“Provide a safe and reliable transportation network that serves all people and respects the environment” Transportation Planning
1. Stanton’s Active Transportation Plan (2021) mentions several proposed Class I multi-use paths that would run adjacent to both project sites. The proposed Class I path along the diagonal flood control channel south of Chapman Ave is directly south of the townhomes project site, while the proposed Class I path on the Rail right of way is just west of the Orangewood Parkette. The project should consider both proposed multiuse paths as these paths can provide future connectivity for nearby residents and park users.
2. Caltrans supports the project’s inclusion of bike parking, at the Orangewood Parkette. Bike parking should be installed a minimum of 24” away from walls and other objects (e.g. trash cans, plants, sprinklers, etc.).
Also, consider bike racks that can accommodate a range of bicycle styles, sizes, and weights (e.g. cargo bike, electric bike, bike with trailer).
3. For additional guidance on providing functional bike parking, see the attached “Essentials of Bike Parking” guidance created by the Association of Pedestrian and Bicycle Professionals (link to online PDF:
https://www.apbp.org/Publications).
4. According to 3.17 Transportation Section the proposed project has “Less Than Significant Impact”. The project is to develop residential housing, which may increase traffic congestion and number of SOV trips. As Caltrans seeks to promote safe, accessible multimodal transportation, consider including a discussion on potentially improving multimodal transportation (i.e., walking, biking, and transit) options as part of the project development. Providing improved multimodal connections to the project site that can encourage residents to utilize alternative transportation options, thus reducing GHG emissions, congestion, and VMT. This also improves public health. Also, please consider including a discussion on general transportation safety improvements, especially for vulnerable road users such as bicyclists and pedestrians.
Ms. Estefany Franco
November 18, 2021
“Provide a safe and reliable transportation network that serves all people and respects the environment” Encroachment Permits
5. Any work performed within Caltrans right-of-way (R/W) will require discretionary review and approval by Caltrans and an encroachment permit will be required for any work within the Caltrans R/W prior to construction. As indicated on page 22 of the Initial Study & Mitigated Negative Declaration, an Encroachment Permit must be obtained for modifications of the Beach Boulevard Driveways within State R/W, which also applies to any other type of work done in State R/W (ie sidewalk, curb & gutter, etc.). If the cost of work within State R/W is below one million dollars, the Encroachment Permit Process will be handled by Caltrans Permit’s Branch, otherwise the permit should be authorized through Caltrans Project Delivery Quality Management Assessment Process.
6. Applicant must submit the signed Standard Encroachment Permit application form TR-0100 along with a deposit payable to Caltrans.
Deposit amount will be dependent on when the application is submitted.
Public corporations are legally exempt from encroachment permit fees.
However, contractors working for public corporations are not exempt from fees. Project plans and traffic control plans must be stamped and signed by a licensed engineer. For all plans, please show Caltrans R/W lines, the north arrow, the edge of pavement, and edge of the sidewalk, if applicable, and all plans shall be per Caltrans Standard Plans. When submitting the application, please incorporate Environmental Documentation as needed, relevant design details including design exception approvals, traffic control plans, and any letter of authorizations.
For specific details on Caltrans Encroachment Permits procedure, please refer to Caltrans Encroachment Permits Manual. The latest edition of the Manual and all Encroachment Permit updates are available on the website at https://dot.ca.gov/programs/traffic-operations/ep
7. Additional information regarding encroachment permits may be obtained by contacting the Caltrans Permits Office at (657) 328-6553.
Early coordination with Caltrans is strongly advised for all encroachment permits.
Ms. Estefany Franco
November 18, 2021
“Provide a safe and reliable transportation network that serves all people and respects the environment” Please continue to coordinate with Caltrans for any future developments that could potentially impact State transportation facilities. If you have any questions, please do not hesitate to contact Maryam Molavi at [email protected].
Sincerely,
Scott Shelley
Branch Chief,
Local Development/Regional Planning/Transit
Caltrans, District 12
State Agency: Caltrans
Commenter: Scott Shelley Branch Chief, Local Development/Regional Planning/Transit Caltrans, District 12
Date Letter Received: November 18, 2021
Comment C-1
Thank you for including the California Department of Transportation (Caltrans) in the review of the Initial Study and Mitigated Negative Declaration for the Bigsby Townhomes and Orangewood Parkette project. The Applicant (Bonanni Development) proposes to construct a 79-unit townhome residential development on an approximately 3.54-acre site at 12200 Beach Boulevard Assessor Parcel Number 131-422-20, within the Commercial General (C-G) zone with a General Mixed-Use Overlay (GLMX). The proposed project also includes an off-site pocket park (Orangewood Parkette) of approximately 7,600 square feet at the terminus of Orangewood Avenue and Santa Rosalia Street. The proposed project will require approval of (1) Site Plan and Design Review (SPDR)- 811, (2) Conditional Use Permit (CUP) 20-04 for a stand-alone residential project in the Mixed-Use zone; (3) Planned Development Permit (PDP) 20-07 for projects between 51-500 units; (4) Tentative Tract Map (TTM) 20-06 for the subdivision of land for condominium purposes; and (5) Development Agreement (DA) 20-04 for projects requiring a Planned Development Permit. The project site is located on 12200 Beach Boulevard and the Orangewood Parkette at the terminus of Orangewood Avenue and Santa Rosalia Street and the nearest state facilities are SR-22 and SR-39.
The mission of Caltrans is to provide a safe, sustainable, integrated, and efficient transportation system to enhance California’s economy and livability. Caltrans is a responsible agency and has the following comments:
Response C-1
The comment thanks the City of Stanton for the opportunity to review the IS/MND and correctly states information from the project description. No further response is necessary.
Comment C-2
Stanton’s Active Transportation Plan (2021) mentions several proposed Class I multi-use paths that would run adjacent to both project sites. The proposed Class I path along the diagonal flood control channel south of Chapman Ave is directly south of the townhomes project site, while the proposed Class I path on the Rail right of way is just west of the Orangewood Parkette. The project should consider both proposed multi-use paths as these paths can provide future connectivity for nearby residents and park users.
Response C-2
As mentioned in the comment the Stanton’s Active Transportation Plan has identified several Class 1 multi-use paths which can be used by residents and visitors.
Comment C-3
Caltrans supports the project’s inclusion of bike parking, at the Orangewood Parkette. Bike parking should be installed a minimum of 24” away from walls and other objects (e.g. trash cans, plants, sprinklers, etc.). Also, consider bike racks that can accommodate a range of bicycle styles, sizes, and weights (e.g. cargo bike, electric bike, bike with trailer).
Response C-3
The comment is noted for the record.
Comment C-4
For additional guidance on providing functional bike parking, see the attached “Essentials of Bike Parking” guidance created by the Association of Pedestrian and Bicycle Professionals (link to online PDF: https://www.apbp.org/Publications).
Response C-4
The comment does not contain questions or comments about the IS/MND. No further response is necessary.
Comment C-5
According to 3.17 Transportation Section the proposed project has “Less Than Significant Impact”. The project is to develop residential housing, which may increase traffic congestion and number of SOV trips. As Caltrans seeks to promote safe, accessible multimodal transportation, consider including a discussion on potentially improving multimodal transportation (i.e., walking, biking, and transit) options as part of the project development. Providing improved multimodal connections to the project site that can encourage residents to utilize alternative transportation options, thus reducing GHG emissions, congestion, and VMT. This also improves public health.
Also, please consider including a discussion on general transportation safety improvements, especially for vulnerable road users such as bicyclists and pedestrians.
Response C-5
The comment is noted for the record. As set forth in the MND, the Project will have a less than significant impact relating to transportation. The comment broadly notes that residential housing development may increase traffic congestion and SOV trips. Under State CEQA Guidelines section 15064.3, “a project’s effect on automobile delay shall not constitute a significant environmental impact.” Even though a project’s effect on automobile delay is not a significant environmental impact under CEQA, the MND did analyze the project’s effect on automobile delay, and the analysis demonstrated that the project would not have a significant effect on automobile delay. Consistent with this conclusion, the comment does not provide any evidence suggesting that this project could result in a significant increase in traffic congestion. The comment also encourages the City to consider including a discussion on potentially improving multimodal transportation (e.g., biking) options as part of the project development, as well as a discussion on general transportation safety improvements. Neither of these comments present substantial evidence suggesting that the project could potentially have a significant effect on the environment. That said, the project does improve multimodal transportation by encouraging bicycle use, as the Orangewood Parkette includes a bike rack.
Comment C-6
Any work performed within Caltrans right-of-way (R/W) will require discretionary review and approval by Caltrans and an encroachment permit will be required for any work within the Caltrans R/W prior to construction. As indicated on page 22 of the Initial Study & Mitigated Negative Declaration, an Encroachment Permit must be obtained for modifications of the Beach Boulevard Driveways within State R/W, which also applies to any other type of work done in State R/W (ie sidewalk, curb & gutter, etc.). If the cost of work within State R/W is below one million dollars, the Encroachment Permit Process will be handled by Caltrans Permit’s Branch, otherwise the permit should be authorized through Caltrans Project Delivery Quality Management Assessment Process.
Response C-6
The project will incorporate a condition requiring that any work performed within Caltrans right-of-way (R/W) will require discretionary review and approval by Caltrans and an encroachment permit will be required for any work within the Caltrans R/W prior to construction work within the Caltrans right-of-way. No further response is necessary.
Comment C-7
Applicant must submit the signed Standard Encroachment Permit application form TR-0100 along with a deposit payable to Caltrans. Deposit amount will be dependent on when the application is submitted. Public corporations are legally exempt from encroachment permit fees. However, contractors working for public corporations are not exempt from fees. Project plans and traffic control plans must be stamped and signed by a licensed engineer. For all plans, please show Caltrans R/W lines, the north arrow, the edge of pavement, and edge of the sidewalk, if applicable, and all plans shall be per Caltrans Standard Plans. When submitting the application, please incorporate Environmental Documentation as needed, relevant design details including design exception approvals, traffic control plans, and any letter of authorizations. For specific details on Caltrans Encroachment Permits procedure, please refer to Caltrans Encroachment Permits Manual. The latest edition of the Manual and all Encroachment Permit updates are available on the website at https://dot.ca.gov/programs/traffic-operations/ep Response C-7
The comment has been noted for the record.
Comment C-8
Additional information regarding encroachment permits may be obtained by contacting the Caltrans Permits Office at (657) 328-6553. Early coordination with Caltrans is strongly advised for all encroachment permits.
Response C-8
The comment has been noted for the record.
ORANGE COUNTY F'IRE AUTHORITY
P. 0. Box 57115, Irvine, CA 92619-7115 • I Fite Authority Road, Irvine, CA 92602-0125 Brian Fennessy, Ffre Cbief
November 16, 2021
Jennifer Lilley AICP
Community and Economic Development Director
City of Stanton Plamling Division
7800 Katella A venue
Stanton, CA 90680
[email protected]
(714) 573-6000 www.ocfa.org
Subject: Notice of lo tent to Adopt a Mitigated Negative Declaration- Bigsby Townhome Project and Orangewood Parkette
Dear Jennifer Lilley;
Thank you for the opportunity to review the subject document. The Orange County Fire Authority (OCF A) provides fire protection and emergency medical services response to 23 cities in Orange County and all wlincorporated areas. The OCF A operates 77 fire stations throughout Orange County, one (1) within Stanton, which includes the project area.
Services include: stmctural fire protection, emergency medical and rescue services, education and hazardous material response. OCF A also pa1ticipates in disaster planning as it relates to emergency operations, which includes high occupant areas and school sites and may participate in community disaster ddlls planned by others. Resources are deployed based upon a regional service dehve1y system, assigning personnel and equipment to emergency incidents without regard to jurisdictional boundaiies.
The following are our comments:
• The project is subject to review by the OCF A and cun-ent editions of the CBC, CFC and related codes. • A water supply system to supply fire hydrants and automatic fire sprinkler systems is required. • lf this project is in a fuel modification zone, it is subject to review by the OCFA, and Guideline C-05. • Fire department access shall be provided all around the buildings and site • lmpact: project increases population and can potentially increase workload. All projects are cumulative and OCFA uses a fair share approach to mitigate fire service response impacts and facility/equipment needs.
• Mitigation: Participate with the City through developer agreements for future fire facility mitigation.
Thank you for providing us with this information. Please contact me at 714-573-6253 if you have any questions.
Robert J Distaso PE, Fire Safety Engineer, Pla1ming and Development [email protected]
55414.00602\34587047.1
Agency: Orange County Fire Authority
Commenter: Robert J Distaso, PE, Fire Safety Engineer, Planning and Development Date Letter Received: November 16, 2021
Comment B-1
Thank you for the opportunity to review the subject document. The Orange County Fire Authority (OCFA) provides fire protection and emergency medical services response to 23 cities in Orange County and all unincorporated areas. The OCFA operates 77 fire stations throughout Orange County, one (1) within Stanton, which includes the project area. Services include: structural fire protection, emergency medical and rescue services, education and hazardous material response.
OCFA also participates in disaster planning as it relates to emergency operations, which includes high occupant areas and school sites and may participate in community disaster drills planned by others. Resources are deployed based upon a regional service delivery system, assigning personnel and equipment to emergency incidents without regard to jurisdictional boundaries.
Response B-1
The comment serves as introduction to OCFA’s comments and provides general background. No significant environmental issues are raised in the comment.
Comment B-2
The project is subject to review by the OCFA and current editions of the CBC, CFC and related codes.
Response B-2
The City of Stanton appreciates review of the proposed project by OCFA, and the City acknowledges that the project is subject to, and complies with, the regulations set forth in the California Building Code and the California Fire Code. As set forth in the Initial Study/Mitigated Negative Declaration (IS/MND) for the proposed Project, the Project will conform to all fire protection and prevention requirements, including, but not limited to, building setbacks, emergency access, and fire flow. No significant environmental issues are raised in the comment.
Comment B-3
A water supply system to supply fire hydrants and automatic fire sprinkler system is required. 55414.00602\34587047.1
Response B-3
The project will comply with all Orange County Fire Authority requirements and the comment is noted for the record.
Comment B-4
If this project is in a fuel modification zone, it is subject to review by the OCFA, and Guideline C05.
Response B-4
The proposed Project is not within a fuel modification zone, as explained in the IS/MND.
No significant environmental issues are raised in the comment.
Comment B-5
Fire department access shall be provided all around the buildings and site.
Response B-5
The fire department will have access to the proposed project sites during both construction and operation phases of the proposed project. No significant environmental issues are raised in the comment.
Comment B-6
Impact: project increases population and can potentially increase workload. All projects are cumulative and OCFA uses a fair share approach to mitigate fire service response impacts and facility/equipment needs.
Response B-6
The proposed Project will not require or result in new or physically altered facilities relating to fire protection in order to maintain acceptable response times or performance objectives relating to fire protection, and the Project will thus not result in any significant impacts on the environment relating to the construction of such facilities. No significant environmental issues are raised in the comment.
Comment B-7
Mitigation: Participate with the City through developer agreements for future fire facility mitigation.
Response B-7
55414.00602\34587047.1
As noted above, the proposed project will not have a significant impact on the environment relating to this issue, and no mitigation is therefore required under CEQA. No significant environmental issues are raised in the comment.
ORDINANCE NO. 1114
PAGE 1 OF 13
ORDINANCE NO. 1114
AN ORDINANCE OF THE CITY COUNCIL OF STANTON, CALIFORNIA AMENDING STANTON MUNICIPAL CODE TITLE 20, ZONING, SECTION 20.400.330 ACCESSORY DWELLING UNITS, TO UPDATE THE CITY’S ACCESSORY
DWELLING UNIT (ADU) AND JUNIOR ACCESSORY DWELLING UNIT (JADU)
REGULATIONS
WHEREAS, on October 9, 2019, Governor Gavin Newsom signed Senate Bill (“SB”) 13, Assembly Bill (“AB”) 68, and AB 881 into law, which amended Government Code sections 65852.2 and 65852.22 and added Health and Safety Code section 17980.12. Collectively, these bills established new Statewide requirements for the development and use of accessory dwelling units (“ADUs”) and junior accessory dwelling units (at times herein referred to as “Junior ADUs,” and at others generally as “ADU”). Thereafter, AB 3182 further amended California Government Code section 65852.2’s ADU and JADU standards; and
WHEREAS, in response to these changes in state law, the City adopted Ordinance 1108 to amend and update Stanton Municipal Code Section 20.400.330 (Accessory Dwelling Units). As permitted under state law, Ordinance No. 1108 included, among other things, objective standards pertaining to the size, location, height, and architecture of ADUs in the City; and
WHEREAS, City staff has determined that further amendments and revisions to the City’s regulation of ADUs and JADUs are necessary and appropriate to comply with state law, add additional clarity, and protect the health, safety, and welfare of the community; and WHEREAS, staff and the City Attorney prepared the proposed Ordinance, including the proposed language and terminology, and any additional information and documents deemed necessary for the Planning Commission to take action; and WHEREAS, on November 17, 2021, the Planning Commission conducted and concluded a duly noticed public hearing concerning the Zoning Text Amendment contained herein as required by law and received testimony from City staff and all interested parties regarding the proposed amendments and recommended that the City Council adopt the amendments; and
WHEREAS, on December 14, 2021, the City Council conducted and concluded a duly noticed public hearing concerning the Municipal Code amendments contained herein as required by law and received testimony from City staff and all interested parties regarding the proposed amendments; and
WHEREAS, all legal prerequisites to the adoption of the Ordinance have occurred.
Item: 11A
Click here to return to the agenda
ORDINANCE NO. 1114
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF STANTON DOES ORDAIN AS FOLLOWS:
Incorporation of Recitals. The recitals above are each incorporated by reference and adopted as findings by the City Council.
Amendment to SMC Section 20.400.330. The City Council of the City of hereby amends Stanton Code Title 20, Zoning, Section 20.400.330, Accessory Dwelling Units, and restates it to read as follows:
Section 20.400.330 Accessory Dwelling Units
A. Purpose. The purpose of this section is to allow and regulate accessory dwelling units (ADUs) and junior accessory dwelling units (JADUs) in compliance with California Government Code sections 65852.2 and 65852.22.
B. Effect of Conforming. An ADU or JADU that conforms to the standards in this section will not be:
(1) Deemed to be inconsistent with the City’s General Plan and zoning designation for the lot on which the ADU or JADU is located. (2) Deemed to exceed the allowable density for the lot on which the ADU or JADU is located.
(3) Considered in the application of any local ordinance, policy, or program to limit residential growth.
(4) Required to correct a nonconforming zoning condition, as defined in subsection C(7) below. This does not prevent the City from enforcing compliance with applicable building standards in accordance with Health and Safety Code section 17980.12.
C. Definitions. As used in this section, terms are defined as follows:
(1) “Accessory dwelling unit” or “ADU” means an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing primary residence. An accessory dwelling unit also includes the following:
(A) An efficiency unit, as defined by Section 17958.1 of the California Health and Safety Code; and
(B) A manufactured home, as defined by Section 18007 of the California Health and Safety Code.
(2) “Accessory structure” means a structure that is accessory and incidental to a dwelling located on the same lot. Refer to Section 20.700.070.
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(3) “Complete independent living facilities” means permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily dwelling is or will be situated. (4) “Efficiency kitchen” means a kitchen that includes each of the following:
(A) A cooking facility with appliances.
(B) A food preparation counter or counters that total at least 15 square feet in area.
(C) Food storage cabinets that total at least 30 square feet of shelf space.
(5) “Junior accessory dwelling unit” or “JADU” means a residential unit that (A) is no more than 500 square feet in size,
(B) is contained entirely within an existing or proposed single-family structure,
(C) includes its own separate sanitation facilities or shares sanitation facilities with the existing or proposed single-family structure, and (D) includes an efficiency kitchen, as defined in subsection C(4) above (6) “Living area” means the interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure.
(7) “Nonconforming zoning condition” means a physical improvement on a property that does not conform with current zoning standards. (8) “Passageway” means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the ADU or JADU. (9) “Proposed dwelling” means a dwelling that is the subject of a permit application and that meets the requirements for permitting. (10) “Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.
(11) “Tandem parking” means that two or more automobiles are parked on a driveway or in any other location on a lot, lined up behind one another.
D. Approvals. The following approvals apply to ADUs and JADUs under this section:
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(1) Building-permit Only. If an ADU or JADU complies with each of the general requirements in subsection E below, it is allowed with only a building permit in the following scenarios:
(A) Converted on Single-family Lot: One ADU as described in this subsection D(1)(A) and one JADU on a lot with a proposed or existing single-family dwelling on it, where the ADU or JADU:
(i) Is either: within the space of a proposed single-family dwelling; within the existing space of an existing singlefamily dwelling; or within the existing space of an accessory structure, plus up to 150 additional square feet if the expansion is limited to accommodating ingress and egress; and
(ii) Has exterior access that is independent of that for the singlefamily dwelling; and (iii) Has side and rear setbacks sufficient for fire and safety, as dictated by applicable building and fire codes; and
(iv) The JADU complies with all the requirements of Gov. Code section 65852.22
(B) Limited Detached on Single-family Lot: One detached, newconstruction ADU on a lot with a proposed or existing single-family dwelling (in addition to any JADU that might otherwise be established on the lot under subsection D(1)(A) above), if the detached ADU satisfies the following limitations:
(i) The side- and rear-yard setbacks are at least four-feet. (ii) The total floor area is 800 square feet or smaller. (iii) The peak height above grade is 16 feet or less.
(C) Converted on Multifamily Lot: One or more ADUs within portions of existing multifamily dwelling structures that are not used as livable space, including but not limited to storage rooms, boiler rooms, passageways, attics, basements, or garages, if each converted ADU complies with state building standards for dwellings. Under this subsection D(1)(C), at least one converted ADU is allowed within an existing multifamily dwelling, and up to a quantity equal to 25 percent of the existing multifamily dwelling units.
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(D) Limited Detached on Multifamily Lot: No more than two detached ADUs on a lot that has an existing multifamily dwelling if each detached ADU satisfies the following limitations:
(i) The side- and rear-yard setbacks are at least four-feet. (ii) The peak height above grade is 16 feet or less.
(2) ADU Permit.
(A) Except as allowed under subsection D (1) above, no ADU may be created without a building permit and an ADU permit in compliance with the standards set forth in subsections E and F below. (B) The City may charge a fee to reimburse it for costs incurred in processing ADU permits, including the costs of adopting or amending the City’s ADU ordinance. The ADU-permit processing fee is determined by the Director and approved by the City Council by resolution.
(3) Process and Timing.
(A) An ADU permit is considered and approved ministerially, without discretionary review or a hearing.
(B) The City must act on an application to create an ADU or JADU within 60 days from the date that the City receives a completed application. If the City does not act upon the completed application within 60 days, the application is deemed approved unless either:
(i) The applicant requests a delay, in which case the 60-day time period is tolled for the period of the requested delay, or (ii) When an application to create an ADU or JADU is submitted with a permit application to create a new single-family dwelling on the lot, the City may delay acting on the permit application for the ADU or JADU until the City acts on the permit application to create the new single-family dwelling, but the application to create the ADU or JADU will still be considered ministerially without discretionary review or a hearing.
E. General ADU and JADU Requirements. The following requirements apply to all ADUs and JADUs that are approved under subsections D(1) or D(2) above:
(1) Location. Subject to subsection (I) below:
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PAGE 6 OF 13
(A) An ADU or JADU subject only to a building permit under subsection D(1) above may be created on a lot in a residential or mixed-use zone.
(B) An ADU or JADU subject to an ADU permit under subsection D(2) above may be created on a lot that is zoned to allow single-family dwelling residential use or multifamily dwelling residential use. (2) Fire Sprinklers. Fire sprinklers are required in an ADU if sprinklers are required in the primary residence.
(3) Rental Term. No ADU or JADU may be rented for a term that is shorter than 30 days.
(4) No Separate Conveyance. Subject to Government Code Section 65852.26, an ADU or JADU may be rented long-term, but no ADU or JADU may be sold or otherwise conveyed separately from the lot and the primary dwelling (in the case of a single-family lot) or from the lot and all of the dwellings (in the case of a multifamily lot).
(5) Septic System. If the ADU or JADU will connect to an onsite watertreatment system, the owner must include with the application a percolation test completed within the last five years or, if the percolation test has been recertified, within the last 10 years.
(6) Owner Occupancy.
(A) All ADUs created before January 1, 2020, are subject to the owneroccupancy requirement that was in place when the ADU was created.
(B) An ADU that is created after that date but before January 1, 2025, is not subject to any owner-occupancy requirement.
(C) All ADUs that are created on or after January 1, 2025, are subject to an owner-occupancy requirement. A natural person with legal or equitable title to the property must reside on the property as the person’s legal domicile and permanent residence.
(D) All JADUs are subject to an owner-occupancy requirement. A natural person with legal or equitable title to the property must reside on the property, in either the primary dwelling or JADU, as the person’s legal domicile and permanent residence. However, the owner-occupancy requirement of this paragraph does not apply if the property is entirely owned by another governmental agency, land trust, or housing organization.
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(7) Deed Restriction. Prior to issuance of a building permit for an ADU or JADU, a deed restriction must be recorded against the title of the property in the County Recorder’s office and a copy filed with the Director. The deed restriction must run with the land and bind all future owners. The form of the deed restriction will be provided by the City and must provide that:
(A) The ADU or JADU may not be sold separately from the primary dwelling.
(B) The ADU or JADU is restricted to the approved size and to other attributes allowed by this section.
(C) The deed restriction runs with the land and may be enforced against future property owners.
(D) The deed restriction may be removed if the owner eliminates the ADU or JADU, as evidenced by, for example, removal of the kitchen facilities. To remove the deed restriction, an owner may make a written request of the Director, providing evidence that the ADU or JADU has in fact been eliminated. The Director may then determine whether the evidence supports the claim that the ADU or JADU has been eliminated. Appeal may be taken from the
Director’s determination consistent with other provisions of this Code. If the ADU or JADU is not entirely physically removed but is only eliminated by virtue of having a necessary component of an ADU or JADU removed, the remaining structure and improvements must otherwise comply with applicable provisions of this Code. (E) The deed restriction is enforceable by the Director or his or her designee for the benefit of the City. Failure of the property owner to comply with the deed restriction may result in legal action against the property owner, and the City is authorized to obtain any remedy available to it at law or equity, including, but not limited to, obtaining an injunction enjoining the use of the ADU or JADU in violation of the recorded restrictions or abatement of the illegal unit.
F. Specific ADU Requirements. The following requirements apply only to ADUs that require an ADU permit under subsection D(2) above. (1) Maximum Size.
(A) The maximum size of a detached or attached ADU subject to this subsection F is 850 square feet for a studio or one-bedroom unit and 1,000 square feet for a unit with two bedrooms.
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(B) An attached ADU that is created on a lot with an existing primary dwelling is further limited to 50 percent of the floor area of the existing primary dwelling.
(C) Application of other development standards in this subsection F, such as FAR or lot coverage, might further limit the size of the ADU, but no application of FAR, lot coverage, or open-space requirements may require the ADU to be less than 800 square feet. (2) Floor Area Ratio (FAR). No ADU subject to this subsection F may cause the total FAR of the lot to exceed, subject to subsection F(1)(C) above.
FAR/Target Range General
GLMX
North Gateway
NGMX
South Gateway
SGMX
Target Density
Range
Density range for residential uses expressed as dwelling units per NET acre.
Residential Uses 25 - 45 du/ac 25 - 45 du/ac 30 - 60 du/ac Target Intensity
Range Floor area ratio (FAR) for nonresidential uses
Nonresidential
Uses (1)
1.0 - 2.0 1.0 - 2.0 1.5 - 3.0
(3) Lot Coverage. No ADU subject to this subsection F may cause the total lot coverage of the lot to exceed the following coverage, subject to subsection F(1)(C) above.
Lot Coverage RE RL RM RH
Interior Lot 30% 40% 50% 65%
Corner Lot 35% 45% 50% 65%
(4) Impervious surface coverage. Maximum percentage of the total gross lot area that may be covered by structures and impervious surfaces shall not exceed 70 percent, subject to subsection F(1)(C) above. (5) Height. No ADU subject to this subsection F may exceed 16 feet in height above grade, measured to the peak of the structure.
(6) Setbacks.
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(A) An ADU that is subject to this subsection F must conform to a 25- foot front-yard setback.
(B) An ADU that is subject to this subsection F must conform to 4-foot side-and rear-yard setbacks.
(C) No setback is required for an ADU that is subject to this subsection F if the ADU is constructed in the same location and to the same dimensions as an existing structure
(7) Passageway. No passageway, as defined by subsection C(8) above, is required for an ADU.
(8) Parking.
(A) Generally. One off-street parking space is required for each ADU.
The parking space may be provided in setback areas or as tandem parking, as defined by subsection C(11) above.
(B) Exceptions. No parking under subsection F(8)(A) is required in the following situations:
(i) The ADU is located within one-half mile walking distance of public transit, as defined in subsection C(10) above.
(ii) The ADU is located within an architecturally and historically significant historic district.
(iii) The ADU is part of the proposed or existing primary residence (single-family converted ADUs, not multifamily converted) or an accessory structure under subsection
D(1)(A) above.
(iv) When on-street parking permits are required but not offered to the occupant of the ADU.
(v) When there is an established car share vehicle stop located within one block of the ADU.
(C) No Replacement. When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an ADU or converted to an ADU, those off-street parking spaces are not required to be replaced.
(9) Architectural Requirements.
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(A) The materials and colors of the exterior walls, roof, and windows and doors must match the appearance and architectural design of those of the primary dwelling.
(B) The roof slope must match that of the dominant roof slope of the primary dwelling. The dominant roof slope is the slope shared by the largest portion of the roof.
(C) The exterior lighting must be limited to down-lights or as otherwise required by the building or fire code.
(D) The ADU must have an independent exterior entrance, apart from that of the primary dwelling. The ADU entrance must be located on the side or rear building façade, not facing a public-right-of-way. (E) The interior horizontal dimensions of an ADU must be at least 10 feet wide in every direction, with a minimum interior wall height of seven feet.
(F) Windows and doors of the ADU may not have a direct line of sight to an adjoining residential property. Fencing, landscaping, or privacy glass may be used to provide screening and prevent a direct line of sight.
(G) All windows and doors in an ADU are less than 30 feet from a property line that is not a public right-of-way line must either be (for windows) clerestory with the bottom of the glass at least six feet above the finished floor, or (for windows and for doors) utilize frosted or obscure glass.
G. Fees.
(1) Impact Fees.
(A) No impact fee is required for an ADU that is less than 750 square feet in size. For purposes of this subsection Error! Reference source not found., “impact fee” means a “fee” under the Mitigation Fee Act (Gov. Code § 66000(b)) and a fee under the Quimby Act (Gov. Code § 66477). “Impact fee” here does not include any connection fee or capacity charge for water or sewer service. (B) Any impact fee that is required for an ADU that is 750 square feet or larger in size must be charged proportionately in relation to the square footage of the primary dwelling unit. (E.g., the floor area of the primary dwelling, divided by the floor area of the ADU, times the typical fee amount charged for a new dwelling.)
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(2) Utility Fees.
(A) If an ADU or JADU is constructed with a new single-family home, a separate utility connection directly between the ADU or JADU and the utility and payment of the normal connection fee and capacity charge for a new dwelling are required.
(B) Except as described in subsection G(2)(A), converted ADUs and JADUs on a single-family lot, created under subsection D(1)(A) above, are not required to have a new or separate utility connection directly between the ADU or JADU and the utility. Nor is a connection fee or capacity charge required unless the ADU or JADU is constructed with a new single-family home.
(C) Except as described in subsection G(2)(A), all ADUs and JADUs not covered by subsection G(2)(A) above require a new, separate utility connection directly between the ADU or JADU and the utility. (i) The connection is subject to a connection fee or capacity charge that is proportionate to the burden created by the ADU or JADU, based on either the floor area or the number of drainage-fixture units (DFU) values, as defined by the Uniform Plumbing Code, upon the water or sewer system.
(ii) The fee or charge may not exceed the reasonable cost of providing this service.
H. Nonconforming ADUs and Discretionary Approval. Any proposed ADU or JADU that does not conform to the objective standards set forth in subsections A though G(2) of this section may be allowed by the City with a use permit, in accordance with Chapter 20.550.
I. Restricted Areas. ADUs or JADUs shall not be allowed where roadways, public utilities and services are inadequate with reference to objective and published thresholds established by the utility or service provider. To ensure access by public safety vehicles, an ADU may not be located on a lot that fronts a roadway that is narrower than the minimum road width standards established by the Orange County Fire Authority’s Master Plans for Commercial and Residential Development (as the same may be amended from time to time), unless: (a) one (1) on-site parking space is provided for each bedroom included in the ADU ; and (b) replacement on-site parking spaces are provided for any parking spaces that are lost or converted to accommodate the ADU.
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Effect of Restatement. All restated, unamended provisions of the Stanton Municipal Code that are repeated herein are repeated only to aid decision makers and the public in understanding the effect of the proposed changes. Restatement of existing provisions does not constitute a new enactment.
Severability. Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance, and, to that end, the provisions hereof are severable. The City Council of the City of Stanton declares that it would have adopted all the provisions of this Ordinance that remain valid if any provisions of this ordinance are declared invalid.
CEQA. The City Council determines that the adoption of this Ordinance is exempt from additional environmental review under California Public Resources Code Section 21080.17, which exempts the adoption of an accessory dwelling unit ordinance to implement the provisions of Section 65852.2 of the California Government Code.
Adoption, Certification, and Publication. The City Clerk of the City of Stanton shall certify the passage and adoption of this Ordinance and shall cause the same, or a summary thereof, to be published and/or posted in the manner required by law. This Ordinance shall take effect 30 days after its adoption.
SECTION 7. SUBMISSION TO HCD. The City Clerk shall submit a copy of this Ordinance to the Department of Housing and Community Development within 60 days after adoption.
PASSED, APPROVED, AND ADOPTED this 11th day of January, 2022.
DAVID J. SHAWVER, MAYOR
ATTEST:
PATRICIA A. VAZQUEZ, CITY CLERK
ORDINANCE NO. 1114
PAGE 13 OF 13
APPROVED AS TO FORM:
HONGDAO NGUYEN, CITY ATTORNEY
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS .
CITY OF STANTON )
I, Patricia A. Vazquez, City Clerk of the City of Stanton, California, do hereby certify that the foregoing Ordinance No. 1114 was introduced at a regular meeting of the City Council of the City of Stanton, California, held on the 14th day of December, 2021 and was duly adopted at a regular meeting of the City Council held on the 11th day of January, 2022, by the following roll-call vote, to wit:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
_____________________________
CITY CLERK, CITY OF STANTON
ORDINANCE NO. 1116
ORDINANCE NO. 1116
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF STANTON, CALIFORNIA, ADDING SECTION 6.06 OF THE STANTON MUNICIPAL CODE REQUIRING “MANDATORY ORGANIC WASTE DISPOSAL REDUCTION” AND FINDING SAME
EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
WHEREAS, the City of Stanton, as a general law city, is authorized by Article XI, Section 7 of the California Constitution to make and enforce within its limits all local, policy, sanitary and other ordinances and regulations not in conflict in general laws; and WHEREAS, the purpose of this Ordinance is to amend existing City codes related to integrated waste management necessary to comply with State law, specifically State Senate Bill 1383 regulations; and
WHEREAS, the City Council of the City of Stanton hereby finds portions of State Senate Bill 1383 to be an unfunded State mandate, which has and will cause solid waste disposal rates to increase in order to comply with State law; and WHEREAS, all legal prerequisites have occurred prior to the adoption of this Ordinance.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF STANTON DOES ORDAIN AS FOLLOWS:
SECTION 1: The City Council finds that all the facts, findings and conclusions set forth above in this Ordinance are true and correct.
SECTION 2: The City Council finds that this Ordinance is exempt from the California Environmental Quality Act (CEQA) pursuant to State CEQA Guidelines Sections 15061(b)(3) and 15308 on the grounds that it can be seen with certainty that the enhanced solid waste regulations, as provided for in Ordinance No. 1116 will not have a significant effect on the environment and that the new requirements, which strengthen requirements for the handling of solid waste, represent actions by a regulatory agency (the City) for the protection of the environment.
SECTION 3: Section 6.06 of the Stanton Municipal Code is hereby added to read as follows:
Mandatory Organic Waste Disposal Reduction Ordinance
6.06.010. PURPOSE AND FINDINGS
The City of Stanton finds and declares:
(a) State recycling law, Assembly Bill 939 of 1989 and the California Integrated Waste Management Act of 1989 (California Public Resources Code section 40000, et seq., as amended, supplemented, superseded, and replaced from time to time), requires cities and counties to reduce, reuse, and recycle (including composting) Item:11B
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ORDINANCE NO. 1116
Solid Waste generated in their cities to the maximum extent feasible before any incineration or landfill disposal of waste, to conserve water, energy, and other natural resources, and to protect the environment.
(b) State recycling law, Assembly Bill 341 of 2011 (approved by the Governor of the State of California on October 5, 2011, which amended Sections 41730, 41731, 41734, 41735, 41736, 41800, 42926, 44004, and 50001 of, and added Sections 40004, 41734.5, and 41780.01 and Chapter 12.8 (commencing with Section 42649) to Part 3 of Division 30 of, and added and repealed Section 41780.02 of, the Public Resources Code, as amended, supplemented, superseded and replaced from time to time), places requirements on businesses and Multi-Family property owners that generate a specified threshold amount of Solid Waste to arrange for recycling services and requires cities to implement a mandatory commercial recycling program.
(c) State organics recycling law, Assembly Bill 1826 of 2014 (approved by the Governor of the State of California on September 28, 2014, which added Chapter
12.9 (commencing with Section 42649.8) to Part 3 of Division 30 of the Public Resources Code, relating to Solid Waste, as amended, supplemented, superseded, and replaced from time to time), requires businesses and Multi-Family property owners that generate a specified threshold amount of Solid Waste, recycling, and Organic Waste per week to arrange for recycling services for that waste, requires cities to implement a recycling program to divert Organic Waste from businesses subject to the law, and requires cities to implement a mandatory commercial organics recycling program.
(d) SB 1383, the Short-lived Climate Pollutant Reduction Act of 2016, requires CalRecycle to develop regulations to reduce organics in landfills as a source of methane. The regulations place requirements on multiple entities including cities, residential households, Commercial Businesses and business owners, Commercial Edible Food Generators, haulers, Self-Haulers, Food Recovery Organizations, and Food Recovery Services to support achievement of statewide Organic Waste disposal reduction targets.
(e) SB 1383, the Short-lived Climate Pollutant Reduction Act of 2016, requires cities to adopt and enforce an ordinance or enforceable mechanism to implement relevant provisions of SB 1383 Regulations. This ordinance will also help reduce food insecurity by requiring Commercial Edible Food Generators to arrange to have the maximum amount of their Edible Food, that would otherwise be disposed, be recovered for human consumption.
(f) Requirements in this ordinance are consistent with other adopted goals and policies of the City.
6.06.020. TITLE OF ORDINANCE
This chapter shall be entitled “Mandatory Organic Waste Disposal Reduction Ordinance”.
ORDINANCE NO. 1116
6.06.030. DEFINITIONS
(a) “Blue Container” has the same meaning as in 14 CCR Section 18982.2(a)(5) and shall be used for the purpose of storage and collection of Source Separated Recyclable Materials or Source Separated Blue Container Organic Waste. (b) “CalRecycle” means California's Department of Resources Recycling and Recovery, which is the department designated with responsibility for developing, implementing, and enforcing SB 1383 Regulations on Cities (and others). (c) “California Code of Regulations” or “CCR” means the State of California Code of Regulations. CCR references in this ordinance are preceded with a number that refers to the relevant Title of the CCR (e.g., “14 CCR” refers to Title 14 of CCR). (d) “City Enforcement Official” means the city manager or his or her designee in charge or their authorized Designee(s) who is/are partially or whole responsible for enforcing the ordinance.
(e) “Commercial Business” or “Commercial” means a firm, partnership, proprietorship, joint-stock company, corporation, or association, whether for-profit or nonprofit, strip mall, industrial facility, or a multifamily residential dwelling, or as otherwise defined in 14 CCR section 18982(a)(6). A Multi-Family Residential Dwelling that consists of fewer than five (5) units is not a Commercial Business for purposes of implementing this ordinance.
(f) “Commercial Edible Food Generator” includes a Tier One Commercial Edible Food Generator or a Tier Two Commercial Edible Food Generator as defined in Sections 3(iii) and 3(jjj) of this ordinance or as otherwise defined in 14 CCR section 18982(a)(73) and (a)(74). For the purposes of this definition, Food Recovery Organizations and Food Recovery Services are not Commercial Edible Food Generators pursuant to 14 CCR section 18982(a)(7).
(g) “Compliance Reviews” means reviews of records by the City to determine compliance with this ordinance.
(h) “Community Composting” means any activity that composts green material, agricultural material, food material, and vegetative food material, alone or in combination, and the total amount of feedstock and Compost on-site at any one time does not exceed 100 cubic yards and 750 square feet, as specified in 14 CCR section 17855(a)(4); or, as otherwise defined by 14 CCR section 18982(a)(8). (i) “Compost” has the same meaning as in 14 CCR section 17896.2(a)(4), which stated, as of the effective date of this ordinance, that “Compost” means the product resulting from the controlled biological decomposition of organic Solid Wastes that are Source Separated from the municipal Solid Waste stream, or which are separated at a centralized facility.
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(j) “Compostable Plastics” or “Compostable Plastic” means plastic materials that meet the ASTM D6400 standard for compostability, or as otherwise described in 14 CCR Section 18984.1(a)(1)(A) or 18984.2(a)(1)(C).
(k) “Container Contamination” or “Contaminated Container” means a container, regardless of color, that contains Prohibited Container Contaminants, or as otherwise defined in 14 CCR section 18982(a)(55).
(l) “C&D” means construction and demolition debris.
(m)“Designee” means an entity that the City contracts with or otherwise arranges to carry out any of the City’s responsibilities of this ordinance as authorized in 14 CCR section 18981.2. A Designee may be a government entity, a hauler, a private entity, or a combination of those entities.
(n) “Edible Food” means food intended for human consumption, or as otherwise defined in 14 CCR section 18982(a)(18). For the purposes of this ordinance or as otherwise defined in 14 CCR section 18982(a)(18), “Edible Food” is not Solid Waste if it is recovered and not discarded. Nothing in this ordinance or in 14 CCR, Division 7, Chapter 12 requires or authorizes the Recovery of Edible Food that does not meet the food safety requirements of the California Retail Food Code. (o) “Enforcement Action" or “Enforcement Actions” means an action or actions of the City to address non-compliance with this ordinance including, but not limited to, issuing administrative citations, fines, penalties, or using other remedies. (p) “Excluded Waste” means hazardous substance, hazardous waste, infectious waste, designated waste, volatile, corrosive, medical waste, infectious, regulated radioactive waste, and toxic substances or material that facility operator(s), which receive materials from the City and its generators, reasonably believe(s) would, as a result of or upon acceptance, transfer, processing, or disposal, be a violation of local, State, or federal law, regulation, or ordinance, including: land use restrictions or conditions, waste that cannot be disposed of in Class III landfills or accepted at the facility by permit conditions, waste that in the City’s, or its Designee’s reasonable opinion would present a significant risk to human health or the environment, cause a nuisance or otherwise create or expose the City, or its Designee, to potential liability; but not including de minimis volumes or concentrations of waste of a type and amount normally found in Single-Family or Multi-Family Solid Waste after implementation of programs for the safe collection, processing, recycling, treatment, and disposal of batteries and paint in compliance with California Public Resources Code sections 41500 and 41802. (q) “Food Distributor” means a company that distributes food to entities including, but not limited to, Supermarkets and Grocery Stores, or as otherwise defined in 14 CCR section 18982(a)(22).
(r) ““Food facility” has the same meaning as in section 113789 of the Health and Safety Code, as may be amended from time to time, and means a permanent ORDINANCE NO. 1116
or temporary operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level. A food facility includes an operation where food is consumed on or off the premises, regardless of whether there is a charge for the food. A food facility also includes a place used in conjunction with the operations described in this section including, but not limited to, storage facilities for food-related utensils, equipment, and materials. Examples of a food facility includes, but is not limited to, school cafeterias, restricted food service facilities, most licensed health care facilities, commissaries, mobile food facilities, mobile support units, vending machines, certified farmers’ markets, farm stands, fisherman’s markets, microenterprise home kitchen operations, catering operations, and host facilities. Food facility does not include any of the following:
(1) A cooperative arrangement wherein no permanent facilities are used for storing or handling food.
(2) A private home when used for private, noncommercial purposes or when used as a registered or permitted cottage food operation.
(3) A church, private club, or other nonprofit association that gives or sells food to its members and guests, and not to the general public, at an event that occurs not more than three (3) days in any ninety (90) day period. (4) A for-profit entity that gives or sells food at an event that occurs not more than three (3) days in a ninety (90) day period for the benefit of a nonprofit association, if the for-profit entity receives no monetary benefit, other than that resulting from recognition from participating in an event. (5) A premises set aside for wine tasting, or beer tasting, regardless of whether there is a charge for the wine or beer tasting if no other beverage, except for bottles of wine or beer and prepackaged not potentially hazardous beverages, are offered for sale or for onsite consumption and no food, except for crackers, pretzels, or prepackaged food that is not potentially hazardous food is offered for sale or for onsite consumption.
(6) An outlet or location, operated by a producer, selling or offering for sale only whole produce grown by the producer or shell eggs, or both, provided the sales are conducted at an outlet or location controlled by the producer. (7) A commercial food processing establishment.
(8) A child day care facility.
(9) A community care facility.
(10) A residential care facility for the elderly.
(11) A residential care facility for the chronically ill. (12) An intermediate care facility for the developmentally disabled. (13) A community food producer.
(14) A limited-service charitable feeding operation.
ORDINANCE NO. 1116
(s) “Food Recovery” means actions to collect and distribute food for human consumption that otherwise would be disposed, or as otherwise defined in 14 CCR section 18982(a)(24).
(t) “Food Recovery Organization” means an entity that engages in the collection or receipt of Edible Food from Commercial Edible Food Generators and distributes that Edible Food to the public for Food Recovery either directly or through other entities or as otherwise defined in 14 CCR section 18982(a)(25), including, but not limited to:
(1) A food bank as defined in Health and Safety Code section 113783; (2) A nonprofit charitable organization as defined in Health and Safety Code section 113841; and
(3) A nonprofit charitable temporary Food Facility as defined in Health and Safety Code section 113842 .
(4) A Food Recovery Organization is not a Commercial Edible Food Generator for the purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12 pursuant to 14 CCR section 18982(a)(7). i. If the definition in 14 CCR section 18982(a)(25) for Food Recovery Organization differs from this definition, the definition in 14 CCR section 18982(a)(25) shall apply to this ordinance.
(u) “Food Recovery Service” means a person or entity that collects and transports Edible Food from a Commercial Edible Food Generator to a Food Recovery Organization or other entities for Food Recovery, or as otherwise defined in 14 CCR section 18982(a)(26). A Food Recovery Service is not a Commercial Edible Food Generator for the purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12 pursuant to 14 CCR section 18982(a)(7). (v) “Food Scraps” means all food such as, but not limited to, fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese, and eggshells. Food Scraps excludes fats, oils, and grease when such materials are Source Separated from other Food Scraps.
(w)“Food Service Provider” means an entity primarily engaged in providing food services to institutional, governmental, Commercial, or industrial locations of others based on contractual arrangements with these types of organizations, or as otherwise defined in 14 CCR section 18982(a)(27).
(x) Food-Soiled Paper” is compostable paper material that has come in contact with food or liquid, such as, but not limited to, compostable paper plates, paper coffee cups, napkins, pizza boxes, and milk cartons.
(y) Food Waste” means Food Scraps, Food-Soiled Paper, and Compostable Plastics ORDINANCE NO. 1116
(z) “Gray Container” has the same meaning as in 14 CCR section 18982.2(a)(28) and shall be used for the purpose of storage and collection of Gray Container Waste. (aa) “Gray Container Waste” means Solid Waste that is collected in a Gray Container that is part of a three-container Organic Waste collection service that prohibits the placement of Organic Waste in the Gray Container as specified in 14 CCR Sections 18984.1(a) and (b), or as otherwise defined in 14 CCR Section 17402(a)(6.5).
(bb) “Green Container” has the same meaning as in 14 CCR Section 18982.2(a)(29) and shall be used for the purpose of storage and collection of Source Separated Green Container Organic Waste.
(cc) “Grocery Store” means a store primarily engaged in the retail sale of canned food; dry goods; fresh fruits and vegetables; fresh meats, fish, and poultry; and any area that is not separately owned within the store where the food is prepared and served, including a bakery, deli, and meat and seafood departments, or as otherwise defined in 14 CCR section 18982(a)(30).
(dd) “Hauler Route” means the designated itinerary or sequence of stops for each segment of the City’s collection service area, or as otherwise defined in 14 CCR section 18982(a)(31.5).
(ee)“Inspection” means a site visit where a City reviews records, containers, and an entity’s collection, handling, recycling, or landfill disposal of Organic Waste or Edible Food handling to determine if the entity is complying with requirements set forth in this ordinance, or as otherwise defined in 14 CCR section 18982(a)(35). (ff) “Large Event” means an event, including, but not limited to, a sporting event or a flea market, that charges an admission price, or is operated by a local agency, and serves an average of more than 2,000 individuals per day of operation of the event, at a location that includes, but is not limited to, a public, nonprofit, or privately owned park, parking lot, golf course, street system, or other open space when being used for an event. If the definition in 14 CCR section 18982(a)(38) differs from this definition, the definition in 14 CCR section 18982(a)(38) shall apply to this ordinance.
(gg)“Large Venue” means a permanent venue facility that annually seats or serves an average of more than 2,000 individuals within the grounds of the facility per day of operation of the venue facility. For purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12, a venue facility includes, but is not limited to, a public, nonprofit, or privately owned or operated stadium, amphitheater, arena, hall, amusement park, conference or civic center, zoo, aquarium, airport, racetrack, horse track, performing arts center, fairground, museum, theater, or other public attraction facility. For purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12, a site under common ownership or control that includes more than one Large Venue that is contiguous with other Large Venues ORDINANCE NO. 1116
in the site, is a single Large Venue. If the definition in 14 CCR section 18982(a)(39) differs from this definition, the definition in 14 CCR section 18982(a)(39) shall apply to this ordinance.
(hh) “Local Education Agency” means a school district, charter school, or county office of education that is not subject to the control of city or county regulations related to Solid Waste, or as otherwise defined in 14 CCR section 18982(a)(40). (ii) “Multi-Family Residential Dwelling” or “Multi-Family” means of, from, or pertaining to residential premises with five (5) or more dwelling units. Multi-Family premises do not include hotels, motels, or other transient occupancy facilities, which are considered Commercial Businesses.
(jj) “Non-Organic Recyclables” means non-putrescible and non-hazardous recyclable wastes including but not limited to bottles, cans, metals, plastics and glass, or as otherwise defined in 14 CCR Section 18982(a)(43).
(kk) “Notice of Violation” means a notice that a violation has occurred that includes a compliance date to avoid an action to seek penalties, or as otherwise defined in 14 CCR section 18982(a)(45) or further explained in 14 CCR section 18995.4.
(ll) “Organic Waste” means Solid Wastes containing material originated from living organisms and their metabolic waste products, including but not limited to food, green material, landscape and pruning waste, organic textiles and carpets, lumber, wood, Paper Products, Printing and Writing Papers, manure, biosolids, digestate, and sludges or as otherwise defined in 14 CCR section 18982(a)(46). Biosolids and digestate are as defined by 14 CCR section 18982(a). (mm) “Organic Waste Generator” means a person or entity that is responsible for the initial creation of Organic Waste, or as otherwise defined in 14 CCR section 18982(a)(48).
(nn)“Paper Products” include, but are not limited to, paper janitorial supplies, cartons, wrapping, packaging, file folders, hanging files, corrugated boxes, tissue, and toweling, or as otherwise defined in 14 CCR section 18982(a)(51). (oo)“Printing and Writing Papers” shall include, but are not limited to, copy, xerographic, watermark, cotton fiber, offset, forms, computer printout paper, white wove envelopes, manila envelopes, book paper, note pads, writing tablets, newsprint, and other uncoated writing papers, posters, index cards, calendars, brochures, reports, magazines, and publications, or as otherwise defined in 14 CCR section 18982(a)(54).
(pp)“Prohibited Container Contaminants” means the following: (i) discarded materials placed in the Blue Container that are not identified as acceptable Source Separated Recyclable Materials for the City’s Blue Container; (ii) discarded materials placed in the Green Container that are not identified as acceptable ORDINANCE NO. 1116
Source Separated Green Container Organic Waste for the City’s Green Container; (iii) discarded materials placed in the Gray Container that are acceptable Source Separated Recyclable Materials and/or Source Separated Green Container Organic Wastes to be placed in City’s Green Container and/or Blue Container; and, (iv) Excluded Waste placed in any container.
(qq) “Recovered Organic Waste Product” means products made from California, landfill-diverted recovered Organic Waste processed in a permitted or otherwise authorized facility, or as otherwise defined in 14 CCR section 18982(a)(60). (rr) “Recovery” means any activity or process described in 14 CCR section 18983.1(b), or as otherwise defined in 14 CCR section 18982(a)(49). (ss) “Recycled-Content Paper” means Paper Products and Printing and Writing Papers that consists of at least 30 percent, by fiber weight, postconsumer fiber, or as otherwise defined in 14 CCR section 18982(a)(61).
(tt) “Restaurant” means an establishment primarily engaged in the retail sale of food and drinks for on-premises or immediate consumption, or as otherwise defined in 14 CCR section 18982(a)(64).
(uu)“Route Review” means a visual Inspection of containers along a Hauler Route for the purpose of determining Container Contamination, and may include mechanical Inspection methods such as the use of cameras, or as otherwise defined in 14 CCR section 18982(a)(65).
(vv) “SB 1383” means Senate Bill 1383 of 2016 approved by the Governor on September 19, 2016, which added Sections 39730.5, 39730.6, 39730.7, and 39730.8 to the Health and Safety Code, and added Chapter 13.1 (commencing with Section 42652) to Part 3 of Division 30 of the Public Resources Code, establishing methane emissions reduction targets in a statewide effort to reduce emissions of short-lived climate pollutants as amended, supplemented, superseded, and replaced from time to time.
(ww)“SB 1383 Regulations” means or refers to, for the purposes of this ordinance, the Short-Lived Climate Pollutants: Organic Waste Reduction regulations developed by CalRecycle and adopted in 2020 that created 14 CCR, Division 7, Chapter 12 and amended portions of regulations of 14 CCR and 27 CCR. (xx) “Self-Hauler” means a person, who hauls Solid Waste, Organic Waste or recyclable material he or she has generated to another person. Self-Hauler also includes a person who back-hauls waste, or as otherwise defined in 14 CCR section 18982(a)(66). Back-haul means generating and transporting Organic Waste to a destination owned and operated by the generator using the generator’s own employees and equipment, or as otherwise defined in 14 CCR section 18982(a)(66)(A).
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(yy) “Single-Family” means of, from, or pertaining to any residential premises with fewer than five (5) units.
(zz) “Solid Waste” has the same meaning as defined in State Public Resources Code section 40191, which defines Solid Waste as all putrescible and non-putrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, demolition and construction wastes, abandoned vehicles and parts thereof, discarded home and industrial appliances, dewatered, treated, or chemically fixed sewage sludge which is not hazardous waste, manure, vegetable or animal solid and semisolid wastes, and other discarded solid and semisolid wastes, with the exception that Solid Waste does not include any of the following wastes:
(1) Hazardous waste, as defined in the State Public Resources Code section 40141.
(2) Radioactive waste regulated pursuant to the State Radiation Control Law (Chapter 8 (commencing with Section 114960) of Part 9 of Division 104 of the State Health and Safety Code).
(3) Medical waste regulated pursuant to the State Medical Waste Management Act (Part 14 (commencing with Section 117600) of Division 104 of the State Health and Safety Code). Untreated medical waste shall not be disposed of in a Solid Waste landfill, as defined in State Public Resources Code section 40195.1. Medical waste that has been treated and deemed to be Solid Waste shall be regulated pursuant to Division 30 of the State Public Resources Code.
(aaa) “Source Separated” means materials, including commingled recyclable materials, that have been separated or kept separate from the Solid Waste stream, at the point of generation, for the purpose of additional sorting or processing those materials for recycling or reuse in order to return them to the economic mainstream in the form of raw material for new, reused, or reconstituted products, which meet the quality standards necessary to be used in the marketplace, or as otherwise defined in 14 CCR section 17402.5(b)(4). For the purposes of the ordinance, Source Separated shall include separation of materials by the generator, property owner, property owner’s employee, property manager, or property manager’s employee into different containers for the purpose of collection such that Source Separated materials are separated from Gray Container Waste or other Solid Waste for the purposes of collection and processing.
(bbb) “Source Separated Blue Container Organic Waste” means Source Separated Organic Wastes that can be placed in a Blue Container that is limited to the collection of those Organic Wastes and Non-Organic Recyclables as defined in Section 18982(a)(43), or as otherwise defined by Section 17402(a)(18.7).
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(ccc) “Source Separated Green Container Organic Waste” means Source Separated Organic Waste that can be placed in a Green Container that is specifically intended for the separate collection of Organic Waste by the generator, excluding Source Separated Blue Container Organic Waste, carpets, NonCompostable Paper, and textiles. (ddd) “Source Separated Recyclable Materials” means Source Separated NonOrganic Recyclables and Source Separated Blue Container Organic Waste. (eee) “State” means the State of California.
(fff) “Supermarkets” means a full-line, self-service retail store with gross annual sales of two million dollars ($2,000,000), or more, and which sells a line of dry grocery, canned goods, or nonfood items and some perishable items, or as otherwise defined in 14 CCR section 18982(a)(71).
(ggg) “Tier One Commercial Edible Food Generator” means a Commercial Edible Food Generator that is one of the following:
(1) Supermarket.
(2) Grocery Store with a total facility size equal to or greater than 10,000 square feet.
(3) Food Service Provider.
(4) Food Distributor.
(5) Wholesale Food Vendor.
i. If the definition in 14 CCR section 18982(a)(73) of Tier One Commercial Edible Food Generator differs from this definition, the definition in 14 CCR section 18982(a)(73) shall apply to this ordinance.
(hhh) “Tier Two Commercial Edible Food Generator” means a Commercial Edible Food Generator that is one of the following:
(1) Restaurant with 250 or more seats, or a total facility size equal to or greater than 5,000 square feet.
(2) Hotel with an on-site Food Facility and 200 or more rooms. (3) Health facility with an on-site Food Facility and 100 or more beds. (4) Large Venue.
(5) Large Event.
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(6) A State agency with a cafeteria with 250 or more seats or total cafeteria facility size equal to or greater than 5,000 square feet. (7) A Local Education Agency facility with an on-site Food Facility. i. If the definition in 14 CCR section 18982(a)(74) of Tier Two Commercial Edible Food Generator differs from this definition, the definition in 14 CCR section 18982(a)(74) shall apply to this ordinance.
(iii) “Wholesale Food Vendor” means a business or establishment engaged in the merchant wholesale distribution of food, where food (including fruits and vegetables) is received, shipped, stored, prepared for distribution to a retailer, warehouse, distributor, or other destination, or as otherwise defined in 14 CCR section 189852(a)(76).
6.06.040. REQUIREMENTS FOR SINGLE-FAMILY GENERATORS
Single-Family Organic Waste Generators shall comply with the following requirements:
(a) Shall subscribe to City’s Organic Waste collection services for all Organic Waste generated as described below in Section 4(b). City shall have the right to review the number and size of a generator’s containers to evaluate adequacy of capacity provided for each type of collection service for proper separation of materials and containment of materials; and, Single-Family generators shall adjust its service level for its collection services as requested by the City. Generators may additionally manage their Organic Waste by preventing or reducing their Organic Waste, managing Organic Waste on site, and/or using a Community Composting site pursuant to 14 CCR section 18984.9(c).
(b) Shall participate in the City’s Organic Waste collection service(s) by placing designated materials in designated containers as described below, and shall not place Prohibited Container Contaminants in collection containers. (1) Generator shall place Source Separated Green Container Organic Waste, including Food Waste, in the Green Container; Source Separated Recyclable Materials in the Blue Container; and Gray Container Waste in the Gray Container. Generators shall not place materials designated for the Gray Container into the Green Container or Blue Container..
6.06.050. REQUIREMENTS FOR COMMERCIAL BUSINESSES
Generators that are Commercial Businesses, including Multi-Family Residential Dwellings, shall:
(a) Subscribe to City’s three-container collection services and comply with requirements of those services as described below in Section 6(b), City shall have the right to review the number and size of a generator’s containers and frequency ORDINANCE NO. 1116
of collection to evaluate adequacy of capacity provided for each type of collection service for proper separation of materials and containment of materials; and, Commercial Businesses shall adjust their service level for their collection services as requested by the City.
(b) Participate in the City’s Organic Waste collection service(s) by placing designated materials in designated containers as described below.
(1) Generator shall place Source Separated Green Container Organic Waste, including Food Waste, in the Green Container; Source Separated Recyclable Materials in the Blue Container; and Gray Container Waste in the Gray Container. Generator shall not place materials designated for the Gray Container into the Green Container or Blue Container. (c) Supply and allow access to adequate number, size and location of collection containers with sufficient labels or colors (conforming with Sections 6(d)(1) and 6(d)(2) below) for employees, contractors, tenants, and customers, consistent with City’s Blue Container, Green Container, and Gray Container collection service or, if self-hauling, per the Commercial Businesses’ instructions to support its compliance with its self-haul program, in accordance with Section 12. (d) Excluding Multi-Family Residential Dwellings, provide containers for the collection of Source Separated Green Container Organic Waste and Source Separated Recyclable Materials in all indoor and outdoor areas where disposal containers are provided for customers, for materials generated by that business. Such containers do not need to be provided in restrooms. If a Commercial Business does not generate any of the materials that would be collected in one type of container, then the business does not have to provide that particular container in all areas where disposal containers are provided for customers. Pursuant to 14 CCR Section 18984.9(b), the containers provided by the business shall have either:
(1) A body or lid that conforms with the container colors provided through the collection service provided by the City, with either lids conforming to the color requirements or bodies conforming to the color requirements or both lids and bodies conforming to color requirements. A Commercial Business is not required to replace functional containers, including containers purchased prior to January 1, 2022, that do not comply with the requirements of the subsection prior to the end of the useful life of those containers, or prior to January 1, 2036, whichever comes first. (2) Container labels that include language or graphic images, or both, indicating the primary material accepted and the primary materials prohibited in that container, or containers with imprinted text or graphic images that indicate the primary materials accepted and primary materials prohibited in the container. Pursuant 14 CCR Section 18984.8, the container labeling requirements are required on new containers commencing January 1, 2022.
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(e) Multi-Family Residential Dwellings are not required to comply with container placement requirements or labeling requirement in Section 6(d) pursuant to 14 CCR Section 18984.9(b).
(f) To the extent practical through education, training, Inspection, and/or other measures, excluding Multi-Family Residential Dwellings, prohibit employees from placing materials in a container not designated for those materials per the City’s Blue Container, Green Container, and Gray Container collection service or, if selfhauling, per the Commercial Businesses’ instructions to support its compliance with its self-haul program, in accordance with 6.04.070 and 6.06.090. (g) Excluding Multi-Family Residential Dwellings, periodically inspect Blue Containers, Green Containers, and Gray Containers for contamination and inform employees if containers are contaminated and of the requirements to keep contaminants out of those containers pursuant to 14 CCR Section 18984.9(b)(3). (h) Annually provide information to employees, contractors, tenants, and customers about Organic Waste Recovery requirements and about proper sorting of Source Separated Green Container Organic Waste and Source Separated Recyclable Materials.
(i) Provide education information before or within fourteen (14) days of occupation of the premises to new tenants that describes requirements to keep Source Separated Green Container Organic Waste and Source Separated Recyclable Materials separate from Gray Container Waste (when applicable) and the location of containers and the rules governing their use at each property. (j) Provide or arrange access for City or its agent to their properties during all Inspections conducted in accordance with Section 16 of this ordinance to confirm compliance with the requirements of this ordinance.
(k) Nothing in this Section prohibits a generator from preventing or reducing waste generation, managing Organic Waste on site, or using a Community Composting site pursuant to 14 CCR section 18984.9(c).
(l) Commercial Businesses that are Tier One Commercial Edible Food Generators or Tier Two Commercial Edible Food Generators shall comply with Food Recovery requirements, pursuant to Section 6.
6.06.060. WAIVERS FOR GENERATORS
(a) De Minimis Waivers. The City may waive a Commercial Business’ obligation (including Multi-Family Residential Dwellings) to comply with some or all of the Organic Waste requirements of this ordinance if the Commercial Business provides documentation that the business generates below a certain amount of Organic Waste material as described in Section 8(a)(2) below. Commercial Businesses requesting a de minimis waiver shall:
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(1) Submit an application specifying the services that they are requesting a waiver from and provide documentation as noted in Section 8(a)(2) below. (2) Provide documentation that either:
(A) The Commercial Business’ total Solid Waste collection service is two cubic yards or more per week and Organic Waste subject to collection in a Blue Container or Green Container comprises less than 20 gallons per week per applicable container of the business’ total waste; or,
(B) The Commercial Business’ total Solid Waste collection service is less than two cubic yards per week and Organic Waste subject to collection in a Blue Container or Green Container comprises less than 10 gallons per week per applicable container of the business’ total waste.
(3) Notify the City if circumstances change such that Commercial Business’s Organic Waste exceeds threshold required for waiver, in which case waiver will be rescinded.
(4) Provide written verification of eligibility for de minimis waiver every 5 years, if the City has approved de minimis waiver.
(b) Physical Space Waivers. The City may waive a Commercial Business’ or property owner’s obligations (including Multi-Family Residential Dwellings) to comply with some or all of the recyclable materials and/or Organic Waste collection service requirements if the City has evidence from its own staff, a hauler, licensed architect, or licensed engineer demonstrating that the premises lacks adequate space for the collection containers required for compliance with the Organic Waste collection requirements of this ordinance.
A Commercial Business or property owner may request a physical space waiver through the following process:
(1) Submit an application form specifying the type(s) of collection services for which they are requesting a compliance waiver.
(2) Provide documentation that the premises lacks adequate space for Blue Containers and/or Green Containers including documentation from its hauler, licensed architect, or licensed engineer.
(3) Provide written verification to the City that it is still eligible for physical space waiver every five years, if the City has approved application for a physical space waiver.
(c) Collection Frequency Waiver. The City, at its discretion and in accordance with 14 CCR Section 18984.11(a)(3), may allow the owner or tenant of any residence, ORDINANCE NO. 1116
premises, business establishment or industry that subscribes to the City’s threecontainer Organic Waste collection service to arrange for the collection of their Blue Container, Gray Container, or both once every fourteen days, rather than once per week.
6.06.070. REQUIREMENTS FOR COMMERCIAL EDIBLE FOOD GENERATORS (a) Tier One Commercial Edible Food Generators must comply with the requirements of this Section 6 commencing January 1, 2022, and Tier Two Commercial Edible Food Generators must comply commencing January 1, 2024, pursuant to 14 CCR section 18991.3.
(b) Large Venue or Large Event operators not providing food services, but allowing for food to be provided by others, shall require Food Facilities operating at the Large Venue or Large Event to comply with the requirements of this Section, commencing January 1, 2024.
(c) Commercial Edible Food Generators shall comply with the following requirements:
(1) Arrange to recover the maximum amount of Edible Food that would otherwise be disposed.
(2) Contract with, or enter into a written agreement with Food Recovery Organizations or Food Recovery Services for: (i) the collection of Edible Food for Food Recovery; or, (ii) acceptance of the Edible Food that the Commercial Edible Food Generator self-hauls to the Food Recovery Organization for Food Recovery.
(3) Shall not intentionally spoil Edible Food that is capable of being recovered by a Food Recovery Organization or a Food Recovery Service. (4) Allow City’s designated enforcement entity or designated third party enforcement entity to access the premises and review records pursuant to 14 CCR section 18991.4.
(5) Keep records that include the following information, or as otherwise specified in 14 CCR section 18991.4:
i. A list of each Food Recovery Service or Food Recovery Organization that collects or receives its Edible Food pursuant to a contract or written agreement established under 14 CCR section 18991.3(b). ii. A copy of all contracts or written agreements established under 14 CCR section 18991.3(b).
iii. A record of the following information for each of those Food Recovery Services or Food Recovery Organizations:
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A. The name, address and contact information of the Food Recovery Service or Food Recovery Organization.
B. The types of food that will be collected by or self-hauled to the Food Recovery Service or Food Recovery Organization.
C. The established frequency that food will be collected or selfhauled.
D. The quantity of food, measured in pounds recovered per month, collected or self-hauled to a Food Recovery Service or Food Recovery Organization for Food Recovery.
(d) Nothing in this ordinance shall be construed to limit or conflict with the protections provided by the California Good Samaritan Food Donation Act of 2017, the Federal Good Samaritan Act, or share table and school food donation guidance pursuant to Senate Bill 557 of 2017 (approved by the Governor of the State of California on September 25, 2017, which added Article 13 [commencing with section 49580] to Chapter 9 of Part 27 of Division 4 of Title 2 of the Education Code, and to amend Health and Safety Code section 114079, relating to food safety, as amended, supplemented, superseded and replaced from time to time).
6.06.080. REQUIREMENTS FOR FOOD RECOVERY ORGANIZATIONS AND
SERVICES
(a) Food Recovery Services collecting or receiving Edible Food directly from Commercial Edible Food Generators, via a contract or written agreement established under 14 CCR Section 18991.3(b), shall maintain the following records, or as otherwise specified by 14 CCR Section 18991.5(a)(1):
(1) The name, address, and contact information for each Commercial Edible Food Generator from which the service collects Edible Food. (2) The quantity in pounds of Edible Food collected from each Commercial Edible Food Generator per month.
(3) The quantity in pounds of Edible Food transported to each Food Recovery Organization per month.
(4) The name, address, and contact information for each Food Recovery Organization that the Food Recovery Service transports Edible Food to for Food Recovery.
(b) Food Recovery Organizations collecting or receiving Edible Food directly from Commercial Edible Food Generators, via a contract or written agreement established under 14 CCR Section 18991.3(b), shall maintain the following records, or as otherwise specified by 14 CCR Section 18991.5(a)(2):
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(1) The name, address, and contact information for each Commercial Edible Food Generator from which the organization receives Edible Food. (2) The quantity in pounds of Edible Food received from each Commercial Edible Food Generator per month.
(3) The name, address, and contact information for each Food Recovery Service that the organization receives Edible Food from for Food Recovery. (c) Food Recovery Organizations and Food Recovery Services shall inform generators about California and Federal Good Samaritan Food Donation Act protection in written communications, such as in their contract or agreement established under 14 CCR Section 18991.3(b).
(d) Food Recovery Organizations and Food Recovery Services that have their primary address physically located in the City and contract with or have written agreements with one or more Commercial Edible Food Generators pursuant to 14 CCR Section 18991.3(b) shall report to the City it is located in the total pounds of Edible Food recovered in the previous calendar year from the Tier One and Tier Two Commercial Edible Food Generators they have established a contract or written agreement with pursuant to 14 CCR Section 18991.3(b) no later than January 1, 2022..
(e) Food Recovery Capacity Planning
(1) Food Recovery Services and Food Recovery Organizations. In order to support Edible Food Recovery capacity planning assessments or other studies conducted by the County, City, special district that provides solid waste collection services, or its designated entity, Food Recovery Services and Food Recovery Organizations operating in the City shall provide information and consultation to the City, upon request, regarding existing, or proposed new or expanded, Food Recovery capacity that could be accessed by the City and its Commercial Edible Food Generators. A Food Recovery Service or Food Recovery Organization contacted by the City shall respond to such request for information within 60 days, unless a shorter timeframe is otherwise specified by the City.
6.06.090. REQUIREMENTS FOR HAULERS AND FACILITY OPERATORS (a) Requirements for Haulers
(1) CR&R shall providing residential, Commercial, or industrial Organic Waste collection services to generators within the City’s boundaries shall meet the following requirements and standards as a condition of approval of a contract, agreement, or other authorization with the City to collect Organic Waste:
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i. Through written notice to the City annually on or before July 1st of each year, identify the facilities to which they will transport Organic Waste including facilities for Source Separated Recyclable Materials and Source Separated Green Container Organic Waste.
ii. Transport Source Separated Recyclable Materials and Source Separated Green Container Organic Waste to a facility, operation, activity, or property that recovers Organic Waste as defined in 14 CCR, Division 7, Chapter 12, Article 2.
iii. Obtain approval from the City to haul Organic Waste, unless it is transporting Source Separated Organic Waste to a Community Composting site or lawfully transporting C&D in a manner that complies with 14 CCR section 18989.1, Section 13 of this ordinance, and City’s C&D ordinance.
(b) Requirements for Facility Operators and Community Composting Operations (1) Owners of facilities, operations, and activities that recover Organic Waste, including, but not limited to, Compost facilities, in-vessel digestion facilities, and publicly-owned treatment works shall, upon City request, provide information regarding available and potential new or expanded capacity at their facilities, operations, and activities, including information about throughput and permitted capacity necessary for planning purposes.
Entities contacted by the City shall respond within 60 days. (2) Community Composting operators, upon City request, shall provide information to the City to support Organic Waste capacity planning, including, but not limited to, an estimate of the amount of Organic Waste anticipated to be handled at the Community Composting operation. Entities contacted by the City shall respond within 60 days.
6.06.100. COMPLIANCE WITH CALGREEN RECYCLING REQUIREMENTS (a) Persons applying for a permit from the City for new construction and building additions and alternations shall comply with the requirements of this Section and all required components of the California Green Building Standards Code, 24 CCR, Part 11, known as CALGreen, as amended, if its project is covered by the scope of CALGreen. If the requirements of CALGreen are more stringent then the requirements of this Section, the CALGreen requirements shall apply. (1) Project applicants shall refer to City’s building and construction code (Title 16) for complete CALGreen requirements.
(b) For projects covered by CALGreen , the applicants must, as a condition of the City’s permit approval, comply with the following:
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(1) Where five (5) or more Multi-Family Residential Dwelling units are constructed on a building site, provide readily accessible areas that serve occupants of all buildings on the site and are identified for the storage and collection of Blue Container and Green Container materials, consistent with the three-container collection program offered by the City, or comply with provision of adequate space for recycling for Multi-Family and Commercial premises pursuant to California Green Building Standards Code, 24 CCR, Part 11 sections 4.408.1, 4.410.2, 5.408.1, and 5.410.1 as amended, provided amended requirements are more stringent than the CALGreen requirements for adequate recycling space effective January 1, 2020. (2) New Commercial construction or additions resulting in more than 30% of the floor area shall provide readily accessible areas identified for the storage and collection of Blue Container and Green Container materials, consistent with the three-container collection program offered by the City, or shall comply with provision of adequate space for recycling for Multi-Family and Commercial premises pursuant to Sections 4.408.1, 4.410.2, 5.408.1, and
5.410.1 of the California Green Building Standards Code, 24 CCR, Part 11 as amended provided amended requirements are more stringent than the CALGreen requirements for adequate recycling space effective January 1, 2020
(3) Comply with CALGreen requirements and applicable law related to management of C&D, including diversion of Organic Waste in C&D from disposal. Comply with City’s C&D ordinance, Section 6.04.090 of City’s municipal code, and all written and published City policies and/or administrative guidelines regarding the collection, recycling, diversion, tracking, and/or reporting of C&D.
6.06.110. PROCUREMENT REQUIREMENTS FOR CITY DEPARTMENTS, DIRECT
SERVICE PROVIDERS, AND VENDORS
(a) All vendors providing Paper Products and Printing and Writing Papers shall:
(1) If fitness and quality are equal, provide Recycled-Content Paper that consists of at least 30 percent, by fiber weight, postconsumer fiber instead of non-recycled products whenever recycled Paper Products and Printing and Writing Papers are available at the same or lesser total cost than nonrecycled items. (2) Provide Paper Products and Printing and Writing Papers that meet Federal Trade Commission recyclability standard as defined in 16 Code of Federal Regulations (CFR) section 260.12.
(3) Certify in writing, under penalty of perjury, the minimum percentage of postconsumer material in the Paper Products and Printing and Writing Papers offered or sold to the City. This certification requirement may be ORDINANCE NO. 1116
waived if the percentage of postconsumer material in the Paper Products, Printing and Writing Papers, or both can be verified by a product label, catalog, invoice, or a manufacturer or vendor internet website. (4) Certify in writing, on invoices or receipts provided, that the Paper Products and Printing and Writing Papers offered or sold to the City is eligible to be labeled with an unqualified recyclable label as defined in 16 Code of Federal Regulations (CFR) section 260.12 (2013).
(5) Provide records to the City’s Recovered Organic Waste Product procurement recordkeeping Designee, in accordance with the City’s Recycled-Content Paper procurement policy of all Paper Products and Printing and Writing Papers purchases within thirty (30) days of the purchase (both recycled-content and non-recycled content, if any is purchased) made by any division or department or employee of the City.
Records shall include a copy (electronic or paper) of the invoice or other documentation of purchase, written certifications as required in Sections 15(b)(3) and 15(b)(4) of this ordinance for recycled-content purchases, purchaser name, quantity purchased, date purchased, and recycled content (including products that contain none), and if non-recycled content Paper Products or Printing and Writing Papers are provided, include a description of why Recycled-Content Paper was not provided.
6.06.120. INSPECTIONS AND INVESTIGATIONS BY CITY
(a) City representatives and/or its designated entity, including Designees are authorized to conduct Inspections and investigations, at random or otherwise, of any collection container, collection vehicle loads, or transfer, processing, or disposal facility for materials collected from generators, or Source Separated materials to confirm compliance with this ordinance by Organic Waste Generators, Commercial Businesses (including Multi-Family Residential Dwellings), property owners, Commercial Edible Food Generators, haulers, Self-Haulers, Food Recovery Services, and Food Recovery Organizations, subject to applicable laws.
This Section does not allow City to enter the interior of a private residential property for Inspection.
(b) Regulated entity shall provide or arrange for access during all Inspections (with the exception of residential property interiors) and shall cooperate with the City’s employee or its designated entity/Designee during such Inspections and investigations. Such Inspections and investigations may include confirmation of proper placement of materials in containers, Edible Food Recovery activities, records, or any other requirement of this ordinance described herein. Failure to provide or arrange for: (i) access to an entity’s premises; or (ii) access to records for any Inspection or investigation is a violation of this ordinance and may result in penalties described.
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(c) Any records obtained by a City during its Inspections and other reviews shall be subject to the requirements and applicable disclosure exemptions of the Public Records Act as set forth in Government Code section 6250 et seq. (d) City representatives, its designated entity, and/or Designee are authorized to conduct any Inspections or other investigations as reasonably necessary to further the goals of this ordinance, subject to applicable laws. (e) City shall receive written complaints from persons regarding an entity that may be potentially non-compliant with SB 1383 Regulations, including receipt of anonymous complaints.
6.06.130. ENFORCEMENT
(a) Violation of any provision of this ordinance shall constitute grounds for issuance of a Notice of Violation and assessment of a fine by a City Enforcement Official or representative. Enforcement Actions under this ordinance are issuance of an administrative citation and assessment of a fine. The City’s procedures on imposition of administrative fines are hereby incorporated in their entirety, as modified from time to time, and shall govern the imposition, enforcement, collection, and review of administrative citations issued to enforce this ordinance and any rule or regulation adopted pursuant to this ordinance, except as otherwise indicated in this ordinance.
(b) Other remedies allowed by law may be used, including civil action or prosecution as misdemeanor or infraction. City may pursue civil actions in the California courts to seek Recovery of unpaid administrative citations. City may choose to delay court action until such time as a sufficiently large number of violations, or cumulative size of violations exist such that court action is a reasonable use of City staff and resources.
(c) Responsible Entity for Enforcement
(1) Enforcement pursuant to this ordinance may be undertaken by the City Enforcement Official, which may be the City Manager or their designated entity, legal counsel, or combination thereof.
(2) Enforcement may also be undertaken by an enforcement official, designated by the City, in consultation with City Enforcement Official. i. City Enforcement Official(s) will interpret ordinance; determine the applicability of waivers, if violation(s) have occurred; implement Enforcement Actions; and, determine if compliance standards are met.
ii. City Enforcement Official(s) may issue Notices of Violation(s). (d) Process for Enforcement
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(1) City Enforcement Officials and/or their Designee will monitor compliance with the ordinance randomly and through Compliance Reviews, Route Reviews, investigation of complaints, and an Inspection program Section 16 establishes City’s right to conduct Inspections and investigations. (2) City may issue an official notification to notify regulated entities of its obligations under the ordinance.
(3) For incidences of Prohibited Container Contaminants found in containers, City will issue a Notice of Violation to any generator found to have Prohibited Container Contaminants in a container. Such notice will be provided immediately upon identification of the Prohibited Container Contaminants. If the City observes Prohibited Container Contaminants in a generator’s containers on more than two (2)consecutive occasion(s) within two (2) months, the City may assess contamination processing fees or contamination penalties on the generator.
(4) With the exception of violations of generator contamination of container contents addressed under Section 17(d)(3), City shall issue a Notice of Violation requiring compliance within 60 days of issuance of the notice. (5) Absent compliance by the respondent within the deadline set forth in the Notice of Violation, City shall commence an action to impose penalties, via an administrative citation and fine, pursuant to the City’s requirements contained in Section 11(k), Table 1, List of Violations. (6) Notices shall be sent to “owner” at the official address of the owner maintained by the tax collector for the City or if no such address is available, to the owner at the address of the dwelling or Commercial property or to the party responsible for paying for the collection services, depending upon available information
(e) Penalty Amounts for Types of Violations
The penalty levels are as follows:
(1) For a first violation, the amount of the base penalty shall be $100 per violation.
(2) For a second violation, the amount of the base penalty shall be $200 per violation.
(3) For a third or subsequent violation, the amount of the base penalty shall $300 per violation.
(f) Compliance Deadline Extension Considerations
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The City may extend the compliance deadlines set forth in a Notice of Violation issued in accordance with Section 11 if it finds that there are extenuating circumstances beyond the control of the respondent that make compliance within the deadlines impracticable, including the following:
(1) Acts of God such as earthquakes, wildfires, flooding, and other emergencies or natural disasters;
(2) Delays in obtaining discretionary permits or other government agency approvals; or,
(3) Deficiencies in Organic Waste recycling infrastructure or Edible Food Recovery capacity and the City is under a corrective action plan with CalRecycle pursuant to 14 CCR section 18996.2 due to those deficiencies. (g) Appeals Process
Persons receiving an administrative citation containing a penalty for an uncorrected violation may request a hearing to appeal the citation. A hearing will be held only if it is requested within the time prescribed and consistent with City’s procedures in the City’s codes for appeals of administrative citations. Evidence may be presented at the hearing. The City will appoint a hearing officer who shall conduct the hearing and issue a final written order.
(h) Education Period for Non-Compliance
Beginning January 1, 2022 and through December 31, 2023, City will conduct Inspections, Route Reviews or waste evaluations, and Compliance Reviews, depending upon the type of regulated entity, to determine compliance, and if City determines that Organic Waste Generator, Self-Hauler, hauler, Tier One Commercial Edible Food Generator, Food Recovery Organization, Food Recovery Service, or other entity is not in compliance, it shall provide educational materials to the entity describing its obligations under this ordinance and a notice that compliance is required by January 1, 2022, and that violations may be subject to administrative civil penalties starting on January 1, 2024. (i) Civil Penalties for Non-Compliance
Beginning January 1, 2024, if the City determines that an Organic Waste Generator, Self-Hauler, hauler, Tier One Commercial Edible Food Generator, Tier Two Commercial Edible Food Generator, Food Recovery Organization, Food Recovery Service, or other entity is not in compliance with this ordinance, it shall document the noncompliance or violation, issue a Notice of Violation, and take Enforcement Action pursuant to Section 11, as needed.
(j) Enforcement Table
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Table 1. List of Violations
Requirement Description of Violation
Hauler Requirement
Section, Section 7
A hauler providing residential, Commercial or industrial Organic Waste collection service fails to transport
Organic Waste to a facility, operation, activity, or
property that recovers Organic Waste, as prescribed
by this ordinance.
Hauler Requirement
Section 7
A hauler providing residential, Commercial, or
industrial Organic Waste collection service fails to
obtain applicable approval issued by the City to haul
Organic Waste as prescribed by this ordinance.
Hauler Requirement
Section 7
A hauler fails to keep a record of the applicable
documentation of its approval by the City, as
prescribed by this ordinance.
Commercial Edible Food
Generator Requirement
Section 6
Tier One Commercial Edible Food Generator fails to
arrange to recover the maximum amount of its Edible
Food that would otherwise be disposed by establishing
a contract or written agreement with a Food Recovery
Organization or Food Recovery Service and comply
with this Section commencing Jan. 1, 2022.
Commercial Edible Food
Generator Requirement
Section 6
Tier Two Commercial Edible Food Generator fails to
arrange to recover the maximum amount of its Edible
Food that would otherwise be disposed by establishing
a contract or written agreement with a Food Recovery
Organization or Food Recovery Service and comply
with this Section commencing Jan. 1, 2024.
Commercial Edible Food
Generator Requirement
Section 6
Tier One Commercial Edible Food Generator or Tier
Two Commercial Edible Food Generator intentionally
spoils Edible Food that is capable of being recovered
by a Food Recovery Organization or Food Recovery
Service.
Commercial Edible Food
Generator, Food Recovery
Organization or Food
Recovery Service
Sections 6
Failure to provide or arrange for access to an entity’s premises for any Inspection or investigation.
Recordkeeping
Requirements for
Commercial Edible Food
Generator
Section 6
Tier One Commercial Edible Food Generator or Tier
Two Commercial Edible Food Generator fails to keep
records, as prescribed by Section 9.
ORDINANCE NO. 1116
6.04.140. EFFECTIVE DATE
This ordinance shall be effective commencing the 11th day of January, 2022.
PASSED, APPROVED, AND ADOPTED this 11th day of January, 2022.
DAVID J. SHAWVER, MAYOR
ATTEST:
PATRICIA A. VAZQUEZ, CITY CLERK
APPROVED AS TO FORM
HONGDAO NGUYEN, CITY ATTORNEY
ORDINANCE NO. 1116
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF STANTON )
I, Patricia A. Vazquez, City Clerk of the City of Stanton, California, do hereby certify that the foregoing Ordinance No. 1116 was introduced at a regular meeting of the City Council of the City of Stanton, California, held on the 14th day of December, 2021 and was duly adopted at a regular meeting of the City Council held on the 11th day of January, 2022, by the following roll-call vote, to wit:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
PATRICIA A. VAZQUEZ, CITY CLERK
1 CITY OF STANTON
REPORT TO CITY COUNCIL
TO: Honorable Mayor and Members of the City Council
DATE: January 11, 2022
SUBJECT: MAYOR’S APPOINTMENTS OF COUNCIL MEMBERS AS
REPRESENTATIVES TO VARIOUS BOARDS, COMMISSIONS,
COMMITTEES AND AGENCIES
REPORT IN BRIEF:
Traditionally, Council Members have been appointed by the Mayor to serve on numerous outside committees, boards, commissions and agencies. Each appointee is responsible for representing the City and voting on behalf of the City Council. The Mayor conducts a review and selects appointees, as detailed in Attachment A, with the exception of the Orange County Fire Authority (“OCFA”) appointment, which is required to be made by City Council Resolution, the Mayor may otherwise make appointments to each committee, board, commission or agency by nomination and Minute Order confirmation. In addition, the Fair Political Practices Commission (“FPPC”) regulations require the adoption and posting of Form 806, Agency Report of Public Official Appointments, in order for individual Council Members to participate in a City Council vote that would result in him or her serving in a position that provides compensation of $250 or more in any 12-month period.
RECOMMENDED ACTION:
1. City Council find that this item is not subject to California Environmental Quality Act (“CEQA”) pursuant to Sections 15378(b)(5) (Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment); and
2. City Council discuss and confirm the Mayor’s appointments; and
3. Approve Fair Political Practices Commission Form 806 and authorize the City Clerk to post the form on the City’s website.
Item: 12A
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2 BACKGROUND:
At the first meeting of the year, the Mayor traditionally reviews the list of Council Members designated on the submitted Mayor’s Appointments list. Historically, at the first meeting of the year, the City Council has confirmed the existing memberships through reappointments or made new appointments, and has also added or deleted board, commission, committee, and agency memberships, as appropriate. Based on changes to the FPPC Regulation 18705.5 (Materiality Standard: Economic Interest in Personal Finances) a public official may participate in a Council vote that would result in him or her serving in a position that provides compensation in the form of stipends, reimbursement or direct payment of $250 or more in any 12-month period. The revised regulation specifies, however, that the body making such an appointment(s) must adopt and post a list of the appointments on its website as required by the FPPC.
ANALYSIS/JUSTIFICATION:
The “Mayor’s Appointments of Council Members as Representatives to Various Agencies List” (Attachment A) documents the various committees and boards to which the Mayor proposes to appoint Council Members. In previous years, the Mayor has reviewed the list prior to the first meeting of the new year, and any changes, additions, or deletions to any of the appointments are made by Minute Order.
FISCAL IMPACT:
There is minimal fiscal impact associated with the recommended action.
ENVIRONMENTAL IMPACT:
This item is not subject to California Environmental Quality Act (“CEQA”) pursuant to Sections 15378(b)(5) (Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment).
LEGAL REVIEW:
None.
3 PUBLIC NOTIFICATION:
Through the regular agenda process.
STRATEGIC PLAN OBJECTIVE ADDRESSED:
6. Maintain and Promote a Responsive, High Quality and Transparent Government Prepared by: Approved by:
/s/ Patricia A. Vazquez /s/ Jarad L. Hildenbrand
___________________________
Patricia A. Vazquez Jarad L. Hildenbrand
City Clerk City Manager
Attachments:
A. Draft Mayor’s Appointments of Council Members as Representatives to Various Agencies List
B. Draft FPPC Form 806
(Last approved by the City Council on January 12, 2021) City of Stanton | 7800 Katella Avenue, Stanton, CA 90680 | www.ci.stanton.ca.us | 1 MAYOR’S APPOINTMENTS OF COUNCIL MEMBERS
AS REPRESENTATIVES TO VARIOUS AGENCIES
City of Stanton | 7800 Katella Avenue, Stanton, CA 90680 | www.ci.stanton.ca.us Council Committees
Economic Development Committee David J. Shawver Rigoberto A. Ramirez Contractual Services Carol Warren Gary Taylor
Stanton Non-Profit Liaisons
Non-Profit Liaison Alternate
Stanton Collaborative Hong Alyce Van Rigoberto A. Ramirez Stanton Community Foundation Hong Alyce Van Rigoberto A. Ramirez Boys and Girls Club Carol Warren Hong Alyce Van
Lions Club Hong Alyce Van Rigoberto A. Ramirez
JPA and/or Membership Organizations
League of California Cities David J. Shawver N/A
Association of California Cities – Orange County David J. Shawver N/A Southern California Association of Governments (SCAG) David J. Shawver Carol Warren Public Cable Television Authority (PCTA) David J. Shawver Carol Warren Santa Ana River Flood Protection Agency Hong Alyce Van Gary Taylor California Joint Powers Insurance Authority Gary Taylor Carol Warren Orange County Housing Finance Trust Carol Warren Hong Alyce Van Regional Military Affairs Committee JFTB Carol Warren Gary Taylor Representatives to Joint Governmental Committees
Agency Delegate Alternate, if applicable
Bridges at Kraemer Place Emergency Shelter Advisory Board Gary Taylor N/A Orange County Emergency Management Organization
(OCEMO) Executive Committee
Gary Taylor Carol Warren
Orange County Library Advisory Board Hong Alyce Van Gary Taylor Orange County Sanitation District David J. Shawver Carol Warren Orange County Mosquito and Vector Control District Trustee Gary Taylor N/A Orange County Fire Authority1 (OCFA) David J. Shawver N/A 1 OCFA requires appointment by resolution (Resolution No. 2012-02) Attachment: A
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FPPC Form 806 (1/18)
FPPC Toll-Free Helpline: 866/ASK-FPPC (866/275-3772)
Comment:
A Public Document
Appt Date and
Length of Term
Agency Report of:
Title
Per Meeting/Annual Salary/Stipend
Alternate, if any
Alternate, if any
Alternate, if any
Alternate, if any
Name
Name
Name
Name
$0-$1,000
$0-$1,000
$0-$1,000
$0-$1,000
$1,001-$2,000
$1,001-$2,000
$1,001-$2,000
$1,001-$2,000
$2,001-$3,000
$2,001-$3,000
$2,001-$3,000
$2,001-$3,000
Other Other Other Other
California
Form
1. Agency Name
E-mail
806
Area Code/Phone Number
____/____/____
____/____/____
____/____/____
____/____/____
$
$
$
$
Page _____ of _____
Attachment: B
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1 CITY OF STANTON
REPORT TO CITY COUNCIL
TO: Honorable Mayor and Members of the City Council
DATE: January 11, 2022
SUBJECT: PURCHASE AND SALE AGREEMENT FOR 10692 AND 10712 BEACH
BOULEVARD AND APPROPRIATION OF FUNDS
REPORT IN BRIEF:
The attached Purchase and Sale Agreement would authorize the City to complete the purchase of 10692 and 10712 Beach Boulevard, Stanton, for appropriate public purposes and further revitalization of Beach Boulevard.
RECOMMENDED ACTION:
1. City Council declare that this item is not subject to the California Environmental Quality Act (“CEQA”) pursuant to Sections 15060(c)(2) and 15060(c)(3); and
2. Approve the Purchase and Sale Agreement (Agreement) for the properties of 10692 and 10712 Beach Boulevard, Stanton; and
3. Authorize the City Manager to execute the Agreement and take other necessary actions to perform Stanton’s obligations under the Agreement; and
4. Appropriate $2,800,000 from the American Rescue Plan Act Fund (Fund 257).
BACKGROUND:
The subject property (“Property”) consists of six parcels totaling 0.57 acres and is located within the Stanton Town Center area at 10692 and 10712 Beach Boulevard, Stanton, CA 90680. The Property consists of vacant, mostly underutilized lots and two buildings: the historic Bauman’s Market and Mr. Lee BBQ restaurant. Bauman’s Market has fallen into disrepair. The entire Property is located within Qualified Census Tract (QCT) No. 06059087803.
The purchase of the property will allow the City to control the site, evaluate development options, and continue the revitalization of Beach Boulevard. At this time, the City has no specific development plans for the site; however, it does fall within the Park/Public Plaza area of the draft Town Center Specific Plan. A Purchase and Sale Agreement has been prepared and negotiated and is being presently presented to the City Council for approval.
Item: 12B
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2 The principal terms of the transaction are as follows:
1. The City will purchase the Property, APN No. 131-241-08 through 131-241-13.
2. The purchase price will be Two Million Seven Hundred Thousand Dollars ($2,700,000.00).
3. The Due Diligence Period will be 45 days.
4. Closing will be 30 days after the expiration of the Due Diligence Period.
During the Due Diligence Period, the proposed acquisition will be submitted to the Planning Commission for a General Plan conformance finding as required by Government Code Section 65402.
ANALYSIS/JUSTIFICATION:
On May 17, 2021, the U.S. Department of the Treasury issued an Interim Final Rule to implement the Coronavirus (State and) Local Fiscal Recovery Funds (CLFRF) that were established under the American Rescue Plan Act (ARPA). In their Frequently Asked Questions publication (FAQ) regarding the CLFRF, the Treasury Department clarified that certain types of services are eligible under the Interim Final Rule when they are provided within a QCT. The FAQ states that such services “include those designed to build stronger neighborhoods and communities and to address health disparities and the social determinants of health…Investments in parks, public plazas, and other public outdoor recreation spaces may be responsive to the needs of disproportionately impacted communities by promoting healthier living environments and outdoor recreation and socialization to mitigate the spread of COVID-19.”
According to the American Community Survey 2014-2018, the Property is located within a disadvantaged community. With only one main park with major recreation amenities, the City of Stanton lacks adequate park and open space facilities to satisfy the needs of the community. The limited amount of park space available to residents makes promoting active living a challenge in the City. The California Center for Public Health Advocacy found that Stanton has the highest rate of overweight youth (51.8%) in Orange County.
The City also faces a challenge of high population density, with Community Factfinder 2020 listing over nine thousand citizens living within a half-mile radius of the Property.
City Staff are currently exploring the feasibility of converting the Property (or portions of the Property) into a parkette or public plaza, with the goal of increasing opportunities for outdoor, active recreation and socialization while mitigating the transmission of COVID19. 3 FISCAL IMPACT:
The cost to the City is approximately $2,800,000, which includes the purchase price of $2,700,000 and ancillary costs (for environmental, escrow services, title insurance, and similar property acquisition costs). The cost will be completely funded by the City’s $9.1 million ARPA allocation. On July 27, 2021, the City Council appropriated $4.5 million of the City’s total allocation. After approving this appropriation request, $1.8 million of the City’s $9.1 million allocation will be available for future appropriations.
ENVIRONMENTAL IMPACT:
None. This item is not subject to the California Environmental Quality Act (“CEQA”) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378(b)(5) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly).
The City is acquiring this property to investigate the use of the property for appropriate public purposes. However, while City staff intends to investigate what public purposes are appropriate for the property, there are no plans for the redevelopment of this site and no plans have been developed. As such, the property will remain it its present condition until such time as plans for the redevelopment of this site are submitted to and approved by the City. Any future reuse or redevelopment of the site will be subject to separate review for compliance with CEQA.
LEGAL REVIEW:
The City Attorney’s Office has reviewed the staff report and drafted the attached Purchase and Sale Agreement.
STRATEGIC PLAN OBJECTIVE(S) ADDRESSED:
5. Provide a high quality of life.
PUBLIC NOTIFICATION:
Public notice for this item was made through the regular agenda process. 4 Signature page to staff report for:
“PURCHASE AND SALE AGREEMENT FOR 10692 AND 10712 BEACH
BOULEVARD AND APPROPRIATION OF FUNDS”
Prepared By: Approved as to Form By:
/s/ Jason Huynh
__________________________
/s/ HongDao Nguyen
__________________________
Jason Huynh
Management Analyst
HongDao Nguyen
City Attorney
Reviewed By: Approved By:
/s/ Michelle Bannigan
__________________________
/s/ Jarad L. Hildenbrand
__________________________
Michelle Bannigan
Finance Director
Jarad L. Hildenbrand
City Manager
Attachment(s):
A. Purchase and Sale Agreement
55414.00000\34517793.5
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
This Purchase and Sale Agreement and Joint Escrow Instructions (this "Agreement") is made as of ________________, 2021 (the "Effective Date"), between Hyun C. Park, an individual ("Seller"), and City of Stanton, a California municipal corporation ("Buyer"). Seller and Buyer may be referred to collectively herein as the “Parties” and individually as a “Party.”
ARTICLE 1. AGREEMENT OF SALE.
Subject to and on the terms and conditions of this Agreement, Seller shall sell to Buyer and Buyer shall purchase from Seller all of the following:
1.1 Land. The real property which is more particularly described in Exhibit A, together with (a) all privileges, rights, easements and appurtenances belonging to the real property, including without limitation all minerals, oil, gas and other hydrocarbon substances on and under the real property, (b) all development rights, air rights, water, water rights and water stock relating to the real property, and (c) all right, title and interest of Seller in and to any streets, alleys, passages, other easements and other rights-of-way or appurtenances included in, adjacent to or used in connection with such real property, before or after the vacation thereof (collectively, the "Land");
1.2 Improvements. Any and all structures, systems, facilities, fixtures, fences and parking areas located on the Land and any and all machinery, equipment, apparatus and appliances used in connection with the operation or occupancy of the Land (such as heating and air conditioning systems and facilities used to provide utility services, refrigeration, ventilation, garbage disposal or other amenities on the Land) and other improvements located upon the Land, located at 10692 and 10712 Beach Blvd., Stanton California, 90680 (collectively, the "Improvements").
The Land and the Improvements are sometimes collectively referred to in this Agreement as the "Property";
1.3 Personal Property. All of Seller's right, title and interest in and to any personal property located within or used in connection with the Property (collectively, the “Personal Property").
1.4 Service Contracts. Those Service Contracts (defined in Section 5.8) which Buyer expressly agrees to assume; and
1.5 Other Assets. To the extent owned by Seller, all tangible and intangible assets of any nature relating to the Property or the Personal Property, including without limitation (a) all warranties upon the Improvements or Personal Property, to the full extent such warranties are assignable, (b) copies of all plans, specifications, engineering Attachment: A
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55414.00000\34517793.5
2 drawings and prints relating to the construction of the Improvements, (c) all license agreements, copyrights, logos, designs, trademarks, trade names, service marks and all goodwill associated with the Property, (d) all other intellectual or intangible property used by Seller in connection with the Property; and (e) all claims and causes of action arising out of or in connection with the Property.
ARTICLE 2. PURCHASE PRICE.
2.1 Amount. The purchase price (the "Purchase Price") for the Property shall be Two Million Seven Hundred Thousand Dollars ($2,700,000.00).
2.2 Deposit/Purchase Price. Within 3 business days after the Effective Date, Buyer shall deposit Eighty-One Thousand Dollars ($81,000.00) into Escrow (as defined below) into an interest-bearing account on behalf of Buyer (the "Deposit"). Upon satisfaction of the conditions stated in this paragraph and expiration of the Due Diligence Period (as defined below), the Deposit shall not be refundable to Buyer should escrow fail to close for any reason other than Seller’s default. If the Closing of the transaction contemplated by this transaction occurs, the Deposit shall be disbursed to Seller and applied to the Purchase Price at Closing. The failure of Buyer to make the Deposit within the time frame specified in this Section shall be a material breach of this Agreement and Seller may terminate the Agreement. Buyer shall pay the Purchase Price to Seller through escrow at the Closing described in Section 9.1. On or before the Closing Date (as defined below), Buyer shall deposit into Escrow the balance of the Purchase Price, subject to adjustment by reason of any applicable prorations and the allocation of closing costs described below. The Deposit and Purchase Price shall be made by wire transfer of federal funds, cashier’s check or in another immediately available form.
Notwithstanding anything herein to the contrary, One Hundred Dollars ($100.00) of the Initial Deposit (the "Independent Consideration") shall represent consideration for this Agreement and shall be paid to Seller. The Independent Consideration shall serve as consideration for the granting of the time periods herein contained for Buyer to exercise Buyer's right to satisfy and approve all of Buyer's conditions herein contained. If the Deposit is refunded to Buyer for any reason pursuant to this Agreement, the Independent Consideration shall be subtracted from the Deposit pursuant to this Section.
ARTICLE 3. DUE DILIGENCE.
3.1 Due Diligence Period; Inspection and Access.
3.1.1 Due Diligence Period. The "Due Diligence Period" means the period beginning on the Effective Date and ending at 5:00 p.m. on the date 45 days later.
3.1.2 Access to Information and the Property. Buyer shall conduct its investigation of the Property during the Due Diligence Period at no cost to Seller. This investigation ("Due Diligence Investigation") may include, at Buyer's option: a physical inspection of the Land and all Improvements thereon, including soil, geological and other tests, engineering evaluations of the mechanical, electrical, HVAC and other systems in the Improvements and review of the Plans; review of all governmental matters affecting 55414.00000\34517793.5
3 the Property, including zoning, environmental and building permit and occupancy matters; review and verification of all financial and other information previously provided by Seller relating to the operation of the Property; review of the condition of title to the Property, including the building, structural system and roof inspection; and review of such other matters pertaining to an investment in the Property as Buyer deems advisable. In addition to the Preliminary Documents delivered to Buyer pursuant to Section 3.2, Buyer and its representatives shall have the right of access, during reasonable business hours and on 24 hours’ notice to Seller, to all files, books and records maintained by Seller or its agents (including, without limitation, all of the Additional Documents to be made available to Buyer at the Property pursuant to Section 3.3), wherever located, relating to the Property, including the right to copy the same. Buyer and its representatives shall also have the right of access to the Property during reasonable business hours to conduct its investigation of the physical condition of the Property. Seller agrees that the rights granted to Buyer herein and the results of its Due Diligence Investigation shall not relieve Seller of any obligations Seller may have under any other provisions of this Agreement, or under other documents entered into concurrently herewith, or implied by law, nor shall they constitute a waiver by Buyer of the right to enforce any of the same. Seller shall cooperate with Buyer in its due diligence activities and provide access to the Property, its records, or provide information so long as it is within Seller's control.
3.2 Delivery of Preliminary Documents. Within 5 business days after the Effective Date, Seller shall deliver certification to Buyer, at Seller's expense, that all of the documents described in the remaining subsections of this Section 3.2 (collectively, the "Preliminary Documents") have been turned over to Buyer, to the extent such documents are in Seller's possession or control.
3.2.1 Title Report and Survey. A preliminary title report or commitment for title insurance (the "Preliminary Title Report"), dated no earlier than 10 days before the Effective Date, covering the Property and issued by a title insurance company or companies acceptable to Buyer (the "Title Company"), together with a legible copy of each document, map and survey referred to in the Preliminary Title Report. Buyer, at Buyer's sole cost, may obtain an as-built survey of the Property (the "Survey") prepared by a certified land surveyor in accordance with the most recent American Land Title Association standards, certified by such surveyor to Buyer and the Title Company in a form acceptable to the Title Company for the purpose of deleting any survey exception from the Title Policy described in Section 4.1.3.
3.2.2 Plans. Copies of all as-built plans and specifications for the Improvements, including without limitation the plans and specifications for and a complete description of all existing renovations and improvements to the Property and all rentable space therein, and as-built drawings for all underground utilities (collectively, the “Plans”), together with a certificate from an architect approved by Buyer certifying to Buyer that the Improvements were constructed and completed in accordance with the Plans;
3.2.3 Soils Report. Any soils report on the Land prepared at Seller's request or in the possession or control of Seller, including (if available) a report on 55414.00000\34517793.5
4 compliance with any soils work recommended to be done prior to construction of the Improvements;
3.2.4 Engineers' Reports. Any structural, mechanical, environmental or geological reports concerning the Property which have been prepared at Seller's request or which are within Seller's possession or control;
3.2.5 Environmental. Any Natural Hazard Disclosure data pertaining to the Property and Seller’s operations thereof, any hazardous waste reports or environmental impact reports, and a written description of all reclamation obligations together with any and all documentation and agreements concerning such reclamation obligations;
3.2.6 Operating Statements; Tax Bills. Copies of operating statements for the Property certified by Seller including an itemization of income and expenses and copies of all real property tax bills for the Property for such periods;
3.2.7 Licenses, Etc. Copies of any licenses, permits or certificates required by governmental authorities in connection with construction or occupancy of the Improvements, including, without limitation, building permits, certificates of completion, certificates of occupancy and environmental permits and licenses, entitlements and land use approvals and rights.
3.2.8 Inspection Reports. Copies of all written reports received by Seller within three (3) years prior to the Effective Date from Seller's insurance companies, any governmental agency or any other person or entity, which requires or demands correction of any condition, or requests modification in or termination of any uses of the Property, accompanied by Seller's summary of (a) any oral reports from such insurance companies or governmental agencies, and (b) the present status of any matter noted in any oral or written report.
3.2.9 Leases. Copies of written, and written descriptions of oral, leases and other agreements, whether existing or, to the knowledge of Seller, proposed as of the Effective Date. If no such documents exist, Seller shall furnish its certification to that effect. Buyer shall deliver to Seller and Escrow Holder, Buyer’s written approval of any leases, before the expiration of the Due Diligence Period.
3.3 Additional Documents and Information. From the Effective Date through the Closing Date, Seller shall make available to Buyer at the Property in accordance with Section 3.1, the documents and information described in this Section 3.3 (collectively, the "Additional Documents"):
3.3.1 Agreements. Copies of written, and written descriptions of oral, easements, covenants, restrictions, agreements, contracts and other documents, whether existing or, to the knowledge of Seller, proposed as of the Effective Date, including without limitation any agreements relating to the insurance, service, operation, repair, supply, advertising, promotion, sale, or management of the Property, which (a) affect the Property, (b) are not disclosed by the Preliminary Title Report, and (c) have 55414.00000\34517793.5
5 not been delivered to Buyer pursuant to Section 3.2. If no such documents exist, Seller shall furnish its certification to that effect;
3.3.2 Warranties/Roof Inspections/HVAC Inspections. Copies of any and all guarantees or warranties and other rights given to Seller in connection with the construction, maintenance, repair or remodeling of the Improvements, periodic inspections, or the purchase of any of the Personal Property. If no such documents exist, Seller shall furnish its certification to that effect;
3.3.3 Insurance Policies. Copies of certificates evidencing the insurance carried by Seller of the Property;
3.3.4 Other Documents. All data, correspondence, documents, agreements, waivers, notices, applications and other records with respect to the Property relating to transactions with taxing authorities, governmental agencies, utilities, vendors and others with whom Buyer may be dealing from and after the Closing Date; and
3.3.5 Requested Information. Such other documents and information concerning the Property as Buyer may reasonably request.
3.4 Approval/Disapproval of Due Diligence Investigations. Buyer shall approve or disapprove the results of Buyer's Due Diligence Investigation, in the exercise of Buyer's sole discretion, by written notice delivered to Seller and Escrow Holder, no later than the expiration of the Due Diligence Period. Buyer may extend the Due Diligence Period by one period of 15 days at no additional cost by giving notice 5 days before original expiration of the Due Diligence Period. Buyer's disapproval shall terminate this Agreement unless, at the time Buyer gives notice of its disapproval, Buyer also notifies Seller of Buyer's desire to enter into negotiations with Seller for the purpose of reaching an accommodation concerning the disapproval (“Disapproval Accommodation”). If Buyer so notifies Seller and the parties have not reached a written agreement satisfactory to both of them regarding the Disapproval Accommodation within 10 days after the date of the disapproval notice, Buyer, at its option, may either (a) elect to terminate this Agreement by so notifying Seller and recover the Deposit (less the Independent Consideration), or (b) elect to proceed with the transactions contemplated by this Agreement notwithstanding its earlier disapproval and failure to obtain a Disapproval Accommodation. If Buyer fails to deliver to Seller notice of its approval or disapproval of the results of its Due Diligence Investigation, Buyer shall be deemed to have approved such results. If Buyer elects to terminate the Agreement, Buyer shall return to Seller or destroy (at Seller’s option) all of the Preliminary Documents and Additional Documents previously delivered by Seller to Buyer within 5 business days of such termination.
3.5 Title Review.
3.5.1 Monetary Liens. At its expense, Seller shall remove all liens on the Property at or prior to the Closing (collectively, "Monetary Liens"): (i) all delinquent taxes, bonds and assessments and interest and penalties thereon (it being agreed that Seller shall not be required to remove any non-delinquent taxes and assessments 55414.00000\34517793.5
6 imposed by any governmental agency that are paid with the property taxes for the Property); and (ii) all other monetary liens, including without limitation all those shown on the Preliminary Title Report (including judgment and mechanics' liens, whether or not liquidated, and mortgages and deeds of trust, with Seller being fully responsible for any fees or penalties incurred in connection therewith).
3.5.2 Approval/Disapproval of Title Review. Buyer shall approve or disapprove of the Preliminary Title Report, the Survey and any exceptions to title shown thereon (other than the Monetary Liens) in the exercise of Buyer's sole discretion, within 10 days after the later of (i) the Effective Date, or (ii) Buyer’s receipt of the Preliminary Title Report, together with copies of all documents referred to therein. If Buyer approves, Buyer shall deliver to Seller and Escrow Holder, Buyer’s written approval of current Preliminary Title Reports on the Property, issued by Escrow Holder at Seller’s expense.
If Buyer disapproves, Buyer shall give Seller a written notice ("Disapproval Notice") identifying the disapproved title matters ("Disapproved Title Matters"). Seller shall have 10 days to agree to clear Buyer’s Disapproved Title Matters, or escrow shall be terminated. Seller shall agree to remove Monetary Liens other than non-delinquent property taxes and assessments. With respect to any Disapproved Title Matters, other than the Monetary Liens, Seller shall notify Buyer in writing within 10 days after Seller's receipt of the Disapproval Notice whether Seller will cause the Disapproved Title Matters to be removed or cured at or prior to Closing.
3.5.3 Buyer's Options. If any Disapproved Title Matters (including the Monetary Liens) have not been removed at least 5 days prior to Closing or provision for their removal at the Closing has not been made to Buyer's satisfaction, Buyer may, at its option: (i) close the purchase of the Property and take title subject to the Disapproved Title Matters which have not been removed; (ii) close the purchase of the Property and cure or remove the Disapproved Title Matters which have not been removed. Buyer may credit the costs of such cure or removal against the Purchase Price by reducing the amount of cash payable by Buyer at the Closing, but only to the extent such costs are expended to remove (A) Monetary Liens referred to in Section 3.5.1 or (B) Disapproved Title Matters which Seller agreed to remove; or (iii) terminate this Agreement in accordance with Section 9.6.1.
3.5.4 Failure to Approve. If Buyer fails to notify Seller of its approval or disapproval of the Preliminary Title Report, the Survey or the exceptions shown thereon by the end of the Due Diligence Period, then Buyer shall be deemed to have approved the same.
ARTICLE 4. CONDITIONS PRECEDENT.
4.1 Buyer's Conditions. Buyer's obligations under this Agreement are expressly subject to the timely fulfillment of the conditions set forth in this Section 4.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part by Buyer by written notice to Seller. 55414.00000\34517793.5
7 4.1.1 Due Diligence. Buyer having approved of the results of its Due Diligence Investigation pursuant to Section 3.4;
4.1.2 Title Review. Buyer having approved of the results of its review of title pursuant to Section 3.5.
4.1.3 Title Policy. Seller having caused the Escrow Holder’s underwriter to deliver to Buyer (a) a Standard Owner's policy of title insurance in the amount of the purchase price ("Title Policy") (or at Buyer's election a binder therefor) for the Property, or (b) the Title Company's irrevocable commitment to issue such policy of title insurance, (including such coinsurance, reinsurance and endorsements as Buyer shall require), with liability equal to the Purchase Price showing fee title to the Property vested in Buyer and subject only to: (i) the matters and exceptions which were approved by Buyer pursuant to Section 3.5; and (ii) the standard printed exceptions in the form of title policy called for (collectively, "Conditions of Title"). Buyer has the right to conduct a survey, at Buyer’s expense, and obtain an extended ALTA policy, with the extended policy premium at Buyer’s expense.
4.1.4 Performance of Covenants. Seller performing and complying in all material respects with all of the terms of this Agreement to be performed and complied with by Seller prior to or at the Closing.
4.1.5 Representations and Warranties. The representations and warranties of Seller set forth in Article 5 being true and accurate on the Closing Date, as if made on such date.
4.1.6 Non-Foreign Certification. Seller having executed and delivered to Buyer on or prior to the Closing Date a certification (the "Non-Foreign Certification"), substantially in the form of Exhibit C.
4.1.7 California Certification. Seller having furnished the residency certification required pursuant to Sections 18805 and 26131 of the California Revenue and Taxation Code or having authorized Escrow Holder in writing to withhold from the Purchase Price the amounts required to be withheld by such Sections.
4.2 Seller's Conditions. Seller's obligations under this Agreement are expressly subject to the timely fulfillment of the conditions set forth in this Section 4.2 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or part by Seller by written notice to Buyer.
4.2.1 Covenants. Buyer performing and complying in all material respects with all of the terms of this Agreement to be performed and complied with by Buyer prior to or at the Closing.
4.2.2 Representations and Warranties. The representations of Buyer set forth in Article 6 being true and accurate on the Closing Date, as if made on such date. 55414.00000\34517793.5
8 ARTICLE 5. SELLER'S REPRESENTATIONS AND WARRANTIES.
Seller hereby makes the following representations and warranties to Buyer with the understanding that each such representation and warranty is material and is being relied upon by Buyer:
5.1 [Reserved].
5.2 Compliance. The Property, and the operation thereof, are in compliance with all applicable laws, ordinances, rules, regulations, judgments, orders, covenants, conditions, restrictions, whether federal, state, local, foreign or private. Seller has not received any request either formal or informal, oral or written, that Seller modify or terminate any use of the Property. The zoning of the Property permits the current Improvements and use of the Property, and there is no pending or contemplated rezoning.
The Property complies with all applicable subdivision laws and all local ordinances enacted thereunder and no subdivision or parcel map not already obtained is required to transfer the Property to Buyer.
5.3 Documents. All of the Preliminary Documents and the Additional Documents which have been delivered or made available to Buyer pursuant to Article 3, and all other documents delivered to Buyer by or on behalf of Seller (a) are true, correct and complete copies of what they purport to be, (b) represent truly the factual matters stated therein, (c) are in full force and effect, (d) have not been modified, except as set forth therein and (e) do not omit any information required to make the submission thereof accurate and complete in all material respects.
5.4 [Reserved].
5.5 Taxes and Condemnation. Except as disclosed on [Schedule 5.5], there are no presently pending or contemplated special taxes or assessments which will affect the Property. There are no presently pending or contemplated proceedings to condemn or demolish the Property or any part of it.
5.6 Utilities. All water, sewer, gas, electric, telephone and drainage facilities, and all other utilities required by law or by the normal operation of the Property, are (a) installed to the property lines of the Property, (b) connected to the Property, and (c) adequate to service the Property in its present use and to permit full compliance with all requirements of law and normal usage by the occupants of the Property. All such utilities and storm and sanitary sewers required for the operation of the Property enter the Land through adjoining public streets or through adjoining private land in accordance with valid public or private easements that will inure to the benefit of Buyer.
5.7 Personal Property. Seller has no Personal Property located within or used in connection with the Property, and therefore, there is no Personal Property to sell to Buyer.
5.8 Contracts/Leases/Occupancy Rights. Exhibit G contains a description of all contracts entered into by Seller or its property manager or leasing agent relating to the 55414.00000\34517793.5
9 management, maintenance, leasing or operation of the Property ("Service Contracts").
Except for the Service Contracts, there are no agreements or other obligations to which Seller is party or by which it or the Property is bound which may affect the current use of the Property, nor are there any current leases, occupancy or operating agreements in force. No party has a right to occupancy, tenancy, or a license to use or enter the Property. Except as set forth in Exhibit G, Seller has fully performed all the obligations required to be performed by Seller under the Service Contracts and the other parties to the same are not in default thereunder. There are no collective bargaining agreements, other union contracts of any nature, pension plans or other benefit plans of any nature in existence to which Seller is a party and which affect the Property or the operation thereof.
5.9 Litigation. Except as disclosed on Exhibit H, there are no actions, suits, proceedings, judgments, orders, decrees or governmental investigations pending or threatened against the Property or Seller which could affect the Property or the purchase, use or enjoyment thereof by Buyer.
5.10 Agreements with Governmental Authorities. To Seller's knowledge, there are no agreements with governmental authorities, agencies, utilities or quasigovernmental entities which affect the Property except those agreements which are identified in the Preliminary Title Report and those matters which are disclosed by the Survey.
5.11 Intentionally Omitted.
5.12 Hazardous Materials.
5.12.1 Definitions. For purposes of this Agreement:
(a) "Environmental Law(s)" means the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C.
Sections 9601, et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
Sections 6901 et seq., the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et. seq., the Hazardous Materials Transportation Act, 49 U.S.C. 1801 et seq., the Clean Water Act, 33 U.S.C. Sections 1251 et seq., The Safe Drinking Water and Toxic Enforcement Act of 1986 (Cal. H&S Code Sections 25249.5-25249.13), the CarpenterPreseley-Tanner Hazardous Substance Account Act (Cal. H&S Code Sections 25300 et seq.), and the California Water Code Sections 1300, et seq., as said laws have been supplemented or amended to date, the regulations promulgated pursuant to said laws and any other federal, state or local law, statute, rule, regulation or ordinance which regulates or proscribes the use, storage, disposal, presence, cleanup, transportation or Release or threatened Release into the environment of Hazardous Material. (b) "Hazardous Material" means any substance which is
(i) designated, defined, classified or regulated as a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any Environmental Law, as currently in effect or as hereafter amended or enacted, (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, 55414.00000\34517793.5
10 (v) asbestos, (vi) flammable explosives, (vii) infectious materials or (viii) radioactive materials.
(c) "Release" means any spilling, leaking, pumping, pouring, emitting, discharging, injecting, escaping, leaching, dumping or disposing into the environment of any Hazardous Material (including the abandonment or discarding of barrels, containers, and other receptacles containing any Hazardous Material).
5.12.2 Representations. Except as otherwise disclosed in Schedule 5.14.2:
(a) To the best of Seller's knowledge the Property and all existing uses and conditions of the Property are in compliance with all Environmental Laws, and Seller has not received any written notice of violation issued pursuant to any Environmental Law with respect to the Property or any use or condition thereof. (b) To the best of Seller's knowledge neither Seller nor any other present or former owner of the Property has used, handled, stored, transported, released or disposed of any Hazardous Material on, under or from the Property in violation of any Environmental Law.
(c) To the best of Seller's knowledge there is no Release of any Hazardous Material existing on, beneath or from or in the surface or ground water associated with the Property.
(d) To the best of Seller's knowledge all required permits, licenses and other authorizations required by or issued pursuant to any Environmental Law for the ownership or operation of the Property by Seller have been obtained and are presently maintained in full force and effect.
(e) To the best of Seller's knowledge there exists no writ, injunction, decree, order or judgment outstanding, nor any lawsuit, claim, proceeding, citation, directive, summons or investigation pending or, to Seller's knowledge, threatened pursuant to any Environmental Law relating to (i) the ownership, occupancy or use of any portion of the Property by Seller or occupant or user of any portion of the Property or any former owner of any portion of the Property, (ii) any alleged violation of any Environmental Law by Seller or occupant or user of any portion of the Property or any former owner of any portion of the Property or (iii) the suspected presence, Release or threatened Release of any Hazardous Material on, under, in or from any portion of the Property. (f) To Seller's knowledge, there are no above-ground or underground tanks located on the Property used or formerly used for the purpose of storing any Hazardous Material.
(g) To the best of Seller's knowledge, no asbestos abatement or remediation work has been performed on the Property.
(h) To the best of Seller's knowledge, there is no PCB-containing equipment or PCB-containing material located on or in the Property. 55414.00000\34517793.5
11 5.13 Title to the Property. Seller has good and marketable title to the Property, subject to the Conditions of Title. There are no outstanding rights of first refusal or first look, options to purchase, rights of reverter, or claim of right relating to the transfer or sale of the Property or any interest therein. To Seller's knowledge, there are no unrecorded or undisclosed documents or other matters which affect title to the Property. No person holding a security interest in the Property or any part thereof has the right to consent or deny consent to the sale of the Property as contemplated herein, and Seller has the right to pay off such person and to remove all such liens as of the Closing Date. Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property.
5.14 Seller's Authority. Seller has the requisite power and authority to own and operate the Property and conduct its business where the same is now owned or operated.
The execution, delivery and performance of this Agreement by Seller have been duly and validly authorized by all necessary action and proceedings, and no further action or authorization is necessary on the part of Seller (or its board of directors or shareholders) in order to consummate the transactions contemplated herein. This Agreement and the other documents executed by Seller in connection herewith are legal, valid and binding obligations of Seller, enforceable in accordance with their respective terms. Neither the execution and delivery of this Agreement by Seller, nor performance of any of its obligations hereunder, nor consummation of the transactions contemplated hereby, shall conflict with, result in a breach of, or constitute a default under, the terms and conditions of the organizational documents pursuant to which Seller was organized, or any indenture, mortgage, deed of trust, agreement, undertaking, instrument or document to which Seller or any affiliate thereof is a party or is bound, or any order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over Seller.
5.15 Parking. Seller has received no written notice from any governmental agency that the parking spaces on the Property are in violation of law.
5.16 Zoning. Seller has received no written notice from any governmental agency that the Property is not in compliance with zoning requirements and laws.
5.17 Foreign Person. Seller is not a "foreign person" within the meaning of Section 1445(f) of the Internal Revenue Code.
5.18 No Employees. There are no on-site employees of Seller at the Property except ______________. Buyer shall have no obligation to employ any individual employed by Seller or its affiliates in connection with the Property.
5.19 Inspections. Schedule 5.19 accurately describes (a) all inspections of the Property by any governmental agency or insurance company occurring within three (3) years prior to the Effective Date, (b) all matters which were noted by such governmental agency or insurance company as requiring correction, requesting or recommending modifications or termination of uses of the Property and (c) the present status of each such noted matter.
55414.00000\34517793.5
12 5.20 Misstatements and Omissions. Neither the representations and warranties made by Seller in this Article 5 nor elsewhere in this Agreement contain any untrue statement or any omission of a material fact.
5.21 Intentionally Omitted.
ARTICLE 6. BUYER'S REPRESENTATIONS AND WARRANTIES.
Buyer makes the following representation and warranties to Seller with the understanding that each such representation and warranty is material and is being relied upon by Seller:
6.1 Buyer's Authority. The execution, delivery and performance of this Agreement by Buyer have been duly and validly authorized by all necessary action and proceedings, and no further action or authorization is necessary on the part of Buyer in order to consummate the transactions contemplated herein.
6.2 No Conflict. Neither the execution nor delivery of this Agreement by Buyer, nor performance of any of its obligations hereunder, nor consummation of the transactions contemplated hereby, shall conflict with, result in a breach of, or constitute a default under, the terms and conditions of the organizational documents pursuant to which Buyer was organized, or any agreement to which Buyer is a party or is bound, or any order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over Buyer.
ARTICLE 7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION.
7.1 Survival of Warranties. Buyer and Seller agree that each representation and warranty, covenant by the respective parties contained herein or made in writing pursuant to this Agreement are intended to and shall be deemed made as of the date of this Agreement or such writing and again at the Closing, shall be deemed to be material, and unless expressly provided to the contrary shall survive the execution and delivery of this Agreement, the Deed and the Closing.
7.2 Notice of Changed Circumstances. If either party becomes aware of any fact or circumstances which would render false or misleading a representation or warranty made by such party, then it shall immediately give notice of such fact or circumstance to the other party, but such notice shall not relieve any party of any liabilities or obligations with respect to any representation or warranty.
7.3 Indemnification.
7.3.1 Seller's Indemnity. Seller's obligations pursuant to this Section 7.3.1 shall survive the Closing. Seller at its sole cost and expense hereby agrees to indemnify, defend (with counsel acceptable to Buyer), protect and hold harmless Buyer, from and against any and all claims, demands, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial action 55414.00000\34517793.5
13 and compliance requirements, enforcement and clean-up actions of any kind, and all costs and expenses incurred in connection therewith, including, without limitation, actual attorneys' fees and costs of defense and costs and expenses of all experts and consultants (collectively, the "Losses"), arising directly or indirectly, in whole or in part, out of any one or more of the following:
(a) the breach or alleged breach of any covenant of Seller contained in this Agreement or the inaccuracy or alleged inaccuracy of any representation or warranty of Seller contained in this Agreement;
(b) Seller's ownership of the Property or the operation of the Property prior to the Closing Date; or
(c) the presence on, in or under the Property of any Hazardous Material on or before the Closing Date, any Release of any Hazardous Material, on, under or from the Property prior to the Closing Date or the use, generation, manufacturing, production, handling, storage, transport, discharge or disposal of any such Hazardous Materials on or before the Closing Date, from, under or about the Property, irrespective of whether any of such activities were or will be undertaken in accordance with Environmental Law or other applicable laws, regulations, codes and ordinances. The indemnity contained in this paragraph (c) shall further apply, without limitation, to: (i) all residual contamination and contamination affecting any natural resources; (ii) all consequential damages; (iii) the costs of any required remediation or removal work on the Property, including, without limitation: (A) costs of remediation or removal incurred by the United States Government or the State or any other person; and (B) fines or penalties which arise from the provisions of any statute, state or federal; and (iv) liability for personal injury or property damage arising under any statutory or common-law tort theory, including damages assessed for the maintenance of a public or private nuisance, response costs or for the carrying on of an abnormally dangerous activity.
7.3.2 Buyer's Indemnity. Buyer's obligations pursuant to this Section 7.3.2 shall survive the Closing. Buyer at its sole cost and expense hereby agrees to indemnify, defend (with counsel acceptable to Buyer), protect and hold harmless Seller, and their respective directors, officers and agents from and against any and all Losses, arising directly or indirectly, in whole or in part, out of any one or more of the following:
(a) the breach or alleged breach of any covenant of Buyer contained in this Agreement or the inaccuracy or alleged inaccuracy of any representation or warranty of Buyer contained in this Agreement;
(b) Buyer's ownership of the Property or the operation of the Property after the Closing Date; or
(c) the presence on, in or under the Property of any Hazardous Material after the Closing Date, any Release of any Hazardous Material, on, under or from the Property after the Closing Date or the use, generation, manufacturing, production, handling, storage, transport, discharge or disposal of any such Hazardous Materials after 55414.00000\34517793.5
14 the Closing Date, from, under or about the Property, irrespective of whether any of such activities were or will be undertaken in accordance with Environmental Law or other applicable laws, regulations, codes and ordinances. The indemnity contained in this paragraph (c) shall further apply, without limitation, to: (i) all residual contamination and contamination affecting any natural resources; (ii) all consequential damages; (iii) the costs of any required remediation or removal work on the Property, including, without limitation: (A) costs of remediation or removal incurred by the United States Government or the State or any other person; and (B) fines or penalties which arise from the provisions of any statute, state or federal; and (iv) liability for personal injury or property damage arising under any statutory or common-law tort theory, including damages assessed for the maintenance of a public or private nuisance, response costs or for the carrying on of an abnormally dangerous activity.
ARTICLE 8. SELLER'S PRECLOSING COVENANTS.
Seller shall comply with the covenants contained in this Article 8 from the Effective Date through the Closing Date unless Buyer consents otherwise in writing.
Buyer may grant or withhold any such consent requested by Seller in Buyer's sole discretion.
8.1 Contracts and Documents. Seller shall not, without Buyer's approval, not to be unreasonably withheld or delayed, (a) amend or waive any right under any Service Contract, Preliminary Document or Additional Document, or (b) enter into any material agreement of any type affecting the Property that would survive the Closing Date.
8.2 Insurance. Seller shall maintain or cause to be maintained in full force and effect its present insurance policies for the Property.
8.3 Compliance with Obligations. Seller shall fully and timely comply with all obligations to be performed by it under the Service Contracts, the other Preliminary Documents, the Conditions of Title and all permits, licenses, approvals and laws, regulations and orders applicable to the Property.
8.4 No Transfers. Seller shall not sell, encumber or otherwise transfer any interest in all or any portion of the Property, or agree to do so.
8.5 Termination of Contracts. Seller at its sole cost and expense shall terminate all of the Service Contracts described in Section 5.8 at or before the Closing Date, except for those contracts which Buyer expressly agrees to assume and which are actually assumed by Buyer pursuant to Section 9.3.3.
8.6 Maintenance. At its sole cost and expense, Seller shall operate and maintain the Property such that on the Closing Date the Property shall be in at least as good a condition and repair as on the Effective Date, reasonable wear and tear excepted.
Without limiting the generality of the foregoing, Seller shall, at a minimum, spend such amounts for repair and maintenance as are consistent with its prior practice. Seller shall promptly advise Buyer of any significant repair or improvement required to keep the Property in such condition. Seller shall not make any material alterations to the Property. 55414.00000\34517793.5
15 8.7 Best Efforts. Seller shall use its best efforts to cause the conditions set forth in Section 4.1 to be satisfied by the Closing Date, and Seller shall not take or permit any action that would result in any of the representations and warranties set forth in Article 5 becoming false or incorrect.
ARTICLE 9. CLOSING.
9.1 Time. Provided all conditions set forth in Article 4 have been either satisfied or waived, the parties shall close this transaction (the "Closing"), on the date which is 30 days after the later of: (i) the expiration of the Due Diligence Period (the "Closing Date "Closing Date" ") and (ii) the Buyer waiving its approval of Due Diligence Investigation, as such date may be extended by the provisions of Article 10.
9.2 Escrow. This Article 9, together with such additional instructions as Central Escrow LA, Attention: Sarah Lee, Senior Escrow Officer, [email protected], Central Escrow LA, 3660 Wilshire Blvd, Suite 108, Los Angeles CA 90010 (“Escrow Holder”), shall reasonably request and the parties shall agree to, shall constitute the escrow instructions to Escrow Holder. If there is any inconsistency between this Agreement and the Escrow Holder's additional escrow instructions, this Agreement shall control unless the intent to amend this Agreement is clearly stated in said additional instructions. Buyer and Seller shall cause Escrow Holder to execute and deliver a counterpart of this Agreement to each of them. If the Title Company does not serve as the Escrow Holder, the Title Company shall provide a letter to Buyer, in form and content acceptable to Buyer, pursuant to which the Title Company accepts responsibility and liability for the acts and omissions of Escrow Holder in discharging Escrow Holder's obligations hereunder, including, without limitation, any acts or omissions of Escrow Holder relating to the Title Company's commitment to issue the Title Policy, the receipt, recordation or delivery of any documents placed into escrow, and the receipt and disbursement of any funds placed into escrow.
9.3 Seller's Deposit of Documents and Funds Into Escrow. Seller shall deposit into escrow on or before Closing the following documents:
9.3.1 A duly executed and acknowledged grant deed, in the form acceptable to Buyer, conveying the Property to Buyer ("Grant Deed") in the form attached as Exhibit F;
9.3.2 [Reserved];
9.3.3 A duly executed assignment, in the form of Exhibit E, assigning to Buyer all of Seller's interest (a) in the Plans, (b) in all warranties of which Seller is the beneficiary with respect to the Property, (c) in all intangible assets of the Property, and (d) in the Service Contracts which Buyer has elected to assume (the "General Assignment");
9.3.4 The originals (or copies if originals are unavailable) of the Service Contracts Buyer has elected to assume, if any, and estoppel certificates from all current 55414.00000\34517793.5
16 tenants and the other parties to such Service Contracts no later than 10 business days before Closing, showing no defaults, in form and substance satisfactory to Buyer;
9.3.5 All costs of Closing, including, but not limited to, the CLTA increment of the premium for the Title Policy, recording fees, transfer taxes and fees, one-half of the escrow fees, sales tax and any other costs of Closing customarily paid by sellers of real property, plus or minus prorations as provided in Section 9.8; provided that, subject to Section 9.6, Buyer and Seller shall bear their own attorneys' fees and costs in connection with the negotiation and preparation of this Agreement and the transactions completed by this Agreement;
9.3.6 Seller's Non-foreign Certification;
9.3.7 All records and files relating to the management or operation of the Property, including, without limitation, property tax bills, insurance, and property taxes; and
9.3.8 Such additional documents, including written escrow instructions consistent with this Agreement, as may be necessary or desirable for conveyance of the Property in accordance with this Agreement.
9.4 Deliveries Outside of Escrow. Notwithstanding Section 9.3, Seller and Buyer may elect to deliver the documents described in Section 9.3 outside of escrow (other than documents which are to be recorded) by giving Escrow Holder a joint written notice of such election, specifying the documents which will be so delivered outside of escrow. Upon receipt of such notice, Escrow Holder shall have no further obligation concerning such specified documents.
9.5 Buyer's Deposit of Documents and Funds. Buyer shall deposit into escrow:
9.5.1 The Purchase Price in accordance with the provisions of Article 2, plus or minus prorations as provided in Section 9.8, by cashier's or certified check or electronic transfer of federal funds to Escrow Holder, on or before the Closing Date; and
9.5.2 Such additional documents, including written escrow instructions consistent with this Agreement, as may be necessary or desirable for conveyance of the Property in accordance with this Agreement.
9.6 Default, Termination and Remedies.
9.6.1 Buyer's Termination. This Agreement shall automatically terminate without further notice or action by Buyer upon the occurrence of any of the following events, provided that Buyer is not then in material breach of this Agreement: (a) any condition to Closing contained in Section 4.1 has not been satisfied or waived by Buyer by the Closing Date; or (b) Buyer having exercised its right to terminate this Agreement pursuant to Section 3.4 (disapproval of Due Diligence Investigation), Section 3.5 (disapproval of title) or Article 10 (damage or condemnation). In such event, the parties shall have no further obligation to each other except for those obligations that specifically 55414.00000\34517793.5
17 survive the termination of this Agreement. If this Agreement terminates as a result of Seller's material breach of this Agreement, Buyer shall have all remedies it may have hereunder or at law as a result of such occurrence, including the remedy of specific performance.
9.6.2 Seller's Termination. Provided that Seller is not then in material breach of this Agreement, this Agreement shall automatically terminate without further notice or action by Seller if any condition to Closing contained in Section 4.2 has not been satisfied or waived by Seller by the Closing Date.
9.6.3 Release from Escrow. Upon termination of this Agreement pursuant to Section 9.6.1 or 9.6.2, Escrow Holder shall promptly return to Buyer and Seller, respectively, all documents and monies deposited by them into escrow without prejudice to their rights and remedies hereunder.
9.6.4 Remedies.
(a) Buyer's Remedies. If Seller breaches this Agreement, Buyer shall be entitled to pursue all remedies permitted herein and by law, including the remedy of specific performance. No termination of the escrow by Buyer following a breach by Seller shall be deemed to waive such breach or any remedy otherwise available to Buyer. (b) Seller's Remedies/Liquidated Damages. IF BEFORE THE
CLOSE OF ESCROW BUYER FAILS TO COMPLY WITH OR PERFORM BUYER'S
OBLIGATIONS UNDER THIS AGREEMENT AND (EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH 9.6) DOES NOT CURE SUCH FAILURE WITHIN TEN
BUSINESS DAYS AFTER SELLER GIVES BUYER WRITTEN NOTICE OF SUCH FAILURE, THEN SELLER MAY THEREAFTER: (I) TERMINATE THIS AGREEMENT; (II) RECEIVE AND RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES IF SUCH DEFAULT OCCURS PRIOR TO BUYER'S APPROVAL OF THE TITLE REVIEW; (III) RECEIVE AND RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES IF SUCH DEFAULT OCCURS AFTER BUYER'S APPROVAL PERIOD; AND (IV) EXERCISE THE
OTHER RIGHTS AND REMEDIES RESERVED BY SELLER AS PROVIDED IN THIS PARAGRAPH. IN THE EVENT SELLER TERMINATES THIS AGREEMENT BY
REASON OF BUYER'S DEFAULT, BUYER AND SELLER SHALL BE RELIEVED OF
ANY FURTHER OBLIGATION TO EACH OTHER WITH RESPECT TO THIS AGREEMENT AND THE PROPERTY. IT IS EXPRESSLY UNDERSTOOD AND AGREED BY BUYER AND SELLER: THAT SELLER WILL INCUR SUBSTANTIAL
DAMAGES AS A RESULT OF ANY FAILURE BY BUYER TO COMPLY WITH OR
PERFORM BUYER'S OBLIGATIONS UNDER THIS AGREEMENT IN THE FORM OF,
AMONG OTHER THINGS, ADDITIONAL INTEREST COSTS, MARKETING COSTS, OPPORTUNITY COSTS AND OTHER RELATED EXPENDITURES; THAT IT IS
EXTREMELY DIFFICULT AND IMPRACTICAL TO CALCULATE AND ASCERTAIN AS
OF THE EFFECTIVE DATE OF THIS AGREEMENT THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED IN SUCH EVENT BY SELLER; AND THAT THE DEPOSIT IS
A REASONABLE ESTIMATE OF THE EXTENT TO WHICH SELLER MAY BE
DAMAGED BY BUYER'S DEFAULT IN LIGHT OF THE DIFFICULTY THE PARTIES 55414.00000\34517793.5
18 WOULD HAVE IN DETERMINING SELLER'S ACTUAL DAMAGES AS A RESULT OF SUCH DEFAULT BY BUYER.
_________________ _________________
SELLER'S INITIALS BUYER'S INITIALS
(c) Waiver of Specific Performance. SELLER HEREBY WAIVES
THE RIGHT TO MAINTAIN AN ACTION FOR SPECIFIC PERFORMANCE OF BUYER'S
OBLIGATION TO PURCHASE THE PROPERTY AND SELLER AGREES THAT SELLER
CAN BE ADEQUATELY COMPENSATED IN MONEY DAMAGES IF BUYER FAILS TO PURCHASE THE PROPERTY IN BREACH OF THIS AGREEMENT. SELLER
ACKNOWLEDGES THAT THE PROVISIONS OF THIS PARAGRAPH ARE A MATERIAL
PART OF THE CONSIDERATION BEING GIVEN TO BUYER FOR ENTERING INTO
THIS AGREEMENT AND THAT BUYER WOULD BE UNWILLING TO ENTER INTO THIS AGREEMENT IN THE ABSENCE OF THE PROVISIONS OF THIS PARAGRAPH. _________________ _________________
SELLER'S INITIALS BUYER'S INITIALS
9.7 Closing. When Escrow Holder has received all documents and funds identified in Sections 9.3 and 9.5, has received notification from Buyer and Seller that all conditions to Closing to be satisfied outside of escrow have been satisfied or waived and Title Company is irrevocably committed to issue the Title Policy, then, and only then, Escrow Holder shall:
9.7.1 Record the Grant Deed;
9.7.2 Cause the Title Company to issue the Title Policy to Buyer;
9.7.3 To the extent not otherwise delivered to Buyer outside of escrow, deliver to Buyer: (a) a conformed copy (showing all recording information thereon) of the Grant Deed; (b) fully executed original counterparts of the Bill of Sale, the General Assignment; and (c) the Seller's Certificate, the Service Contracts referred to in Section 9.3.6, the Non-foreign Certification;
9.7.4 Deliver the Purchase Price (as adjusted pursuant to Section 9.8) to Seller.
Escrow Holder shall prepare and sign closing statements showing all receipts and disbursements and deliver copies to Buyer and Seller and, if applicable, shall file with the Internal Revenue Service (with copies to Buyer and Seller) the reporting statement required under Section 6045(e) of the Internal Revenue Code.
9.8 Prorations. Subject to the other provisions of this Section 9.8, all receipts and disbursements of the Property will be prorated as of 11:59 p.m. on the day immediately preceding the Closing Date. Not less than five business days prior to the 55414.00000\34517793.5
19 Closing, Seller shall submit to Buyer for its approval a tentative prorations schedule showing the categories and amounts of all prorations proposed. The parties shall agree on a final prorations schedule prior to the Closing and shall deliver the same to Escrow Holder. If following the Closing either party discovers an error in the prorations statement, it shall notify the other party and the parties shall promptly make any adjustment required.
9.8.1 Capital Expenditures and Accounts Payable. All capital and other improvements (including labor and material) which have been performed or contracted for, by or on behalf of Seller prior to the Closing Date, and all sums due for accounts payable which have been incurred with respect to the Property prior to the Closing Date shall be paid by Seller and shall be subject to the indemnification provisions of Section 7.3. Buyer shall furnish to Seller for payment any bills for such period received after the Closing Date, and Buyer shall have no further obligation with respect thereto.
9.8.2 Property Taxes. All real and personal property ad valorem taxes and special assessments, if any, whether payable in installments or not, including without limitation, all supplemental taxes attributable to the period prior to the Closing Date for the calendar year in which the Closing occurs, shall be prorated to the Closing Date, based on the latest available tax rate and assessed valuation. If the amount of any installment of real property taxes is not known as of the Closing Date, then a proration shall be made by the parties based on a reasonable estimate of the real property taxes applicable to the Property and the parties shall adjust the proration when the actual amount becomes known upon the written request of either party made to the other.
9.8.3 Utility Charges. All utility charges shall be prorated as of the Closing Date and Seller shall obtain a final billing therefor. All utility security deposits, if any, shall be retained by Seller.
9.9 Possession. Seller shall deliver exclusive right of possession of the Property to Buyer on the Closing Date, subject only to the conditions of title and existing leases.
ARTICLE 10.DAMAGE, DESTRUCTION AND CONDEMNATION.
This Agreement shall be governed by the Uniform Vendor and Purchaser Risk Act as set forth in Section 1662 of the California Civil Code as supplemented and modified by this Article 10. Seller shall promptly notify Buyer in writing of any material damage to the Property and of any taking or threatened taking of all or any portion of the Property. Within a reasonable period of time after receipt of such notice, Buyer shall determine whether a material part of the Property has been damaged or whether such taking or threatened taking has affected or will affect a material part of the Property. As used herein, (a) the destruction of a "material part" of the Property shall be deemed to mean an insured or uninsured casualty to the Property having an estimated cost of repair which in the reasonable judgment of Buyer equals or exceeds $300,000; and (b) a taking by eminent domain of a portion of the Property shall be deemed to affect a "material part" of the Property if in the reasonable judgment of Buyer the estimated value of the portion of the Property taken exceeds $300,000. Upon making its determination, Buyer shall 55414.00000\34517793.5
20 notify Seller in writing of the results of such determination. Buyer may elect, by written notice delivered to Seller within 30 days after giving Seller notice of such determination, to terminate this Agreement in accordance with Section 9.6.1 if a material part of the Property has been damaged or if such taking has affected or will affect a material part of the Property. If Buyer does not so terminate, (i) in the case of damage to a material part of the Property, Seller shall assign to Buyer at the Closing its right to recover under any insurance policies covering such damage and shall pay Buyer at the Closing the amount of the deductible, if any, and (ii) in the case of a threatened or actual taking of a material part of the Property, Seller shall assign to Buyer at the Closing Seller's entire right, title and interest in the proceeds thereof. If between the Effective Date and the Closing Date the Property suffers damage which is not material, Seller shall repair such damage at its expense prior to the Closing, and the Closing Date shall be extended for a reasonable period of time not to exceed 30 days to allow for completion of such repairs. The Closing Date shall be extended as necessary to permit Buyer to exercise its rights under this Article 10.
ARTICLE 11.GENERAL.
11.1 Notices. All notices, demands, approvals, and other communications provided for in this Agreement shall be in writing and shall be effective (a) when personally delivered to the recipient at the recipient's address set forth below; (b) five business days after deposit in a sealed envelope in the United States mail, postage prepaid, by registered or certified mail, return receipt requested, addressed to the recipient as set forth below; or (c) one business day after deposit with a recognized overnight courier or delivery service, addressed to the recipient as set forth below, whichever is earlier. If the date on which any notice to be given hereunder falls on a Saturday, Sunday or legal holiday, then such date shall automatically be extended to the next business day immediately following such Saturday, Sunday or legal holiday.
The addresses for notice are:
SELLER: Hyun C. Park.
Phone:
Email:
With a copy to: Urban Real Estate
Attn: Yong Su Koh and Allen Lee Kwon
2975 Wilshire Blvd. #600
Los Angeles, CA 90010
Phone:
Email:
BUYER: City of Stanton
Attn: Jarad Hildenbrand, City Manager
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21 7800 Katella Avenue
Stanton, CA 90680
Phone: (714) 890-4277
Email: [email protected]
With a copy to: Best Best & Krieger LLP
Attn: Brian Byun
655 West Broadway, 15th Floor
San Diego, CA 92101
Phone: (619) 525-1360
Email: [email protected]
Either party may change its address by written notice to the other given in the manner set forth above.
11.2 Entire Agreement. This Agreement and the Schedules and Exhibits hereto contain the entire agreement and understanding between Buyer and Seller concerning the subject matter of this Agreement and supersede all prior agreements, including any previous letter of intent or terms, understandings, conditions, representations and warranties, whether written or oral, made by Buyer or Seller concerning the Property or the other matters which are the subject of this Agreement.
11.3 Amendments and Waivers. No addition to or modification of this Agreement shall be effective unless set forth in writing and signed by the party against whom the addition or modification is sought to be enforced. The party benefited by any condition or obligation may waive the same, but such waiver shall not be enforceable by another party unless made in writing and signed by the waiving party.
11.4 Invalidity of Provision. If any provision of this Agreement as applied to either party or to any circumstance shall be adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, the same shall in no way affect (to the maximum extent permissible by law) any other provision of this Agreement, the application of any such provision under circumstances different from those adjudicated by the court, or the validity or enforceability of this Agreement as a whole.
11.5 References. Unless otherwise indicated, (a) all Article, Section, Schedule and Exhibit references are to the articles, sections, schedules and exhibits of this Agreement, and (b) all references to days are to calendar days. All the Schedules and Exhibits attached hereto are incorporated herein by this reference. Whenever under the terms of this Agreement the time for performance of a covenant or condition falls upon a Saturday, Sunday or California state holiday, such time for performance shall be extended to the next business day. The headings used in this Agreement are provided for convenience only and this Agreement shall be interpreted without reference to any headings. The masculine, feminine or neuter gender and the singular or plural number shall be deemed to include the others whenever the context so indicates or requires. 55414.00000\34517793.5
22 11.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts made and to be performed in California.
11.7 Confidentiality and Publicity. The parties shall at all times keep this transaction and any documents received from each other confidential, except to the extent necessary to (a) comply with applicable law and regulations, or (b) carry out the obligations set forth in this Agreement. Any such disclosure to third parties shall indicate that the information is confidential and should be so treated by the third party. No press release or other public disclosure may be made by Seller or any of its agents concerning this transaction without the prior consent of Buyer.
11.8 Time. Time is of the essence in the performance of the parties' respective obligations under this Agreement.
11.9 Attorneys' Fees. In the event of any legal or equitable proceeding to enforce any of the terms or conditions of this Agreement, or any alleged disputes, breaches, defaults or misrepresentations in connection with any provision of this Agreement, the prevailing party in such proceeding shall be entitled to recover its reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and costs of defense paid or incurred in good faith.
11.10 Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. However, Seller shall not have the right to assign all or any portion of its interest in this Agreement without Buyer's prior written consent. Buyer shall have the right to assign all or any portion of its interest in this Agreement, to an entity owned or partially owned by Buyer, or under common control with Buyer, including a to-be-formed special purpose LLC or partnership for this transaction, upon notice to Seller not later than three days prior to the Closing Date.
11.11 Further Assurances. Seller, at any time before or after Closing, shall, at its own expense, execute, acknowledge and deliver any further deeds, assignments, conveyances and other assurances, documents and instruments of transfer reasonably requested by Buyer and shall take any other action consistent with the terms of this Agreement that may reasonably be requested by Buyer for the purpose of transferring and confirming to Buyer, or reducing to Buyer's possession, any or all of the Property or otherwise carrying out the terms of this Agreement.
11.12 Cooperation With Exchange. Each party agrees to cooperate with the other if such party intends to accomplish a tax-deferred exchange pursuant to Section 1031 of the Internal Revenue Code of 1986. Buyer and/or Seller may assign this Agreement to an exchange intermediary for the purpose of facilitating such an exchange by the assigning party. Buyer's duty to cooperate shall be limited to the transfer of money to Seller or Seller's designee in exchange for the Property, and in no event shall Buyer act as purchaser or acquirer of any exchange property. Seller's duty to cooperate shall be limited to the transfer of the Property to Buyer or Buyer's designee and in no event will 55414.00000\34517793.5
23 Seller exchange the Purchase Property for any exchange property designated by Buyer.
The requesting party shall indemnify and defend and hold the other party harmless from any claims, loss, damages or liability arising out of participation in an exchange.
11.13 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person other than the parties to it and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any third person to any party hereto or give any third person any right of subrogation or action over against any party to this Agreement.
11.14 Remedies Cumulative. The remedies set forth in this Agreement are cumulative and not exclusive to any other legal or equitable remedy available to a party.
11.15 Brokers: Commissions. Seller is represented by Yong Su Koh and Allen Lee Kwon of Urban Real Estate (DRE No. 02117471), 2975 Wilshire Blvd. #600, Los Angeles, CA 90010. Buyer is represented by Kosmont Real Estate Services (d/b/a Kosmont Realty) (DRE No. 02058445), 1230 Rosecrans Ave., #630 Manhattan Beach, CA 90266. Upon close of escrow, Seller shall pay all commissions owed to Kosmont Realty, via separate agreement.
11.16 Counterparts/Facsimile/.PDF Signatures. This Agreement may be executed in counterparts and when so executed by the parties, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument that shall be binding upon the parties, notwithstanding that the parties may not be signatories to the same counterpart or counterparts. The parties may integrate their respective counterparts by attaching the signature pages of each separate counterpart to a single counterpart. In order to expedite the transaction contemplated herein, facsimile or .pdf signatures may be used in place of original signatures on this Agreement. Seller and Buyer intend to be bound by the signatures on the facsimile or .pdf document, are aware that the other party will rely on the facsimile or .pdf signatures, and hereby waive any defenses to the enforcement of the terms of this Agreement based on the form of signature.
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24 IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
BUYER:
City of Stanton, a California municipal
corporation
By: Jarad Hildenbrand
Its: City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
BEST BEST & KRIEGER LLP
By:
City Attorney
SELLER:
Hyun C. Park, an individual
Hyun C. Park
APPROVED AS TO FORM:
LAW OFFICES OF
By:
, Attorney for Seller
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25 Acceptance by Escrow Holder
Escrow Holder acknowledges receipt of the foregoing Agreement and accepts the instructions contained therein.
Dated: ______________, 20___
By:
Name:
Title:
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EXHIBIT A
LAND DESCRIPTION
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EXHIBIT B
[RESERVED]
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EXHIBIT C
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"), provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. To inform the CITY OF STANTON, a California municipal corporation (the "Transferee"), that withholding of tax under Section 1445 of the Code will not be required upon the transfer of a U.S. real property interest to the Transferee by (the "Transferor"), the undersigned hereby certifies the following on behalf of the Transferor:
1. The Transferor is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Code and the Income Tax Regulations promulgated thereunder);
2. The Transferor's U.S. employer identification number is _______________; and
3. The Transferor's office address is
______________________________________.
The Transferor understands that this Certificate may be disclosed to the Internal Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this Certification and, to the best of my knowledge and belief, it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of the Transferor.
DATED: ________________, 20___.
., a California corporation
By:
_____________________________________
_
Name:________________________________
____
Title:
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EXHIBIT D
[RESERVED]
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EXHIBIT E
GENERAL ASSIGNMENT
This Assignment (the "Assignment") is made as of _________________, by ., a California corporation ("Assignor").
FOR VALUABLE CONSIDERATION, as set forth in that certain Agreement of Purchase and Sale and Joint Escrow Instructions dated ___________ __, 20__ (the "Agreement"), Assignor hereby assigns and transfers to the CITY OF STANTON, a California municipal corporation ("Assignee"), following:
A. All equipment leases, service and/or maintenance agreements and contracts relating to the Real Property (collectively, the "Contracts")[, as more particularly described in Schedule 1 attached hereto];
B. All permits, licenses, consents, registrations and other similar approvals applicable to the Real Property (collectively, the "Approvals")[, which Approvals are more particularly described in Schedule 2 attached hereto]; C. All as-built plans and specifications for: (1) the Real Property; (2) any and all improvements used in connection with the operation or occupancy of the Real Property or located upon the Real Property (the "Improvements"); and (3) any and all personal property owned by Assignor located within or used in connection with the operation of the Real Property and Improvements (the "Personal Property") (collectively, the "Plans"); and
D. All warranties of which Assignor is the beneficiary (the "Warranties") with respect to the Improvements or Personal Property.
This Assignment shall not supersede the Agreement and, in the event of conflict between this Assignment and the Agreement, the Agreement shall control.
This Assignment shall be binding upon and inure to the benefit of Assignor and Assignee and their respective heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF, Assignor has executed this Assignment as of the date first above written.
ASSIGNOR:
, a California corporation
By
Its
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2 SCHEDULE 1
Note to drafter: List all equipment leases,
service and/or maintenance agreements and
contracts relating to the Real Property - if none
known, delete this schedule and bracketed
phrase but leave general assignment of
unspecified contracts. Leases should have a
separate assignment, so do not assign seller’s
interest in leases in this document.
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3 SCHEDULE 2
Note to drafter: List all permits, licenses,
consents, registrations and other similar
approvals applicable to the Real Property- if
none known, delete this schedule and bracketed
phrase but leave general assignment of
unspecified contracts
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4 SCHEDULE 5.19
Note to drafter: List (a) all inspections of the
Property by any governmental agency or
insurance company occurring within three (3)
years prior to the Effective Date, (b) all matters
which were noted by such governmental agency
or insurance company as requiring correction,
requesting or recommending modifications or
termination of uses of the Property and (c) the
present status of each such noted matter
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5 EXHIBIT F
GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
City of __________________
__________________, CA
ATTN: City Clerk
EXEMPT FROM RECORDING FEES PURSUANT
TO GOVERNMENT CODE SECTION 27383
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: __________________
Grant Deed
The undersigned Grantor(s) declare(s): City of __________________ is exempt from property taxes
Documentary transfer tax is $__________.
Computed on full value of property conveyed, or
Computed on full value less value of liens and encumbrances remaining at time of sale.
Unincorporated area City of __________________ and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, hereby GRANT(S) to
the following described real property in the City of __________________ County of __________________
State of California:
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6 SEE ATTACHED EXHIBIT A
Dated: _______________,
20___
By: _________________________________
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
COUNTY OF )
On , 20___ before me, , Notary Public,
personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: (seal)
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7 CERTIFICATE OF ACCEPTANCE
Pursuant to Section 27281 of the
California Government Code
This is to certify that the interest in real property conveyed by the Grant Deed dated __________________, 20___, from _______________________________________, to the City of , a municipal corporation, is hereby accepted by the undersigned officer on behalf of the City of , pursuant to the authority conferred by Resolution No. _______, adopted by the City Council of the City of __________________ on ___________________, and the Grantee consents to recordation thereof by its duly authorized officer.
Dated: _________________, 20___ CITY OF
By ____________________________
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8 EXHIBIT G
SERVICE CONTRACTS
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9 EXHIBIT H
LITIGATION