Common use of Development Considerations Clause in Contracts

Development Considerations. 10.1 Seller agrees to cooperate with ▇▇▇▇▇ and use its commercially reasonable efforts to expeditiously process ▇▇▇▇▇’s development plans relating to the Property. Such cooperation shall include but not be limited to promptly executing applications and other documents for governmental permits or approvals affecting or relating to Buyer’s planned development of the Property, including, but not limited to architectural, improvement and site plan approvals, use permits, recordation of the final map, submittals and re-submittals, as well as other documents reasonably necessary to process Buyer’s development plan. Seller has submitted to Buyer Seller’s proposed predevelopment timeline, which is attached hereto as Exhibit “G”. Seller agrees to use its commercially reasonable efforts to respond to ▇▇▇▇▇’s submittals in the timeframes set forth in Exhibit “G”. 10.2 Seller agrees, as of the Closing Date, to assign to Buyer any and all development rights, approvals and entitlements for or relating to the Property, to the extent assignable or transferrable, including under any development agreement pertaining to the Property (the “Development Rights”), on the terms and pursuant to the form of the General Assignment attached hereto as Exhibit “E”. The Development Rights shall be assigned to Buyer under the General Assignment, however, specific Development Rights the terms of which require separate assignment and assumption or which require that such assignment and assumption be recorded in the Official Records of the County of Orange, shall be assigned by separate instrument reasonably acceptable to Buyer and Seller and consistent in all respects with the terms of this Agreement. 10.3 Subject to the terms and conditions in this Section 10.3, from and after the Close of Escrow, Seller shall grant Buyer permission to export dirt from the Property to that certain adjacent real property comprising approximately twenty-seven (27) acres that is owned by Seller and located south of Lakeview Avenue, north of Bastanchury Road, west of Eureka Avenue, and East of Casa Loma Avenue (APN’s: ▇▇▇-▇▇▇-▇▇, ▇▇▇-▇▇▇-▇▇, ▇▇▇-▇▇▇-▇▇, ▇▇▇-▇▇▇-▇▇, and 323- 161-09)_(the “Adjacent Seller Property”), in connection with Buyer’s development of the Property. Prior to exporting any dirt from the Property to the Adjacent Seller Property, Buyer shall obtain a stockpiling permit from Seller. Notwithstanding anything to the contrary in this Section 10.3, except as otherwise approved, in writing, by Seller, (i) in no event shall Buyer export to the Adjacent Seller Property, on a cumulative basis, more than 54,000 cubic yards of dirt, and (ii) Buyer’s rights pursuant to this Section 10.3 shall automatically terminate if Seller has commenced development of the Adjacent Seller Property prior to the time Developer has obtained all permits and approvals required from Seller with respect to such dirt exportation, including, without limitation, a rough grading plan for Buyer’s intended development, and a stockpiling permit. 10.4 Buyer acknowledges and agrees that, as contemplated in the Circulation Element of the City of ▇▇▇▇▇ ▇▇▇▇▇ General Plan (“General Plan”), and independently from Seller’s sale of the Property to Buyer pursuant to this Agreement, Seller has commenced the process of implementing the General Plan build-out of of Bastanchury Road to its ultimate 4-lane “Modified Primary” configuration. As part of Seller’s Capital Improvement Program (“CIP”), the segment of Bastanchury Road between Eureka Avenue and Lakeview Avenue was recently completed. The next segment of Bastanchury Road contemplated in the CIP is the segment between Eureka Avenue and Casa Loma Avenue, which extends along the front of the Property. Seller acknowledges and agrees that until such time as the road elevations and depth of the utilities are established, Buyer can not complete its engineering plans for the Property. Seller shall keep Buyer apprised of Seller’s progress in the above activities, and upon Seller’s determination of rough elevations and commencement of design preparations, Seller shall provide Buyer with applicable engineering data related to any possible tie-ins to the Property. 10.5 Buyer shall be solely responsible, expressly or impliedly and legally and financially, for determining and effectuating compliance with all applicable federal, state and local public works requirements, prevailing wage laws, and labor laws and standards, and Seller makes no representation, either legally and/or financially, as to the applicability or non-applicability of any federal, state and local laws to Buyer’s proposed development of the Property (the “Buyer Development”). Although Seller does not believe that the work and construction of the Buyer Development is a “public work,” as defined in Section 1720 of the Labor Code or under “▇▇▇▇▇ ▇▇▇▇▇” (as defined below), Buyer expressly, knowingly and voluntarily acknowledges and agrees that Seller has not and does not make any representation to Buyer or to any representative, agent or affiliate of Buyer, or any contractor(s) or any subcontractor(s) for the construction or development of the Buyer Development, in writing or otherwise, in a call for bids or otherwise, that the work and construction of the Buyer Development is (or is not) a “public work,” as defined in Section 1720 of the Labor Code or under the ▇▇▇▇▇-▇▇▇▇▇ Act, 40 U.S.C. Section 3141, et seq., and the regulations promulgated thereunder set forth at 29 CFR Part 1 (collectively, “▇▇▇▇▇- ▇▇▇▇▇”). Buyer knowingly and voluntarily agrees that ▇▇▇▇▇ shall have the obligation to provide any and all disclosures or identifications as and to the extent required by Labor Code Section 1781 and/or by ▇▇▇▇▇ ▇▇▇▇▇, as the same may be amended from time to time, or any other similar law or regulation. Buyer shall indemnify, protect, pay for, defend and hold harmless Seller, with legal counsel reasonably acceptable to Seller from and against any and all loss, liability, damage, claim, cost, expense and/or “increased costs” (including reasonable attorney’s fees, court and litigation costs, and fees of expert witnesses) which, in connection with the development, construction (as defined by applicable law) and/or operation of the Buyer Development, including, without limitation, any and all public works (as defined by applicable law), results or arises in any way from any of the following: (i) the noncompliance by Buyer or its contractor with any applicable local, state and/or federal law or regulation, including, without limitation, any applicable federal and/or state labor laws or regulations (including, without limitation, if applicable, the requirement to pay state and/or federal prevailing wages and hire apprentices); (ii) the implementation of Section 1781 of the Labor Code and/or of ▇▇▇▇▇ Bacon, as the same may be amended from time to time, or any other similar law or regulation; and/or (iii) failure by Developer to provide any required disclosure or identification as required by Labor Code Section 1781 and/or by ▇▇▇▇▇ ▇▇▇▇▇, as the same may be amended from time to time, or any other similar law or regulation. It is agreed by the parties that, in connection with the development and construction (as defined by applicable law or regulation) of the Buyer Development, including, without limitation, any and all public works (as defined by applicable law or regulation), Buyer shall bear all risks of payment or non-payment of prevailing wages under applicable federal, state and local law or regulation and/or the implementation of Labor Code Section 1781 and/or by ▇▇▇▇▇ ▇▇▇▇▇, as the same may be amended from time to time, and/or any other similar law or regulation. The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the construction and development of the Buyer Development by Buyer; provided, however, that such continuing indemnity obligation shall remain the obligation of Buyer, and shall not transfer and apply to or obligate any subsequent owner(s) of residential dwellings or any other improvements constructed on the Buyer Development. “Increased costs,” as used in this Section 10.5, shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be amended from time to time. 10.6 To the extent there is a third-party legal challenge regarding the process or requirements pertaining to the sale of the Property, Seller shall indemnify, defend, and hold harmless Buyer from and against any and all loss, liability, damage, claim, costs, and expense regarding such challenge regarding the process or requirements pertaining to the sale of the Property. The terms and conditions of this Section 10 shall survive the Close of Escrow and recordation of the Grant Deed.