Motion for Attorney Fees in City of Chico et al vs. Move the Junkyard et al| Trellis.Law

On January 23, 2017 a Motion-Secondary was filed involving a dispute between Chico Scrap Metal, City Council For The City Of Chico, City Of Chico, and Move The Junkyard, Ory, Karl, for civil in the District Court of Butte County.

Preview
JAMES F. MCCABE (BAR NO. 104686)
McCabe@ mofo.com Superior Court of California
SALVATORE U. BONACCORSO (BAR NO. 313903)
SBonaccorso@ mofo.com County of Butte
MORRISON & FOERSTER LLP
425 Market Street 6/15/2018

ots
San Francisco, California 94105-2482
Telephone: 415.268.7000
Facsimile: 415.268.7522
By Deputy
Electronically FILED
Attorneys for Defendants
MOVE THE JUNKYARD AND KARL ORY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF BUTTE
10

11 CITY OF CHICO, a Califomia charter city, and Case No. 17CV 00173
CITY COUNCIL FOR THE CITY OF CHICO,
12 a duly elected legislative body, Assigned for all purposes to the
Honorable Tamara L. Mosbarger
13 Plaintiffs,
REPLY DECLARATION OF JAMES F.
14 Vv. MCCABE IN SUPPORT OF
DEFENDANTS’ MOTION FOR
15 MOVE THE JUNKYARD, an unincorporated ATTORNEYS FEES
association, KARL ORY, an individual, and
16 Filed concurrently with:
DOES 1 through 50, inclusive,
1) Reply Memorandum in Support of Motion
17 for Attorneys’ Fees
Defendants.
18
Date: June 22, 2018
19 Time: 9:00 a.m.
CHICO SCRAP METAL, INC., a California Dept: 1
20 Corporation,
Location: North Butte County Courthouse
1775 Concord Avenue
21 Real Party in Interest. City of Chico, CA 95928
22 Action Filed: January 23, 2017
23

28
1
REPLY DECLARATION OF JAMES F MCCABE IN SUPPORT OF DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES
sf-3911158
I, JAMES F. MCCABE, declare as follows:

1 I am an attorney duly admitted to practice before this court and all courts in the

State of California. I am co-counsel for defendants in this action. I have personal knowledge of

each and all facts contained herein and, if called as a witness, I could and would testify

competently thereto under oath.

2 I submit this declaration in support of defendants’ motion for attomeys’ fees in the

above-captioned matter, to put before the Court certain documents referred to in the reply brief.

3 Attached as Exhibit A is a true and correct copy of an excerpt from the Charter of

the City of Chico that I obtained through the City of Chico website. Article II, section 200 of the

10 Charter states: “The legislative power of the city shall be vested in a body to be designated as the

11 council, and in the people through the initiative and the referendum.”

12 4. Attached as Exhibit B is an article published on the Chico News and Review

13 website on February 1, 2018 titled “Broken trust: Chico Scrap metal is picking up the tab for the

14 city’s lawsuits.” The article notes that in response to a Public Records Act request to the City of

15 Chico from the newspaper, the City responded that its fees in this action were being paid by

16 persons affiliated with Chico Scrap Metal, Inc., “under an indemnification found in the

17 development agreement . . . approved by the City Council on a 4-3 vote down party lines in

18 October 2016.”

19 5 Attached as Exhibit C is a true and correct copy (without exhibits) of the

20 Development A greement between the City of Chico, Chico Scrap Metal, Inc. and the George W.

21 Scott Inter Vivos Trust approved as a part of Ordinance No. 2490.

22 6 Attached as Exhibit D is a public records request I submitted to the City of Chico

23 on March 6, 2018. The first request was for “[a]ll records and writings relating to the payment of

24 fees incurred with [this action], including any agreement providing a basis for an indemnity claim

25 against any party.”

26 7 Attached as Exhibit E is a true and correct copy of the City of Chico’s response to

27 the above referenced public records request. In its response to the request described in paragraph

28 6 above, the City responded: “the City directs you to the Development A greement between the
3
REPLY DECLARATION OF JAMES F. MCCABE IN SUPPORT OF DEFENDANTS’ MOTION FOR ATTORNEY S’ FEES
sf-3911158
City and Chico Scrap Metal, approved by Chico City Council on November 1, 2016.”

I hereby declare under penalty of perjury that the foregoing statements made by me are

true and correct.

Dated: June 15, 2018 JAMES F. MCCABE
MORRISON & FOERSTER LLP

By:
Gu.
James F. McCabe

JAMES F. MCCABE (BAR NO. 104686)
JMcCabe@ mofo.com
MORRISON & FOERSTER LLP
425 Market Street
10 San Francisco, California 94105-2482
Telephone: 415.268.7000
11 Facsimile: 415.268.7522

12 Attorneys for Prevailing Parties
MOVE THE JUNKYARD AND KARL ORY
13

19
20

28
4
REPLY DECLARATION OF JAMES F. MCCABE IN SUPPORT OF DEFENDANTS’ MOTION FOR ATTORNEY S’ FEES
sf-3911158
Exhibit A
Chico, CA Code of Ordinances

ARTICLE Il. POWERS OF THE CITY.

Section 200. Legislative power of the city.

The legislative power of the city shall be vested in a body to be designated as the council, and in the people through the initiative and
the referendum.

Section 201. General powers.

The city shall have the power to make and enforce all laws and regulations in respect to municipal affairs, subject only to such
restrictions and limitations as may be provided in the Constitution of the State of California, or provision of this Charter. The
enumeration in this Charter of any particular power shall not be held to be exclusive of, or any limitation upon, any general power of
the city.
Exhibit B
Page | of 2

This article was printed from the Opinions
(ons
ae 5S section of the Chico News & Review, originally published
Ue AA February 1, 2018.
This article may be read online at:
http://www.newsreview.com/chico/content?0id=25773394
Copyright ©2018 Chico Community Publishing, Inc.
Printed on 2018-06-15.

Broken trust

Chico Scrap metal is picking up the tab for the city’s
lawsuits

By Melissa Daugherty

After seeking from City Hall a breakdown of expenditures on lawsuits related to Chico Scrap
Metal, I now know why the members of the City Council majority are appealing the ruling of a
local superior court judge who sided with community group Move the Junkyard: They think
they have nothing to lose.

That’s because, as I recently learned through requests for public records, Chico Scrap Metal is
picking up the tab. You read that correctly. The Chico business that for more than a decade had
been the subject of a city amortization order—that is, an order to eventually move because its
operations were illegal under local land-use laws—is paying the municipality’s legal bills in the
battle against the grassroots group that is trying to make sure the process is completed.

So far—as of Jan. 25, anyway—the price tag totals just shy of $74,000. That’s according to the
City Clerk’s Office, which reported to me the costs associated with “Move the Junkyard et al
vs. City of Chico et al” and “City of Chico et al vs. Move the Junkyard et al,” both of which you
can read about in detail at the Butte County Superior Court’s website (buttecourt.ca.gov). Keep
in mind that figure is for legal fees only. I’d also inquired about the cost of the time city staff
has spent working on efforts related to the litigation—no final word on that yet.

So how is it, you might ask, that Chico Scrap Metal is on the hook for the city’s legal expenses?
That was my first question, too. As it turns out, payment of such fees is required by an
indemnification clause found in the development agreement signed by George Scott, the
recycling center’s owner, and approved by the City Council on a 4-to-3 vote down party lines in
October 2016.

I’m referring to the vote of Sean Morgan, Reanette Fillmer, Mark Sorensen and Andrew
Coolidge, the conservative bloc that, during the first meeting in which they gained a council
majority just over three years ago, voted to agendize discussion of the city’s long-planned effort
to get the nonconforming business to vacate the property in light of the passage of the

https://www.newsreview.com/chico/PrintFriendly?0id=25773394 6/15/2018
Page 2 of 2

Chapman-Mulberry Neighborhood Plan many years earlier. They subsequently torched those
plans.

A couple of things to chew on here:

First, why wasn’t the city more transparent about the fact that the recycler is paying the
attorney’s fees? Neither Howard Hardee (the CN&R reporter who regularly covers the council)
nor Ashiah Scharaga (the former Chico E-R city beat reporter who now works for this
newspaper) was aware of this arrangement.

Second, doesn’t it seem strange that City Attorney Vince Ewing’s employer, the Southern
California-based Alvarez-Glasman and Colvin Law Firm, is the one working on the cases? I
mean, obviously the public doesn’t know how Ewing advises the council in closed session, the
place such litigation is discussed and voted upon, but it seems like a conflict that his employer
is benefiting financially from the council majority’s litigiousness.

And last, but not least by any means, since some outside entity is writing the check, there’s at
least the appearance that the city is doing the bidding of a private business.

Which brings me back to the council majority’s belief they have nothing to lose.

Clearly, the public’s trust was never a consideration.

https://www.newsreview.com/chico/PrintFriendly?0id=25773394 6/15/2018
Exhibit C
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO

City of Chico

Attn: City Clerk
Space Above This Line for Recorder's Use
(Exempt from Recording Fees per Gov't Code § 27383)

DEVELOPMENT AGREEMENT

BY AND BETWEEN

THE

CITY OF CHICO

AND

CHICO SCRAP METAL, a California corporation,

and GEORGE W. SCOTT, TRUSTEE OF THE GEORGE W. SCOTT, SR.
REVOCABLE INTER VIVOS TRUST DATED SEPTEMBER 25, 1995, AS
AMENDED

EXMIBIT_1
EXH C-027
TABLE OF CONTENTS

RECITALS
Enabling Statute.
Property Description.
Property Use History
Amortization of Chico Scrap
Development Agreement Goal.
Mutual Benefits...
SECTION. 1. GENERAL PROVISIONS.
Sec. 1.1 Property Description and Binding Covenants
Sec. 1.2 Interest of CHICO SCRAP
Sec. 1,3 Term and Amendment.
Sec. 14 Definitions...
SECTION. 2. IMPROVEMENT AND DEVELOPMENT. OF THE PROPERTY .
Sec. 2.1 Vested Rights
Sec. 2.2 Schedule of Improvements and Development
Sec.2.3. Processing Fees and Charges...
Sec. 2.4 Compliance with Conditions of Project Approval.
SECTION. 3. PERMITTED USES OF THE PROPERTY. .
Sec. 3.1 Legal Nonconforming Use Status
Sec. 3.2 Land Use Zoning, Rules and Regulations 10
Sec. 3.3 Specific Prohibited Uses 10
Sec. 3.4 Conditions and Limitations on Use of the Property 10
SECTION 4, OBLIGATIONS OF CHICO SCRAP 11
Sec. 4.1 Conditions of Approval. ........ 11
Sec. 4.2 Dedications and Improvements. 1]
Sec, 4.3 Indemnification 11
Sec. 4.4 Nexus/Reasonable Relationship Challenges. 12
Sec. 4.5 Cooperation By CHICO SCRAP. 12
Sec. 4.6 Other Governmental Permits 12
SECTION. 5. RESERVATION OF CITY AUTHORITY 12
2
EXH C- 028
Sec. 5.1 Limitations, Reservations and Exceptions 12
Sec. 5.2 Future Discretion ofCity. .. 13
Sec.5.3 Modification or Suspension by Federal, State, County, or Multi-
Jurisdictional Law. 13
Sec. 5.4 Intent. . 14
Sec. 5.5 Regulation by Other Public Agencies 14
Sec. 5.6 Additional Applicable Codes and Regulations 14
SECTION. 6. MORTGAGEE PROTECTION; CERTAIN RIGHTS TO CURE 14
Sec. 6.1 Encumbrances on the Project. 14
Sec. 6.2 Mortgage Protection. pee 14
Sec. 6.3 Mortgagee Not Obligated. 15
Sec. 6.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure 15
SECTION. 7, DEFAULT; REMEDIES; DISPUTE RESOLUTION 15
Sec. 7.1 Notice of Default 15
Sec, 7.2 Cure of Default. 15
sm Sec. 7.3 City Remedies 16
SECTION 8, MISCELLANEOUS PROVISIONS 16
Sec. 8.1 Authority to Execute... 16
Sec. 8.2 Transfers Of Interest In Property Or ‘Agreement. 16
Sec. 8.3 Consent. 16
Sec 8.4 Construction of Agreement. 17
Sec. 8.5 Covenants of Good Faith and Fair Dealing. 17
Sec. 8.6 Further Actions and Instruments, 17
Sec 8.7 No Third Party Beneficiaries 17
Sec. 8.8 No Waiver... 17
Sec. 8.9 Notices. . 17
Sec. 8.10 General Plan ‘Consistency... 18
Sec. 8.11 Review for Compliance. 18
Sec. 8.12 Force Majeure 18
Sec. 8.13 Binding Effect. 19
Sec. 8.14 Independent Entity 19
Sec. 8.15 Agreement Not to Benefit Third Parties. 19
Sec. 8.16 Non-liability of City Officers and Employees 19

3
EXH C- 029
Sec. 8.17 No Waiver... 19
Sec . 8.18 Severability. . 19
Sec . 8.19 Recordation.. 20
Sec . 8.20 Recitals & Exhibits Incorporated; Entire Agreement. 20
Sec. 8.21 Counterpart Signature Pages. 20
Sec. . 8.22 Governing Law; Litigation Matters.; Attorney’s Fees. . 20

LIST OF EXHIBITS
EXHIBIT “A” (Property Description)... 22
EXHIBIT “B” (Improvement Schedule).. 24
EXHIBIT “C” (List of Acceptable Metals and Expressly Prohibited Materials 24
EXHIBIT “D” (Compliance Reporting Form)..........

EXH C - 030
DEVELOPMENT AGREEMENT

THIS DEVELOPMENT AGREEMENT (hereinafter "Agreement”) is made and entered
into this day of , 2016, by and between the CITY OF CHICO, a political
subdivision of the State of California (hereinafter "City"), and CHICO SCRAP METAL, a
California corporation, and GEORGE W. SCOTT, TRUSTEE OF THE GEORGE W.
SCOTT, SR. REVOCABLE INTER VIVOS TRUST DATED SEPTEMBER 25, 1995, AS
AMENDED, (hereinafter "CHICO SCRAP"), pursuant to the authority of Sections 65864
through 65869.5 of the California Government Code .
RECITALS
A. Enabling Statute.
To strengthen the public planning process, encourage private participation in
comprehensive planning and reduce the economic risks of development, the Legislature of the
State of California adopted Sections 65864-65869.5 of the Califomia Government Code
(“Development Agreement Act” or “Act”) enabling a city, and an applicant for a development
project who has a legal or an equitable interest in the property to be improved or developed, to
enter into a development agreement establishing the zoning standards, land use regulations and
development standards of the city that will govern project improvement and development.
B Property Description.
CHICO SCRAP owns a legal or equitable interest in that certain real property which real
property is generally referred to as Assessor Parcel Nos. 005-450-014, 005-450-030, 005-422-
009, 005-422-013 and 005-422-017. Said Property is more particularly shown on Exhibit "A"
attached hereto and incorporated herein by this refererice (“Property”).
Cc. Property Use History
Since December 17, 1963, the Property was within the jurisdiction of the City, was
General Plan designated as Warehouse and Manufacturing and Low Density Residential, and
was zoned M-L (Light Industrial/Manufacturing) and R-1 (low Density Residential). The
Property was used as a scrap metal yard and metal recycling center since approximately the late
1960's. Chico Scrap located to the Property in 1983. In 2004 the City adopted the
Chapman/Mulberry Neighborhood Plan (“Plan”) which resulted in the Property becoming a legal
nonconforming use and being rezoned to CN (Neighborhood Commercial) and R1 (Low Density
Residential) with an SD-6 overlay zone.
D Amortization of Chico Scrap
The Plan recognizes the legal nonconforming use status of Chico Scrap. The Plan further
requires the City to adopt an ordinance providing for the amortization of such nonconforming
use. The City has adopted ordinances requiring the amortization and termination of the Chico
Scrap non-conforming use by December 31, 2014.

EXH C-031
E Development Agreement Goals.
City and CHICO SCRAP desire to enter into this Agreement relating to the Property to
facilitate current improvements to the Property in a timely manner, Due and reasonable
consideration has been given to the history of the site and use, the environmental benefits, utility
and convenience of the services CHICO SCRAP provides to the community, the economic
impact CHICO SCRAP has on the community and financial feasibility and costs of moving the
CHICO SCRAP to a location which permits the use.
F. Mutual Benefits
City and CHICO SCRAP desire the installation of physical improvements to enhance the
aesthetics and landscaping to the site and changes to operational characteristics. CHICO SCRAP
recognizes that required improvements to the. Property will involve investment by CHICO
SCRAP. The City recognizes and has determined that the provisions of the Agreement for the
improvements to the Property, and the continued use of the Property for recycling by CHICO
SCRAP would assist both the City and CHICO SCRAP and achieve a public benefit and viable
economic solution for both parties

NOW, THEREFORE, in further consideration of the above recitals, all of which are
expressly incorporated into this Agreement, and the mutual promises and covenants of the parties
contained in this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
SEC. 1. GENERAL PROVISIONS
Sec. 1.1 Property Description and Binding Covenants,
The Property is that improved real property owned by CHICO SCRAP described in
Exhibit "A" attached hereto and incorporated herein by reference. It is intended and determined
that the provisions of this Agreemient, to the extent permitted by law, shall constitute covenants
which shall run with the Property and the benefits and burdens of this Agreement shall be
binding upon and inure to the benefit of the parties and to their successors in interest.
Sec. 1.2 Interest of CHICO SCRAP.
CHICO SCRAP holds a fee interest in the Property and all other persons in the future
holding legal or equitable interests in the Property shall be bound by this Agreement.
See. 1.3 Term and Amendment.
The term of this Agreement shall commence on the effective date of the ordinance
authorizing the approval and execution of this Agreement (“Effective Date”) and shall continue
until the current use of the Property voluntarily ceases by CHICO SCRAP or its successor in
interest, is tenminated pursuant to the process under Chico Municipal Code Chapter 19.14, or is
otherwise terminated pursuant to the terms of this Agreement. This Agreement may be amended
from time to time by mutual consent of the City and CHICO SCRAP, or its successors in
interest, and pursuant to noticed public hearings in accordance with the Act.

EXH
C- 032
See. 1.4 Definitions
This Agreement uses a number of terms having specific meanings, as defined below.
These specially defined terms are distinguished by having the initial letter capitalized when used
in this Agreement. The defined terms include the following:

“Agreement” means this Development Agreement.

“City” means the City of Chico, a California municipal corporation.

“City Council” means the City Council of City.

“Development Approvals” means any and all permits, licenses, consents, rights and
privileges, and other actions approved or issued by City in connection with the Development on
or before the Effective Date, including but not limited to:

i) General plans and general plan amendments;

ii) Specific plans and specific plan amendments

iti) Zoning, rezoning, change of zone and zoning amendments;

iv) Approved conceptual site design and architectural plans for the
Project, with conditions;

v) Tentative and final parcel maps;

vi) Applicable environmental documentation. pursuant to the
California Environmental Quality Act; and

vii) Grading and building-related permits.
“Development Requirement’ means any requirement of City in connection with or
pursuant to any Development Approval for the dedication of land, the construction or
improvement of public facilities, the payment of fees or assessments in order to lessen, offset,
mitigate or compensate for the impacts of the Development on the environment, or the
advancement of the public interest.

“Developer” means Integral CHICO SCRAP and, where specified in this Agreement, its
successors in interest to all or any part of the Property.

“Effective Date” means the date that this Agreement shall take effect as defined in
Section 1.3 of this Agreement.

“Heavy Equipment” means vehicles, tractors and equipment used in construction,
moving, loading, and/or processing of on-site operations. Typically such equipment contains
hydraulics, power trains and controls. Such definition shall not include trucks entering or exiting
the premises after operating hours but which have been loaded or unloaded during operating
hours or off site,

EXIC - 033
“Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations and
official policies of City, including but not limited to City’s development impact fees, adopted
and effective on or before the Effective Date governing the Development and use of the
Property, including, without limitation, the permitted use of land, the density or intensity of use,
the rate of development of land, subdivision requirements, the maximum height and size of
proposed buildings, the provisions for reservation or dedication of land for public purposes, and
the design, improvement and construction standards and specifications applicable to the
Development, including, but not limited to, the Development Approvals.

“Project” means the improvement, development and use of the Property for the purposes
of completing the structures, improvements and facilities comprising the Project, including, but
not limited to: grading; the construction of infrastructure and public facilities related to the
Project whether located within or outside the Property; and the installation of landscaping and
improvements., including the use, maintenance and repair, of any building, ‘structure,
improvement, landscaping or facility after the construction and completion thereof on the
Property.

“Property” means the real property described in Exhibit “A”.

“Reservation of Authority” means the rights and authority excepted from the assurances
and rights provided to CHICO SCRAP under this Agreement and reserved to City under Section
5.

“Subsequent Development Approvals” means all Development Approvals issued
subsequent to the Effective Date in connection with the Development.

“Subsequent Land Use Regulations” means any Land Use Regulations adopted and
effective after the Effective Date governing development and.use of the Property.

SEC. 2. IMPROVEMENT AND DEVELOPMENT OF THE PROPERTY
Sec. 2.1 Vested Rights.
By entering into this Agreement, City hereby grants CHICO SCRAP a vested right to proceed
with the improvement, development and use of the Property in accordance with the terms and
conditions of this Agreement. CHICO SCRAP'S vested right to proceed with the project shall be
subject to any subsequent discretionary approvals required in order to complete the project,
provided that any conditions, terms, restrictions and requirements for such subsequent
discretionary approvals, shail not prevent development of the land for the uses-and to the density
or intensity of development set forth in this Agreement and provided CHICO SCRAP is not in
default under this Agreement.
Sec. 2.2 Schedule of Improvements and Development

(a) CHICO SCRAP shall commence and complete improvements and development
of the Property ("Improvements") in accordance with the “Improvement Schedule” attached
hereto as Exhibit “B” and incorporated herein by reference. CHICO SCRAP shall obtain all
permits and approvals for commencement and completion of the Improvements.
(b) If CHICO SCRAP fails to commence or complete any line item improvement
listed in the Improvement Schedule, by the date specified in the Improvement Schedule, then
8
EXH C- 034
CHICO SCRAP shall pay to the City as liquidated damages the sum of One Hundred Dollars
($100.00) per day for the first ten late days, Two Hundred Dollars ($200.00) per day for the next
ten late days and Three Hundred Dollars ($300.00) per day until the work of improvement is
commenced or completed in addition to or alternate to any other remedy or termination provided
in this Agreement. After thirty (30) late days, the City, in its sole discretion, may suspend all
operations and activities on the Property until the improvement is completed.
(c) CHICO SCRAP and City agree that the liquidated damages sum in subsection (b)
above is a reasonable sum considering all of the circumstances existing on the date of this
Agreement, including the relationship of the sum to the range of harm to Agency that reasonably
could be anticipated and the anticipation that proof of actual damages would be costly or
inconvenient. In placing their initials at the place provided, each Party specifically confirms the
accuracy of the statements made above and the fact that each Party was represented by counsel
who explained the consequences of this liquidated damages provision at the time this Agreement
was made.
Xx
CHICO SCRAP, (initials) City (initials)
See. 2.3 Processing Fees and Charges.
CHICO SCRAP shall pay those processing fees and charges of every kind and nature
imposed or required by City or other entitics covering the actual costs of City in (i) processing
applications and requests for permits, approvals and other actions, nd (ii) monitoring
compliance with any permits issued or approvals granted or the performance of any conditions
with respect thereto or any performance required of CHICO SCRAP hereunder.
Sec. 2.4 Compliance with Conditions of Project Approval.
CHICO SCRAP shall, in consideration of the City's commitments set forth in this
Agreement, comply with all of those specific conditions of Project approval in the improvement,
development and use of the Property contained in this Agreement.
SEC. 3. PERMITTED USES OF THE PROPERTY.
During the term of this Agreement the permitted uses of the Property, the density and
intensity of use, the maximum height and size of proposed buildings, provisions for reservation
or dedication of land for public purposes and location of public improvements, and other terms
and conditions of improvement and development applicable to. the Property shall be those set
forth in this Section 3 as follows:
Sec. 3.1 Legal Nonconforming Use Status

The effectiveness of this Agreement is contingent upon the approval by the City of an
effective amendment of the Chico Municipal Code and/or the Chapman/Mulberry Neighborhood
Plan which eliminates the requirements of amortization and termination of the CHICO SCRAP
use. Such amendment is within the sole and absolute discretion of the City and cannot be
required by this Agreement. If such an amendment is approved and remains effective, CHICO
SCRAP shall be allowed to continue its existing operations as a legal nonconforming use during
the term of this Agreement, subject to the conditions contained in this Agreement. Completion
of the Improvements is a condition precedent to the legal nonconforming use status of the
Property provided by this agreement.

EXH C- 035
Sec. 3.2 Land Use Zoning, Rules and Regulations
During the term of this Agreement the zoning regulations the density and intensity of use,
the maximum height and size of proposed buildings, provisions for reservation or dedication of
land for public purposes and location of public improvements, and other terms and conditions of
improvement and developinent applicable to the Property shall be as follows:
(a) Existing buildings, infrastructure, accessory buildings and fences which existed
on the effective date of this Agreement may continue to exist.
(b) Any expansion of buildings, structures, accessories or fences, the construction of
new structures, the expansion or intensification ofuses or the construction of any new
infrastructure shall comply with the zoning rules and regulations in effect at the time the activity
is undertaken,
(©) Any revision, alteration or expansion of buildings, structures, accessories,
landscaping or fence that are proposed by CHICO SCRAP as part of this Agreement, shall be
reviewed and processed in accordance with the appropriate provision of the Chico Municipal
Code, if any. Such review and approval shall be consistent with the terms of this Agreement and
shall not unreasonably delay or prevent the attainment of the terms of this Agreement. Any
revision, alteration or expansion of buildings, structures, accessories, landscaping, fencing or
uses that is not a part of this Agreement shall require subsequent review and permitting at a
future date.

Sec. 3.3 Specific Prohibited Uses
During the term of this Agreement CHICO SCRAP shall not engage in any of the
following activities on the Property:
(a) Shredding or baling of truck, automobile or other vehicle bodies on site.
(b) Operating on any portion of the Property that is not capped with concrete, or
equivalent protective barrier such as rock base with underlayment approved by
Community Development Developer.
(c) Receiving for recycling nonhazardous or hazardous liquids. Exhibit C contains
the list of materials that can be accepted by CHICO SCRAP, and the list of
materials that CHICO SCRAP does not accept, CHICO SCRAP shall not accept
any materials not listed on Exhibit C, or any expressly prohibited materials listed
on Exhibit C.
(d) Operating heavy equipment outside of the operational hours noted in Section 3.4.

Sec. 3.4 Conditions and Limitations on Use. of the Property
During the term of this Agreement the use of the Property by CHICO SCRAP shall be
subject to the following conditions, rules and regulations:
@) Hours of Operations shall be limited to:
Monday-Friday: 8:00 a.m. to 4:00 p.m,
Saturday: 8:00 a.m, to Noon (12:00 p.m.)
Sunday: Closed
The foregoing Hours of Operation represents the hours open to the public and
shall not prevent CHICO SCRAP from staging equipment for use on the next
business day before 7:00 p.m. on weekdays and 4:00 p.m. on weekends, or

EXH C- 036
engaging in activities after such Hours of Operation required to be completed by
CHICO SCRAP under its SWPPP or otherwise comply with conditions or
regulations imposed by the City or other governmental agencies.
(b) All operational aspects, including storage of and moving of materials shall be
done on a concrete, equivalent, or equivalent protective barrier such as rock base
with underlayment approved by Community Development Manager.
(c) If operational aspects, involving the processing of materials need to take place or
expand into locations that are currently void of such operations as of the date of
this Agreement, a Use Permit shall be secured by the applicant prior to such
expansion. CHICO SCRAP is not prohibited by this Agreement from utilizing
such areas (i.e. those on which processing of material does not currently take
place) for other business purposes such as storage, offices, and parking.
(d) All improvements shall be constructed on the Project site. Landscaping is
permitted within the public right of way, so long as it is maintained and up kept
by CHICO SCRAP. Installation of landscaping shall be done in conformance
with the Municipal Code.
©) On-site directional, collection and rules signage shall be presented to, and
reviewed and approved by, the Community Development Director prior to
installation by CHICO SCRAP to inform customers of which materials are not
collected on site, and that sweeping of trailer and other transportation devices is
strictly prohibited.
( The entire length and width of the path of travel at the subject site, from entrance
gate to exit gate, shall be swept at least twice a day (business days only) by the
applicant. As a minimum, such activity shall be conducted once during normal
business hours, and once at the end of each business day to minimize fugitive
dust.
(g) Baler equipment shall be maintained in good working condition to minimize noise
impacts, and comply with the City’s operative noise ordinance.

SECTION 4. OBLIGATIONS OF CHICO SCRAP
See. 4.1 Conditions of Approval.
The CHICO SCRAP shall complete and operate the Project in accordance with the terms
of this Agreement in a timely manner and in cooperation with the City.

Sec. 4.2 Dedications and Improvements.
CHICO SCRAP shall offer dedications to City or other applicable public agency, or
complete those public improvements in connection with the Projéct, as specified in the
Development Approvals or Conditions of Approval.

Sec. 4.3 Indemnification.

(@) CHICO SCRAP agrees to and shall indemnify, hold harmless, and defend, City
and its respective officers, officials, members, agents, employees, and representatives, from
liability or claims for death or personal injury and claims for property damage which may arise
from the acts, errors, and/or omissions of CHICO SCRAP or its contractors, subcontractors;

VW
EXH C-037
agents, employees or other persons acting on its behalfin relation to the Project and/or in any
manner arising from this Agreement. The foregoing indemnity applies to all deaths, injuries, and
damages, and claims therefor, suffered or alleged to have been suffered by reason of the acts,
errors, and/or omissions referred to in this Section 4.7, regardless of whether or not City
prepared, supplied, or approved plans or specifications, or both. In the event of litigation, City
agrees, at no cost to City, to cooperate with CHICO SCRAP.

(b) In the event of any court action or proceeding challenging the validity of this
Agreement, any of the Development Approvals or any environmental documentation (CEQA)
prepared and adopted for the Project, CHICO SCRAP shall defend, at its own expense, the action
or proceeding. In addition, CHICO SCRAP shall reimburse City for City’s costs in defending
itself in any court action or proceeding challenging the validity of this Agreement, any of the
Development Approvals or environmental documents, with counsel to be chosen by City and
approved by CHICO SCRAP, with such approval not to unreasonably be withheld. In addition,
the City shall provide CHICO SCRAP the opportunity in such court action or proceeding to
provide a defense to the City, subject to the City’s approval, which the City, through its counsel,
will monitor. CHICO SCRAP shall cooperate with City in any such defense as City may
reasonably request and may not resolve such challenge without the agreement of City. In the
event CHICO SCRAP fails or refuses to provide such defense of any challenge to this
Agreement, the Development Approvals or the environmental documents, City shall have the
right not to defend such challenge, and to resolve such challenge in any manner it chooses in its
sole discretion, including termination of this Agreement.

Sec. 4.4 Nexus/Reasonable Relationship Challenges.
The CHICO SCRAP consents to, and waives any rights it may have now or in the future to
challenge the legal validity of, the conditions, requirements, policies or programs required by the
Existing Land Use Regulations or this Agreement including, without limitation, any claim that
they constitute an abuse of the police power, violate substantive due process, deny equal
protection of the laws, effect a taking of property without payment of just compensation, or
impose an unlawful tax.
Sec. 4.5 Cooperation By CHICO SCRAP.
CHICO SCRAP will, in-a timely manner, provide City with all documents, applications, plans
and other information necessary for City to carry out its obligations hereunder, and cause
CHICO SCRAP's planners, engineers, and all other consultants to submit in a timely manner all
required materials and documents therefore.
Sec. 4.6 Other Governmental Permits.
CHICO SCRAP shall apply in a timely manner for such other permits and approvals from other
governmental or quasi-governmental agencies having jurisdiction over the Subject Property as
may be required for the development of, or provision of services to, the Project.
Sec. 5. RESERVATION OF CITY AUTHORITY
Sec. 5.1 Limiitations, Reservations and Exceptions,
Notwithstanding any other provision of this Agreement, the following Subsequent Land
Use Regulations shall apply to the Development:
12
EXH C- 038
(a) Processing fees and charges of every kind and nature imposed by City to cover
the estimated actual costs to City of processing applications for Development Approvals.

(b) Procedural regulations consistent with this Agreement relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals
and any other matters of procedure.

(c) Changes adopted by the International Conference of Building Officials, or other
similar body, as part of the then most current versions of the Uniform Building Code, Uniform
Fire Code, Uniform Plumbing Code, Uniform Mechanical Code, or National Electrical Code,
and also adopted by City as Subsequent Land Use Regulations.

@ Regulations that may be in conflict with the Development Approvals but which
are reasonably necessary to protect the public health, safety, and welfare.

(e) Regulations that are not in conflict with the Development Approvals and this
Agreement.

® Regulations that are in conflict with the Development Approvals provided
CHICO SCRAP has given written consent to the application of such regulations to the
Development.

(g) Federal, State, County, and multi-jurisdictional laws and regulations which City is
Tequired to enforce as against the Property or the Development.

Sec. 5.2 Future Discretion of City.
Notwithstanding any other provision of this Section 5.1, this Agreement shall not prevent
City, in acting on Subsequent Development Approvals, from applying Subsequent Land Use
Regulations which do not conflict with the Development Approvals, or in accordance with any
provision of the Chico Municipal Code, nor shall this Agreement prevent City from denying or
conditionally approving any Subsequent Development Approval on the basis of the existing
Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the
Development Approvals.

Sec. 5.3 Modification or Suspension by Federal, State, County, or Multi-
Jurisdictional Law.
In the event that Federal, State, County, or multi-jurisdictional laws or regulations,
enacted after the Effective Date, prevent or preclude compliance with one or more of the
provisions of this Agreement, such provisions of this Agreement shall be modified or suspended
as may be necessary to comply with such Federal, State, County, or multi-jurisdictional laws or
regulations, and this Agreement shal] remain in full force and effect to the extent it is not
inconsistent with such laws or regulations and to the extent such laws or regulations do not
render such remaining provision impractical to enforce.

13
EXH C- 039
Sec. 5.4 Intent.
City acknowledges that CHICO SCRAP has reasonably entered into this Agreement and
will proceed with the Project on the assumption that City has adequately provided for the public
health, safety and welfare through the Land Use Regulations. In the event that any future,
unforeseen public health or safety emergency arises, City agrees that it shall attempt to address
such emergency in such a way as not to impact the Development in accordance with the
Development Approvals.

See. 5.5 Regulation by Other Public Agencies.
It is acknowledged by the Parties that other public agencies not subject to control by City
may poss

Case Info

Judge

Tamara L. Mosbarger Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

June 15, 2018

Case Filing Date

January 23, 2017

County

Parties

Cannata, Therese Yvonne Attorneys for Plaintiffs
Cardinale, Christopher Gary Attorney
Cardinale, Christopher Gary Attorney for the Plaintiff
Chico Scrap Metal Cross Complainant
City Council for the City of Chico Cross Defendant
City Council for the City of Chico Plaintiff
CIty of Chico Cross Defendant
CIty of Chico Plaintiff
McCabe, James Francis Attorneys for Defendants
McCabe, James Francis Attorney for the Defendant
Move the Junkyard Cross Defendant
Move the Junkyard Defendant
Ory, Karl Cross Defendant
Ory, Karl Defendant
Kimberly Pallen Attorney
Noel Tapia Attorney
Aaron Field Attorney
Vincent Lee Attorney
Salvatore Bonaccorso Attorneys for Defendants
Richard Harriman Attorneys for Plaintiffs
Kimberly Almazan Attorney
Christophe Loizeaux Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: City of Chico et al vs. Move the Junkyard et al

Preview

Related Topics

Case Info

Parties