteria and the definition of homeless shelters. For this reason, no further CEQA documentation is required.

10. ADVISORY BOARD ACTION
None required.

11. ATTACHMENTS
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· Attachment 1 Planning Commission Resolution No. PC 20-24 (including Draft Ordinance) · Attachment 2 Draft Ordinance (Redlined)
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City of Orange
Planning Commission
August 05, 2024

MINUTES - FINAL
The Planning Commission of the City of Orange, California convened on August 5, 2024, at 5:31 p.m. in a Regular Meeting in the Council Chamber, 300 E. Chapman Avenue, Orange, California.

1. OPENING/CALL TO ORDER
Chair Vazquez called the meeting to order at 5:31 p.m.

1.1 PLEDGE OF ALLEGIANCE
Commissioner Tucker led the flag salute.

1.2 ROLL CALL

Present: Martinez, Vejar, Maldonado, Tucker, Leslie, and Vazquez

Absent: McCormack

2. PUBLIC COMMENTS
None.

3. CONSENT CALENDAR
All matters listed under the Consent Calendar are considered to be routine by the Planning Commission and will be enacted by one motion. There will be no separate discussion of said items unless members of the Planning Commission, staff or the public request specific items removed from the Consent Calendar for separate action.

3.1. Approval of meeting minutes of the City of Orange Planning Commission Regular Meeting held on June 3, 2024.

ACTION: Approved minutes as presented.

Approval of the Consent Calendar
A motion was made by Vice Chair Martinez, seconded by Commissioner Vejar, to approve the Consent Calendar. The motion carried by the following vote:

Martinez, Vejar, Maldonado, Tucker, Leslie, and VazquezAyes:

NoneNoes:

McCormackAbsent:

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Planning Commission Minutes - Final August 5, 2024

4. PUBLIC HEARINGS

4.1. Public Hearing to consider a Zoning Text Amendment, Development Agreement and Conditional Use Permit to allow expanded business activities at Blue Ribbon Nursery and dedication of a former sand and gravel pit to the City of Orange as permanent open space at 5309 East Santiago Canyon Road and alternate addresses 1425 North Santiago Boulevard and 1921 Old Country Park Road, and finding of CEQA exemption. (Development Agreement No. 0010-24 and Conditional Use Permit No. 3229-24)
Chair Vazquez opened the public hearing at 5:44 p.m.

Public Speakers:

The following spoke on behalf of the project:

Reggie Mundekis, Michael Granek, Bonnie Robinson, and Charles Curry Chair Vazquez closed the public hearing at 5:46 p.m.

A motion was made by Chair Vazquez, seconded by Commissioner Vejar to:

1. Adopt Planning Commission Resolution No. 21-24. A Resolution of the Planning Commission of the City of Orange recommending the City Council approve an Ordinance amending Chapter 17.13 of the Orange Municipal Code to conditionally permit the sale of building materials and landscape supplies in a Sand and Gravel Zone in conjunction with an existing commercial nursery.

2. Adopt Planning Commission Resolution No. 22-24. A Resolution of the Planning Commission recommending the City Council approve an Ordinance adopting Development Agreement No. 0010-24 that 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.

3. Adopt Planning Commission Resolution No. 23-24. A Resolution of the Planning Commission of the City of Orange approving Conditional Use Permit No. 3229-24 to allow the expanded sale of building materials and landscape supplies in conjunction with the existing Blue Ribbon Nursery at 5309 East Santiago Canyon Road.

4. Find that the Ordinance is exempt from the California Environmental Quality Act (CEQA) per State CEQA Guidelines pursuant to, but not limited to Section 15305, 15307, and 15308.

The motion carried by the following vote:

Martinez, Vejar, Maldonado, Tucker, Leslie, and VazquezAyes:

NoneNoes:

McCormackAbsent:

4.2. Public Hearing to consider an ordinance amending Title 17 of the Orange Municipal Code to update homeless shelter regulations and definition and finding of CEQA exemption.

Chair Vazquez opened the public hearing at 5:55 p.m.; there being no speakers, Chair Vazquez closed the public hearing at 5:55 p.m.

A motion was made by Vice Chair Martinez, seconded by Commissioner Maldonado,

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Planning Commission Minutes - Final August 5, 2024
to:

1. Adopt Planning Commission Resolution No. 20-24. A Resolution of the Planning Commission recommending that the City Council approve an ordinance of the City Council of the City of Orange amending Title 17 of the Orange Municipal Code regarding homeless shelter regulations.

2. Find that the Ordinance is exempt from the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15305.

The motion carried by the following vote:

Martinez, Vejar, Maldonado, Tucker, Leslie, and VazquezAyes:

NoneNoes:

McCormackAbsent:

5. ADJOURNMENT
There being no further business, the meeting was adjourned at 5:58 p.m.

The next Regular Planning Commission Meeting will be held on Monday, August 19, 2024 at 5:30 p.m., in the Council Chamber, 300 E. Chapman Avenue, Orange, California 92866.
__s/s Anna Pehoushek_________________________
Anna Pehoushek
Assistant Community Development Director

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241
Agenda Item
City Council
Item #: 8.2. 9/10/2024 File #: 24-0479
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director

1. SUBJECT
Public Hearing to consider introduction and First Reading of two ordinances approving a Zoning Text Amendment and Development Agreement allowing expanded business activities at Blue Ribbon Nursery and dedication of a former sand and gravel pit to the City of Orange as permanent open space at 5309 East Santiago Canyon Road and alternate addresses 1425 North Santiago Boulevard and 1921 Old Country Park Road; and finding of CEQA exemption. Ordinance Nos. 26-24 and 27-24.

Resolution No. 11572.

2. SUMMARY
The applicant proposes an Ordinance amending Chapter 17.13 of the Orange Municipal Code to allow the sale of building materials and landscape supplies in a Sand and Gravel Zone in conjunction with an existing commercial nursery subject to a Conditional Use Permit, and associated Development Agreement to allow expanded business activities at an existing nursery in conjunction with dedicating the naturalized former “Chandler Pit” sand and gravel pit to the City to retain as permanent open space at Blue Ribbon Nursery.

3. RECOMMENDED ACTION

1. Conduct and close Public Hearing.

2. Introduce and conduct First Reading of Ordinance No. 26-24. An Ordinance of the City Council of the City of Orange amending Title 17 of the Orange Municipal Code to allow the sale of building materials and landscape supplies in a Sand and Gravel Zone in conjunction with a commercial nursery subject to a conditional use permit.

3. Introduce and conduct First Reading of Ordinance 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, LLC a California Limited Liability Company.

4. Adopt City Council Resolution No. 11572. A Resolution of the City Council of the City of Orange approving Conditional Use Permit No. 3229-24 to allow the expanded sale of building materials and landscape supplies in conjunction with the existing Blue Ribbon Nursery at 5309 East Santiago Canyon Road.

5. Find that the proposed action is exempt from the California Environmental Quality Act (CEQA) per State CEQA Guidelines pursuant to, but not limited to Section 15305, 15307, and 15308.

4. FISCAL IMPACT
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None

6. DISCUSSION AND BACKGROUND
The City of Orange approved Conditional Use Permit No. 1744 and Administrative Adjustment 89- 4 in 1989 to allow for the operation of the Blue Ribbon Nursery at the approximately 14-acre subject property. Adjacent to north of the Blue Ribbon Nursery site is the naturalized excavated “Chandler Pit”and the abutting Santiago Creek corridor. Sand and gravel mining ceased at the Chandler Pit in the 1960s, and over the course of the ensuing 50 years the pit has become naturalized with mature vegetation, wetlands, and habitat for a variety of species associated with the Santiago Creek corridor.

Creek corridor planning efforts on the part of community groups, the City, and the County of Orange dating back to the 1970s have contemplated establishing a greenbelt along Santiago Creek, recognizing the sand and gravel pits along the creek corridor as opportunities for protected open space for purposes of habitat or recreation.

The overall site presently consists of three Assessor Parcels, one of which encompasses the Chandler Pit (see Attachment 10). The parcel and operational footprint associated with the Blue Ribbon Nursery’s1989 Conditional Use Permit does not include the parcel immediately adjacent to Santiago Canyon Road that is of a similar depth to the nursery parcel nor the larger Chandler Pit parcel. In 2017, the applicant paved the parcel at the southeastern corner of the site for informal use as parking, truck, and equipment storage for the nursery. At the present time, the area is used for truck and equipment storage, as well as for the storage of landscape materials, building supplies, and firewood.

The overall site is zoned Sand and Gravel (SG). Under the current SG provisions of the Zoning Ordinance, use of this paved parcel for parking or other materials storage or sales associated with the nursery is not permitted. The applicant proposes to expand the operating area of the existing nursery and landscape supply business and enter into a Development Agreement with the City of Orange to dedicate the Chandler Pit to the City to retain as open space. A Zoning Text Amendment is proposed to allow the sale of building materials and landscape supplies in the SG zone in conjunction with an existing commercial nursery subject to a Conditional Use Permit (CUP). Therefore, the applicant is also requesting approval of a CUP to accommodate an expanded operational footprint for the nursery. A Lot Line Adjustment will be required as a condition of approval (Condition #10 in Resolution No. 11572) to establish a lot line following the upper limits of the Chandler Pit, separating it from the portion of the site that will be actively used for the nursery and landscape supply operation.

Detailed information about proposed material storage, hours of operation, and equipment and vehicle storage are provided in Attachments 9 and 10.

Issue 1: Zoning Ordinance Text Amendment and Conditional Use Permit While the proposed Zoning Ordinance Text Amendment allowing the nursery expansion in the SG zone and proposed CUP are being heard concurrently, Condition of Approval #6 in Resolution No. 11572 (Attachment 4) specifies that the CUP will not be in place until the effective date of the City of Orange Printed on 9/5/2024Page 2 of 3
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proposed Ordinance and execution of the Development Agreement.

Issue 2: Community Benefit
Creating a means to formalize the Blue Ribbon Nursery’s operational needs in conjunction with dedication of the Chandler Pit as open space benefits the community in multiple ways. The proposed actions resolve the long-standing questions and concerns about the filling of the pit and its future development potential, support public interest and Santiago Creek plans by incrementally establishing a greenbelt along the creek, and supporting the expansion and viability of a long-time local business. Leaving the pit in its naturalized state also supports habitat for flora and fauna associated with the creek corridor, and the City’s ecological diversity.

7. ADVISORY BOARD ACTION
Planning Commission
The Planning Commission conducted a public hearing for the Zone Change on August 5, 2024 and recommended approval to the City Council by a 6-0 vote. Meeting minutes are provided as Attachment 8.

8. ENVIRONMENTAL REVIEW
Categorical Exemption: The proposed action is exempt from the California Environmental Quality Act (CEQA) pursuant to, but not limited 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.

9. ATTACHMENTS
· Attachment 1 Ordinance No. 26-24 (Clean)
· Attachment 2 Ordinance No. 26-24 (Redline)
· Attachment 3 Ordinance No. 27-24
· Attachment 4 Resolution No. 11572
· Attachment 5 Planning Commission Resolution No. PC 21-24 · Attachment 6 Planning Commission Resolution No. PC 22-24 · Attachment 7 Planning Commission Resolution No. PC 23-24 · Attachment 8 Planning Commission Minutes, August 5, 2024 · Attachment 9 Planning Commission Staff Report, August 5, 2024 · Attachment 10 Attachment Project Plans
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Agenda Item
City Council
Item #: 8.2. 9/10/2024 File #: 24-0479
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director

Resolution No. 11572.

3. RECOMMENDED ACTION

1. Conduct and close Public Hearing.

5. Find that the proposed action is exempt from the California Environmental Quality Act (CEQA) per State CEQA Guidelines pursuant to, but not limited to Section 15305, 15307, and 15308.

4. FISCAL IMPACT
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None

Detailed information about proposed material storage, hours of operation, and equipment and vehicle storage are provided in Attachments 9 and 10.

Issue 1: Zoning Ordinance Text Amendment and Conditional Use Permit While the proposed Zoning Ordinance Text Amendment allowing the nursery expansion in the SG zone and proposed CUP are being heard concurrently, Condition of Approval #6 in Resolution No. 11572 (Attachment 4) specifies that the CUP will not be in place until the effective date of the City of Orange Printed on 9/5/2024Page 2 of 3
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proposed Ordinance and execution of the Development Agreement.

AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ORANGE AMENDING TITLE 17 OF THE

ORANGE MUNICIPAL CODE TO ALLOW THE SALE

OF BUILDING MATERIALS AND LANDSCAPE

SUPPLIES IN A SAND AND GRAVEL ZONE IN

CONJUNCTION WITH A COMMERCIAL NURSERY

SUBJECT TO A CONDITIONAL USE PERMIT

WHEREAS, the City desires to put in place practical policies and procedures that accommodate the storage and sale of building materials and bulk landscape supplies in the Sand and Gravel zone in association with established landscape and horticultural businesses to ensure the long-term viability of established businesses that contribute to the local economy; and

WHEREAS, the City desires to allow the s ale of materials and supplies consistent with established commercial nurseries subject to a Conditional Use Permit; and

WHEREAS, the use of property in the Sand and Gravel zone as a commercial nursery with building materials and landscape supplies is a logical land use transition for property that has experienced mining and batch plant activity that has ceased that is in proximity to natural areas, wildlands, and residential development given the provision of supplies commonly used for property improvements in nearby neighborhoods and business districts.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES HEREBY ORDAIN AS FOLLOWS:

SECTION I:

Table 17.13.030 (Master Land Use Table) of the Orange Municipal Code (OMC) is hereby revised to add the category of “Commercial Nursery with Building Materials and Landscape Supplies” as a conditionally permitted use subject to specified regulations in the Sand and Gravel Zone and subject to Conditional Use Permit regulations contained in OMC Section 17.13.050 as reflected by the addition of “C+” to the appropriate row and column of the Master Land Use Table (excerpt) as follows:

LAND USE SG
Agriculture/Horticulture Uses – Includes uses related to the growing of vegetation for food or ornamental landscaping.

Agriculture/Horticulture P
Commercial Nursery with Seasonal Sales -
Commercial Nursery with Building Materials and Landscape Supplies C+ Greenhouse -

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2 KEY:

P = Permitted Use
C = Conditional Use Permit required. Refer to administrative procedure provisions in Section 17.08.030 and 17.10.030.

See Chapter 17.28 for overlay district procedures.
- = Not Permitted
+ = Use subject to Conditional Use Permit regulations contained in Section 17.13.050

SECTION II:

Section 17.13.050 of the Orange Municipal Code is hereby revised to relabel existing sub-section

17.13.050.O “ Commercial Nursery with Seasonal Sales ” as 17.13.050.P in order to add “Commercial Nursery with Building Materials and Landscape Supplies ” as a new sub -section

17.13.050.O, with the ensuing sub-sections sequentially re-labeled P through VV accordingly, to read as follows:

O. Commercial Nursery with Building Materials and Landscape Supplies . The outdoor storage and sale of bulk materials including but not limited to mulch, bark, gravel, river rock, boulders, and logs associated with a business established prior to the effective date of Ordinance No. 26-24 engaging in agricultural or horticultural activities.

SECTION III:

SECTION IV:

ADOPTED this ____ day of ________________, 2024.

Daniel R. Slater, Mayor, City of Orange

ATTEST:

Pamela Coleman, City Clerk, City of Orange

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3 APPROVED AS TO FORM:

Mike Vigliotta, City Attorney

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 ___ day of _____ ______, 2024, and thereafter at the regular meeting of said City Council duly held on the ___ day of __________, 2024 was duly passed and adopted by the following vote, to wit:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

_______________________________________
Pamela Coleman, City Clerk, City of Orange
250
ORDINANCE NO. 26-24

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ORANGE AMENDING TITLE 17 OF THE ORANGE

MUNICIPAL CODE TO ALLOW THE SALE OF BUILDING

MATERIALS AND LANDSCAPE SUPPL IES IN A SAND

AND GRAVEL ZONE IN CONJUNCTION WITH A

COMMERCIAL NURSERY SUBJECT TO A CONDITIONAL

USE PERMIT

WHEREAS, the City desires to put in place practical policies and procedures that accommodate the storage and sale of building materials and bulk landscape supplies in the Sand and Gravel zone in association 26with established landscape and horticultural businesses to ensure the long-term viability of established businesses that contribute to the local economy; and

WHEREAS, the City desires to allow the s ale of materials and supplies consistent with established commercial nurseries subject to a Conditional Use Permit; and

WHEREAS, the use of property in the Sand and Gravel zone as a commercial nursery with building materials and landscape supplies is a logical land use transition for property that has experienced mining and batch plant activity that has ceased that is in proximity to natural areas, wildlands, and residential dev elopment given the provision of supplies commonly used for property improvements in nearby neighborhoods and business districts.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES HEREBY ORDAIN AS FOLLOWS:

SECTION I:

Table 17.13.030 (Master Land Use Table) of the Orange Municipal Code (OMC) is hereby revised to add the category of “Commercial Nursery with Building Materials and Landscape Supplies” as a conditionally permitted use subject to specified regulations in the Sand and Gravel Zone subject to Conditional Use Permit regulations contained in OMC Section 17.13.050 as reflected by the addition of “C+” to the appropriate row and column of the Master Land Use Table (excerpt) as follows:

LAND USE SG
Agriculture/Horticulture Uses – Includes uses related to the growing of vegetation for food or ornamental landscaping.

Agriculture/Horticulture P
Commercial Nursery with Seasonal Sales -
Commercial Nursery with Building Materials and Landscape Supplies C+ Greenhouse -

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KEY:

P = Permitted Use
C = Conditional Use Permit required. Refer to administrative procedure provisions in Section 17.08.030 and 17.10.030.

See Chapter 17.28 for overlay district procedures.
- = Not Permitted
+ = Use subject to Conditional Use Permit regulations contained in Section 17.13.050

SECTION II:

Section 17.13.050 of the Orange Municipal Code is hereby revised to relabel existing sub-section

17.13.050.O “ Commercial Nursery with Seasonal Sales ” as 17.13.050.P in order to add “Commercial Nursery with Building Materials and Landscape Supplies ” as a new sub -section

17.13.050.O, with the ensuing sub-sections sequentially re-labeled P through VV accordingly, to read as follows:

O. Commercial Nursery with Building Materials and Landscape Supplies . The outdoor storage and sale of bulk materials including but not limited to mulch, bark, gravel, river rock, boulders, and logs associated with a business established prior to the effective date of Ordinance No. __-24 engaging in agricultural or horticultural activities.

SECTION III:

Should any section, subsection, clause, or provision of this Ordinance for any reason be held to be invalid or unconstitutional, such invalidity or uncon stitutionality shall not affect the validity or constitutionality of the remaining portions of this Ordinance; it being hereby expressly declared that this Ordinance, and each section, subsection, sentence, clause and phrase hereof would have been prepared, proposed, approved and ratified irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

SECTION IV:

A summary of this Ordinance shall be published and a certified copy of the full text of this Ordinance shall be posted in the Office of the City Clerk at least fifteen (15) days prior to the City Council meeting at which this Ordinance is to be adopted. A summary of this Ordinance shall also be published once within fifteen (15) days after its passage in a newspaper of general circulation in the City of Orange. The City Clerk shall post in the Office of the City Clerk a certified copy of the full text of the adopted Ordinance along with the names of those City Council members voting for and against the Ordinance in accordance with Government Code Section 36933.

ADOPTED this ____ day of ________________, 2024.

___________________________________
Daniel R. Slater, Mayor, City of Orange

252
ATTEST:

________________________________________
Pamela Coleman, City Clerk, City of Orange

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 ___ day of ________, 20 24, and thereafter at the regular meeting of said City Council duly held on the ___ day of _______, 2024, was duly passed and adopted by the following vote, to wit:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

_______________________________________
Pamela Coleman, City Clerk, City of Orange

253
ORDINANCE 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, a n 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 suppl y, 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

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2 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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3 SECTION V:

SECTION VI:

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 Attorney, City of Orange

256
4 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 ___ day of _________ ______, 2024, and thereafter at the regular meeting of said City Council duly held on the ___ day of _______________, 2024 was duly passed and adopted by the following vote, to wit:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange
257

DEVELOPMENT AGREEMENT

BY AND BETWEEN

CITY OF ORANGE,
a California municipal corporation,

and

OC RECLAMATION LLC,
a California limited liability company

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)
258

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 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 devel opment 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) reflect ing 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 (i v) identifying the obligations of each party hereto related to the Project (defined herein below) on the terms and conditions set forth herein. 259
2 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 th e 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 th e 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:

1. 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. 260
3 1.1 Authorizing Ordinance. The “Authorizing Ordinance ” means Ordinance No . _____ 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. __ 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 1” 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.__, 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 action s approved or issued by CITY in connect ion 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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4 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 t ermination 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) i f termination occurs pursuant to any specific provision of this Agreement; or (ii) c ompletion 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.

2.4 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 262
5 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 cessati on 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” loca ted 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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6 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 Stat e 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 Statute s. 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 th ereof 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 264
7 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 Regul ation 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 c ontinue 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, o r 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 r ate 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 265
8 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 relat e 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 266
9 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 Proje ct 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 s uch operating memoranda contemplated herein . A fter 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 267
10 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 Prop erty undergoes a ny 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 elevation s 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 268
11 (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 cu red 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 unre corded) 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 an y 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 i n 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, inclu ding, 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 existen ce 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) usag es 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 exist ence 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 269
12 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 condi tion, 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 Ded icated 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 Dedica ted 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 SETTLEME NT WITH THE
DEBTOR OR RELEASED PARTY.”
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13 CITY understands and acknowledges the purpose a nd 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 re quired, 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. 271
14 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 th e 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 ha ve 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 272
15 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 a nd 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 refu nd 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 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 273
16 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 party’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 (i ncluding, 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 thi s 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 274
17 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 275
18 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 Stat e 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 be tween the parties, and no parol evidence of any prior or other agreement shall be permitted to contradic t or vary the terms hereof.
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19 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.

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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Signature Page to Development Agreement
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

By:

Name:

Its:

278

[Notary Acknowledgments Attached]
279

Exhibit A
The Property
280
EXHIBIT "A"SHEET 1 OF 4 SHEETS
R:\15\1545\SURVEY\LEGALS\LLA\LLA Exh A-Sheet 01.dwg
CITY OF ORANGELOT LINE ADJUSTMENT LL _______(Legal Description)OwnerExisting Parcel(APN)Proposed ParcelReferenced NumberOC RECLAMATION, LLC,a California limited liability company370-231-08370-231-13370-231-15PARCEL 1PARCEL 1:In the City of Orange, County of Orange, State of California, being a portion of Lot 5, Block "A" of the land of OGEand Bond, as shown on a Map recorded in Book 3, Pages 430 and 431 of Miscellaneous records of Los AngelesCounty, California, together with a portion of that land described in Grant Deed recorded February 15, 1956 asInstrument No. 3398-400 of Official Records, in the office of the County Recorder of said County, being moreparticularly 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 intersectionof Santiago Canyon Road and Santiago Boulevard as shown on Record of Survey filed in Book 291, Page 38 ofRecord 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 tothe easterly right of way of the 30.00 foot half-width of Santiago Boulevard, said point also being the TRUE POINTOF 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;Thence North 66°22'40" East, a distance of 191.64 feet;Thence North 64°56'47" East, a distance of 9.78 feet;Thence North 28°55'56" East, a distance of 51.28 feet;Thence North 14°19'50" West, a distance of 93.97 feet; 370-231-08370-231-13PARCEL 2OC RECLAMATION, LLC,a California limited liability company 281
EXHIBIT "A"SHEET 2 OF 4 SHEETS
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CITY OF ORANGELOT LINE ADJUSTMENT LL _______(Legal Description)OwnerExisting Parcel(APN)Proposed ParcelReferenced NumberOC RECLAMATION, LLC,a California limited liability company370-231-08370-231-13370-231-15PARCEL 1370-231-08370-231-13PARCEL 2OC RECLAMATION, LLC,a California limited liability companyThence 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 ofway 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 ofa 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 saideasterly right 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.SEE SHEET 3 FOR PARCEL 2 LEGAL DESCRIPTION 282
EXHIBIT "A"SHEET 3 OF 4 SHEETS
R:\15\1545\SURVEY\LEGALS\LLA\LLA Exh A-Sheet 03.dwg
CITY OF ORANGELOT LINE ADJUSTMENT LL _______(Legal Description)OwnerExisting Parcel(APN)Proposed ParcelReferenced NumberOC RECLAMATION, LLC,a California limited liability company370-231-08370-231-13370-231-15PARCEL 1370-231-08370-231-13PARCEL 2OC RECLAMATION, LLC,a California limited liability companyIn the City of Orange, County of Orange, State of California, being a portion of Lot 5, Block "A" of the land of OGEand Bond, as shown on a Map recorded in Book 3, Pages 430 and 431 of Miscellaneous records of Los AngelesCounty, California, together with a portion of that land described in Grant Deed recorded February 15, 1956 asInstrument No. 3398-400 of Official Records, in the office of the County Recorder of said County, being moreparticularly 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 intersectionof Santiago Canyon Road and Santiago Boulevard as shown on Record of Survey filed in Book 291, Page 38 ofRecord 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 tothe easterly right of way of the 30.00 foot half-width of Santiago Boulevard, said point also being the TRUE POINTOF 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;Thence North 66°22'40" East, a distance of 191.64 feet;Thence North 64°56'47" East, a distance of 9.78 feet;Thence North 28°55'56" East, a distance of 51.28 feet;Thence North 14°19'50" West, a distance of 93.97 feet; PARCEL 2:
283
EXHIBIT "A"SHEET 4 OF 4 SHEETS
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CITY OF ORANGELOT LINE ADJUSTMENT LL _______
No. 9029PROFESSIONAL LAND SURVEYORSTATE OF CALIFORNIATHOMAS M. CASELDINETHOMAS M. CASELDINEP.L.S. NO. 9029DATE (Legal Description)OwnerExisting Parcel(APN)Proposed ParcelReferenced NumberOC RECLAMATION, LLC,a California limited liability company370-231-08370-231-13370-231-15PARCEL 1370-231-08370-231-13PARCEL 2OC RECLAMATION, LLC,a California limited liability companyThence 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 ofDeed recorded February 15, 1956 as Instrument No. 3398-400, in the office of the County Recorder of saidCounty;Thence southwesterly along said northerly line, South 49°27'01" West, a distance of 665.06 feet to the easterlyright 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.PREPARED BY ME OR UNDER MY SUPERVISION 284

Exhibit B
Site Map
285
860.62'295.00'SANTIAGO CANYON ROAD
109'59'
C/L INT. OF SANTIAGO CANYON RD. &SANTIAGO BLVD.

P.O.C.PCL.1 & PCL.2
T.P.O.B.PCL.1 & PCL.2(N17°51'36"W 786.15' R1)L2
N17°51'36"W 713.99'(L21R1)(L20 R1)(L19 R1)(S49°27'01"W 665.06' R1)(N17°09'39"W 1155.62' R1) (S63°59'15"W 439.37' R1)(C1 R1)S21°20'11"E (R)LOMA STREET N'LY LINE OF THE LAND CONVEYED TO L.WARNER TAYLOR BY DEED RECORDED JAN.31, 1889 IN BOOK 526, PAGE 240 OF DEEDS.

N'LY LINE DESCRIBED IN DEEDRECORDED 02/15/1956 AS INST.NO. 3398-400, IN THE OFFICE OFTHE COUNTY RECORDER,COUNTY OF ORANGE, STATE OFCALIFORNIA.

SANTIAGO BOULEVARD
60'30'30'

E'LY RIGHT OF WAY OFSANTIAGO BOULEVARD
N'LY RIGHT OF WAY OFSANTIAGO CANYON RD.

DEED RECORDED 02/15/1956 ASINST. NO. 3398-400, IN THE OFFICE OFTHE COUNTY RECORDER, O.C. CA E'LY LINE OF LOT 5,BLOCK "A" OGE AND BONDL1L18L3L4L5L6L7L8L9L10L11L12L13L14L15L16L17L22 EXHIBIT "B"SHEET 2 OF 2 SHEETS
R:\15\1545\SURVEY\LEGALS\LLA\LLA Exh B-Sheet 02.dwg
LOT LINE ADJUSTMENT LL-__________(MAP)
SCALE:1"=200'POR. LOT 5, BLOCK "A"OwnerExisting Parcel(APN)Proposed ParcelReferenced NumberOC RECLAMATION, LLC,a California limited liability company370-231-08370-231-13370-231-15PARCEL 1370-231-08370-231-13PARCEL 2OC RECLAMATION, LLC,a California limited liability company POR. LOT 5MR 3/430-431, L.A.CO.PARCEL 1PARCEL 2R.S.B. 291/38POR. LOT 4BLOCK "A"LEGENDExisting line to be revisedExisting line to be remainProposed parcel lineIndicates record data as notedIndicates record data per RSB 291/38.R1( ) SEE SHEET 1 FOR DATA TABLES3.71 AC. +/-11.68 AC. +/-
Indicates true point of beginningT.P.O.B.Indicates point of commencementP.O.C.Indicates parcel numberPCL. # POR. LOT 6BLOCK "A"BLOCK "A" OF LANDSOF OGE AND BONDAPN: 370-231-13 APN: 370-231-08
APN: 370-231-15
286

RESOLUTION NO. 11572

A RESOLUTION OF THE CITY COUNCIL OF

THE CITY OF ORANGE APPROVING
CONDITIONAL USE PERMIT NO. 3229 -24 TO

ALLOW THE EXPANDED SALE OF BUILDING

MATERIALS AND LANDSCAPE SUPPLIES IN

CONJUNCTION WITH AN EXISTING BLUE
RIBBON NURSERY AT 5093 E. SANTIAGO

CANYON ROAD

APPLICANT: OC RECLAMATION, LLC

WHEREAS, in 1989, the City of Orange approved Conditional Use Permit No. 1744 and Administrative Adjustment 89-4 to allow for the operation of the Blue Ribbon Nursery, located at 5093 E. Santiago Canyon Road (alternate addresses 1425 North Santiago Boulevard and 1921 Old Country Park Road) (“Property”) , legally described as: Lot 5, Block A of Oge & Bond Tract, recorded in Book 3, Pages 430 and 431 of Miscellaneous Records of Los Angeles County CA; and

WHEREAS, a request to modify Conditional Use Permit No. 1744 was filed by OC Reclamation, LLC (“Applicant”) in accordance with the provisions of the OMC; and

WHEREAS, the Blue Ribbon Nursery is a long -standing business that has met the landscape supply needs of East Orange residents and the community at large for over 40 years with an identified need for an expanded storage area based on customer demand; and

WHEREAS, on August 5, 2024, the City’s Planning Commission recommended that the City Council approve an Ordinance amending Title 17 of the Orange Municipal Code to allow the sale of building materials and landscape supplies in a Sand and Gravel Zone in conjunction with a commercial nursery subject to a conditional use permit; and

WHEREAS, on August 5, 2024, by a unanimous vote, the City’s Planning Commission concurrently recommended that the City Council approve Conditional Use Permit No. 3229-24 to allow the sale of building materials and landscape supplies in a Sand and Gravel Zone in conjunction with a commercial nursery located at 5309 East Santiago Canyon Road; and

NOW, THEREFORE, BE IT RESOLVED that the City Council approves Conditional Use Permit No. 32 29-24, a modification of Conditional Use Permit No. 1744, to allow the expanded sales of building materials and landscape supplies , subject to the conditions contained herein.

SECTION 1 – FINDINGS

General Plan Finding:

287
2 1. The project must be consistent with the goals and policies stated within the City’s General Plan.

The project is consistent with the goals and policies stated in the City’s General Plan Land Use Element which encourages “a well -balanced community” as “one which provides a broad range of housing and business opportunities as well as recreational, institutional and cultural activities that enhance the overall living environment.” The project is also consistent with the goals and policies in the City’s General Plan Economic Development Element which support local businesses and businesses that supplement s maller components of the City’s retail base, and related Economic Development Plan.

Conditional Use Permit Findings:

1. A Conditional Use Permit shall be granted upon sound principles of land use and in response to services required by the community (OMC 17.10.030.F.1).

The granting of this Conditional Use Permit is based upon sound principles of land use and in response to services required by the community in that the Blue Ribbon Nursery has provided reliable nursery and landscape supplies, and firewood for decades, and is a recognized resource for such supplies by residents of Orange, and the neighboring cities of Villa Park and Anaheim. Expansion of the outdoor s torage of landscape and building materials is a low-intensity activity for a property that was home to sand and gravel mining until the 1960s , and is a setting characterized by single -family neighborhoods, an elementary school, and the Santiago Creek corridor.

2. A Conditional Use Permit shall not be granted if it will cause deterioration of bordering land uses or create special problems for the area in which it is located (OMC

17.10.030.F.2).

Expansion of the Blue Ribbon Nursery’s operational footprint to accommodate additional building materials and landscape supplies is not expected to detrimentally affect adjacent land uses or create special problems in the area. The site is surrounded by residential development to the north across Santiago Creek and south across Santiago Canyon Road; a private elementary school to the west; and, a water well and former landfill across Cannon Street to the east. The hours of operation of the businesses are proposed to be 6:00 a.m. to 8:00 p.m. Monday through Sunday. The area of expansion for the nursery is oriented to Santiago Canyon Road in a manner that is not anticipated to create impacts to the adjacent residences to the south across the Santiago Canyon Road roadway. It is also not anticipated to impact Oakridge Private School to the west given that the expanded area of activity separated from classroom, office, and play areas of the school. The expanded material storage area is separated a great distance from Santiago Creek, and also separated from the naturalized sand and gravel pit adjacent to the north . Therefore, no impacts to the creek corridor or naturalized condition of the pit are anticipated.

3. A Conditional Use Permit must be considered in relationship to its effect on the community or neighborhood plan for the area in which it is located (OMC 17.10.030.F.3). 288
3 The Blue Ribbon Nursery is not located in a neighborhood plan area. Expansion of the nursery provides for the productive use and stewardship of a former sand and gravel mine, accommodating goods and services utilized by surrounding neighborhood residents. The hours of operation are compatible with surrounding residential uses. Expanded storage of materials will not negatively affect either neighborhoods or the adjacent elementary school given the orientation of the storage on the site towards the Santiago Canyon Road frontage of the property, and separation of the storage areas from the neighborhoods by the expansive Santiago Canyon Road roadway to the south and naturalized sand and gravel pit and Santiago Creek corridor to the north.

4. A Conditional Use Permit, if granted, shall be made subject to those conditions necessary to preserve the general welfare, not the individual welfare of any particular applicant (OMC 17.10.030.F.4).

All project conditions preserve the general welfare of the City and community.

SECTION 2 – ENVIRONMENTAL REVIEW

The proposed action is exempt from the California Environmental Quality Act (CEQA) pursuant to, but not limited 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 stor age and sale of building materials and landscape supplies on portions of a commercial nursery site that are al ready 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.

SECTION 3 – CONDITIONS OF APPROVAL

BE IT FURTHER RESOLVED that the following conditions are imposed:

1. The applicant agrees, as a condition of City’s approval of Conditional Use Permit No. 3229-24, to indemnify, defend, and hold harmless, at applicant’s expense, the City, its officers, agents, and employees (“City”) from and against any claim, action or proceeding brought against the City, including, but not limited to, any claim, action or proceed ing commenced within the time period provided in Government Code Section 66499.37 to attack, review, set aside, void or annul the City’s approval, to challenge the determination made by the City under the California Environmental Quality Act (“CEQA”) or to challenge the reasonableness, legality or validity of any condition attached hereto. City shall promptly notify applicant of any such claim, action or proceeding to which the City receives notice and to cooperate fully with the applicant in the defense thereof. Applicant shall reimburse the City for any and all costs and expenses, including, but not limited to, court costs and attorney’s fees that the City may be required to pay, including any expenses ordered by a court or expenses incurred through the Office of the City Attorney in 289
4 connection with said claim, action or proceeding. City may, in its sole discretion, participate in the defense of any claim, action or proceeding but such participation shall not relieve applicant of the obligations of this condition. In the event the app licant is required to defend City in connection with such claim, action or proceeding, City shall have the right to approve counsel to so defend the City, approve all significant decisions concerning the manner in which the defense is conducted and approve any all settlements, which approval(s) shall not be unreasonably withheld. The obligations set forth herein remain in full force and effect throughout all stages of litigation including any and all appeals of any lower court judgment rendered in the proceeding. Further, applicant agrees to indemnify, defend and hold harmless the City for all costs and expenses incurred in enforcing this provision.

2. As required by Development Agreement No. 0010-24, and as may be amended, there is no limitation on the percentage of retail sales that are, or may be, conducted on the Property involving materials and landscape supplies. In addition, the use permitted by this CUP shall include the right to utilize all, or any portion, of the Property for the green waste supply, sales, and materials operation (but excluding rock crushing operations) and storage located in, on, or about the Property and the right to remove from the Property any non-green waste material inadvertently accepted for processing within thirty (30) days (rather than seven (7)) of such discovery. Further, the use shall include the right to overnight parking of delivery trucks on or about the Property.

3. All construction shall conform in substance and be maintained in general conformance with plans and exhibits labeled as Attachment 4 in the staff report date d August 5, 2024 , including modifications required by the conditions of approval, and as recommended for approval by the Planning Commission.

4. Except as otherwise provided herein, this project is approved as a precise plan. After any application has been approved, if changes are proposed, a changed plan may be submitted to the Community Development Director for approval. If the Community Development Director determines that the proposed change complies with the provisions and the spirit and intent of the approval action, and that the acti on would have been the same for the changed plan as for the approved plan, the Community Development Director may approve the changed plan administratively.

5. This Conditional Use Permit No. 3229 -24 shall be effective only upon adoption of Ordinance No. 24-XX (Zone Text Amendment) and approval of Development Agreement No. 0010 -24 (“Approvals”) and shall take effect only upon the effective date of said Approvals.

6. Any future expansion in the area or in the nature and operation of the approved use beyond that provided by this Conditional Use Permit No. 3229-24 shall require a new application and modification of this Conditional Use Permit.

290
5 7. The applicant shall comply with all federal, state, and local laws, including all City regulations. Violation of any of those laws in connection with the use may be cause for revocation of this permit.

8. If the use has not commenced, or if substantial construction has not begun within 24 months after the date the conditional use permit was approved , the project’s approval expires, in accordance with OMC Section 17. 10.030(I). Extensions of time may be granted, if requested in writing, in accordance with OMC Section 17.08.060.

9. Prior to issuance of a grading permit, the applicant shall submit a Lot Line Adjustment to the Public Works Department for review and approval. The Lot Line Adjustment shall be completed prior to permit issuance.

10. Any graffiti shall be removed within 72 hours from the time the City of Orange Notice of Violation is sent to the applicant/property owner’s address of record.

11. The hours of operation of the nursery shall be Monday through Sunday, 6:00 a.m. to 8:00 p.m., in a manner consistent with similar material storage businesses.

12. In conjunction with the operation of the use, all loading areas shall be maintained and kept clean and free of debris.

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 Attorney

291
6 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 Resolution was duly and regularly adopted by the City Council of the City of Orange at a regular meeting thereof held on the day of , 2024 by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange
292
RESOLUTION NO. PC 21.24

A RESOLUTION OF THE PLANNING COMMISSION

RECOMMENDING THE CITY COUNCIL APPROVE AN

ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ORANGE AMENDING CHAPTER 17.13 OF THE ORANGE

MUNICIPAL CODE TO CONDITIONALLY PERMIT THE

SALE OF BUILDING MATERIALS AND LANDSCAPE

SUPPLIES IN A SAND AND GRAVEL ZONE IN

CONJUNCTION WITH AN EXISTING COMMERCIAL

NURSERY
APPLICANT: OC RECLAMATION, LLC
WHEREAS, Orange Municipal Code (OMC) Chapter 17.13 sets forth allowable land uses in the zoning districts of the city as well as Conditional Use Permit regulations; and WHEREAS, the City wishes to accommodate the sale of building materials and landscape supplies in conjunction with existing commercial nurseries in the Sand and Gravel zone; and
WHEREAS, the City desires to amend the OMC as appropriate to support the viability of local businesses; and
WHEREAS' allowing a productive low-intensity neighborhood-serving use on property where mining and excavation activities have ceased has the potential to benefit property stewardship and provide convenient goods and services to nearby homes and commercial districts; 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 by the City Council.

NOW, THEREFORE, BE IT RESOLVED that the Planning Commission recommends that the City Council approve the subject Ordinance included as Attachment A to this Resolution, attached hereto, based on the following finding:
293
SECTION 1- FINDING
l. The proposed Ordinance supports the goals and policies of the Economic Development Element pertaining to supporting local businesses and businesses that supplement smaller components of the City's retail base, and related Economic Development Plan.

SECTION 2.ENVIRONMENTAL REVIEW
The proposed action is exempt from the California Environmental Quality Act (CEQA) pursuant to, but not limited 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 August2024.

Vazquez
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:

Y azquez, V ej ar, Martinez, Maldonado, Tucker, L eslie None
McCormack
?
Anna Pehoushek
Assistant Community Development Director
/
294

EXHIBIT A
RESOLUTION NO. PC 2I-24

DRAFT ORDINANCE

ZONING TEXT AMENDMENT
295
ORDINANCE NO. -24

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ORANGE AMENDING TITLE 17 OF THE ORANGE

MUNICIPAL CODE TO ALLOW THE SALE OF BUILDING

MATERIALS AND LANDSCAPE SUPPLIES IN A SAND

AND GRAVEL ZONE IN CONJUNCTION WITH A

COMMERCIAL NURSERY SUBJECT TO A CONDITIONAL

USE PERMIT
WHEREAS, the City desires to put in place practical policies and procedures that accommodate the storage and sale of building materials and bulk landscape supplies in the Sand and Gravel zone in association with established landscape and horticultural businesses to ensure the long-term viability of established businesses that contribute to the local economy; and WHEREAS, the City desires to allow the sale of materials and supplies consistent with established commercial nurseries subject to a Conditional Use Permit; and WHEREAS, the use of property in the Sand and Gravel zone as a commercial nursery with building materials and landscape supplies is a logical land use transition for property that has experienced mining and batch plant activity that has ceased that is in proximity to natural areas, wildlands, and residential development given the provision of supplies commonly used for property improvements in nearby neighborhoods and business districts.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES HEREBY ORDAIN AS FOLLOWS:

SECTION I:

Table 17.13.030 (Master Land Use Table) of the Orange Municipal Code (OMC) is hereby revised to add the category of "Commercial Nursery with Building Materials and Landscape Supplies" as a conditionally permitted use subject to specified regulations in the Sand and Gravel Zone subject to Conditional Use Permit regulations contained in OMC Section 17.13.050 as reflected by the addition of "C*" to the appropriate row and column of the Master Land Use Table (excerpt) as follows:

Agriculture/Horticulture Uses - Includes uses related to the growing of vegetation for food or ornamental landscaping.

PAgriculture/Horticulture
Commercial Nursery with Seasonal Sales
Commercial Nursery with Building Materials and l.andscape Supplies C+ Greenhouse
LAND I.]SE SG
296
KEY:

P = Permitted Use
C = Conditional Use Permit required. Refer to administrative procedure provisions in Section t7.08.030 and 17.10.030.

See Chapter 17.28 for overlay district procedures.
- = Not Permitted
+ = flse subject to Conditional Use Permit regulations contained in Section 17.13.050 SECTION II:

Section 17.13.050 of the Orange Municipal Code is hereby revised to relabel existing sub-section

17.13.050.0 "Commercial Nursery with Seasonal Sales" as 17.13.050.P in order to add "Commercial Nursery with Building Materials and Landscape Supplies" as a new sub-section

17.13.050.0, with the ensuing sub-sections sequentially re-labeled P through VV accordingly, to read as follows:

O. Commercial Nursery with Building Materials and Landscape Supplies. The outdoor storage and sale of bulk materials including but not limited to mulch, bark, gravel, river rock, boulders, and logs associated with a business established prior to the effective date of Ordinance No. -24 engaging in agricultural or horticultural activities.

SECTION III:

Should any section, subsection, clause, or provision of this Ordinance for any reason be held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Ordinance; it being hereby expressly declared that this Ordinance, and each section, subsection, sentence, clause and phrase hereof would have been prepared, proposed, approved and ratified irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

A summary of this Ordinance shall be published and a certihed copy of the full text of this Ordinance shall be posted in the Office of the City Clerk at least fifteen (15) days prior to the City Council meeting at which this Ordinance is to be adopted. A summary of this Ordinance shall also be published once within fifteen (15) days after its passage in a newspaper of general circulation in the City of Orange. The City Clerk shall post in the Office of the City Clerk a certified copy of the full text of the adopted Ordinance along with the names of those City Council members voting for and against the Ordinance in accordance with Government Code Section 36933.

ADOPTED this _ day of 2024
Daniel R. Slater, Mayor, City of Orange
SECTION IV:
297
ATTEST:

Pamela Coleman, City Clerk, City of Orange

STATE OF CALIFORNIA )
couNTY 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 _ day of 2024, and thereafter at the regular meeting of said City Council duly held on the _ day of _,2024, was duly passed and adopted by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

COUNCILMEMBERS:

COLTNCILMEMBERS:

COUNCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange
298
DEVELOPMENT 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:
299
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
300

EXHIBIT A
RESOLUTION NO. PC 22.24

DRAFT ORDINANCE
DEVELOPMENT AGREEMENT NO. OO1O-24
301
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
302
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
2 303
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:
304
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
4 305

EXHIBIT A
ORDINANCE NO. 16.24

DEVELOPMENT AGREEMENT
306

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
307

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:

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.

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. 308
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 following words and phrases are used as defined terms throughout this Agreement, and each defined term shall have the meaning set lbrth below 2 309

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
310

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 4 311
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.

3.1.1.3 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.
312

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 6 313
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.

3.5.1 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 1 314
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.

4.3 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 8 315
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.

5.3 Cancellation. Either party may propose cancellation to this Agreement.

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 9 316
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
317
(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
318
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."
12 319
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
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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
321
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 15 322
person designated by the City Manager may sign the Estoppel Certificate on behalf of the CITY.

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 16 323
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:
324
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.

12.6.8 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.

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. 326
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
327
INotary Acknowledgments Attachedl
328
Exhibit A
The Property
329
Exhibit B
Site Map
330
CONDITIONAL USE PERMIT NO. 3229-24
RESOLUTION NO. PC 23-24

A RESOLUTION OF THE PLANNING COMMISSION OF

THE CITY OF ORANGE RECOMMENDING CITY

COUNCIL APPROVAL OF CONDITIONAL USE PERMIT
NO. 3229-24 TO ALLOW THE EXPANDED SALE OF

BUILDING MATERIALS AND LANDSCAPE SUPPLIES IN

CONJUNCTION WITH AN EXISTING BLUE RIBBON
NURSERY AT 5093 E. SANTIAGO CANYON ROAD
APPLICANT: OC RECLAMATION' LLC
WHEREAS, in 1989, the City of Orange approved Conditional Use Permit No. ll44 and Administrative Adjustment 89-4 to allow for the operation of the Blue Ribbon Nursery, located at 5093 E. Santiago Canyon Road (altemate addresses 1425 North Santiago Boulevard and l92l Old Country Park Road) ("Property"), legally described as: Lot 5, Block A of Oge & Bond Tract, recorded in Book 3, Pages 430 and 431 of Miscellaneous Records of Los Angeles County CA; and
WHEREAS, Orange Municipal Code (OMC) Section l7.10.030authorizes the Planning Commission to take action on Conditional Use Permits except, in accordance with Table

17.08.020, in instances where the application requirements require City Council approval; and WHEREAS, a request to modifl, Conditional Use Permit No. 1744 was filed by OC Reclamation, LLC ("Applicant") in accordance with the provisions of the OMC; and WHEREAS, the Blue Ribbon Nursery is a long-standing business that has met the landscape supply needs of East Orange residents and the community at large for over 40 years with an identified need for an expanded storage area based on customer demand; and NOW, THEREFORE, BE IT RESOLVED that the Planning Commission recommends approval of Conditional Use Permit No. 3229-24, a modification of Conditional Use Permit No. 1744,to allow the expanded sales of building materials and landscape supplies.

SECTION 1 _ FINDINGS
General Plan Finding:
1 The project must be consistent with the goals and policies stated within the City's General Plan.
331
I
Resolution No. PC 23-24

Page 2 of 6 ends

The project is consistent with the goals and policies stated in the City's General Plan Land Use Element which encourages "a well-balanced community" as "one which provides a broad range of housing and business opportunities as well as recreational, institutional and cultural activities that enhance the overall living environment." The project is also consistent with the goals and policies in the City's General Plan Economic Development Element which support local businesses and businesses that supplement smaller components of the City's retail base, and related Economic Development Plan.

Conditional Use Permit Findings:

A Condittonal (Jse Permit shall be granted upon sound principles of land use and in response to services required by the community (OMC 17.10.030.F.1).

The granting of this Conditional Use Permit is based upon sound principles of land use and in response to services required by the community in that the Blue Ribbon Nursery has provided reliable nursery and landscape supplies, and firewood for decades, and is a recognized resource for such supplies by residents of Orange, and the neighboring cities of Villa Park and Anaheim. Expansion of the outdoor storage of landscape and building materials is a low-intensity activity for a property that was home to sand and gravel mining until the 1960s, and is a setting characterized by single-family neighborhoods, an elementary school, and the Santiago Creek corridor.

A Conditional (Jse Permit shall not be granted if it will cause deterioration of bordering land uses or create special problems .for the area in which it is located (OMC

17.10.030.F.2).

Expansion of the Blue Ribbon Nursery's operational footprint to accommodate additional building materials and landscape supplies is not expected to detrimentally affect adjacent land uses or create special problems in the area. The site is surrounded by residential development to the north across Santiago Creek and south across Santiago Canyon Road; a private elementary school to the west; and, a water well and former landfill across Cannon Street to the east. The hours of operation of the businesses are 6:00 a.m. to 8:00 p.m. Monday through Sunday. The area of expansion for the nursery is oriented to Santiago Canyon Road in a manner that is not anticipated to create impacts to the adjacent residences to the south across the Santiago Canyon Road roadway. It is also not anticipated to impact Oakridge Private School to the west given that the expanded area of activity separated from classroom, office, and play areas of the school. The expanded material storage area is separated a great distance from Santiago Creek, and also separated from the naturalized sand and gravel pit adjacent to the north. Therefore, no impacts to the creek corridor or naturalized condition of the pit are anticipated.

A Conditional t-Jse Permit must be considered in relationship to its effect on the community or neighborhood plan for the area in which it ls located (OMC

17.10.030.F.3).

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The Blue Ribbon Nursery is not located in a neighborhood plan area. Expansion of the nursery provides for the productive use and stewardship of a former sand and gravel mine, accommodating goods and services utilized by surrounding neighborhood residents. The hours of operation are compatible with surrounding residential uses.

Expanded storage of materials will not negatively affect either neighborhoods or the adjacent elementary school given the orientation of the storage on the site towards the Santiago Canyon Road frontage of the property, and separation of the storage areas from the neighborhoods by the expansive Santiago Canyon Road roadway to the south and naturalized sand and gravel pit and Santiago Creek corridor to the north.

A Conditional (Jse Permit, if granted, shall be made subject to those conditions necessqry to preserve the generol welfare, not the individual welfure of any particular applicant (oMC 17.10.030.F.4).

All project conditions preserve the general welfare of the City and community.

SECTION 2 - ENVIRONMENTAL REVIEW
The proposed action is exempt from the California Environmental Quality Act (CEQA) pursuant to, but not limited 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 fbrmer 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.

SECTION 3- CONDITIONS OF APPROVAL
BE IT FURTHER RESOLVED that the following conditions are imposed:

The applicant agrees, as a condition of City's approval of Conditional Use Permit No. 3229-24, to indemniS, defend, and hold harmless, at applicant's expense, the City, its officers, agents, and employees ("City") from and against any claim, action or proceeding brought against the City, including, but not limited to, any claim, action or proceeding commenced within the time period provided in Government Code Section 66499.37 to attack, review, set aside, void or annul the City's approval, to challenge the determination made by the City under the Califomia Environmental Quality Act ("CEQA") or to challenge the reasonableness, legality or validity of any condition attached hereto. City shall promptly notiS applicant of any such claim, action or proceeding to which the City receives notice and to cooperate fully with the applicant in the defense thereof. Applicant shall reimburse the City for any and all costs and expenses, including, but not limited to, court costs and attorney's fees that the City may be required to pay, including any expenses ordered by a court or expenses incurred through the Office of the City Attorney 1 333
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2. in connection with said claim, action or proceeding. City may, in its sole discretion, participate in the defense of any claim, action or proceeding but such participation shall not relieve applicant of the obligations of this condition. In the event the applicant is required to defend City in connection with such claim, action or proceeding, City shall have the right to approve counsel to so defend the City, approve all significant decisions conceming the manner in which the defense is conducted and approve any all settlements, which approval(s) shall not be unreasonably withheld. The obligations set forth herein remain in ttll force and effect throughout all stages of litigation including any and all appeals of any lower cou( judgment rendered in the proceeding. Further, applicant agrees to indemnifi, defend and hold harmless the City for all costs and expenses incurred in enforcing this provision.

As required by Development Agreement No. 0010-24, and as may be amended, there is no limitation on the percentage of retail sales that are, or may be, conducted on the Property involving materials and landscape supplies. In addition, the use permitted by this CUP shall include the right to utilize all, or any portion, of the Property for the green waste supply, sales, and materials operation (but excluding rock crushing operations) and storage located in, on, or about the Property and the right to remove from the Property any non-green waste material inadvertently accepted for processing within thirty (30) days (rather than seven (7)) of such discovery. Further, the use shall include the right to overnight parking of delivery trucks on or about the Property.

The applicant shall comply with all conditions of approval contained within Planning Commission Resolution No. PC 21-24 associated with Conditional Use Permit No. 3229-

24. All construction shall conform in substance and be maintained in general conformance with plans and exhibits labeled as Attachment 4 in the staff report dated August 5, 2024, including modifications required by the conditions of approval, and as recommended for approval by the Planning Commission.

Except as otherwise provided herein, this project is approved as a precise plan. After any application has been approved, if changes are proposed regarding the location or alteration of any use or structure, a changed plan may be submitted to the Community Development Director for approval. If the Community Development Director determines that the proposed change complies with the provisions and the spirit and intent of the approval action, and that the action would have been the same for the changed plan as for the approved plot plan, the Community Development Director may approve the changed plan administratively.

Conditional Use Permit No. 3229-24 shall be eff-ective only upon adoption of Ordinance No. 24-XX (Zone Text Amendment) and approval of Development Agreement No. 0010- 24 ("Approvals") and shall take effbct upon the effective date of said Approvals.

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7 Any future expansion in the area or in the nature and operation of the approved use by Conditional Use Permit No. 3229-24 shall require a new or amended application.

The applicant shall comply with all federal, state, and local laws, including all City regulations. Violation of any of those laws in connection with the use maybe cause for revocation of this permit.

If the use has not commenced, or if substantial construction has not begun within 24 months after the date the conditional use permit was approved, project approval expires, in accordance with OMC Section 17.08.030(I)(l). Extensions of time may be granted, if requested in writing in accordance with OMC Section 17.08.060.

Prior to issuance of a grading permit, the applicant shall submit a Lot Line Adjustment to the Public Works Department for review and approval. The Lot Line Adjustment shall be completed prior to permit issuance.

Any graffiti shall be removed within 72 hours from the time the City of Orange Notice of Violation is sent to the applicant/property owner's address of record.

The hours of operation of the nursery shall be Monday through Sunday,6:00 a.m. to 8:00 p.m., in a manner consistent with similar material storage businesses.

In conjunction with the operation of the use, all loading areas shall be maintained and kept clean and free ofdebris.

ADOPTED this 5th day of August,2024
David V, uez, P Commission Chair

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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:

Yazquez, Vejar, Martinez, Maldonado, Tucker, Leslie
None
McCormack
Anna Pehoushek
Assistant Community Development Director
336
City of Orange
Planning Commission
August 05, 2024

1. OPENING/CALL TO ORDER
Chair Vazquez called the meeting to order at 5:31 p.m.

1.1 PLEDGE OF ALLEGIANCE
Commissioner Tucker led the flag salute.

1.2 ROLL CALL

Present: Martinez, Vejar, Maldonado, Tucker, Leslie, and Vazquez

Absent: McCormack

2. PUBLIC COMMENTS
None.

3.1. Approval of meeting minutes of the City of Orange Planning Commission Regular Meeting held on June 3, 2024.

ACTION: Approved minutes as presented.

Approval of the Consent Calendar
A motion was made by Vice Chair Martinez, seconded by Commissioner Vejar, to approve the Consent Calendar. The motion carried by the following vote:

Martinez, Vejar, Maldonado, Tucker, Leslie, and VazquezAyes:

NoneNoes:

McCormackAbsent:

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337
Planning Commission Minutes - Final August 5, 2024

4. PUBLIC HEARINGS

Public Speakers:

The following spoke on behalf of the project:

Reggie Mundekis, Michael Granek, Bonnie Robinson, and Charles Curry Chair Vazquez closed the public hearing at 5:46 p.m.

A motion was made by Chair Vazquez, seconded by Commissioner Vejar to:

4. Find that the Ordinance is exempt from the California Environmental Quality Act (CEQA) per State CEQA Guidelines pursuant to, but not limited to Section 15305, 15307, and 15308.

The motion carried by the following vote:

Martinez, Vejar, Maldonado, Tucker, Leslie, and VazquezAyes:

NoneNoes:

McCormackAbsent:

4.2. Public Hearing to consider an ordinance amending Title 17 of the Orange Municipal Code to update homeless shelter regulations and definition and finding of CEQA exemption.

Chair Vazquez opened the public hearing at 5:55 p.m.; there being no speakers, Chair Vazquez closed the public hearing at 5:55 p.m.

A motion was made by Vice Chair Martinez, seconded by Commissioner Maldonado,

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Orange City CouncilSeptember 10, 2024

Orange City Council
September 10, 2024