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16-1018_BLENHEIM FACILITY MANAGEMENT_D12_Agenda ReportTO: FROM: City of San Juan Capistrano Agenda Report Honorable Mayor and Members of the City Council ;t/:n Siegel, City Manager SUBMITTED BY: Charlie View, Project Manager DATE: October 18, 2016 10/18/2016 012 SUBJECT: Consideration of a One-Year Extension of the Riding Park Management Agreement with Blenheim Facilities Management, LLC RECOMMENDATION: By motion, authorize the City Manager to prepare and execute a one-year extension to the Riding Park Management Agreement, maintaining all current Agreement terms, prior to the Agreement expiration on December 31, 2016. DISCUSSION/ANALYSIS: The current Riding Park Management Agreement ("Management Agreement") between the City and Blenheim Facility Management, LLC ("BFM") expires on December 31, 2016. Pursuant to City Council direction, staff is working to renegotiate a longer term agreement with BFM and ensure that the property and associated events are open and accessible to members of the public. The primary reason necessitating the proposed short-term extension of the contract is that staff has identified the need to retain a financial and equestrian consultant to help re-structure the agreement to ensure ongoing bond compliance and equestrian facility best practices. The cost associated with retention of this consultant will be funded by revenues received from Riding Park activities. Additionally, staff and BFM will continue to work with the Parks, Recreation, Senior and Youth Services Commission to ensure that BFM meets the conditions outlined in Management Agreement Section 2.1.5 Riding Park Parcel Events. This section requires BFM to develop a calendar reflecting the incorporation of sporting events, including tournaments with scheduling priority given to San Juan Capistrano-based City Council Agenda Report October 18, 2016 Page 2 of2 teams, and a minimum of six community events such as movie nights, a pumpkin patch, winter wonderland, concerts in the park, etc. FISCAL IMPACT: Extension of the Management Agreement does not require the expenditure of City funds. The Management Agreement is self-funding in that management fees are retained by BFM based on the amount of revenue that has been produced by BFM's management of the property. This arrangement has resulted in revenue to the City of approximately $230,000 for each of the past two calendar years (2014 and 2015), after deducting the management fee due to BFM. ENVIRONMENTAL REVIEW: In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(3), the general rule that the CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Consideration of the Management Agreement extension would not be an activity with potential to cause significant effect on the environment and therefore exempt from CEQA. PRIOR CITY COUNCIL REVIEW: • On November 4, 2014, the City Council continued consideration of a two-year Riding Park Management Agreement to November 18, 2014. • On November 18, 2014, the City Council approved the current Management Agreement. • On February 16, 2016, the City Council gave direction to staff to negotiate a longer term, bond compliant agreement. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: None NOTIFICATION: Parks, Recreation, Senior and Youth Services Commission Blenheim Facilities Management, LLC ATTACHMENTS: Attachment 1 -Current Management Agreement 394/028428-0019 6143924.9 all/13/14 RIDING PARK MANAGEMENT AGREEMENT BY AND BETWEEN CITY OF SAN JUAN CAPISTRANO AND BLENHEIM FACILITY MANAGEMENT, LLC ATTACHMENT 1 RIDING PARK MANAGEMENT AGREEMENT THIS RIDING PARK MANAGEMENT AGREEMENT ("Agreement") is made and entered into this 18th day ofNovember, 2014 ("Effective Date") by and between the CITY OF SAN JUAN CAPISTRA.NO, a municipal corporation ("City"), and BLENHEIM FACILITY MANAGEMENT, LLC, a Delaware limited liability company ("Company"). RECITALS: A. City is the owner of that certain real property located in the City commonly known as "Rancho Mission Viejo Riding Park at San Juan Capistrano" depicted in the attached EXHIBIT A (the "Property"). A portion of the Property within the bounds of the solid black line shown on EXHIBIT A consists of approximately seventy (70) acres (the "Riding Park Parcel"). City desires to utilize the services of Company to manage and maintain the Riding Park Parcel in accordance with the terms and conditions set forth in this Agreement. ·. AGREEMENT: NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, City and Company hereby agree as follows: 1.0 TERM OF AGREEMENT 1.1 Effective Date; Temt. City is contracting with Company, pursuant to this Agreement, for provision by Company of Riding Park Parcel management services, as set forth in this Agreement, commencing on a date subsequent to the Effective Date. In recognition of the foregoing, this Agreement shall be effective on the Effective Date set forth in the preamble, but the tenn of Company's management of the Riding Park Parcel pursuant to this Agreement shall be the "Management Term" set forth in Section 1.2. This Agreement shall terminate and be of no further force or effect as of 11:59 p.m. on December 31, 2016, unless sooner terrilinated pursuant to the terms of this Agreement (''Termination Date"). 1.2 Management Term. The Management Term shall commence on Januarv 1, 2015 (''Management Term Commencement Date 11 ) and shall end on the Termination Date. 2.0 MANAGEMENT AND OPERATIONS 2.1 Riding Park Parcel Management by Company. City hereby contracts with Company, during the Management Term, to manage and operate the Riding Park Parcel in accordance with the terms and provisions of this Agreement ("Riding Park Parcel Management Services"). 2.1.1 Acce))taoce of Riding Park Parcel. Company accepts the Riding Park Parcel in its current "AS-IS" "WHERE IS" "WITH ALL FAULTS" condition as of the Effective Date and that, except as otherwise provided in this Agreement, City shall have no obligation whatsoever to provide or pay for any alterations, improvements, or work therein. -I- 2.1.2 Access to Riding Park Parcel. City hereby grants to Company a non-exclusive revocable license, subject to and in accordance with the terms of this Agreement, to enter upon and use the roads and other rights of way across the Property as designated by City on EXHIBIT A to access the Riding Park Parcel, or alternative roads, other rights of way, and portion of the Property as City may reasonably require Company to use to access the Riding Park Property from time to time ("Access Roads"). Other than the Access Roads, Company shall not enter upon or use any other portions of the Property for any purpose without the express written consent of City. 2.1.3 Management of Riding Park Parcel in Accordance with Permitted Uses. The Riding Park Parcel shall be used solely for the purpose of hosting sporting and equestrian events and community recreational and sports-related activities, and ancillary activities appropriate to particular events including. but not limited to, food and beverage service (including serving of alcoholic beverages in compliance with applicable permit and regulatory requirements of the State of California Department of Alcoholic Beverage Control) and use of amplified sound equipment (provided the same does not exceed the City's noise ordinance), so long as such uses, individually and/or cumulatively, do not increase traffic beyond existing levels and such uses comply with the Use Restrictions attached as Exhibits C and D of the Grant Deed transferring ownership of the Property to City, a copy of which Exhibits C and D are attached hereto as EXlllBIT B (collectively, the "Permitted Use"), and for no other purpose. All other uses of the Riding Park Parcel that Company may propose shall be subject to the prior review and written consent of the City Manager, which consent may be given or withheld in the City Manager's sole and absolute discretion. Company shall request such permission from the City Manager, in writing, not less than thirty (30) days prior to the proposed commencement of any such event or use. Company shall use its commercially reasonable efforts to schedule, promote, and use the Riding Park Parcel with Permitted Uses so as to maximize use of the Riding Park Parcel but within the mandated traffic levels and consistent with proper management and maintenance of the Riding Park Parcel for equestrian and sports-related uses. 2.1.3 .I Parking on Riding Park Parcel. Company and the users of the Riding Park Parcel, may park vehicles, including horse trailers, on the Riding Park Parcel in conjunction witl1 the Permitted Use; provided, however, that no persons using the Riding Park Parcel shall be permitted to park, and Company shall prohibit all persons using the Riding Park Parcel from parking, on any other portion of the Property 2.1.3 .2 Sierra Soi!. City and Company acknowledge that prior to the EiTective Date of this Agreement, ce1tain work was performed by Sierra Soil Products, Inc. on a portion of the Riding Park Parcel. Company shall be responsible and liable for any damage, cleanup, or liability arising from or attributable to such work. 2.1.4 Identification of Riding Park Parcel. Company shall identify and advertise the Riding Park Parcel exclusively as the "Rancho Mission Viejo Riding Park at San Juan Capistrano" at all times when performing or otherwise conducting a Permitted Use upon the Riding Park Parcel. Company shall adhere to the City's approved sign program for the Riding Park Parcel. 2.1.5 Riding Park Parcel Events. Company shall submit to City Manager, not less frequently than once per quarter, covering the four quarters of the Management Term, by the dates set forth below, a written request for the City Manager's approval of the specific proposed events and uses for each upcoming calendar quarter during the, Management Term ofthis Agreement. -2- City Manager's consent shall not be unreasonably withheld provided the proposed events and uses are a Permitted Use and City Manager or authorized designee shall respond in writing to the request within fifteen (15) calendar days of receipt of Company's request. Company shall submit such written requests in accordance with the following schedule: For 1st Calend ar Quarter (Januruy 1 th rough March 31): For 2"d Calendar Quruter (April l thro ugh J une 30): For 3rd Calendar Q uarter (Jul y 1 t hrough September 30): For 4th Calendar Quarter (October 1 through December 31): Not later than preceecH ng December 15 Not later than preceed ing March 1 Not later than preceeding June l Not later than preceeding September 1 Company shall continue to provide public use dates and shall develop a calendar to include during the Management Term: (A) additional sports events, including toumaments, with priority for San Juan Capistrano-based teams, and (B) community events that shall include a minimum of six (6) days of community events such as movie nights, a pumpkin patch, winter wonderland, and concerts in the park [the minimum of six ( 6) days of community events shall not include the additional sports events, including tournaments, with priority for San Juan Capistrano-based teams described in clause (A)]. Notwithstanding the foregoing, Company acknowledges that City has the right to reserve and use the Riding Park Parcel for the uses specified in Sections 2.1.5.1 and 2.1.5.2 and Company shall coordinate with City with respect to same. 2.1.5.1 Rancho Mission Vie jo Rodeo. Notwithstanding anything in tllis Agreement to the contrary, City retains the right to allow use of the Riding Park Parcel for the final two (2) weeks of August for the purpose of allowing Rancho Mission Viejo, LLC to host the Rancho Mission Viejo Rodeo or similar event, together with any and all related events and functions associated therewith as determined by City in its sole and absolute discretion. 2.1.5.2 City Use of Riding Park Parcel for C api tal Impr ovem ent ·Installation. City shall have the right to and it shall not be a breach ofthis Agreement for City to, at City's sole discretion and at any time during the Management Tenn to: (a) install on portions of the Riding Park Parcel utilities, storm drain facilities, public restrooms, water, sewer, and other infrastructure; (b) grant easements for the improvement of Ortega Highway and La Pata Road, which improvements may require use and/or encroachment onto portions of the Riding Park Parcel; (c) construct on portions of the Riding Park Parcel the Regional Riding and Hiking Trails as shown on the County of Orange :approved Master Plan of Regional Riding and Hiking Trails or other public trails pursuant to City's plan and specifications, and (d) allow the Reserve at Rancho Mission Viejo, a California non-profit public benefit corporation, to enter onto the Riding Park Parcel and perform any activities thereon that may be required by (or are consistent with) the terms and provisions of the Southern Habitat Conservation plan approved by the U.S. Fish and Wildlife Service on January 10, 2007 (the "SSHCP"). No adjustment in Company's compensation hereunder shall be made due to any losses, increased expenses, or impacts to Company resulting from or arising from the exercise of any of the activities set forth in this Section 2.1.5 .2. 2.1.5.3 Public Access to Riding Park Parce l. Within sixty (60) days of the Effective Date, City Manager and Company shall identify areas vvithin the Riding Park Parcel and the times and days where public access and use, over and above those previousy provided, can occur consistent with the safety of the public and the operations of the Company. A proposed "Public Use Implementation Plan" shall be shall be prepared setting forth the proposed times and areas of public -3- use and access and such other rules or regulations that are deemed appropriate, and such Implementation Plan shall be presented to the City Council for review and approval no later than ninety (90) days after the Effective Date. 2.1.6 Impact of County La Pata Project. City and Company acknowledge that the County of Orange has undertaken expansion of La Pata Avenue adjacent to the Riding Park Parcel. The extent ofthe impact and its effect on the ability of Company to effect use ofthe Riding Park Parcel for the Permitted Use is not known . Notwithstanding, no adjustment in Company's compensation hereunder shall be made due to any losses, increased expenses , or impacts to Company resulting from County 's work. 2.1.7 Riparian Resources Areas. 2.1. 7.1 Identification of Riparian Rcsotlrce Areas. Portions,ofthe Riding Park Parcel contain riparian resources that are subject to the provisions of the SSHCP and its Implementation Agreement. These resources areas ("Riparian Resources Areas") are specifically identified and depicted in EXHIBIT A attached hereto as "Do Not Disturb Areas." 2.1.72 Prohibitions and Obligations. Company shall not (and shall not authorize, allow, or permit .others to) enter onto, improve, or otherwise use the Riparian Resources Areas or any portion thereof for the Permitted Use or any other activity. Moreover, Company, at its sole cost and expense, shall undertake, perfonn, and complete all actions necessary to restrict and prevent any person, domestic animal, vehicle, equipment, or other apparatus from entering onto the Riparian Resource Areas (which actions may ii1clude, but are not limited to, the construction and maintenance of fences or other barriers and placement of signage outside of the perimeter of the Riparian Resource Areas). The Arizona Crossing between the Property and Reata Park Parcel may be utilized when a Fish and Game Code § 1602 Agreement has been entered into allowing such use, Company shall abide by all terms and conditions of such 1602 Agreement. 2.1.7.3 Damage to Riparian Resource Areas. In the instance that the Riparian Resource Areas sustain any damage during the Management Term, Company shall immediately notify City conceming the dam.age . Within five (5) days following Company's delivery of said notice of damage to City, Company and City shall meet and confer for purposes of discussing the damage and addressing restoration of the damaged areas . Ifthe damage is caused by, or otherwise the result of, the actions-whether of commission or omission-of Company or any other person entering onto the Riding Park Parcel pursuant to, or under color of, this Agreement, Company, at its sole cost and expense, shall be responsible for (i) preparing a restoration plan that addresses and provides tor timely and complete remediation of the damage, (ii) submitting the restoration plan to City for review and approval, (iii) modifying the restoration plan in accordance with any comments or directions received from City, and (iv) performing all restoration work in accordance with the restoration plan approved by City. All restoration work shall be subject to oversight by City and shall be performed in accordance with time frames and methods approved by City. 2.1. 7.4 Material Breach. In addition to any other rights of City to terminate this Agreement, any failure of Company to strictly adhere to the obligations set forth in this Section 2.1. 7.4 shall be deemed a material breach of this Agreement and City may, in its sole and -4- absolute discretion, immediately terminate this Agreement upon delivery of notice to Company. Notwithstanding any such termination of this Agreement, Company shall remain obligated (i) for all costs and expenses associated with remediating any damage to the Riparian Resource Areas caused by Company (or any other person entering onto the Riding Park Parcel pursuant to, or under color, of this Agreement), and (ii) for satisfying all other obligations of Company that survive termination of this Agreement. 2.1.8 Approvals; Compliance. Company, in performing the Riding Park Management Services, shall be required to, at its sole cost and expense, do the following: (a) Maintain all necessary licenses and/or permits from all appropriate public or governmental agencies with jurisdiction and provide copies of same to City upon any request therefor; (b) Comply with each and every federal, state, or local law (including the City's Municipal Code), regulation, standard, decision of court, ordinance, rule, code, order, decree, directive, guidelines, permit or permit condition, together any declaration of covenants, conditions, and restrictions that have been recorded in any official or public records with respect to the Riding Park Parcel or any portion thereof, each as currently existing and as amended, enacted, issued, or adopted in the future which become applicable to the Riding Park Parcel; (c) Not materially interfere with the use and enjoyment ofthe Riding Park Parcel by City or any person claiming through or under City, except as may be mandated by this Agreement; (d) Not permit any other person or party to enter upon the Property or Riding Park Parcel under the authority of this Agreement other than as guests or invitees, and Company shall not authorize any person or entity to operate any commercial use and shall not grant any sub-agreement, license, or other form of agreement relating to the Property without the prior, express written consent of the City Manager which consent may be given or withheld in the City Manager's sole and absolute discretion; provided, however, that notwithstanding the foregoing, Company's vendors, concessionaires, and similar commercial uses shall be permitted on the Riding Park Parcel in conjunction with the Permitted Uses. (e) Cooperate with and provide City staff with information and recommendations related to where and what types of infrastructure improvements could be implemented to maximize the use of the Riding Park Parcel, including future restroom facilities, water access points, irrigation system enhancements, parking strategies, and where to best site any covered areas; and 2.1.9 Signage. Company shall have the right to install signage upon the Riding Park Parcel identifying the location of the facility and the activities/events conducted by Company thereon as Permitted Uses; provided that (i) Company shall provide to City a written description and/or depiction of the intended signage prior to installation, (ii) all signage shall identify the Riding Park Parcel as the "Rancho Mission Viejo Riding Park at San Juan Capistrano," (iii) City shall have the right to approve/disapprove any signage proposed by Company, (iv) all costs and expenses associated with designing, permitting, constructing, installing, and maintaining the signage shall -5- bebome exclusively by Company, (v) Company shall maintain all approved signage in good condition and repair, (vi) at the conclusion of the Management Term, Company, unless otherwise directed by City, shall remove the signage from the Riding Park Parcel, and (vii) Company shall submit sign plans including site plan location and elevations for City's review and approval of any amendment to the sign program for the Riding Park Parcel as exists on the Effective Date of this Agreement. 2.1.10 Rules and Regulations: Company shall comply with City's rules and regulations for the Property ("Rules and Regulations"), a copy of the current edition of which is attached hereto as EXHIBIT D; provided, City shall have the right to revise and modify the Rules and Regulations from time to time in City's sole and absolute discretion and Company shall comply therewith upon receipt of a copy thereof. · 2.1.11 Company Responsible for Riding Park Parcel Operating Expenses. Company shall be responsible for payment of all costs and expenses of whatever type or nature, incurred with respect to or otherwise arising from Company's performance ofthe Riding Park Parcel Management Services including, but not limited to: (i) all charges for heat, water, gas, electricity, and any other utilities (and City shall not be responsible or liable for any interruption in or curtailment of any utility service); (ii) all costs associated with preparing the Riding Park Parcel for, and holding, the activities/events thereon that ate Permitted Uses including, but not limited to, all licenses and pennits; (iii) all taxes, fees, assessments, levies, fines, judgments, claims, charges, costs of defense of lawsuits, attorney fees, and expert witness fees; (iv) all employee, personnel, and labor costs including all salaries, wages, benefits, pension contributions, health care costs, and all other such costs; (v) costs of maintaining the Riding Park Parcel in a manner, and at a level, necessary to insure the ongoing use of the Riding Park Parcel during and after the Management Term for the Permitted Uses; (vi) all marketing, advertising, publicity, and related costs to promote the activities and events that are Permitted Uses on the Riding Park Parcel; (vii) all office management costs to operate the Riding Park Parcel including but not limited to computers, telephone, software, and accounting and payroll programs, (viii) the cost to repair improvements on the Riding Park Parcel; (ix) insurance premiums; and (X) contracts necessary to operate and maintain the Riding Park Parcel (collectively, the "Riding Park }>arcel Operating Expenses"). If City should (but is under no obligation to) pay for any of the Riding Park Parcel Operating Expenses due to Company's failure to make time payments thereof, Company shall reimburse City within thirty (30) days of receipt of the invoice for any such payments made by City on behalf of Company. If such payment is not received within such thirty (30) day period, interest shall accrue on the outstanding balance due at the maximum legal rate then in effect. 2.1.12 Riding Park Parcel Management Fee. City and Company acknowledge and agree that in light of the purpose of this Agreement to provide equestrian, sports, and community services to third parties, the source of gross revenue derived from operations on the Riding Park Parcel is fees paid by third party users. Thus, during the Management Term of this Agreement, City shall pay Company a management fee ("Riding Park Parcel Management Fee") based on percentage of gross revenues received by Company from the Riding Park Parcel Management Services including but not limited to: facility rentals and other rental income, vendor fees, stalls, RV fees, parking fees, food and beverage concessions, horse and equestrian shows, horse events, tournaments, 'special events, group events, sports events including but not limited to soccer and lacrosse, taxable sales, nontaxable sales, proceeds of insurance covering loss of gross revenues -6- including but not limited to business interruption insurance or similar types of insurance, and any amount received by Company in connection with any claim, demand, or lawsuit to replace or augment Gross Revenues, with all gross revenues identified and recorded in accordance with generally accepted accounting principles ("Gross Revenues"). Gross Revenues shall not include sales taxes, excise taxes, gross receipts taxes, and other similar taxes imposed upon the sale of food, beverages, merchandise, or services and paid to the appropriate taxing authority , whether added to or included in the selling price . The percentage of Gross Revenues to be .paid by City to Company ("City Management Fee Payment Percentage") shall be as follows : AMOUNT OF TOTAL GROSS CITY RIDING PARK PARCEL REVENUES MANAGEMENT FEE PAYMENT PERCENTAGE $0.00 to and including $600,000. 66 .66% For each dollar of Gross Revenues over 90% $600,000 to and including $850,000. For each dollar of Gross Revenues over 97.5% $850,000 to and including $1,200,000. For each dollar of Gross Revenues over 95% $1 ,200,000. 2 .1.12 .1 Quarterly Payment of-Riding Park Parcel Management Fee. Within ten (10) days after the end of each quarter during the Management Term, Company shall report the Gross Revenues for the quarter just ended to the City 's Chief Financial Officer. The City's ChiefFinancial Officer shall review and reasonably Verify the amount reported and shall notify Company of acceptance or rejection ofthe information provided. The City's ChiefFinancial Officer may request additional information. If the information is rejected, Company, City Manager, and City's Chief Financial Officer shall meet and confer in good faith to resolve any objections or concerns. Once the information is accepted by the City's Chief Financial Officer, City shall make a payment toward the Riding Park Parcel Management Fee by applying the above City Management Fee Payment Percentage to the total Gross Revenues for the year to date through the end of the reporting quarter. For illustration purposes only, if the Gross Revenues achieved during Quarter #1 were $500,000, the payment made to Company by the City after the end of Quarter #l would be $333,300, and if the Gross Revenues achieved during Quarter #2 were $400 ,000 (i.e., total Gross Revenues through Quarter #2 of $900,000), the payment made to Company by the City after the end of Quarter #2 would be $340,410. At the end of Quarter #4, which corresponds to the end of the Management Term, and notwithstanding any other term or provision in this Agreement to the contrary, this Agreement shall remain in effect for the purpose of the final quarterly payment following the end of Quarter #4 and tor purposes of any necessary or required reconciliation and accounting to "true up" the final payment so that the total Riding Park Management Fee for the Management Term has been accurately determined, reconciled, and paid. -7- 2.1.12.2 Method of Payment of Riding Park Management Fee. In lieu of Company transferring all Gross Revenues to the City and then receiving the quarterly Riding Park Parcel Management Fee payments, City shall effect payment of the quarterly Riding Park Parcel Management Fee amount by an offset against the Gross Revenues and Company shall pay City the remainder by check in good and immediate funds no later than seven (7) days after receipt of notification from the City Manager or City's Chief Financial Officer or authorized designee that the report of Gross Revenues for the applicable calendar quarter has been accepted. Using the same example for illustration purposes only as set forth in Section 2.1.12.1, if the Gross Revenues for Quarter #1 are $500,000, the City's Riding Park Parcel Management Fee payment to Company would be $333,300 and thus, pursuant to this Section 2.1.12.2, Company shall pay the difference to City which, in this example would be the amount of$166,700. 2.1.13 Ownership of Improvements and Personal Propertv. All non-permanent structures and improvements on the Riding Park Parcel installed by Company during the term of this Agreement and all fixtures, furnishings, and equipment and operating inventory purchased by Company during the term of this Agreement shall be considered property owned by Company and shall be removed by Company at the Termination Date unless other arrangements are made with City. 3.0 TERMINATION 3.1 Company's night to Terminate Agreement. In addition to any other rights of t~nnination afforded to Company in this Agreement, Company shall have the right to terminate this Agreement prior to the end of the Management Term upon any of the following events: (a) A material breach by City and only upon not less than thirty (30) days' prior written notice to the City which notice shall specify the material default. Upon receipt of such notice, City may, but shall not be obligated to, effect to remedy of such default within such thirty (30) day period; provided, however, that such cure period shall be extended for such material defaults that cannot reasonably be cured within such thirty (30) day period provided City has commenced such cure within the thirty (30) day period and diligently prosecutes such cure to completion. (b) Loss of currently available water supply to the ·Riding Park Parcel from adjoining Blenheim Farms which water supply is not readily replaceable at comparable cost, and only upon not less than thirty (30) days' prior written notice to the City. Upon receipt of such notice, City may, but shall not be obligated to, remedy the loss of water supply within such thirty (30) day period, which may include providing water to the Riding Park Parcel from another source, in which case the Parties agree to meet and confer in good faith to adjust the Riding Park Parcel Management Fee to address any increased costs associated with an alternative water supply. (c) Loss of Company facilities located on the Riding Park Parcel due to environmental or other property constraints including but not limited to natural disasters, and only upon not less than thirty (30) days' prior written notice to the City of Company decision to terminate specifying the environmental or other property constraint. Upon receipt of such notice, City may, but shall not be obligated to, effect to remedy of the environmental or other property constraint within such thirty (30) day period, in which case the Parties agree to meet and confer in good faith to adjust -8~ the Riding Park Parcel Management Fee to address any increased costs associated with City's remedy. 3.2 City's Right to Terminate Agreement. In addition to any other rights of tennination afforded to City in this Agreement, City shall have the right to terminate this Agreement prior to the end of the Management Term upon any of the following events: (a) A material breach by Company and only upon not less than thirty (30) days' prior written notice to the Company which notice shall specify the material default. Upon receipt of such notice, Company may, but shall not be obligated to, effect to remedy of such default within such thirty (30) day period; provided, however, that such cure period shall be extended for such material defaults that cannot reasonably be cured within such thirty (30) day period provided City has commenced such cure withi _n the thirty (30) day period and diligently prosecutes such cure to completion. Failure to timely take corrective action as provided in Section 6.1 shall constitute a material breach. (b) The insolvency of Company or if Company is adjudicated a bankrupt or Company institutes any proceedings under any law relating to bankruptcy wherein Company seeks to be adjudicated a bankrupt or to be discharged of its debts or to effect a plan of reorganization, or the filing of an involuntary petition by any of Company's creditors seeking the rehabilitation, liquidation, or reorganization of Company under any law related to bankruptcy, insolvency, or other relief of debtors, and, in the case of involuntary actions, the failure to remove or discharge the same within sixty (60) days of such filing. (c) City and Company acknowledge and agree that the Property was acquired with the proceeds of tax-exempt bonds and this Agreement is required to be compliant with applicable provision of the Internal Revenue Code and implementation IRS Regulations, including but not limited to Revenue Procedure 97-13. If, and upon, City's receipt of a determination from: a qualified bond counsel, the Trustee for such bonds, the Internal Revenue Service, or other qualified person or entity, that this Agreement is not a compliant management agreement, City shall have the unqualified and unilateral right to tenninate this Agreement prior to the end of the Management Term upon thirty (30) days prior written notice to Company. City shall incur no liability due to such tennination except that upon such termination, City shall be obligated to pay Company the Riding Park Parcel Management Fee, computed as provided in this Agreement, earned by Company through the date Company ceases performance under this Agreement pursuant to such notice of termination. City and Company agree to meet and confer in good faith to determine such final payment amounts. (d) City sells or transfers the Riding Park Parcel and a condition of such sale or transfer is the termination of this Agreement with respect to the applicable parcel prior to the end of the Management Term; provided that City provides Company at least ninety (90) days prior written notice of the termination of this Agreement (or portion thereof affecting the applicable parcel) due to the sale or transfer, and upon such tennination City shall pay Company the pro-rata amount of Riding Park Parcel Man~gement Fee eamed by Company to the date of termination. (e) If all of the Riding Park Parcel (or a sufficient portion thereof so as to make infeasible, in the City's reasonable judgment, the continued operation of the Riding Park Parcel for the purposes for which Company is performing the Riding Park Parcel Management Services ), shall -9- be taken through the exercise (or by agreement in lieu of the exercise) of the power of eminent domain, then upon the earlier of (i) the date that City shall be required to surrender possession of the Riding Park Parcel or of that substantial portion of the Riding Park Parcel or (ii) the date when the Riding Park Parcel is no longer open and available for operations, this Agreement with respect to the Riding Park Parcel shall terminate and n"either Party shall have any further obligation to the other Party "with respect to the applicable parcel, except with respect to liabilities accruing, or based upon events occurring, prior to the effective date of such termination, including but not limited to payment of the Riding Park Parcel Management Fee earned by Company to the date of such termination, as applicable. (f) If the Riding Park Parcel should be destroyed or substantially damaged by fire, flood, acts, or God, or other casualty, City, by written notice to Company within sixty (60) days following the occurrence of such event, shall have the right to terminate this Agreement with respect to the Riding Park Parcel on the basis that City does not choose to rebuild or restore the applicable parcel, and in such event neither Party shall have any further obligation to the other Party under this Agreement with respect to the applicable" Parcel, except with respect to liabilities accruing, or based upon events occrnTing, prior to the effective date of such termination, including but not limited to payment of the Riding Park Parcel Management Fee earned by Company to the date of such termination. (g) If there is a disruption in Company's operation of the Riding Park Parcel due to war, sabotage, riot or acts of civil disobedience, acts or omissions of governmental agencies (except acts of governmental agencies including, but not limited to, the City taken in accordance with this Agreement), accidents, fires, explosions, floods, earthquakes, other acts of God, strikes, labor disputes, shortages of materials, or any other event not within the control of Company, City, by written notice to Company within thirty (30) days following the occurrence of such event, shall have the right to terminate this Agreement with respect to the Riding Park Parcel, and in such event neither Party shall have any further obligation to the other Party under this Agreement with respect to the applicable Parcel, except with respect to liabilities accruing, or based upon events occurring, prior to the effective date of such termination, including but not limited to payment of the Riding Park Parcel Management Fee earned by Company to the date of such termination. 4.0 DAMAGE; LIENS 4.1 Company to Repair Pronertv. Company shall repair and restore any damage, destruction, or casualty to any structures, improvements, fixtures and/or installations, soil, plants, crops, fences, timber, habitat, livestock and/or any other natural resources on or about the Property arising from Company's performance ofthe Riding Park Parcel Management Services including by any other user of the Riding Park Parcel with Company's consent. All repair and restoration work shall be subject to (i) the preparation by Company, and approval by City, or a restoration plan for the Riding Park Parcel and (ii) oversight by City of any restoration work completed on the Riding Park ParceL The obligations of this Section shall survive termination ofthis Agreement. 4.2 No Liens . Company shall not permit to exist or otherwise to be enforced against the Riding Park Parcel, or any portion thereof, any mechanics', materialmen's, contractors', or other liens ("Liens") arising out of the acts or omissions of Company hereunder. Company hereby indemnifies and agrees to City and any affected portion of the Riding Park Parcel free and harmless -10- from all liability for any and all such Liens, together with all costs and expenses, including, but not limited to, attorneys' fees, expert witness fees, and court costs reasonably incurred by City in com1ection therewith. If any such Lien shall at any time be recorded against the Riding Park Parcel (or any other portion of the Property) as a result of the foregoing, and Company shall fail, within twenty (20) days after such recording, to either (i) pay and discharge the underlying claim and cause a lien release to be recorded, or (ii) furnish to City a surety bond or other security reasonably satisfactory to City protecting City against liability for such Lien and holding the affected property free from the effect of such Lien, the City may, but not be obligated to, take such action or pay such amounts as may be necessary to remove such Ljen, and Licensee shall immediately pay City the amount so expended by City, together with interest thereon at the rate often percent (1 0%) per annum accruing from the date of such payment by City until paid in full by Company, or in the alternative City may offset the amount due from one or more Riding Park Parcel Management Fees. The obligations of this Section shall survive termination of this Agreement. 4.3 Company Responsible for Acts of Employees, Agents, and Invitees. Company shall be responsible for and liable for all acts and omissions of all of Company's agents, employees, representatives, and any other person or party entering on the Property under the authority or color of this Agreement. In addition to any indemnification by Company in favor of City in this Agreement, Company shall indemnify, defend, and hold harmless City and all of its elected and appointed officials, officers, directors, agents, representatives, managers, and employees trom and against all claims arising out of or related to the foregoing described acts and omissions for which Company is responsible and liable, and including any costs and expenses, including, but not limited to, attorneys' fees, expert witness fees, and court costs reasonably incurred by City in connection therewith. The obligations of this Section shall survive termination of this Agreement. 4.4 Company Responsible for Hazardous Substances and Remediation. Company shall not use, store, or transport any hazardous substances on or onto the Property. Company shall repair, remediate and/or restore any condition attributable to or arising from same. All such work shall be performed in accordance with permits obtained from applicable governmental agencies. Upon the expiration of the Management Tetm or earlier termination of this Agreement, Company shall direct, and pay for, the preparation of a Phase I environmental assessment report for the Property, and for a Phase II environmental assessment if such be required. Company shall be responsible for all cleanup and remediation work which work shall be subject to the review and verification of City's environmental consulting finn. The obligations of this Section shall survive termination of this Agreement. 5.0 INDEMNIFICATION; INSURANCE; CLAIMS 5.1 Indemnification. Company shall indemnify, defend, and hold harmless City and all of its elected and appointed officials, officers, directors, agents, representatives, managers, and employees, from and against all liabilities, claims, damages, losses, and expenses of any nature whatsoever (including, but not limited to any costs or expenses for attorneys' fees, expert witness fees, court costs, and all incidental, consequential, economic, or punitive damages) arising out of Company's use of the Property or otherwise arising out of the acts or omissions of Company hereunder. As a material part of the consideration for tills Agreement, Company waives any and all claims and demands against Company for any and all such injury or damages and all other claims of any nature whatsoever. The obligations of this section shall survive termination of this Agreement. -11- 5.2 Insurance. Company shall maintain from and after the Effective Date and through the Termination Date comprehensive general commercial liability insurance including automobile coverage and blanket contractual liability coverage, with respect to the Property and ingress to and egress from the Riding Park Parcel, the performance of the Riding Park Parcel Management Services, including personal injury and property damages for not less than Two Million Dollars ($2,000,000) combined single limit bodily injury, death, and property liability per occurrence, or the current limit of liability carried, which is greater, and workers' compensation insurance to protect Company and City from any claim made or action brought by any person or entity arising out of or related to Company's use of the Property or arising out of or cormected in any way with the acts of Company undertaken pursuant to this Agreement. Company sh~ll provide that the policy or policies or instirance shall be primary and shall name City as an additional insured, with the provision that any other insurance carried by City shall be noncontributing, and shall waive all rights of subrogation. Company shall furnish City with a Certificate of Insurance and Additional Insured Endorsement as evidence of such policy or policies. Both the Certificate of Insurance cmd Additional Insured Endorsement shall name City as additional insured and contain language that specifically states that each policy or policies of Comprehensive or General Commercial Liability Insurance shall be primary and noncontributing with any insurance carried by City. All certificates of insurance and endorsements shall be signed by a person authorized by the insurance company to bind coverage on its behalf. The insurance companies providing the policies shall be qualified to do business and in good standing in California. Neither the procuring of insurance by Company pursuant to this Section, nor the delivery by Company to City of certificates of insurance and endorsements evidencing such insurance coverages, shall be construed as a limitation of Company's indemnity obligations as set forth in this Agreement. Company shall insure that all contractors and/or subcontractors performing any work on the Property shall comply with the above-referenced insurance requirements prior to entry or work upon the Riding Park Parcel. 5.3 Claims. Company shall notify City of any claims or lawsuits relating to the Riding Park Parcel within three (3) days after Company receives notice of such claims or lawsuits. Any legal fees paid by Company and charged as a Riding Park Parcel Operating Expense shall be for legal services directly related to the Riding Park Parcel and shall not include any Company corporate overhead or administrative fee or charge. The City Manager shall have the right to pre-approve any legal counsel retained by Company to defend the City, and to approve all legal bills incurred in such defense. 6.0 CITY REVIEW AND EVALUATION 6.1 lliding Park Paa·cel Operations and Maintenance Evaluation. City shall be permitted to periodically, in its sole discretion, to evaluate Company's performance of the Riding Park Parcel Management Services to determine conformance to the requirements of this Agreement. In the event of any deficiency in Company's performance, City shall provide Company with a written notice of deficiency identifying the deficient items or issues. Upon receipt, Company shall promptly, but in no event more than five (5) days, notifY City in writing of the corrective actions to be taken and shall correct such deficiency within fifteen (15) days thereafter, or for such deficiencies which are not reasonably capable of being corrected within such fifteen (15) day period (which shall not include delay merely due to an llllwillingness to expend money), Company shall commence the correction within such fifteen (15) day period and shall diligently prosecute the correction to completion. The cost of all corrective actions shall be a Riding Park Parcel Operating Expense. -12- 6.2 City Accc s to Riding Park Parcel. City shall have the right to enter upon the Riding Park Pa.I'cel at any time to inspect the premises and conduct the review and evaluation described in Section 6.1; provided, however, that City shall not (except for any public safety or health emergencies) disrupt Company's operations or any events or activities occurring at that time on the Riding Park Parcel. 7.0 NOTICES Any notices which either Party may desire to give or may be required to give to the other Party under this Agreement must be in writing and may be given either by (a) personal service, or (b) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (c) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice: If to Company (if by mail): lfto Company (if by personal delivery or document delivery service): Ifto City: 8.0 BOOKS AND RECORDS; INSPECTION Mr. Robert Ridland P. 0. Box 609 San Juan Capistrano, CA 92693 Mr. Robert Ridland Blenheim Facility Management, LLC 30753 La Pata Road San Juan Capistrano, CA 92675 City Manager City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 8.1 Bool<S and Records. Company shall keep full and accurate books of account and such other records as are necessary to reflect the results of the Riding Park Parcel Management Services. All books and records of Company for the Riding Park Parcel shaU be located either at Company's offices on the Riding Park Parcel or at another location in the City disclosed in writing to the City Manager. All accounting records shall be maintained in accordance with generally accepted accounting principles. All such books, records, and reports shall be maintained separately from other facilities operated by Company. Company agrees to maintain reasonable and necessary accounting, operating, and administrative controls relating to the financial aspects of the Riding Park Parcel and such controls shall provide checks and balances designed to protect the Riding Park Parcel, Company, and City. Company shall maintain all financial and accounting books and records for a period of at least four (4) years after the Termination Date of this Agreement, and City shall have the right to inspect and audit such books and records during such period as provided in Section 8.2 below. 8.2 Inspection. Upon seven (7) days prior written notice to Company, which notice shall set forth the date and time that CitY. desires to inspect Company's books and records as -13- pertains to this Agreement, City or its authorized agents, auditors, or representatives shall have the right during normal business hours to review, inspect, audit, and copy the books, records, invoices, deposit receipts, canceled checks, and other accounting and financial information maintained by Company in connection with the Riding Park Parcel Management Services. All such books and records shall be made available to City at the Riding Park Parcel unless City and Company agree upon another location. City, at its own expense, shaH have the right to retain an independent accounting firm to audit the books and records of the Company as it pertains to this Agreement on an annual basis. 8.3 Disclosm·e. City agrees to treat all books, records, financial reports, and, financial documents, including the Gross Revenues reports provided to the City's Chief Financial Officer pursuant to Section 2.1.12.1, as proprietary corporate financial records not subject to disclosure under the California Public Records Act pursuant to Government Code Section 6254.15, except as may be required to be disclosed by court order. Company and City agree that, notwithstanding the foregoing, this Agreement and all books, records, reports, and documents provided by Company to City under this Agreement are not subject to that certain Confidentiality Agreement between Company and City dated November 2, 2011. City shall notify Company within three (3) business days of notice to City that a third party has threatened to seek or is seeking a court order to compel disclosure of such corporate financial records and Company shall have the right, at its cost, to seek a court order barring such disclosure. Company shall indemnify, defend, and hold City harmless from any claim, action, demand, or judgment, including but not limited to City's actual attorney fees, arising out of or related to the refusal by the City to disclose to a third party a corporate financial record submitted by Company to City. The defense of any action seeking disclosure of Company's corporate financial records shall be at Company's expense and handled, at Company's option, either by legal counsel acceptable to the City Attorney or by the City Attorney's Office at the rate of$375 per hour. 9.0 MISCELLANEOUS 9.1 Contract . Administration. City has designated the City Manager as the individual who is responsible for administering this Agreement on behalf of City. The City Manager may designate a member of his or her staff to serve as the City Manager's designee to can-y out the City Manager's responsibilities in administering this Agreement. Company has designated Melissa Brandes as the individual who is responsible for administering this Agreement on behalf of Company. Company shall notify the City Manager in writing if another individual has replaced the foregoing designated person as the person responsible for administering this Agreement on behalf of Company. The Parties ackndwledge that except as otherwise expressly provided herein (a) the City Manager has the authority to approve or consent to those matters identified in this Agreement as requiring City's approval or consent and to make all other decisions on behalf of City regarding the administration of this Agreement (except where City Council approval is expressly required herein), and (b) Company's foregoing designated person or such other individual designated by Company in writing to City has the authority to approve or consent to those matters identified in this Agreement as requiring Company's approval or consent and to make all other decisions on behalf of Company regarding the administration of this Agreement. City's management direction to Company shall be given · by the City Manager or City Manager's authorized designee. In addition to such other authorizations granted the City Manager in this Agreement to act on behalfofCity, the City Manager shall have the authority, in the -14- event of a dispute involving the interpretation of the terms and provisions of this Agreement, to reasonably interpret the terms and provisions of this Agreement on behalf of City. 9.2 Company Is Independent Contractor. Company is and shall at all times remain as to the City a wholly independent contractor. Nothing contained in this Agreement shall be construed to be or create a partnership or joint venture between City and its successors and assigns, on the one part, and Company and its successors and assigns, on the other pa1t . The personnel performing the services under this Agreement on behalf of Company shall at all times be under Company's exclusive direction and control. Neither City nor any of its officers, officials, employees, or agents shall have control over the conduct of Company or any of Company's officers, employees, or agents. Company shall not at any" time or in any manner represent that it or any of its officers, employees, or agents is in any manner officers, officials, employees, or agents of the City. Company shall not incur or have the power to incur any debt, obligation, or liability whatever against Company, or bind City in any manner. No City employee benefits shall be available to Company in connection with the performance of this Agreement. Except for the Riding Park Parcel Management Fee paid to Company as provided in this Agreement, City shall not pay compensation to Company and shall not be liable for any salaries, wages, or other compensation to Company for perfonning services hereunder for City. City shall not be liable for compensation or indemnification to Company for injury or sickness arising out of performing services hereunder. 9.3 Contracts and Ag1·eemcots. Except as provided below, contracts and agreements entered into by Company from and after the Effective Date of this Agreement that in any manner relates to Company's performance of the Riding Park Parcel Management Services (including without limitation professional contracts, contracts for maintenance and repair services, pest control, supplies, and landscaping services, and agreements for tournaments, and group functions), shall not, with respect to the Riding Park Parcel Management Services, extend beyond the Termination Date of this Agreement, or if the date for performance under such contract is, with respect to the Riding Park Parcel Management Services, after the Termination Date of this Agreement, then Company shall obtain the prior written approval of the City Manager for such agreements and City agrees, upon expiration or earlier termination of this Agreement, to assume all such agreements it has so approved. 9.4 City Financing. In the event City desires to obtain bond financing or other financing or to refinance existing bond or other financing ("City Financing") which this Agreement affects, Company agrees to amend this Agreement at any time and from time to time, if, in the opinion . of the City's legal counsel, this Agreement must be amended to comply with laws, regulations, rules, or procedures applicable to the City Financing, and any refinancing or refunding thereto, including but not limited to those laws, regulations, rules, and procedures applicable to or promulgated by the Internal Revenue Service. City and Company shall meet and confer in good faith to effect such written an1endment to this Agreement as necessary to insure the Agreement is in compliance as required by the preceding sentence, which amendment(s) shall be affixed as an attachment to this Agreement; provided, however, that in the event City and Company disagree on the nature or scope of the required amendment(s), either party shall have the right to terminate this Agreement upon thirty (30) days written notice to the other party and upon such termination neither Company nor City shall have any further rights or obligations hereunder, except with respect to liabilities accruing, or based upon events occurring, prior to the effective date of such termination, including but not limited to payment of the Riding Park Parcel Management Fee eamed by Company to the date of such termination. -15- 9.5 No Assignment Without City Consent. Company shall not assign this Agreement without the prior written consent of the City Manager which may be given or withheld in the City Manager's sole and absolute discretion. Any assignment by Company, whether or not requiring the prior consent of City Manager, shall not be effective unless and until Company and such assignee execute an assignment and assumption in a form acceptable to the City Attorney. It is understood and agreed that any consent granted by the City Manager to any such assignment by Company shall not be deemed a waiver of any consent required under this Section as to any future assignment. Any assignment by Company of this Agreement in violation of the provisions of this Agreement shall be null and void and shall result in the termination of this Agreement. In addition to any other remedies available to the parties, the provisions of this Section shall be enforceable by injunctive proceeding or by suit for specific performance. 9.6 Compliance With Law; Licenses and Permits. Company shall comply with all applicable laws of governmental bodies having jurisdiction with respe~t to the Riding Park Parcel and Company's performance ofthis Agreement. Company shall, at its expense, procure and maintain all licenses, permits, and approvals required to be obtained by it to perform the work under this Agreement. Company hereby expressly acknowledges and agrees that City has not previously affirmatively represented to Company, in writing or otherwise, in a call for bids or otherwise, that any work covered by this Agreement is not a "public work," as defined in Section 1720 of the Labor Code. Company shall indemnifY, protect, defend and hold harmless the City and its elected and appointed officials, officers, employees, agents, and representatives, with counsel reasonably acceptable to City, from and against any and all loss, liability, damage, claim, cost, expense and/or "increased costs" as defined in Labor Code Section 1781, as amended from time to time, including reasonable attorney fees, court and litigation costs, and fees of expert witnesses, which results or arises in any way from (I) the noncompliance by Company of any applicable local, state and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, if applicable, the requirement to pay state prevailing wages and hire apprentices); (2) the implementation of Labor Code Section 1781, as the same may be amended from time to time, or any other similar law; and/or (3) failure by Company to provide any required disclosure or identification as required by Labor Code Section 1781, as may be amended from time to time, or any other similar law. Company shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1 781, as the same may be amended from time to time, and/or any other similar law. "Increased costs," as used in this Section, shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be amended from time to time. The foregoing indemnity shall survive 'termination of this Agreement. 9.7 No Undue Influence. Company declares, represents, and warrants that no undue influence or pressure was used against or in concert with any officer or employee of the City in connection with the award, terms, or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of the City shall receive compensation, directly or indirectly, from Company, or from any officer, employee, or agent of Company, in connection with the award of this Agreement or any work to be conducted as a result of this A!:,rreement. · 9.8 Covenant Against Discrimination. Company covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the performance of -16- this Agreement there shall be no discrimination against or segregation of, any person or group of persons on account of any impennissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry. 9.9 Nonliability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of the City shall be personally liable to the Company, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Company or to any successor-in-interest, or for breach of any obligation of the terrils of this Agreement. 9.10 Governing Law; Attorney Fees; Litigation Matters. The internal laws of the State of California, without regard to principles of conflicts of laws, shall govern the interpretation ofthis Agreement. In addition to any other rights or remedies, either party may take legal action, in Jaw or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific perfonnance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding anything in this Agreement to the contrary, Company's monetary damages shall be limited to the Riding Park Parcel Management Fee and in no event shall Company be entitled to economic or consequential damages or to punitive damages. In the event of any litigation arising from or related to this Agreement, the prevailing party shall be entitled to recover all reasonable costs incurred, including court costs, reasonable attorney fees, expert witness fees, and other related expenses. The Superior Court of the County of Orange shall have exclusive jurisdiction over any litigation between the parties hereto concerning this Agreement. Service of process on City shall be made in the manner required by law for service on a public entity. Service of process on Company shall be made in any manner permitted by law and shall be effective whether served inside or outside of California. 9.11 Right and Remedies Cumulative; Waiver. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. No delay or omission in the exercise of any right or remedy by a non defaulting party on any default shall impair such right or remedy or be construed as a waiver. A Party's consent to or approval of any act by the other Party requiring the Party's consent or approval shall not be deemed to waive or render unnecessary the other Party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 9.12 everabilitv. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless . -17- 9.1.3 Interpretation. Tbe terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction whi~h might otherwise apply. 9.14 No Relocation Rights. Company shall have no rights under this Agreement for any relocation assistance or benefits whatsoever upon termination of this Agreement, whether by condemnation or otherwise, and Company expressly waives any right to such relocation benefits or assistance it may have under any applicable laws, including but not limited to California Government Code Section 7260 et seq., the Relocation Assi~iance and Real Property Acquisition Guidelines set forth at Title 25 California Code of Regulations Section 6000 et seq., the Uniform Relocation Assistance and Real Property Acquisition Act set forth at 41 United States Code Section 4601 et seq. and federal regulations set forth at 49 Code of Federal Regulations Part 24. 9. I 5 Survival of Covenants. Any covenant, term, or provision of this Agreement which in order to be effective must survive the termination of this Agreement shall survive any such termination. 9.16 Consents. Each party agrees that it will not unreasonably withhold any consent or approval requested by the other party pursuant to the terms of the Agreement, and that any such consent or approval shall not be unreasonably delayed or qualified, except where such consent is expressly stated as within the party's sole and absolute discretion. 9.17 Pos essory Interest. Pursuant to California Revenue and Taxation Code Section 1 07 .6, City hereby informs Company that this Agreement may create a possessory interest subject to property taxation, and in such event Company may be subject to the payment of property taxes levied on such interest. Any property taxes so levied shall be solely a liability of Company not a liability of City. 9.18 Representations and Warranties. The persons executing this Agreement on behalf of each of the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) he or she are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not violate any provision of any other Agreement to which said Party is bound. 9.19 Headings. The Article, Section, and Subsection headings contained in this Agreement are for convenience and reference only and are not intended to define, limit or describe the scope or intent of any provision of this Agreement. 9.20 Entil·e Agreement; Amendments. This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. This Agreement may be amended only by an instrument in writing approved by each of the Parties hereto. -18- 9.21 No Third Party Beneficiaries. No person or entity that is not a Party hereto shall have no rights in or to this Agreement. This Agreement is strictly for the benefit of the Parties hereto. 9 .22 Time of the Essence. Time is of the essence of this Agreement. The parties understand that the time for performance of each obligation has been the subject of negotiation by the parties. 9 .23 Exhibits Incorporated. All exhibits and attachments to this Agreement are incorporated herein and made a part hereof. 9.24 Counterparts. This Agreement may be executed in counterparts which, when all the Parties hereto have signed this Agreement, shall constitute one and same instrument. 9.25 Effective Date. The Effective Date of this Agreement shall be the latest of the dates set next to the signature of the Parties hereto, which date shall be inserted into the preamble of this Agreement. [END--SIGNATURE PAGE FOLLOWS] -19- IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the day and year first written above. "CITY" Date' APPROVED AS TO FORM: RUTAN TUCKER, LLP "COMPANY'' Date [END OF SIGNATURES-EXHIBITS FOLLOW] 394/028428-00!9 6143924.9 -20- . j EXHIBIT A DESCRIPTION OF THE PROPERTY. THE RIDING PARK PARCEL AND THE . RIPARIAN RESOURCE AREAS (See Attached) 11 ... ... .,~_. . . :. ! /. ;I ;· -~ .,, ~~~ : ~ ~- •' I • 11,· •' . ' .-. . ,,. ~ ' ,> 'rl(:: 1/' .... ~ .(·"!·· ! .. ~ t ·~ ~ ~ ,.n1 'll)Q 0 ):)!) Riding Park Access and lise License · Exhibit A EXHIBITB EXHIBIT "C" AND "D" OF GRANT DEED TO THE PROPERTY OUTLINING USE RESTRICTIONS AND PERMITTED USES (See Attached) 12 DBZ/21183021 .2 EXHIBIT C USE RESTRICTIONS-PARCELS 7 AND 8 (C-1 : Exhibit 4.1-3 of Ranch Plan EIR C-2 : Section 111-H of PC Text C-3 : Section 111-J of PC Text) [A IT ACHED] i 'I I .. . ;{ ........ ~··~ .,. .~,. / . . ( : ,: .. ' 'l Existing Land Uses in Planning Area 1 The Ranch Plan v~~ s r~· 1 ~ ... "'#M' ~ RMVf'.ooilkn"' Edal.lno At~=uiN.It: r F-~ 'SoiJu<;n~~IRo-tJ Cropf !llluttm" Exhibit 4.1-3 1" = 2,000' I l l I I ! . .... I j l I :.l I 'j r.J I i l_:r (~ ;,. .. t~ ,_;_, ~~ i] ·-· J ·l i ·l '.:il 'j ~·.: 'l -J 11 I I I ~ n. .'\Gl-<ICUL"CUI-.{AL AND <HilER t::JW·J'J'ING Ai\JlJ UN-fJOINU USE!~ The purpose and intent of this Section is to allow for uses cornpstible with the existing agri<.:ultltral and low intensity nature of the f"{anch Plan PC area, atld consistent with the A 1 "General Agricultural" District l~egulations of Zoning Code Section 7-9-55. These uses include non-agricultural u ses consistent with the open s pace nature of agricultural uses. It is also intended tllat these uses (agricultural '"1nd non-agricultural) may be Etllowed as interim uses within Rancl1 Plan PC Planning Areas designated for future development. ·J. Agri<:ultural Uses: The following existing, relocated and future farming and ranching uses shall be C"lllowed within any Ple~nning Area, in addition to uses allowed by the A 1 "General Agricultural" District Regulations per Zoning Code Section 7-9-55, subject to mitigation measures identified in the Ranch Plan Final Program EIR 589, per the procedures described in Section lll.t-1.3 hereof: a) Grazing (cattle, horses, sheep, goats, etc.). b) Farming (citrus fanning, dry farming, and row crops). c} Cmetaker housing a nd related facilities-in relation to on-going ag ricultural and ranching operations, including the "Ranch House" residence locCJted soLrth of Ortega Highway in Planning Area 10 and the "Horse Rancll" residence at 33101 Ortega Highway in Planning Area 4 . cl) Employee quatiers related to agricultural uses. e) Livestock feeding ranches in compliance with applicable health and safety regulations. f) Pacl <ing plants for agncu!tural products . g) Permanent facil ities for sale of agricultural products grown within the Ranch Plan PC Area. t1) Ap iaries (if 150 feet from a street or h ig hwa y , 40 feet fr o rn an)' propert y li ne i:.lnd · tnorc than 400 fe et frorrr"3n -ccccrpted-d\ovefHng-t:------·· ~ ·-... ·---··· i~<lllch Plan PC Program Text as Approved November 8, 2004 by Ordinance No. 1)4-0 14 ij IJ ,_ ... i] i.J 2.. l::xisting Unes: The following existing uses shall be allowed in C!ppropriF.Jte locations throughout the l~anqh l=>lan PC Area, per the pror;euure:; in Se(;tio11 111.1-1.~1 hereof: a} Rancho Mission Viejo headquarters ("Oficina") at 2131:l 1'1 Ortega Highway, including a helipo1t. b) Ladera construction offices at 288'11-A Ortega 1-lighway. c) l~ancho Mission Viejo maintenance yard at 2(3672 Ortega Highway. d) Ranching facilities also used periodically for recreational purposes (including ·cow Camp" at 31471 Ortega 1-iighway, and ''Amantes Camp'' and ·campo Portals'' within Planning Area ·1 0). e) Communication transmitting, reception or relay facilities (including AirTouch/PacBell Wireless, Bell South, Saddleback KSBR, SOG&E. and SCE) and RMV Telecom antenna sites. f) Public/private utinty buildings and structures. g) Existing Infrastructure facilities including but not limited to all existing ranch roads. pipelines and utilities . Of particuiCJr note, reconstruction of the San Juan Creek Grossing of roadways and utilities connecting Planning AreE! 3 to Ortega Highway shall be allowed in the event of storm damage. ll) Wholesale nurseries (including Tree of Life Nursery, Color Spot Nursery, DM Color Express Nurseries, Tru-Green Wholesale Nurseries and O'Connell Landscaping yard). i) Commercial stables (including Oaks/Blenheim/Rancho Mission Viejo Riding Park, Oaks Corrai/J. Irvine Smith, RJO Horse Ranch, St. Augustine's Training Center and Stables. j) Research and development testing facilities and a:tivities (including TRW, Northrop Grumman s-pace-Technology-and Propulsion-Testing Site):· I<) Waste disposal operations and related uses (including Solag Dispo$al. Tierra Verde Industries and La PatEl Greenwaste). I) Storage of recreational vehicles, campers, trailers and boats. rn) Recycling and transfer/materials recovery facilities per Zoning Code Section 7-9-146.12 (including Elwes Mate1·ials Asphalt Recycling). n) Surface mining and qusrrying of rod(, sand. gravel, aggregate, ea1th. clay and similar materials per Zoning Code Section 7-9-·1 04 (including California f-<anch Pi<tn PC Progr<~m Text as Approved Novembl'lr il, 2004 by OrrHnancP. No 04-014 Page !li' I ,·.,~:-~!: ;.-"""·· • ·•-...... ~--· ' - i i l:j u I.J fJ lA d Lj !4 lJ I 1 1·1 ortlancl C:ernent/Cc.1talina Pacific Concrete t:Joulh, CCJiiforni~l ~3ilice:t/Dgll:Jby Norton, Transit Mixed CollCrGtG Company/City Concrete , Olst::ln [:Javingston~. Inc. and Sierra Soils). o) Resollrce mitiga tion sites fo r the preservation or replacement of nalive. riparian or other biological habitat. as approved by the appropria te renulatory agency (e.g ., Army Corps of Engineerl:i, U .S. Fish & Wildlife Service Ci:lllfornia Depa rtment of Fish and Game and/or the County). a. Continuation o'f Existing Uses ·1) /\gricul tural amJ existing u~es liste(J in Sectiono 111.1 ·1. ·1 and III.H .2, 1espectively, may continue in their present location(s) in perpetuity without need for subsequent permi tting or approvaL 2) Any buildings. strut,1ures or other facilities utilized in connection with an established/existing use may be rep aired, replaced or mo<lihed wrthou r obtaining new permits or app rovals; provided, however, ihat al"y fm9 ali construction activities performed in furtherance ot the re pair, replacement and/or modification of said buildings, structures and facililies shall comply with applicable building and safety codes. ~3) In instances where a use listed in Sections !II.H.1 and lll.H.2 is allowed per a Use Permit, and that particular Use Permit is subject to a time lfmitation, the Use Permit may be renewed administratively per approval of the Director, t:'DS. b. Expansion of Existing Uses 1) Agricultural Uses -Any agricultural use lfsted In Section 11 1.1-!.1 mCiy be expanded without the need to obta in a (Jrlor perm it or other approval from the County. Notwithstanding, expansion of an agricultural use may require U1e issuance of a permit or other formal authorization from a fedei'al· ul ··state· agency prier to commencement r:Jr use-·of ltle· xpanded · facility. Additionally. any construction activities performed in furtl1erance o f the expanded use shall comply with applicable building and safety codes . 2) Existing Uses -Any existing use identified in Section IJI.H.2 may be expanded without the issuance of new County approvals or pe rmits, provided that: (a) Any expansion shall fully comply with all existin[J development and f)ennitting standards for the particular use: Ra1u:li Pli:ln PC Pm<)l 'am Text as Approv~d November 13. 2004 by Ordinance No. 04 ·014 rage i.l8 '. :i j ~~1 :jj ·~ ,. ·- . 1!1 .;} I~ ···;, I~ j'J .... i'1 '. '· ,., ........ . (b) /\11 constr uction Jctivities performed in furtherant;e of the uxpansion i'Jre conducted i11 accQrdance with l:lpplicf:lhle building and safely 1;ml\"ls; and (c) All necessar y rermits and/or authorizations from applicable feder;;tl and state agencies are obtained prior to commencement or use of tl1e F.Xpandecl facility. c;. r~elocation of Existing Uses ·1) Agricultural Uses -Any exjsting use identified in Section 111.1 -1.1 may be relocated within or throughout the Ranch Plan PC Area without the need for Issuance of i:1 new permit or other prior approval from the County. Notwithstanding, relocation of ~n exlstfng agricultural u se may require the issuance o·f a perrnlt or other formal a u thorization from a state or fedefal agency prior to the desired relocation . 2) Existing Uses. -Any existing use identified in Section III.H.2 may be relocated within or tllroughouE the Ranch Plan PC Area, provided that: (a) A Site Development Permit shall be required, per Zoning Administmtor approval, in accordance with the provisions of Zon inQ Code Sec;tion 7- 9-150.3(d); (b) AH necessary permits and/or authorization s from applicable federal and state agencies shall be ob t a ined prior to re location. rl. New Agricullur~l Uses: Consistent with the provisions of Section Ill. H. '1. above, new agriCI.IItural uses (as well as a n y authorized uses idenli tied wi thin th e f\1 "General f',gr icullural" Di strict) ITiay be c onducted w i thin any Plann ing Area w ithout the issua nce of any County approva ls o r pe rm its. provided that: 'I) Ail n e w facilitie s . structures and buildings shall comply with existing development and design standards: 2) AW coristriJcti o n ·activitles perfOr med .. ir'n;o niiectimt with t n~r e~lao lf slirnent· - of the new use(s) shall comply with applicable building and safely codes: 81ld 3) All n e cessary permits and/or authorizations from appli cable tederal and state agencies shaH be obtain ed prior to commencement oF the n ew use. i~<.HlCh F'l;lfl PC i>roqrrun Text as Approved NoVf:lniJer 8, 2004 IJy Ordin;mce i\lo 04 ·0'14 P<~ge 09 . .-J I i i ,.:Jl I] !J l~ \;1 GJ I] I~ ! . '1'1:1vll-'1 mN~Y 1 JSL:!-3 PE.I{IVII'I"J't:IJ !'he purpllSll w ld in lent of this Temporary Uses IJerri'littmi <.:haptel of th(~ r~unr:il Pli.:HI f:)c Text is to list all temporary uses tt1at st1dll be allowed within i:lll Pla11ninq Arr-tas :::111d usa cAtegories (with the exception of the Open Space (Section 111 .1) cat0nory, unless ottlerwr:>e restricted below. S8irl temporary uses include, but are not lirnitec to : ·1. 1-onstruction activities (including the installation of construction offices unc! lhe :Jtomg<~ of equipment and materials). ?. . Construction olfice. The temporary use of a collstruction office d11rinq the .-;onstruction of a rnain building on the same site shall be permitted upon the following conditions: i:1. A temporary constrLiction office shall be removed or shall be converted to a permitted use prior to the issuance of a c;ertificate of use ancl occ;upan<;y for the main building or buildings. If com;truction is phased over a length of time, lhe permit may provide that certificates of liSe and occupancy may be issued for completed buildings, except the last buildings to be completed, prior lo removal or conversion of the temporary use. 3. Continued use of an existing building during construction. The use of an existing, lawfully established building may continue tiuring construction or relocation of r.1nother building on the same building site, in compliance with the to !lowing rmvisions: J \,onformity-wit!1 regulations. Prior to occupancy of a new building, the existing building will be brought tnto conformity with any adctitionat regulation rendered applicable by the plocement of any new building on the site. Conformity will be accon·l[)lisr1ed by removal, reconstruction, 1 elocation, conversiclll, change of use or ~ny combination thereof. b. G~1arantee of completion. The Director, PDS, shall require the landowner to provicle a guarantee, which may include a bond, to ensure full compliance with applicable regulations upon cornpletion of the new building or sooner if, in the opinion of the Director, PDS, work pertaining to the completion of all f:_~cililies required by law is not being diligently pursued. 4 . Tem~orary excavatiunlextrac;tion of construction aggregate or construction ratata.d niatedals extractiun.shalLbe atlo~1ed during construcuon_gradingand.on" zito o:::J:ihmoving activities to ~)tUIIIOL~ pwjecl construction efifciencies and iimit long-range transportation of construction aggregate and construction related :naterial subwct to all of tl1e following conditions: i.l . ~~uch temporary excG~vation/extr<Oction use would be included in applicable grading or S ite Development Perrn1ts for a develoJ.lmellt project ancl consistent wit/1 the R<:wch Plan PC and Final Pr0wam EIFI. 5139. b. C::xpo1tation of any surplus excavated/extracted construction aggregate or construction-related materials shall be li1nited to private or public construction projects within the boundaries of the Ranch Plan PC An1a. c. exportation of any surplus excavated/extracted construction aggregate or . construciion reiF.\ted materials within the pr·oject site shall be allowed only ll.iillCil I 'l<:~n PC Progmtn T~zl as Apprllved NovP.rnbel' 8, 21Hl4 by OrtlillW1C0 No IJ4 .rJ 14 P;:'\Je % ) . ~ • ,iJ ··'rt ·.3.1 J J "~ I.Jl . '1 . a I] i:a !] ] ] i- i] !j .} Wilen <lClUP.i/ COll~i(I"UG(iOil \JI"atiing anci <~arthfliOVirl~J activities have commenced ancl shall cease wl1er1 it is detenni: ted ti1<'Jt collstruc;tion grading and eartlnnoving activities have terrninat0d, rtave btJen ind~finite/y suspended, or CJrG no longer being nctively pursued for the <levelo!Jment project. 5. Commercial coaches. A temporary commercial coach may be permitted subject lo npproval of <~ Site Development Permit in accordancH with Section II.C, "Site Development Perrnits," and subject to the following: GJ. Time limitation A Site Development l;,errnit appiic<Jtion for a tempomry commercial coac.;h may be approved for a maximum uf two (2) years frorn the date of approvF.ll. b. Cash bond. A cash bond in the amount of ftve hundred dollars ($500.00) For each commercial coach unit sl1all be posted w itl1 the Director, PDS, to guarantee the removal of each c:omrnercial coach unit upon the expiration of the Sita i)(:)velnpment Permit. 6 Cl<ristmas tree sales facility. A temporary Christmas tree sales facility shall be pe1mitted subiect to the following requtrerne11ts: -r . ;.;. Date of opening. A Christmas tree sales facility shall not be open for business during any calendar year prior to the day after Thanl~sgiving. However, ministetial permits necessary to establish the business may be issued by November 15. b. Merchandise to be sold. A permittee! Christm01s tree sales facility shall not engage in the sale of any merc~•andise not directly associated with Ch! istrnas trees and Christmas decorations. c. r::lectrical permit. The applicant shall secure an electrical permit frorn tl1e Director, POS if the facility is to be energized. rl. ~emoval of facility. The facility ~all be rern 0ved and the premises shall be clearerJ of all debris and restored to the condition prior to the establishment of the facility within fourteen (14) days after Christmas. l~. Fire prevention standards. Each Christtna!> tree sales facility shall comply with Fire prevention standards as approved and enforced by the County Fire Chief. .... ·~ ... _ ..... -· .. . .. ~ ' ' . Halloween pump!<in s81es faciiity. A ternporF.Iry Halloween pumpkin sales facility shalr be permitted subject to the following requirements: a. Date of opening. A Halloween pumpl<in sales facility shall not be open for business during any calemiar year prior to October 4. b. Merchandise to be sold. A permitted Halloween pumpkin sales facility rnay not seli items not directly associ<:1led with purnpi<i11s ancl Halloween decorations . c Electrical perrnit. The applicant shall secure e:~n eiectr leal pen nit fro1 n the Director, t:JDS if the facility is to be energized . !ll'lrH:h Pl<~n r~c P(O!;]rwn Text as 1\pf!r:Jvecl November i-3, ~WU4 i)y Orc!lnam:~ No. 04-014 ':j _.l o;;~ '.!> 'j '· ~ j '] -~ '] ·'. :.1 ';J f:·· i] I '• ·] r] - lj ·1 i'~ ''• ~ 'J 1·: 8. 9. d. f~mnoval of facility. The facility shall be removed and the prerni~~~s cleared of <:ill debris and restored to tl1e condition prior to the establishment of the facilily by November 14. e. Fire prevention standards The facility shall comply with fire pmventio11 str.mrJards as approved ancJ enforced by the County Fire Cl1ief . Special outdoor ~;atherings. The temporary use of property for spec;ial outdoor rJat11erings including, but not limited lo. pageants. fai1·s, carnivals. rodeos and other at~1letic, religious or entertainment events. Such activities are permitted. without regard for other land use regulations to the contrary. in <my open spacs Planning Area in compliance with the following provisions: a. Activities on property owned by or leased to the County and public road rights- of-way may require an encroacl1ment permit issued by the Director, PDS. b . Private outdoor gatherings conducted within open space areas (including those open space areas regulated by Section 111.1) shall not be subject to t11e restrictions and requirements established in Zoning Code Section 7-9-136.11, "Special Outdoor Gatherings·. c. Tile temporary use rnay be permitted for a period not to exceed ten ('iO) consecutive days. Events recurring more than four (4) times in a calendar year are not considered ternporary. d. The Director, i:JDS may requrre a cash bond or other guarantee for removal of the temporary use, cleanup and restoration of the activity site withrn seven (7) flays of the activity conclusion. e. Applications for permits/certificates required by subsections "a." cllld ''b.'' above, shall be referred by the Director, PDS, to other affected County agencies as rnay be appropriate for review and comment. f. Related issues including, but not limited to, police/securtty, food and water supply, use of tents and canopies, sanitation facilities, medical services, noise, signage, fire protection and traffic control shall be satisfactorily addressed as may be required by the Director, PDS, Sheriff, Fire Chief, or Health Officer in their administration of other County codes . SL1ch ott1er codes may require the applicant to obtain permits such as building, electrical, healtll and tent permits. Farmers' Ma;kets and off-site sale of agricultural products. A temporary stand for the-sale or S"tSasonal agricuitciTal· prodacts-·not gruwn within the RanciT-Pian PC Area shall be permitted subject to tne fo11owmg reqUirements: a. Establishment of use/time limit. Prior to beginning sale of any product, the applicant shall obtain a temporary Ceriificate of Use and Occupancy for land from the County. The Certificate shall be good for a period time of not to ex(:eed 90 days from date of issue. b. Merchandise to be sold. The stand shall be lirnitHrJ to the sale of <:lgricultural products. c. l::lectricai permit. The applicant shall secure an Glectl'ical permit from t11e Director, PDS if the facility is to oe energized. ~am:h Pl'ln PC Progmm Text as Approveti t--iovemher 13, 2004 by Ordinance No. 04-014 l"age 98 . ~ ... j '·J 'j :] : .. / ~ l·J tj I :1 ,_<;! li l1 "10. 'I "1. r:f. Rernuval of facility. The facility shall be removed "ntl the preiiiiS~;::; de1·11ud or .:~11 debris and restored lo thD condition prior to the e::>te.blishnJent of tt1e facility with ill fourteen (14) Llays of the expiration of the time lim1L e . r:'ire prevention st1:1nclards . The facility sl·iall comply with i'ire prevertlion standards as approved and enforced by the County Fire Chief. f. Site Development Pellllit. In addition to the above requirements, an opprovecl Site Development Permit in accordance with Section II.C, "Site Deve lopment Permits,'' sha II be required . Fireworks displays, as Elllowed by the Orange County Fire Authority. Subject to the approval of the Director, PDS, a landowner may conduct such other temporary Llses upon his properly as are consistent with the purpose and intent of this Section. •f --~ • ... -· • H•~nch Plan PC Program Text as Approved 1\!overl!ber 8, 2004 hy Ordinancn No. 04-()14 Page 99 082/21183021 2 EXHIBITD MAXIMUM ALLOWED TRAFFIC [ATTACHED] ·l MaKimum Allowed Traffic Subject to all applicable governmental laws , rules and restrictions, Seller places no restriction on City relating to the maximum number of trips to and from the Property on weekends and the following holidays : New Years. Memorial Day, Fourth of July , Labor Day, Thanksgiving and Christmas . The maximum number of trips during the weekday P.M . peak hours from the equestrian facilities , sports field complexes and other allowed uses on the Property shall not exceed a total of 203 trips (combined inbound and outbound trips). The City may allocate these trips among the allowed uses in its discretion so long as the maximum number of trips specified above is not exceeded. For purposes of calculating the number of trips from equestrian and sports field uses, a trip generation fat."tor of 1.0 P .M. peak hour trip for each permanent equestrian stall, and a factor of 20.67 P.M. peak hour trips per sports field/soccer field shall be applied. Explanation of and Guu:te to Applica tion of the ''Maximum Allowed Traffic ~ Restriction Based on projections of future traffic associated with Planning Area 1 of the Ranch Plan, which includes the Property, Seller's prfmary concern is the traffic to be generated during the weekday P.M . peak hour(!&., 4:45p.m. to 5:45p.m.). For that reason, the maximum a/fowed traffic restriction set forth above is keyed to the weekday P.M. peak hour. In short, the restriction requires the City to manage its operations and e vents to ensure that traffic generated from uses on the Property during that time period would not exceed 203 trips (combined inbound and outbound tr ips). As noted above, the City may allocate these trips among the allowed uses in its discretion so long as the maximum number of trips specified is not fJXCeeded . 082/21183021 2 GivfJn the nature of the uses to be conducted on the site, which are expected to be primarily a continuation of uses conducted on the Property over the past several years, it is not expected that the traffic limitation would unduly restrict the City's use of the Property. For example, most of the horse shows typically occur over 2 or more days and are low spectator events, with traffic to and from those activities being spread more or less evenly over those periods. Furthermore, horse lr8ilers do not generally operate durfng the peak hours. ft should be noted that the above~slated trip generation rate of one (1) P.M. peak hour trip per horse stall does not pertain to the temporary stalls used in conjunction with thfJ horse shows. That rate pertains to permanent staffs expected to be associated with the one (1) a/Towed commercial stable on the Property. Thus, for example. if there were 50 occupied horse staffs at the commercial stable, they would be expected to generate 50 trips during the P.M . peak hour. With regard to sports field/soccer field uses on the Properfi/. a factor of 20.67 P.M. peak hour trips would be applied as stated above. Thus, for exampTe, if there were 4 sports fieldslscccer fields in operation during weekday afternoon/evening hours, a total of 83 P.M. peal< hour trips would be expected. In summary, the cumulative trips associated with the horse shows, the permanent horse stalls and other allowed uses such as sports field uses (see below), would be considered in determining whether the maximum allowed traffic limitation was being complied with. Using thft abovrJ examples, with 50 permanent horse stalls and 4 sports fields, a total of 133 P.M. peak hour trips would be genera led, leaving 70 P.M. peak hour trips available tor any horse shows or other events taking place at the same time ft should be emphasi7.F!rl the( tr(tJ .<> to afld from the Property on we5'kend d<ws (~ Saturda}' and Sunday) and the holidays described above are not restricted. Thus, it would b11 f1xpr~cl~Jd that major events on the. Property would be held on these days. In fact. given the maximum allowed traffic /Imitation, any 9Vent that would result in more than 203 P.M. p9ak hour trips, when the !raffle from that event is added to traffic from other alfowed uses on the Property, would be required to be held on the weekend. in any event. the City is required to regulate any proposed mafor weekend activity such that it would not create significant adverse impacts on the circulation system and not adversely affect existing 082/21183021 .2 I 'l ! I I ., I and future residents in the area due to parking, dust, noise, light and glare or other impacts. To help reduce the potential for light and glare impacts, RMV has prohibited the use of permanent lighting on lh6 site. The application of normally required condltfonal U$8 or other permit requirements of the County (or the City, after anmncatiot'l of the Property), and CEQA t9vfew associated with such permitting, would be expected to adf:lquetefy regulate such events and to ensure appropriatfl mitigation measures are applied wflerrt indicated. 082121183021 2 EXJitBIT C t\utomnLI.'d lrri~ation Sysh:m: \-tai1Hai1'1 the irrigatinn sy:11cm in ;m operatilmnl cnnditimL i\ll ~ystems to he npcrminnally insp .. :c.:h:d \\1!1.:ld y. r\djus1 and rnifl(.1f repair;,~ r~.:quin:d li )r proper cu\·crii!,_!C . ( Mirll.)r rl.'pairs ;m: I hose <.:ap;~bll.' of bdng ~.:onduch:d hy l~knhcim staff and nut requiting ~~ gni tkant matcrial.s.) t>.lainrain an irrigation wall:r $Chcduk ar1d f!djust as required. Fcrtili;<stion; \lnint<lin th.:: Citm~ frc1.':> in a h~altlw cnnditicm. Twice annu;11ly (Febnmry nnd October) 11r ;ls required. !City (<.l ftfOVid(' !illppliL'S ). Srna>·ing: \-·lain~<Jin thc Citn1s Trees ill a heahhy c ~.mditiun. As rl.'quirc{! In rnairnain Citrw; Trees lrcc i,f all p •st. (City to \\'ceding: 1\f;~inwin an ae~thl'lic:~!Jy ~rrcaling nppc;ua ncc. W<!ckly nr as rcquin:d w maintain area w..:~·d rrc~·-. RLH.knl (\llllnl 1: r'o.·(ai main ar.;•3 t'n:~· ,If ;Ill grmmd btJrr<l\\ ing n ldcnts or nthcrl' \\ hkb cnuld ~:ausc hnrm to Cimt~ ·rrce . Area to be irHJX:(h:d wed!: and trcall'd ~~ · r~qllin:d with mats..~riab or dt'\ ic~·s 1wt requiring a lkcnse for adrnini:-:.11.:ring pesticid~s . (Cit y to pmvidc suppli~:; ~. f'n:~ \lainwnaitcc: l\hti11lilin an m.•sth'~ticatly ••pp~aling. arrx':\rann· and f(tr 1hc hc~11th of Citrus TrcL>s. Adjust Dc.:l' Ncuing as T'Cljllired. \l:sirH;tin tr\!.:: wdls as rcquin:d . Trim a.:; rl!t!l!lrctd all sud: .... r gro\\'th and fn:c otall dl.'ad woncl. I i111:r C'oncrol: Wl."ddy r~moval•lf liucr :md d~bri-.; !City t1• provid~· \\::t~t~.;~ (.;nnt:1il\l'1'3 il~ n .. •quin:d I. .: .... ,:O'lt ,i.! •• • •• ; I·-._.,~ . f ••• I' • '! rcc Cafe: \\',tt<.:r qu;irt..:rl~ or ~1s rCl.jllin.: I (W:Ikr 1rud: rt·quirl'd) \l;~in1:1in Ire~.· \\\.·lis a<. rc quir 'd. rrint ;1s fO:i.JIIifC(I1ll Tn:Jilll~lill an a..::-:;th-:1iC:llly ;lrJ'I..' tiing ~lpp~·aranCI: . Shrub Car~: W:Hcr monthly or ns n:quin:d (wnler lrud: n:qt1ircd). • Tr im <k' rl!quircd to ma imain an m::sthl.!lit:ally appr,:;tling ~tppcarann· <tnt! free nf all denJ wood. Ho tl .:n t C()ntrnl Ot~il d ing .: l'nwidc Pc:l Control ;JrounJ all buildings and $.1rt JC11Jrcs \vilh mat<:rials lll dC\'ic~:"> llQI requi ring a li~cn sc l~lr adminis.tcring pl.'sticid ·s . (City (O rr,widc suppl i~~ \. Cnnla~l Puhlic \Vork-; within ~4 hom>' I'M grafltti rcmovtll. ''"1"•1 "1'·• •I .,. ·.1••11 ., ~- EX!IIBIT n ~FCliRITY OlllJ(,ATlOi'\S I. l.t)Ck l!illO::>. fl·nccs and/or 1111Wr str\lC:turcs :11 the ..:nd or (~<Jch da\' 011 the pnst_..:d time:-; tlw Park and P:uk t';)cililics dos~. .. 2. Op·cn gMcs. fence}! and/or nth'i!r structun .. •s each fll(lrning at lht.• posted times lhc P1nJ..: ~lnd Park t;lcilitk-s open. J. Patml the cntir ·· l'ark and l~1cilhh.:s twice: fl d1n and imnwdiat~lv report any crime. nuis;mc~· or medical cmc rgc.•ncy 10 the appropri:Ht..' "authoritic-; .. and · r~p<.'n an~· code 'inhtti tlll~ pn~tuptly ''~ th .. · 'ity. , •• ·• , • ~, •n• .. )) .. F:\llrBIT E IU.II.I ~S Al'\1) HEGCL\TIO~S I. No k~)·s to lo~.:br. g;u~s. fences nnd.:or oth~~r structurl.'~ !:hall h~ mud ... · llr lllhdwi:;i.: inswlh.!d \\ i!houl the C011))(.'rll or thl.' City 0,. San .Juan ( 'apisnann ~ "City"t: and a copy ~.~r ~ad1 k~y w any su~h lo~:k. b'ak'. I'C-11(;t' M suu~turl.' wllkh is not in~l;tlk·d by the City shall!:>~ ddhcr ... ·d w the ( ity pri<lr ttl the utilir~ttion 1h~rcnL 1 :\II gates, dcx.1rs and simihtr acc~:ss and comrot pt'lints shall h<..· d\scJ inm1i:diotcly upon pa~.~agc: through Ill,. same. •1. Vc-hick sp<:cu sh:tH not exceed 15 milt:s pc..·r hour. 5. Knnl: of1he li)ll<lwing ~l1alll c pcrlllillc . .'d on the property: drug!> (If narcotics (1!:\ccpl subject lc l a wriHcn mc::dknl prescrip1ionthcrcf,•r un<l which Is i.'vidcnccd th~:r..:on ): hunt in~;: lishing : :1nd rin:·arms. 6 . l'ransil tn and fmm th~: Riding P:nk l';u6:l or ll!i~ sha(l b>e !iniitl'd tn Cit) ddincuteu !'\lads: and no off-road travel and'nr US~:" i~ ptnnillcd except in ;u.:enrdm~<:c wirh ch~· written 1.:\>I1S<:nt fir \,·ri11CII usc agrt·cmcm is~u~d by the City 7. !'\o n.·rnm·al ,lf:mythin~ t~:.g. plam~. artititcls. ~·t ··.) i'l)llnd tlf l11~atcd llp()n tlw flrup.:rty ~·.xccpi ;,, an:ordm1~c \\itll the written cnnscnl or "rittcn agr~..~cmdll .. ~xl'Clltcd by the City. 8. Nu sltlf':tgc or dumping of anylhihg upo11 the Propl·ny ex~:l!'pl in acl'Ordmlct.! with tile wri11cll conscnc m written agrccmcnr .:xccuted by the ~ity. -1 (,. 394/028428-0019 6143924.9 all/13/14 EXHIBITC INTENTIONALLY DELETED EXHIBIT C EXHIBITD RULES AND REGULATIONS 1. No keys to locks, gates, fences and/or other structures shall be made or otherwise in stalled without the consent of the City of San Juan Capistrano ("City") and a copy of each key to any such lock, gate, fence, or structure which is not installed by the City shall be delivered to the City prior to its utilization thereof. 2. All gates, doors, and similar access and control points shall be closed immediately upon passage through the same. 3. All trash and debris shall be removed from the Property. 4. Vehicle speed shall not exceed 15 miles per hour. 5. None ofthe following shall be permitted on the property: drugs or narcotics (except subject to a written medical prescription therefor and which is evidenced thereon); hunting; fishing; and firearms . 6. Transit to and from the Riding Park Parcel or use shall be limited to City delineated roads; and no off-road travel and/or use is permitted except in accordance with the written consent or written use agreement issued by the City . 7. No removal off anything (e.g., plants, artifacts, etc.) found or located on the Property ex cept in accordance with the written consent or written agreement executed by the City. 8. No storage or dumping of anything upon the Property except in accordance with the written consent or written agreement executed by the City. 9. Amplified speakers systems shall not be utilized in any capacity before 7:00a.m. or after 10:00 p.m. Monday through Friday or before 8:00a.m. or after 10:00 p.m. Saturday and Sunday. 10. Any and all use is limited to "official " (and not "personal") purposes . 394/028428 -0019 6143924.9 a ii iiJ/14 EXHIBIT D