Hesperia City Council
May 17, 2022

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6.7 No Cross-Defaults ............................................................................................... 16

7. INTENTIONALLY OMITTED ..................................................................................... 16

8. DEFAULT AND REMEDIES ........................................................................................ 16

8.1 Remedies in General ........................................................................................... 16

8.2 Specific Performance .......................................................................................... 17

8.3 Release ................................................................................................................ 17

8.4 City’s Termination of Agreement or Exercise of Other Remedies Upon Developer’s Default ............................................................................................ 17

8.5 Developer’s Termination of Agreement or Exercise of Other Remedies Upon City’s Default ............................................................................................ 18

8.6 Informal Resolution ............................................................................................ 18

9. THIRD PARTY LITIGATION ...................................................................................... 18

9.1 Defense of Third Party Litigation ....................................................................... 18

9.2 Extension of Term............................................................................................... 18

10. MORTGAGEES ............................................................................................................. 19

10.1 Mortgagee Protection .......................................................................................... 19

11. INSURANCE; INDEMNIFICATION............................................................................ 19

11.1 Insurance ............................................................................................................. 19

11.2 Indemnification ................................................................................................... 21

12. MISCELLANEOUS PROVISIONS ............................................................................... 22

12.1 Recordation of Agreement .................................................................................. 22

12.2 Entire Agreement ................................................................................................ 22

12.3 Estoppel Certificates ........................................................................................... 22

12.4 Severability ......................................................................................................... 22

12.5 Interpretation and Governing Law ...................................................................... 23

12.6 Section Headings ................................................................................................ 23

12.7 Singular and Plural .............................................................................................. 23

12.8 Including ............................................................................................................. 23

12.9 Time of Essence .................................................................................................. 23

12.10 Calendar Periods ................................................................................................. 23

12.11 Waiver ................................................................................................................. 23

12.12 No Third Party Beneficiaries .............................................................................. 23

12.13 Permitted Delays ................................................................................................. 23

12.14 Successors in Interest .......................................................................................... 23

12.15 Counterparts ........................................................................................................ 24

12.16 Jurisdiction and Venue ........................................................................................ 24

12.17 Project as a Private Undertaking ......................................................................... 24

12.18 Further Actions and Instruments ......................................................................... 24

12.19 Eminent Domain ................................................................................................. 24

12.20 Attorneys’ Fees ................................................................................................... 24

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12.21 Authority to Execute ........................................................................................... 24

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01071.0005/782085.1

DEVELOPMENT AGREEMENT
(Hesperia Commerce Center II)
This Development Agreement (Hesperia Commerce Center II) ( “Agreement”) is entered into between the CITY OF HESPERIA, a California general law city and municipal corporation (“City”); and Main 395 Industrial LLC and Main Hesperia LLC (“Developer”). This Agreement is dated as of _____________, 2022 for reference only. This Agreement will not become effective until the “Effective Date” (defined below). City and Developer are entering into this Agreement in reliance on the facts set forth in the Recitals, below.

RECITALS
A. City is authorized under Government Code Section 65864, et seq. (“Development Agreement Law”) to enter into binding development agreements with persons having legal or equitable interests in real property for the development of that property.

B. Developer owns or has an equitable interest in real property consisting of the approximately one hundred ninety-four and eight tenths (194.8) gross acres of land ( “Property”) described on the attached Exhibit A and depicted on the attached Exhibit B (“Site Plan”).

C. Developer applied to City for approval and enactment of this Agreement as the primary governing instrument for the development and use of the Property. The City Planning Commission ( “Planning Commission ”) and the City Council ( “City Council”) have conducted public hearings and have found that this Agreement is consistent with City ’s General Plan (“General Plan”), including the General Plan Land Use Element.

D. On _____________, 202 2, the City Council adopted Ordinance No. ____-__ (“Enacting Ordinance”), which approved this Agreement.

E. By adopting the Enacting Ordinance, the City Council elected to exercise its governmental powers with regard to the Development of the Property at the present time rather than later. This Agreement binds City and future City Councils and limits the City Council’s future exercise of its police powers. This Agreement has been found by the City Council to be fair, just and reasonable and in the best interests of City’s citizens and the health, safety and welfare of the public.

F. City has complied with all California Environmental Quality Act (California Public Resources Code Section 21000, et seq.) (“CEQA”) requirements with respect to the approval of this Agreement and of the Project, through the City Council’s approval and certification of the “Hesperia Commerce Center II Environmental Impact Report (SCH 2019110418)” (“EIR”).

G. Developer proposes to subdivide and develop the Property with three (3) industrial/warehouse buildings and has obtained City’s approval of the following Development Approvals: Conditional Use Permit (CUP 19-00010); and Tentative Parcel Map (TPM 20257).

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H. All of City’s prior actions and approvals with regard to this Agreement complied with all applicable legal requirements related to notice, public hearings, findings, votes, and other procedural matters.

I. The development of the Property in accordance with this Agreement will provide substantial benefits to City. This Agreement eliminates uncertainty in planning and provides for the orderly development of the Property, ensures the progressive installation of necessary public improvements to serve the Project, and serves the purposes of the Development Agreement Law.

1. DEFINITIONS AND EXHIBITS.

1.1 Definitions. The following initially capitalized terms used in this Agreement have the following meanings:
“Agreement” means this Development Agreement and all attachments and exhibits thereto. “Annual Monitoring Report” has the meaning ascribed to the term in Section 6.1. “Backbone Infrastructure ” means the central network system for streets, wet and dry utilities and drainage within the Project, as specifically shown in the Development Plan. “CEQA” has the meaning ascribed to the term in Recital F. “Certificate of Agreement C ompliance” or “Certificate” has the meaning ascribed to the term in Section 6.6.
“Certificate of Occupancy ” means a document issued by City ’s Building Department, certifying a building’s compliance with applicable building codes and other laws, and indicat ing it to be in a condition suitable for occupancy.
“City” means the City of Hesperia, a California general law city and municipal corporation, its successors and assigns, and its related or subordinate boards, commissions, and entities. “City Council” means the City Council of the City of Hesperia. “Construct and Dedicate ” means the obligation to acquire all necessary real property interests required for, to construct in accordance with City-approved plans and specifications, and to thereafter dedicate to City in accordance with City ’s standards, practices and requirements for the dedication of public improvements, the applicable public improvement to which the term “Construct and Dedicate” is made applicable by this Agreement, all at no cost or expense to City.

Developer’s obligation to Construct and Dedicate will be fulfilled only upon City’s inspection and acceptance of the dedicated improvement into City’s system of public improvements. “Developer” means Main 395 Industrial LLC and Main Hesperia LLC and their successors and assigns.
“Development” means the subdivision and improvement of the Property for the purposes of constructing or reconstructing the public and private structures, improvements and facilities

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comprising the Project, including, but not limited to: grading; the construction or reconstruc tion of infrastructure and public and private facilities related to the Project, whether located within or outside the Property; the construction or reconstruction of buildings and structures; and, the installation of landscaping. “Development” does not i nclude the maintenance of any building, structure, improvement or facility after its construction and completion. “Development Agreement Law” has the meaning ascribed to the term in Recital A. “Development Approvals” mean all site -specific (meaning specifi cally applicable to the Property only and not generally applicable to some or all other properties within the City) plans, maps, approvals, permits and other entitlements applicable to the Development of the Property, including, but not limited to: specifi c plans and specific plan amendments; tentative and final subdivision and parcel maps; conditional use permits, public use permits and site plans; zoning; variances; and, grading and building permits. The term Development Approvals does not include (i) rules, regulations, policies, and other enactments of general application within the City authorized to be applicable to the Property pursuant to this Agreement, or (ii) any matter where City has reserved authority under this Agreement.
“Development Exaction s” mean any monetary or non -monetary exaction or mitigation measure, including a Development Impact Fee, imposed by City in connection with a Development Approval or in connection with the granting of any other right, privilege or approval pertaining to the Project, including requirements for land dedication or for public construction either within or outside the Property.
“Development Impact Fee” means a monetary payment authorized by Government Code Section 66001, et seq., whether imposed legislatively on a broad class of development projects or on an ad hoc basis to a specific development project.
“Development Plan” means the proposed plan for Development of all or a portion of the Property pursuant to the Existing Development Approvals and Subsequent Dev elopment Approvals, in accord with the Existing Land Use Regulations and applicable Subsequent Land Use Regulations, subject to the Reservations of Authority.
“Effective Date” means the date which is thirty (30) days following the second reading and adoption of the Enacting Ordinance.
“EIR” has the meaning ascribed to the term in Recital F. “Enacting Ordinance” has the meaning ascribed to the term in Recital D. “Existing Development Approvals” mean all Development Approvals approved or issued by City prior to or the same day as the second reading and adoption of the Enacting Ordinance, including the Development Approvals described in Recital G. “Existing Development Approvals” do not include the EIR.
“Existing Land Use Regulations” mean all Land Use Regulations in effect as of the second reading and adoption of the Enacting Ordinance.

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“General Plan” has the meaning ascribed to the term in Recital C. “Land Use Regulations ” mean all ordinances, re solutions, codes, rules, regulations and official written policies of the City and/or any subsidiary district of the City and/or any joint powers authority or council of governments of which the City is a member which affect, govern, or apply to land development and use of the Property, including those governing: the permitted use of land; the density or intensity of use; subdivision requirements; the maximum height and size of proposed buildings; development impact fees; design, improvement and constructio n standards applicable to the Development of the Property; and the reservation or dedication of land for public purposes, all as may be modified or supplemented pursuant to this Agreement. “Land Use Regulations” do not include any ordinance, resolution, c ode, rule, regulation or official policy governing: the conduct of businesses, professions, and occupations; taxes and assessments; the granting of encroachment permits and the conveyance of rights and interests that provide for the use of or the entry upon public property; or the exercise of the power of eminent domain. “Lot” means any legally subdivided lot of the Property which is intended for commercial or industrial uses.
“Minor Amendment” has the meaning ascribed to the term in Section 3.4.A. “Mitigation Monitoring and Reporting Program ” or “MMRP” means the mitigation monitoring and reporting program for assessing and ensuring compliance with required mitigation measures, which was approved by City Resolution No. ____-__, on ___________, 202 2 in conjunction with the City Council’s certification of the EIR. “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust, or any other security-device lender, and their successors and assigns. “Notice” has the meaning ascribed to the term in Section 2.8.A. “Parties” mean City and Developer, collectively.
“Party” means either City or Developer, individually.
“Permitted Delay” means delays in a Party’s performance due to: changes in local, state or federal laws or regulations (other than changes expressly permitted by this Development Agreement); strikes or the inability to obtain materials; delays caused by governmental agencies in issuing permits and approvals; a development moratorium (including, but not limited to, a water or sewer mor atorium) or the actions of other public agencies to prohibit Development of the Property; civil commotion, fire, acts of God, war, lockouts, riots, floods, earthquakes, epidemic, quarantine, freight embargoes, and/or failure of contractors to perform; any third-party court action to set aside or modify the Existing Development Approvals; or, other circumstances beyond a Party’s reasonable control and which substantially interfere with either Party ’s ability to perform its obligations under this Agreement. “Permitted Delays” do not include delays attributable to Developer’s inability to obtain funds or financing or due to changes in market conditions or demands, whether or not foreseeable as of the Effective Date.

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The period of a “Permitted Delay” will not commence to run until the date of the Notice by which the Party alleging the Permitted Delay informs the other Party of the existence of the Permitted Delay and the circumstances giving rise to it. The period of the Permitted Delay will end when the circumstances giving rise to the Permitted Delay are eliminated or mitigated. The Party alleging the Permitted Delay will exercise commercially reasonable efforts to eliminate or mitigate the circumstances giving rise to the Permitted Delay. “Person” means and refers to any association, corporation, governmental entity or agency, individual, joint venture, joint -stock company, limited liability company, partnership, trust, unincorporated organization, or other entity of any kind, including City and Developer. “Planning Commission” has the meaning ascribed to the term in Recital C. “Project” means the Development of the Property in accord with the Development Plan, as the Development Plan may be further defined, enhanced or modified in accordance with this Agreement.
“Property” means the real property described on Exhibit A and depicted on Exhibit B. “Reservations of Authority” mean the rights reserved to City under Section 3.5. “Site Plan” has the meaning ascribed to the term in Recital B. “Special District” has the meaning ascribed to the term in Section 5.1. “Subsequent Development Approvals” mean all Development Approvals approved by City subsequent to the Effective Date.
“Subsequent Land Use Regulations” mean all Land Use Regulations adopted and effective after the Effective Date.
“Term” has the meaning ascribed to the term in Section 2.2. and includes any extension authorized by Section 2.3.
“Transfer” has the meaning ascribed to the term in Section 2.4.A. “Transferee” has the meaning ascribed to the term in Section 2.4.A. “Transferor” has the meaning ascribed to the term in Section 2.4.A.

Other initially capitalized terms used in this Agreement but not otherwise set forth in Paragraph A, above, will have the meaning given to those terms where they first appear in this Agreement.

1.2 Exhibits. The following documents are attached to a part of this Agreement:

Exhibit A Legal Description of Property
Exhibit B Site Plan

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Exhibit C Benefitted Areas

2. GENERAL PROVISIONS.

2.1 Binding Effect of Agreement. The Property is made subject to this Agreement and the Development of the Property may be carried out in accordance with this Agreement. The benefits and burdens of th is Agreement touch and concern the Property and bind Developer and all future owners of all or any portion of the Property.

2.2 Term. The term (“Term”) of this Agreement will commence on the Effective Date and will expire on the twelfth (12th) anniversary of the Effective Date, unless terminated sooner by operation of some other provision of this Agreement or extended in accord with Section 2.3 or Section 9.2.

2.3 Extension of Term.

Upon Developer’s request made by Notice given no earlier than six (6) months, but no later than two (2) months, prior to expiration of the original Term, the Term of this Agreement will be extended for one (1) additional eight (8) year period beyond the original Term, so long as:
a. Developer is not, as of the giving of the Notice, in material uncured breach of this Agreement and is not in the process of curing said breach, as determined by City following a special review pursuant to Article 6, so long as City undertakes the special review on its own initiative and completes the special rev iew no later than six (6) months prior to expiration of the original Term; and,
i. Commencement of Construction has occurred on no less than fifty percent (50%) of the total enclosed square footage authorized by the Development Plan, as it may be modified by one (1) or more Subsequent Development Approvals. “Commencement of Construction” means the pouring and certification of building foundations.

Upon extension of the Term in accord with this Section 2.3, City will execute, in recordable form, any instrument which Developer may reasonably require to evidence the extension.

2.4 Assignment and Transfer.
a. Developer may sell, lease, license, hypothecate, transfer, or assign (any or all of the foregoing, individually and collectively, “Transfer”) the Property in whole or in part (provided that no partial Transfer may violate the Subdivision Map Act, Governmen t Code Section 66410, et seq .) to any Person at any time; provided that those Transfers described in Section 2.4.E will be subject to City ’s reasonable review and approval in accord with the procedures described in Section 2.4.E. As used in this Agreement , the term “Transferor” means the Person (including Developer) making the Transfer and the term “Transferee” means the Transfer recipient. No Transfer of any right or interest in this Agreement may be made unless made together with the Transfer of all or a part of the Property. b. Any voluntary subsequent Transfer after an initial Transfer may be made only in accordance with this Section 2.4.

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c. Upon a Transferor’s Transfer of the entirety of the Property (or the entirety of so much of the Property as then-owned by the Transferor), the Transferor will also assign to the Transferee all obligations arising under this Agreement which, as of the date of the Transfer, had not been previously assigned or satisfied, including obligations related to the Backbone Infrastructure. Concurrently with the Transfer, the Transferor will be fully and unconditionally released and dis charged from all obligations assigned to the Transferee, including assigned obligations related to the Backbone Infrastructure. Subject to force majeure and other approved delays, the Backbone Infrastructure shall be completed within three (3) years of the Effective Date of this Agreement.
d. Upon a Transferor’s Transfer of less than the entirety of the Property (or the entirety of so much of the Property as then -owned by the Transferor), such as if the Transferor Transfers individual parcels to end users, the Transferor may, but is not obligated to, assign to the Transferee some or all of the obligations arising under this Agreement attributable to the portion of the Property being Transferred and which, as of the date of the Transfer, had not been previously assigned or satisfied, including obligations related to the Backbone Infrastructure. Concurrently with the Transfer and City ’s approval of an assignment and assumption agreement if required under Section 2.4.E, the Transferor will be fully and unconditionally released and discharged from all obligations assigned to the Transferee, including assigned obligations related to the Backbone Infrastructure.
e. With respect to Transfers:
i. City may review and approve any Transfer which includes an assignment of the obligation to complete all or some portion of the Backbone Infrastructure. City’s approval may not be unreasonably withheld or delayed and must be based on the proposed Transferee’s financial capability and qualifications to complete the obligations assign ed to the Transferee. City’s approval or disapproval must be by Notice and must be given within forty-five (45) days after the Transferor submits Notice to City describing the proposed Transfer and the Transferee, which Notice must include reasonable documentation demonstrating the Transferee’s financial capability and qualifications to complete the obligations assigned to the Transferee and a copy of an assignment and assumption agreement executed by the Transferee by which the Transferee expressly and unconditionally assumes those obligations (if any) under this Agreement assigned to the Transferee to complete all or some portion of the Backbone Infrastructure in accord with Section 2.4.C or Section 2.4.D, as applicable. Any disapproval must state the re asons for disapproval with reasonable specificity. If City fails to provide Notice within the forty -five (45) day period, then City ’s approval will be deemed to be irrevocably given and the Transferor and the Transferee may rely on City ’s deemed approval. If City holds security given by the Transferor with respect to any obligations assigned to the Transferee, then the Transferee must provide City with replacement security reasonably acceptable to City. f. City will execute (in recordable form, if necessa ry) and deliver those releases, consents, and other instruments as may be requested by a Transferor, a Transferee, or any Mortgagee to evidence the assignments and releases described in this Section 2.4.

2.5 Voluntary Amendment or Cancellation of Agreement . T his Agreement may be voluntarily amended or cancelled in whole or in part only with the written consent of City and all

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Persons holding fee title to that portion of the Property to which the amendment or cancellation will apply. The amendment or cancellat ion process must comply with Government Code Section 65868. This Section 2.5 does not limit the operation of Government Code Section 65869.5.

2.6 Termination. This Agreement will automatically terminate upon the occurrence of any of the following events:
a. The expiration of the Term.
b. The entry of a final judgment setting aside, voiding or annulling the City Council’s adoption of the Enacting Ordinance.
c. The adoption of a referendum measure overriding or repealing the Enacting Ordinance.
d. The completion of the Project, as evidenced by the issuance of all required Certificates of Occupancy and the acceptance of all required public dedications.
e. Upon a Party ’s election to terminate this Agreement under Section 8.4 and Section 8.5. If the terminating Party under Section 8.5 does not own the entirety of the Property, then the termination will apply only to that portion of the Property owned by the terminating Party.

2.7 Representations and Warranties.
a. City represents and warrants to Developer, as follows:
i. City is a public body, corporate and politic. City is authorized to enter into this Agreement pursuant to Government Code Section 65864, et seq., and the execution and delivery of this Agreement by City has been fully authorized by all requisite actions on t he part of City.
ii. City’s execution and delivery of this Agreement and City ’s performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which City is a party or by which it is bound. iii. City has not received any notice of, or knows of any basis for, any actual or pending litigation or proceeding by any Person against City with respect to the Property or this Agreement.
b. Developer represents and warrants to City, as follows:
i. Developer is a duly organized corporation established within and in good standing under the laws of the State of California and is authorized to do business in the State of California. The execution and delivery of this Agreement by Developer has been fully authorized by all requisite actions on the part of Developer.

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ii. Developer is either the owner of fee simple title to the Property or has an equitable interest in the Property.
iii. Developer’s execution and delivery of this Agreement and Developer’s performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Developer is a party or by which it is bound.
iv. Developer is not the subject of bankruptcy or receivership proceedings and is not insolvent.
v. Developer has not received any notice of, or knows of any basis for, any actual or pending litigation or proceeding by any Person against Developer with respect to the Property or this Agreement.

2.8 Notices.
a. As used in this Agreement, the term “Notice” means any request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other required or permitted communication.
b. All Notices must be in writing and will be considered given:
i. When delivered in person to the recipient named below. ii. On the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope, postage prepaid, as either registered or certified mail, return receipt requested.
iii. On the date of delivery shown in the records of a reputable delivery service (e.g. UPS or Federal Express).
c. All Notices must be addressed as follows:

If to City:

City of Hesperia
9700 Seventh Avenue
Hesperia, CA 92345-3493
Attn: City Manager
If to Developer:

Main 395 Industrial LLC and Main
Hesperia LLC.
14180 Dallas Parkway, Suite 730
Dallas, TX 75254
Attn: Mark Milakovich

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with a copy to:

Aleshire & Wynder, LLP
18881 Von Karman Avenue, Suite
1700
Irvine, CA 92612
Attn: Eric L. Dunn
with a copy to:

Rutan & Tucker, LLP
18575 Jamboree Road, Suite 900
Irvine, CA 92612
Attn: John A. Ramirez
d. Either Party may, by Notice given at any time, require subsequent Notices to be given to another Person or to a different address, or both. Notices given before receipt of Notice of change of address will not be invalidated by the change. e. Transferees will be entitled to Notices sent by City which pertain to that portion of the Property owned by the Transferee only if the Transferee has complied with Section 2.4.D.

3. DEVELOPMENT OF THE PROPERTY.

3.1 Vested Right to Develop . Subject to the terms of this Agreement, Developer has the legally vested right to develop the Property in accordance with, and to extent of, the Development Plan, the Development Approvals, applicable Subsequent Development Approvals, applicable Subsequent Land Use Regulations, and this Agreement.

3.2 Effect of Agreement on Land Use Regulations; Development Exactions; Development Plan; Submittal of Subsequent Development Approvals. a. Except as otherwise provided under the terms of this Agreement, including the Reservations of Authority, the rules, regulations, and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to the Development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, City will exercise its discre tion in accordance with the Development Plan and this Agreement, including, but not limited to, the Reservations of Authority.
b. The Development Plan for the Project may require the processing of Subsequent Development Approvals. The City will accept for pr ocessing, review and action all applications for Subsequent Development Approvals, and such applications will be processed in the normal manner for processing such matters in accordance with the Existing Land Use Regulations. The Parties acknowledge that City is not obligated in any manner to approve any Subsequent Development Approval, or to approve any Subsequent Development Approval with or without any particular condition, except that City ’s actions concerning Subsequent Development Approvals must be c onsistent with the Development Plan and Existing Land Use Regulations, subject to the Reservations of Authority. Unless otherwise requested by Developer, City may not amend or rescind any Subsequent Development Approvals applicable to the Property after those Approvals have been granted by the City. Processing of Subsequent Development Approvals or changes in the Development Approvals or Development Plan made pursuant to Developer’s application will not require an amendment to this Agreement; however, upo n their

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approval by the City, all Subsequent Development Approvals or changes in the Development Approvals or Development Plan will be subject to and covered by this Agreement.

3.3 Timing of Development; Public Improvements Phasing. a. Nothing in this Agreement is a covenant to develop or construct the Project.

The Parties acknowledge that Developer cannot predict if, when, or the rate at which phases of the Project will be developed. The California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, that the failure of the litigants in that case to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over the litigants ’ agreement. The Parties intend to cure that deficiency by providing that Developer has the right to develop the Project, or not development the project, in the order, at the rate, and at the times that Developer, in its sole and absolute discretion, determines to be appropriate, subject only to any Development Plan timing or phasing requirements. b. Required public improvements may be tied to certain phases of the Project.

The schedule for provision of these improvements, as they relate to a particular phase, will be governed by the Existing Development Approvals, Subsequent Development Approvals, the EIR, the MMRP, and this Agreement. Subject to force maje ure and other approved delays, the Backbone Infrastructure shall be completed within three (3) years of the Effective Date of this Agreement. If the City intends on permitting and developing a regional storm drainage solution, and the system has the c apacity to serve the Project, City will allow the Project to utilize such system in lieu of an on-site detention system.

3.4 Changes and Amendments to Existing or Subsequent Development Approvals. a. The Parties acknowledge that the passage of time may demonstrate t hat changes to the Existing or Subsequent Development Approvals may be necessary or appropriate.

If the Parties determine that changes are necessary or appropriate, such changes may be made by mutual consent of the Parties in accord with Government Code S ection 65868, and may be approved on behalf of City as follows:
i. By the City Manager or designee ( “City Manager”) in the case of minor changes which would qualify as a “Minor Amendment ” under Municipal Code Section 16.12.130 or 405, as determined by the Cit y Attorney, and in any other case where the City Manager is authorized by this Agreement to act.
ii. By the City Council in the case of any other changes not subject to paragraph (1), above, or if otherwise legally required. iii. The City Manager and City Attorney will determine whether a proposed change is subject to approval by the City Manager or the City Council, as the case may be. The City Manager and City Attorney may also authorize the execution of an operating memorandum to effectuate minor clarifications and changes to this Agreement or the Existing Approvals. Such operating memorandum shall not require City Council approval.

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iv. No modification, amendment or other change to this Agreement will be effective for any purpose unless specifically set forth in a writing that refers expressly to this Agreement and is signed by both Parties’ authorized representatives.

3.5 Reservations of Authority.
a. Any contrary provision in this Agreement notwithstanding, the following Subsequent Land Use Regulations will apply to the Project:
i. Processing fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Subsequent Development Approvals or for monitoring compliance with any Subsequent Development Approvals granted or issued.
ii. Regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other procedural matter.
iii. Regulations governing construction standards and specifications, including City’s Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code, including fees thereunder, which are applied uniformly to all similar development projects within in City.
iv. Regulations which do not conflict with the Development Plan or this Agreement. To the greatest extent possible, these regulations must be applied and construed to provide Developer with all of the rights and assurances provided under this Agreement. For all purposes pursuant to this Agreement g enerally, and this paragraph (4) specifically, an ordinance, resolution, initiative, referendum, moratorium or other regulation will be deemed to conflict with the Development Plan and this Agreement if the ordinance, resolution, initiative, referendum, or regulation seeks to, whether as part of a specific or general enactment that applies to the Property or Project: (i) limit or reduce the density, intensity, height or size of structures or type of development on the Property; (ii) regulate the timing or sequencing of the development of the Property in any manner; (iii) require any additional on-site or off-site improvements not required by the applicable Land Use Regulations or Development Approvals to be constructed or paid for by Developer or a subsequent owner of the Property; or (iv) restricting the use of the Property in any manner or degree other than as set forth in the applicable Land Use Regulations and Development Approvals.
v. Regulations that conflict with the Development Plan if Developer has given its written consent to those regulations.
vi. Federal, State, County, and multi-jurisdictional laws and regulations which City is required to enforce against the Property or the Development of the Property. vii. Subsequent Land Use Regulations applicable to loca l or regional Development Impact Fees.

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The Parties acknowledge that City is restricted in its authority to limit its police powers by contract.

This Agreement will be construed, contrary to its stated terms if necessary, to reserve to City all those police powers that cannot be restricted by contract.

3.6 Subsequent Development Approvals.
a. When acting on Subsequent Development Approvals, City may apply only the Existing Land Use Regulations and those Subsequent Land Use Regulations that are permitted under the Reservations of Authority. Any Subsequent Development Approval will be automatically vested under this Agreement.
b. Upon Developer ’s request, City will accept and diligently process applications for Subsequent Development Approvals. City will exercise reas onable good faith efforts to expedite the processing of the Subsequent Development Approvals applications to ensure that those applications are promptly considered by the approving authority. City will ensure that all applications are processed and considered within the timing requirements of all applicable law, including the Permit Streamlining Act (Govt. Code § 65920, et seq.).

3.7 Modification or Suspension by State or Federal Law . If a State or Federal law or regulation which is enacted after the Effectiv e Date prevents the Parties’ compliance with any of this Agreement’s provisions, then that provision will be modified or suspended to the extent and for the time necessary to achieve compliance with the conflicting State or Federal law. This Agreement’s r emaining provisions will continue unaffected. The Parties will amend this Agreement to preserve, to the greatest extent possible, the benefits that would arise to the Parties under this Agreement but for the conflicting State or Federal law. Upon the rep eal of the conflicting State or Federal law or upon the occurrence of any circumstance that removes their effect upon this Agreement, this Agreement ’s provisions will be automatically restored to their full original form and any amendment that the Parties may have entered into under this Section 3.7 will terminate.

3.8 Future Use of EIR. The Parties understand that the EIR is intended to be used in connection with each of the Existing Development Approvals and Subsequent Development Approvals needed for the Project. City agrees to use the EIR in connection with the processing of any Subsequent Development Approval, except as may be otherwise required by the Reservations of Authority or state or federal law, including CEQA.

3.9 Third Party Permits and Approvals and Utilities.
a. The Parties acknowledge that this Agreement does not bind any governmental agency other than City and its related or subordinate boards, commissions, and entities. City will use reasonable good faith efforts to assist Developer in obtaining all permits and approvals, at no cost to City, which are necessary for the Project, including permits, approvals and rights of way which are required for the installation of public improvements, driveways and utility connections, and utility services such as electrical, gas, water, sewer, storm drain, telephone and cable television.
b. The Parties acknowledge that, in connection with the installation of utility facilities which will be owned by private utility companies, it may lower the overall cost of the

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utility installation for it to be constructed by City. Upon Developer ’s request, City agrees to reasonably consider undertaking construction of the private utility company project, so long as Developer bears City’s entire direct and indirect cost of the same.

4. PUBLIC BENEFITS.

4.1 Development Impact Fees.
a. City has adopted a Development Impact Fee program designed to offset the costs of mitigating environmental and other impacts caused by development upon public facilities and improvements. The Development Impact Fees which will be applicable to the Project shall be those existing at the time of development. Development Impact Fees shall be paid at such time as payment of such fees are due and payable in accordance with the Land Use Regulations in effect at the time of development as set forth in City fee ordinances or resolutions or policies, for the portion of the Property to which such fees apply. This Section shall not preclude City from adopting any new development impact fees in the future applicable to the Property or to other Development in the City.
b. Paragraph a, above, notwithstanding, City is commencing a review of its Development Impact Fee program to include separate components for commercial, residential, and different types of indus trial projects. As a public benefit, Developer shall make a one -time payment of five hundred thousand dollars ($500,000.00) to the City within 30 (thirty) days of the issuance of the first grading permit for the Project.
c. Nothing in this Section 4.1 will limit the right of any other local, regional, state, or federal agency or district to impose upon the Project otherwise lawful fees, including non- City fees imposed by such agencies or districts and collected by City for the benefit of such agencies or district.

4.2 Credit for Construction . The Parties acknowledge and agree that in accordance with policies adopted from time to time by City, Developer may be entitled to a credit and/or reimbursement to offset Developer ’s Development Impact Fee obligatio n, as d etermined by the city. Developer acknowledges that only the off-site water and sewer improvements that are beyond the limits of the Project frontage will be eligible for credit/reimbursement. The portion of the water and sewer improvements along the frontage of Phelan Road is not eligible. Further, the new public street (Caliente Road) and improvements to Yucca Terrace Drive are not eligible.

4.3 Fair Share Reimbursement for Offsite Improvements . The Parties acknowledge and agree that the Development Approvals require Developer to construct offsite public improvements (“Project Offsite Public Improvements”) that exceed Developer’s fair share obligation and that will benefit future third party developers. Project Offsite Public Improvements consist of water, sewer and street facilities to the Benefitted Area. City shall endeavor to impose a condition of approval on any and all future developments that benefit from the Project Offsite Public Improvements (“Benefited Development”) that requir es the developer of the Benefited Development to enter into a reimbursement agreement with Developer to pay their fair share of the Project Offsite Public Improvements to Developer (“Fair Share Obligation”). The Benefited Area is shown in Exhibit C. The reimbursement agreement shall require t he developer of the

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Benefited Development to pay its Fair Share Obligation directly to Developer prior to the issuance of the grading permit, or as otherwise agreed upon between Developer and the developer of the Benefited Development. City’s obligation under this Section 4.3 shall expire ten (10) years following the Effective Date.

5. PUBLIC FINANCING.

5.1 Financing. Upon either Party’s written request, the Parties will meet and confer in good faith for the purposes of dis cussing the formation of a financing mechanism, including but not limited to a special assessment district, community facilities district, or alternate financing mechanism (collectively, a “Special District”) to pay for the construction or maintenance of those public improvements required by the Development Plan. If a Special District is formed, Developer will be reimbursed from the proceeds of any debt financing issued by the Special District to the extent that Developer spends funds for the construction and/or maintenance and operation of qualified public improvements , as determined by City . Tax rates or assessments of the Special District may not exceed City’s then-current policies regarding public financing districts.

This Section 5.1 is not a commitment by City to adopt a resolution of formation to form a Special District or to approve Special District debt financing. Developer acknowledges that the adoption and approval of a resolution of formation is a legislative act within City’s unencumbered discretion. However, if City proceeds to approve a Special District, then Developer shall annex into the Special District upon the creation of the Special District.

6. REVIEW FOR COMPLIANCE.

6.1 Periodic Review.
a. The City Manager will review this Agreement annuall y, on or before each anniversary of the Effective Date, as required by California Government Code Section 65865.1.

The purpose of the review will be to ascertain Developer ’s good faith compliance with the terms of this Agreement. Developer will submit an annual monitoring report ( “Annual Monitoring Report”), in a form prepared and approved by the City Manager within thirty (30) days after the City Manager’s written request. The Annual Monitoring Report must be accompanied by the then- current annual review and administration fee set by the City Council, which may not exceed the City’s actual costs of reviewing Developer’s compliance with the terms of this Agreement. b. The City Council may order a special review of Developer ’s compliance with this Agreement at any time. The City Manager will conduct the special review, which will be conducted at City’s sole expense.

6.2 Procedure.
a. During either a periodic review or a special review, Developer will be required to demonstrate good faith compliance with this Agreement. b. Upon completion of a periodic review or a special review, the City Manager will submit a report to the City Council setting forth the City Manager ’s conclusions concerning Developer’s good faith compliance with this Agreement.

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c. If the City Council finds that Developer has complied in good faith with this Agreement, then the review will be concluded.
d. If the City Council makes a preliminary finding that Developer has not complied in good faith with this Agreement, then, following Notice and oppo rtunity to cure as provided under Section 8.4, the City Council may modify or terminate this Agreement in accordance with Section 6.4 and Section 6.5.

6.3 No Waiver. Failure of City to conduct an annual review will not constitute a waiver by City of its rights to otherwise enforce the provisions of this Agreement nor will Developer have or assert any defense to such enforcement by reason of any such failure to conduct any annual review(s).

6.4 Proceedings for Modification or Termination.
a. If Developer fails to cure, or to commence to cure, as applicable, the matters constituting the basis for the City Council ’s preliminary finding under Section 6.2.D as required by Section 8.4, then City may proceed to modify or terminate this Agreement following the procedures set forth in this Section 6.4 and in Section 6.5. City must hold a noticed public hearing concerning the modification or termination and provide Developer with Notice of the hearing. The Notice must include the following:
i. The time and the place of hearing, which must be no less than thirty (30) days following the date of the Notice;
ii. The specific action, whether amendment or termination, which City proposes to take; and
iii. Such other information as is reasonably necessary to inform Developer of the nature of the proceeding and the facts supporting City’s preliminary finding under Section 6.2.D.

6.5 Hearing on Modification or Termination . At the time and place set for the public hearing described in Section 6.4, Developer must be given an opportunity to be heard and present witnesses and evidence on its behalf. If, following the conclusion of the public hearing, the City Council finds, based upon substantial evidence in the record of the public hearing, that Developer has not complied in good faith with this Agreement, then the City Council may terminate or modify this Agreement and impose any conditions it determines as are reasonably necessary to protect City’s interests. The City Council’s decision will be administratively final and subject to judicial review under Code of Civil Procedure Section 1094.5.

6.6 Certificate of Agreement Compliance. If, at the conclusion of a special or periodic review, Developer is found to be in compliance with this Agreement, then, upon Developer ’s written request, City will issue a “Certificate of Agreement Compliance ” (“Certificate”) to Developer stating that, after the most recent periodic or special review, this Agreement remains in effect and Developer is not in default of this Agreement. The Certificate must be in recordable form, contain information necessary to communicate constructive record notice of the finding of compliance, state whether the Certificate is issued after a periodic or special review, and state the

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anticipated date of the next periodic review. Developer may record the Certificate with the San Bernardino County Recorder.

6.7 No Cross-Defaults. City acknowledges that Developer may Transfer all or portions of the Property to other Persons in accordance with Section 2.4. City f urther acknowledges that title to all or portions of the Property may become vested in Mortgagees or a Mortgagee’s successor as a result of foreclosure, or the acceptance of a deed in lieu of foreclosure, by a Mortgagee. City agrees that defaults under th is Agreement by an owner of a portion of the Property will not be a default as to any other portion of the Property. In other words, a default by Developer with respect to its obligations pertaining to that portion of the Property retained by Developer fo llowing a Transfer will not constitute a default as to any Person other than Developer or permit City to exercise any remedy under this Agreement or otherwise with respect to any other portion of the Property other than that portion owned by Developer. Si milarly, a default by a Transferee with respect to its obligations pertaining to the portion of the Property owned by that Transferee will not constitute Developer’s default or permit City to exercise any remedy under this Agreement or otherwise as to any portion of the Property other than the portion owned by the defaulting Transferee. City agrees that, if more than one Person holds title to the Property, then the rights and obligations of the Persons holding title to the Property are the distinct and several obligations of each Person.

7. INTENTIONALLY OMITTED.

8. DEFAULT AND REMEDIES.

8.1 Remedies in General.
a. The Parties acknowledge that neither Party would have entered into this Agreement if it were to be liable for monetary damages under this Agreement. In gene ral, and subject to those procedural prerequisites required under the Development Agreement Law or this Agreement, each of the Parties may pursue any remedy at law or equity available for the breach of this Agreement, except that neither Party will be liable in monetary damages (other than attorneys’ fees under Section 12.20) to the other Party, or to any successor in interest of that Party, or to any other Person. Each Party covenants not to sue for monetary damages or claim any monetary damages related to any of the following:
i. Any breach of this Agreement or for any cause of action that arises out of this Agreement; or
ii. Any taking, impairment or restriction of any right or interest arising under this Agreement; or
iii. Any dispute regarding the application or interpretation of this Agreement.

8.2 Specific Performance.

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a. The Parties acknowledge that specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of this Agreement for the following reasons:
i. Money damages are unavailable against the Parties.
ii. Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once Developer has begun to implement this Agreement. After such time, Developer may be precluded from other options it may have had with regard to the Property. Moreover, Developer has invested significant time and resources in the planning and processing of the Project. Developer will be investing even more time and resources in implemen ting the Project in reliance upon this Agreement and it is not possible to determine the sum of money that would adequately compensate Developer if City were to breach its obligations.

8.3 Release. Except for the right to recover attorneys ’ fees under Section 12.20, Developer, for itself, its successors and assignees, releases City, its officials, officers, agents and employees from any and all monetary claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, any claim or liability based upon Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance that seeks to impose any monetary liability whatsoever u pon City because it entered into this Agreement or because of the terms of this Agreement.

8.4 City’s Termination of Agreement or Exercise of Other Remedies Upon Developer’s Default. Subject to compliance with Sections 6.4 and 6.5, City may terminate or modify this Agreement upon Developer ’s failure to perform any material duty or obligation under this Agreement. City may terminate or modify this Agreement or exercise its other remedies only after providing Notice of default to Developer setting forth th e nature of the default and the actions, if any, required to cure the default and only if Developer has failed to take the actions and materially cure the default within sixty (60) days after its receipt of the Notice. If a default is of a type that cannot be cured within sixty (60) days but can be cured within a longer time, then Developer must within sixty (60) days commence the actions necessary to cure the default and thereafter diligently proceed to cure the default.

8.5 Developer’s Termination of Agreement or Exercise of Other Remedies Upon City’s Default. Developer may terminate this Agreement or exercise its other remedies upon City ’s failure to perform any material duty or obligation under this Agreement. Developer may terminate this Agreement or exercise its other remedies only after providing Notice of default to City setting forth the nature of the default and the actions, if any, required by City to cure the default and only if City has failed to take such actions and materially cure the default w ithin sixty (60) days after its receipt of the Notice. If a default is of a type that cannot be cured within sixty (60) days but can be cured within a longer time, then City must within sixty (60) days commence the actions necessary to cure the default and thereafter diligently proceed to cure the default.

8.6 Informal Resolution . During the administration and implementation of this Agreement, the Parties recognize that good faith disagreements may arise between City staff and

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Developer. In the event that a dispute arises, the Parties will meet and confer in a good -faith attempt to resolve the dispute.

9. THIRD PARTY LITIGATION.

9.1 Defense of Third Party Litigation. City shall promptly notify Developer in writing of any claim, action or proceeding filed and served against City to challenge, set aside, void, annul, limit or restrict the approval and continued implementation and enforcement of this Agreement, including but not limited to challenges of the environmental review of the Project and this Agreement conducted pursuant to the California Environmental Quality Act. Developer and City agree to use good faith, commercially reasonable efforts to confer and cooperate with one another with respect to such third party litigation. Developer shall defend (with legal counsel of Developer’s selection, reasonably acceptable to City), indemnify and hold harmless City, its agents, officers and employees from any such claim, action or proceeding, and shall indemnify City for all costs of defense and/or judgment obtained in any such action or proceeding; provided, however, if Developer elects, in its sole discretion, not to defend the action (preferring to either allow judgment to be entered or to enter into a settlement with plaintiff(s) which declares this Agreement to be v oid, annulled, or which limits or restricts this Agreement), Developer shall so notify City in writing and City shall then have the option, in its sole discretion, of defending the action at its cost. In the event this Agreement, as a result of a third pa rty challenge, is voided or annulled, or is limited or restricted such a manner that the intent and purposes of this Agreement cannot be implemented as mutually desired by the parties hereto, this Agreement shall terminate and be of no further force or eff ect as of the date such judgment or settlement so voids, annuls, limits, or restricts the intent and purpose of this Agreement.

9.2 Extension of Term. Anything in this Agreement to the contrary notwithstanding, the Term (and any extension thereof under Section 2.3) will automatically be extended by the number of days in the period commencing on the date of filing of any claim, action, or proceeding of the type described in Section 9.1 and ending on the date that the claim, action, or proceeding is either settled or fully and finally resolved in City ’s and Developer ’s favor, as evidenced by the expiration of all appeal periods with no further appeal being filed or the issuance of a full, final, and non-appealable judgment or decision. City will execute, in reco rdable form, any instrument which Developer may reasonably require to evidence the extension.

10. MORTGAGEES.

10.1 Mortgagee Protection.
a. This Agreement does not prevent or limit Developer, in its sole discretion, from encumbering the Property or any portion or any improvement thereon with any mortgage, deed of trust or other security device. City acknowledges that a Mortgagee may require Agreement interpretations and modifications. City will meet with Developer and the Mortgagee ’s representatives to negotiate in g ood faith with regard to any requested interpretation or modification. City may not unreasonably withhold its consent to any requested interpretation or modification. All Mortgagees will be entitled to the following rights and privileges:

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i. Developer’s bre ach of this Agreement will not defeat, render invalid, diminish or impair the lien of any mortgage made in good faith and for value. ii. Upon a Mortgagee’s written request, City will provide a copy of any Notice of default given to Developer concurrently with the Notice to Developer. The Mortgagee will have the right, but not the obligation, to cure the default within any remaining cure period allowed Developer under this Agreement.
iii. Any Mortgagee who comes into possession of the Property or any portion of it pursuant to foreclosure of the Mortgagee’s security instrument or its acceptance of a deed in lieu of foreclosure will take the Property or portion subject to this Agreement. Any other provision of this Agreement to the contrary notwithstanding, no Mortga gee will have any obligation to perform any of Developer’s obligations or to guarantee their performance. However, if any of Developer’s obligations are conditions precedent to City’s obligations, then Developer’s obligations will continue to be conditions precedent to City’s performance of its obligations.

11. INSURANCE; INDEMNIFICATION.

11.1 Insurance.
a. Types of Insurance.
i. Public Liability Insurance . Prior to commencement and until completion of construction by Developer on the Property, Developer shall at its so le cost and expense keep or cause to be kept in force for the mutual benefit of City and Developer broad form commercial general public liability insurance against claims and liability for personal injury or death arising from the use, occupancy, disuse or condition of the Property, improvements or adjoining areas or ways, affected by such use of the Property or for property damage, providing protection of a least Five Million Dollars ($5,000,000) per occurrence for bodily injury, death or property damage c ombined for any one accident or occurrence, which limits shall be subject to reasonable increases in amount as City may reasonably require from time to time. ii. Builder’s Risk Insurance . Prior to commencement and until completion of construction by Developer on the Property, Developer shall procure and shall maintain in force, or caused to be maintained in force, “all risks” builder’s risk insurance including vandalism and malicious mischief, covering improvements in place and all material and equipment at th e job site furnished under contract, but excluding contractor ’s, subcontractor ’s, and construction manager ’s tools and equipment and property owned by contractor ’s or subcontractor’s employees, with the replacement cost value of the Project, or on a projec t by project basis.
iii. Worker’s Compensation. Developer shall also furnish or cause to be furnished to City evidence reasonably satisfactory to it that any contractor with whom Developer has contracted for the performance of any work for which Developer is r esponsible hereunder carries workers’ compensation insurance as required by law. iv. Other Insurance . Developer may procure and maintain any insurance not required by this Agreement, but all such insurance shall be subject to all of the

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provisions hereof pert aining to insurance and shall be for the benefit of City (to the extent applicable) and Developer.
v. Insurance Policy Form, Sufficiency, Content and Insurer . All insurance required by express provisions hereof shall be carried only by responsible insurance companies licensed and admitted to do business by California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VIII or better, unless waived by City. All such policies shall be nonassessable and shall contain language, to the extent obtainable, to the effect that (i) any loss shall be payable notwithstanding any act of negligence (excepting willful and intentional violations of law) of City or Developer that might otherwise result in the forfeiture of the in surance, (ii) the insurer waives the right of subrogation against City and against City’s agents and representatives; (iii) the policies are primary and noncontributing with any insurance that may be carried by City; and (iv) the policies cannot be canceled or materially changed except after thirty (30) days’ written notice by the insurer to City or City’s designated representative. Developer shall furnish City with copies of all such policies promptly on receipt of them or with certificates evidencing the insurance. City shall be named as an additional insured or loss payee on all policies of insurance (other than Workers’ Compensation) required to be procured by the terms of this Agreement. The City’s Risk Manager acknowledges and agrees that the insura nce requirements above have been established based on anticipated use, activities, and conditions of the Property. In the event the City’s Risk Manager reasonably determines that a new or unreasonable use, activity, or condition of the Property, improveme nts or adjoining areas or ways, affected by such use of the Property under this Agreement creates an increased or decreased risk of loss to the City than what the Parties hereby acknowledge to be duly satisfied by the insurance requirements above, Develope r agrees that the minimum limits of the insurance policies required by this Section 11.1 may be changed accordingly upon receipt of written notice from the City’s Risk Manager; provided that Developer shall have the right to appeal a determination of incre ased coverage to the City Manager of City within twenty (20) days of receipt of notice from the City’s Risk Manager. vi. Failure to Maintain Insurance and Proof of Compliance. Developer shall deliver to City, in the manner required for notices, copies of cert ificates of all insurance policies required hereunder together with evidence satisfactory to City of payment required for procurement and maintenance of each policy within the following time limits:
(A) For insurance required above, within thirty (30 days) aft er the Effective Date.
(B) For any renewal or replacement of a policy already in existence, at least ten (10) days before the expiration or replacement of the existing policy. (C) If Developer fails or refuses to procure or maintain insurance as required hereby or fails or refuses to furnish City with required proof that that insurance has been procured and is in force and paid for, such failure or refusal shall be a default hereunder.

11.2 Indemnification.

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a. General. Each Party shall indemnify the other Party and its of ficers, employees, and agents against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions, or liabilities (herein “claims or liabilities”) that may be asserted or claimed by any person, firm, or entity arising out of or in connection with the work, operations, or activities by any or all of the indemnifying Party or its agents, employees, or contractors (including subcontractors), upon the Property and relating to this Agreement; i. The indemnifying Party will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including reasonable legal costs and attorneys’ fees incurred in connection therewith. ii. The indemnifying Party will promptly pay any judgment rendered against the indemnified Party or its officers, agents, or employees for any such claims or liabilities arising out of or in connection with its foregoing indemnity and will save and hold the indemnified Party, its officers, agents, and employees harmless from any failure to so pay any such judgment. iii. In the event the indemnified Party, its officers, agents, or employees is made a party to the action or proc eeding filed or prosecuted against for such damages or other claims arising out of or in connection with the work, operations, or activities of the indemnifying Party under this Agreement, the indemnifying Party agrees to pay the indemnified Party, its officers, agents, or employees any and all reasonable out -of-pocket costs and expenses actually incurred by the indemnified Party, its officers, agents, or employees in such action or proceeding, including by not limited to reasonable legal costs and attorneys’ fees. b. Exceptions. The indemnities and releases of this Section 11.2 shall not include claims or liabilities to the extent and degree arising from the negligence or willful misconduct of any or all of the indemnified Party and its officers, agents and employees. c. Loss and Damage . Except as otherwise set forth in this Agreement, City shall not be liable for any damage to property of Developer or of others located on the Property, nor for the loss of or damage to any property of Developer or of others by t heft or otherwise.

Except as otherwise set forth in this Agreement, City shall not be liable for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the Prope rty or from the pipes or plumbing, or from the street, or from any environmental or soil contamination or hazard, or from any other latent or patent defect in the soil, subsurface or physical condition of the Property, or by any other cause of whatsoever nature. d. Period of Indemnification . The obligations for indemnity under this Section 11.2 shall begin upon the Effective Date and shall terminate upon termination of this Agreement, provided that indemnification shall apply to all claims or liabilities arising during that period even if asserted at any time thereafter. In all events, however, these indemnity obligations shall expire on the fifth (5th) anniversary of the termination date of this Agreement, except that the indemnities shall survive beyond that date with respect to any claims pending at the expiration date for which timely and proper submission has occurred pursuant to the applicable indemnity provisions.

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e. Waiver of Subrogation. Each Party agrees that it shall not make any claim against, or seek to recover from other Party or its agents, servants, or employees, for any loss or damage to the Party or to any person or property, except as specifically provided hereunder and each Party shall give notice to any insurance carrier of the foregoing waiv er of subrogation, and obtain from such carrier, a waiver of right to recovery against the other Party, its agents and employees.

12. MISCELLANEOUS PROVISIONS.

12.1 Recordation of Agreement . This Agreement and any amendment or cancellation of it will be recorded with the San Bernardino County Recorder by City Clerk in accordance with Government Code Section 65868.5.

12.2 Entire Agreement . This Agreement contains the entire understanding and agreement of the Parties. There are no oral or written representations, understandings or ancillary covenants, undertakings or agreements that are not contained or expressly referred to in this Agreement. Parole evidence will not be admissible to interpret this Agreement.

12.3 Estoppel Certificates. Within ten (10) days following a Party’s written request, and at no cost to the requesting Party, the other Party will certify in writing that, to its knowledge:
a. This Agreement is in full force and effect and is binding upon the certifying Party.
b. This Agreement has not been amended or modified, except as expressly described in the estoppel certificate.
c. The requesting Party is not in default of its obligations under this Agreement, and that there have been no events that with the passage of time, the giving of notice, or both, would constitute the requesting Party’s default under this Agreement, except as expressly described in the estoppel certificate.

12.4 Severability. Every provision of this Agreement is a separate and independent covenant. If any provision is, or the application of the provision in certain circumstances is, to any extent, found to be invalid or unenforceable for any reason whatsoever, then the remainder of this Agreement, or the application of that provision to circumstances other than those to which it is invalid or unenforceable, will not be affected. The Parties will negotiate in good faith any amendments or operating memoranda necessary to cure any invalidity or unenforceability.

12.5 Interpretation and Governing Law. This Agreement and any dispute concerning it will be governed and interpreted in accordance with California’s procedural and substantive laws, without regard to its conflicts of laws principles. This Agreement will be construed as a whole according to its fair language and common meaning. The rule of construction that ambiguities in a document are to be resolved against the drafting party may not be employed in interpreting this Agreement. Each Party acknowledges that it was represented by counsel in this Agreement ’s negotiation and preparation.

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12.6 Section Headings. All section headings and subheadings are inserted for convenience only and do not affect this Agreement’s construction or interpretation.

12.7 Singular and Plural. The singular of any word includes the plural.

12.8 Including. Unless the context requires otherwise, the term “including” means “including, but not limited to.”

12.9 Time of Essence. Time is of the essence as to the performance of any obligation as to which time is an element.

12.10 Calendar Periods. All references to “years”, “quarters”, “months” and “days” are references to calendar years, quarters, months and days.

12.11 Waiver. A Party ’s failure on any one or more occasions to insist upon strict compliance by the other Party, or a Party ’s failure on any one or more occasions to exercise its rights upon the other Party ’s default, is not a waiver of that Party ’s right to demand strict compliance by the other Party on any future occasion.

12.12 No Third Party Beneficiaries. This Agreement is entered into for the sole protection and benefit of the Parties and their successors and assigns. Except as provided in Section 9, no other person or entity has any right of action based upon this Agreement.

12.13 Permitted Delays. Neither Party will be in default of an obliga tion if that Party ’s inability to perform or delay in performing that obligation is caused a Permitted Delay.

12.14 Successors in Interest. The burdens of this Agreement are binding upon, and the benefits of this Agreement inure to, the Parties ’ permitted successors in interest. All provisions are enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act with regard to the Development of the Property:
a. Is for the benefit of and is a burden upon all portions of the Property. b. Runs with the Property and all portions.
c. Is binding upon each Party and its successors in interest during the term of that Party’s or its successors’ ownership of the Property or any portion.

12.15 Counterparts. This Ag reement will be executed in three (3) counterparts, which will be construed together and have the same effect as if the Parties had executed the same instrument.

12.16 Jurisdiction and Venue. All legal actions and proceedings to enforce or interpret this Agreement must be filed and tried in San Bernardino County Superior Court or other legally appropriate court and venue.

12.17 Project as a Private Undertaking. The Project is a private development and neither Party is acting as the agent of the other in any respect. Each Party is an independent contracting

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entity with respect to this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Developer is that of a government entity regulating the development of private property by a private party.

12.18 Further Actions and Instruments . Each Party must cooperate with the other and provide reasonable assistance to the other in the performance of the other Party ’s obligations.

Upon a Party ’s request, the other Party must promptly execute (with notary acknowledgment if required) those instruments, and take any reasonable actions, necessary to evidence or consummate the transactions expressly described, or which are a logical extension of the transactions described, in this Agreement.

12.19 Eminent Domain . No provision of this Agreement expands, limits, or restricts City’s exercise of its eminent domain powers.

12.20 Attorneys’ Fees. If either Party files any action or brings any action or proceeding against the other pertaining to the interpretation or enforcement of this Agreement, then the prevailing Party will recover as an element of its costs of suit and not as damages its costs of suit, expert fees, consultant costs, and reasonable attorneys’ fees as fixed by the Court.

12.21 Authority to Execute. Each natural person executing this Agreement on behalf of a Party represents that he or she has the authority to execute this Agreement on behalf of that Party and that he or she has the authority to bind that Party to this Agreement. [Signature pages follow]

1032/035592-0008
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SIGNATURE PAGE
TO

HESPERIA COMMERCE CENTER DEVELOPMENT AGREEMENT

“CITY”

CITY OF HESPERIA,
a California general law city and municipal
corporation
By:

Its:

Name:

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SIGNATURE PAGE
TO

HESPERIA COMMERCE CENTER DEVELOPMENT AGREEMENT

“DEVELOPER”
Main 395 Industrial, LL,
a California corporation
By:

Its:

Name:

Main Hesperia, LL,
a California corporation
By:

Its:

Name:

1032/035592-0008
17551736.1 a05/04/22

EXHIBIT A
-1-
01071.0005/782085.1

EXHIBIT A
TO

HESPERIA COMMERCE CENTER II DEVELOPMENT AGREEMENT
Legal Description of Property

1032/035592-0008
17551736.1 a05/04/22

EXHIBIT C
-1-
01071.0005/782085.1

EXHIBIT B
TO

HESPERIA COMMERCE CENTER II DEVELOPMENT AGREEMENT
Site Plan

BLDG. 3
PAD ELEV: VARIES

LOS ANGELES BUREAU OF POWER

YUCCA TERRACE DR

PHELAN RD

PHELAN RD

NEW PUBLIC ST
BLDG. 2A FUTURE EXPANSION
PAD ELEV: 3575.00
BLDG. 2
PAD ELEV: 3575.00
BLDG. 1
PAD ELEV: 3566.75 BLDG. 1
PAD ELEV: 3566.75

DETENTION
BASIN

DETENTION
BASIN
HIGHWAY ROUTE 395

SULTANA ST
HIGHWAY 395

LOS BANOS
AVE

CITY OF HESPERIA

HESPERIA COMMERCE CENTER II

SITE PLAN EXHIBIT

PROJECTLOCATION

VICINITY MAP
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ACREAGE
1 PARCEL #

NET PARCEL ACREAGE

75.08 312.77
TOTAL187.91
259.90

ACREAGE
A
PARCEL #

GROSS PARCEL ACREAGE

26.58 C13.47
TOTAL194.72
B76.14
D78.53

AVERAGE LOT SIZE

46.98 AC
2A40.16

HYDROLOGY SUMMARY

DRAINAGE
AREA No.

TRIBUTARY

AREA (AC)

IMPERVIOUS
RATIO
DESIGN

CAPTURE

VOLUME (CFT)
V100 (CF)
TOTAL

RETENTION

VOLUME (CF)
TOTAL

PROVIDED

VOLUME (CFT)

-3-
01071.0005/782085.1

EXHIBIT C
TO

HESPERIA COMMERCE CENTER II DEVELOPMENT AGREEMENT
Benefitted Areas

APN: 3064-431-11
APN: 3064-401-08 APN: 3064-401-01
APN: 3064-401-03
APN: 3064-401-06
APN: 3064-431-07APN: 3064-431-08
APN: 3064-401-04
APN: 3064-401-05
APN: 3064-341-09
APN: 3064-431-03
APN: 3064-381-05
APN: 3064-401-07
APN: 3064-381-02
APN: 3064-531-03
APN: 3064-341-10
APN: 3064-381-03
APN: 3064-381-14
APN: 3064-381-15APN: 3064-381-10APN: 3064-381-11APN: 3064-381-06 APN: 3064-441-07
APN: 3064-381-07
APN: 3064-421-03
APN: 3064-531-08
APN: 3064-531-02
APN: 3064-431-01
APN: 3064-531-06
APN: 3064-531-01 APN: 3064-491-17
APN: 3064-491-23
APN: 3064-491-25
APN: 3064-381-04
APN: 3064-491-01
APN: 3064-381-09 APN: 3064-381-08
APN: 3064-381-13 APN: 3064-341-08 APN: 3064-341-07APN: 3064-381-12 APN: 3064-491-04
APN: 3064-491-03
APN: 3064-491-24
APN: 3064-491-10
APN: 3064-491-11
APN: 3064-431-02
APN: 3064-491-12
APN: 3064-431-12
APN: 3064-431-04APN: 3064-431-05
APN: 3064-431-06
APN: 3064-531-04
APN: 3064-531-05

LOS ANGELES BUREAU OF POWER
APN: 3064-431-01
APN: 3064-421-03
APN: 3064-431-09APN: 3064-431-10
APN: 3064-501-11
APN: 3064-551-01APN: 3064-551-02APN: 3064-551-03APN: 3064-551-04 APN: 3064-541-02
APN: 3064-541-04APN: 3064-541-06
APN: 3064-541-01
APN: 3064-511-11
APN: 3064-541-03APN: 3064-541-05
HIGHWAY 395

YUCCA TERRACE DRIVE

PHELAN ROAD
NEW PUBLIC STREET BLDG 2 BLDG 1

LOS BANOS AVE

SULTANA STREET
HIGHWAY 395

YUCCA TERRACE DRIVE
BLDG 3

DA EXHIBIT C - (HCC-II) OFFSITE SEWER IMPROVEMENT BENEFICIARY

DA EXHIBIT C - (HCC-II) OFFSITE SEWER IMPROVEMENT BENEFICIARY

SEWER SUMMARY

APN: 3064-431-11
APN: 3064-401-09, -10
APN: 3064-401-01
APN: 3064-401-03
APN: 3064-401-06
APN: 3064-431-07APN: 3064-431-08
APN: 3064-401-04APN: 3064-401-05
APN: 3064-341-09
APN: 3064-431-03
APN: 3064-381-05
APN: 3064-401-07
APN: 3064-381-02
APN: 3064-531-03
APN: 3064-341-10
APN: 3064-381-03
APN: 3064-381-14
APN: 3064-381-15APN: 3064-381-10APN: 3064-381-11APN: 3064-381-06 APN: 3064-441-07
APN: 3064-381-07
APN: 3064-421-03
APN: 3064-531-08
APN: 3064-531-02
APN: 3064-431-01
APN: 3064-531-06
APN: 3064-531-01 APN: 3064-491-17 APN: 3064-491-23
APN: 3064-491-25
APN: 3064-381-04
APN: 3064-491-01
APN: 3064-381-09 APN: 3064-381-08
APN: 3064-381-13 APN: 3064-341-08 APN: 3064-341-07
APN: 3064-381-12
APN: 3064-491-04
APN: 3064-491-03
APN: 3064-491-24
APN: 3064-491-10
APN: 3064-491-11
APN: 3064-431-02
APN: 3064-491-12
APN: 3064-431-12
APN: 3064-431-04
APN: 3064-431-05
APN: 3064-431-09
APN: 3064-431-06
APN: 3064-431-10
APN: 3064-531-04
APN: 3064-531-05

LOS ANGELES BUREAU OF POWER
APN: 3064-431-01
APN: 3064-421-03
APN: 3064-431-09APN: 3064-431-10
APN: 3064-501-11
APN: 3064-551-01APN: 3064-551-02APN: 3064-551-03APN: 3064-551-04 APN: 3064-541-02APN: 3064-541-04
APN: 3064-541-06
APN: 3064-541-01
APN: 3064-511-11
APN: 3064-541-03APN: 3064-541-05
HIGHWAY 395

YUCCA TERRACE DRIVE

PHELAN ROAD

NEW PUBLIC STREET
BLDG 2
BLDG 1

LOS BANOS AVE

SULTANA STREET
HIGHWAY 395

YUCCA TERRACE DRIVE
BLDG 3

DA EXHIBIT C - (HCC-II) OFFSITE WATER IMPROVEMENT BENEFICIARY

DA EXHIBIT C - (HCC-II) OFFSITE WATER IMPROVEMENT BENEFICIARY

WATER SUMMARY

DATE: April 14, 2022
TO: Planning Commission
FROM: Rachel Molina, Assistant City Manager
BY: Ryan Leonard, AICP, Senior Planner
SUBJECT: CUP19-00010, TPM22-00002 & DA22-00001 (Covington Group, Inc. ; APNs:
3064-351-03, 3064-361-01, 3064-391-01, 3064-401-02)
RECOM

MENDED ACTION
It is
recommended that the Planning Commission adopt Resolution No. PC -2022-03, recommending that the City Council make the environmental determination pursuant to the California Environmental Quality Act (CEQA) by certifying the Final Environmental Impact Report (FEIR) and adopting a statement of overriding considerations and adopt R esolution Nos. PC- 2022-04 and PC-2022-05, recommending that the City Council approve CUP19-00010, TPM22- 00002 and DA22-00001.

BACKGRO
UND
Proposal
: A Conditional Use Permit (CUP) has been filed to construct a 3,745,429 square foot distribution center and industrial park on 194.8 gross acres. The project, identified as “Hesperia Commerce Center II” will consist of the construction of three industrial/warehouse buildings with associated office spaces, surface parking and loading areas. The northwesternmost building (referred to as Building 1) is proposed to be 1,567,317 square feet ; the southernmost building (referred to as Building 2) is proposed to be 2,065,987 square feet and would potentially be divided between two spaces within the same building; and the northeastern most building (referred to as Building 3) would be 112,125 square feet.

A tent
ative parcel map has also been filed to rearrange the four existing parcels into four new parcels that generally follow the alignment of the future buildings. In addition, a Development Agreement (DA) is proposed that would allow the CUP to be effective for 12 years initially, with a provision allowing an automatic 8-year extension. In return, the City is requiring the Developer to construct certain off -site water and sewer infrastructure within the first 3 years from when the Development Agreement is executed (described in more detail below ). The applicant is also required to provide a one-time agreed upon community benefit contribution to the City.

Location
: On the north side of Phelan Road, west of Highway 395, south of Yucca Terrace Drive and east of the transmission line utility corridor.

Curr
ent General, Plan, Zoning and Land Uses: The site is within the Commercial Industrial Business Park (CIBP) Zone of the Main Street and Freeway Corridor Specific Plan (Specific Plan).

The surrounding land is designated as noted on Attachment 2. The 194.8- acre site is vacant.

Land uses to the north, on the opposite side of Yucca Terrace Drive, primarily consist of vacant land and scattered sites with unpermitted storage of trucks. The land uses to the east consist of vacant land followed by Highway 395. The land uses to the south consist of vacant land and large

Attachment 10

lot rural residences. The utility corridor and City boundary run parallel to the western boundary of the site and a number of rural residences are located on the opposite side of the transmission lines (Attachment 3).

ISSUES/ANALYSIS
CUP19-00010: The Hesperia Commerce Center II project consists of approximately 3,745,429 square feet of gross building area on approximately 194.8 gross acres. The northwesternmost building (referred to as Building 1) is proposed to be 1,567,317 square feet, the southernmost building (referred to as Building 2) is proposed to be 2,065,987 square feet, which would potentially be divided between two spaces within the same building, and the northeastern most building (referred to as Building 3) would be 112,125 square feet. Office space within Building 1 and Building 2 would total up to 20,000 square feet within each building. The office space within Building 3 would total up to 9,000 square feet. Depending on the number of future tenants, office areas could be distributed among four individual office spaces within the corners of each building or may be concentrated within one office in each building. Regardless of how the office spaces are distributed within each individual building, the square footages described above are the maximum amount of office area that would be allowed since it generates a higher parking demand than traditional warehouse area.

The proposed development complies with all site development regulations, including the minimum building requirements, landscaping, and number of parking spaces. The parking regulations require a minimum of 1,771 parking spaces, based upon the requirements listed in Table 1 . As proposed the project complies with the minimum number of parking spaces.

TABLE 1-PARKING REQUIREMENTS
BUILDING 1

Proposed
Building Square
Footage
Parking Formula Spaces
Required
Spaces
Provided
Warehouse 1,547,317 SF 20 spaces + 0.40/1,000 sq. ft. of building over 10,000 sq. ft
635

Office 20,000 SF 5 spaces per 1,000 sq. ft. gross
floor area
100
TOTAL 1,567,317 SF 735 748

BUILDING 2
Warehouse 2,045,987 SF 20 spaces + 0.40/1,000 sq. ft. of building over 10,000 sq. ft
834
Office 20,000 SF 5 spaces per 1,000 sq. ft. gross
floor area
100
TOTAL 2,065,987 SF 934 950

BUILDING 3
Warehouse 103,125 SF 20 spaces + 0.40/1,000 sq. ft. of
building over 10,000 sq. ft
57 Office 9,000 SF 5 spaces per 1,000 sq. ft. gross
floor area
45 TOTAL 112,125 SF 102

102

PROJECT
TOTAL
3,745,429 SF 1,771 1,800

The conventional parking spaces would be provided along the eastern and western sides of each building. Truck docks are proposed to be located on the north and south sides of Buildings 1 and 2, and on the south side of Building 3. Building 1 would provide 253 loading docks, Building 2 would provide 346 loading docks, and Building 3 would provide 14 loading docks. In addition, the project also provides 1,591 truck/trailer parking spaces . The truc k/trailer parking would be provided on the south side of Building 2, in between Buildings 1 and 2, and on the north side Building 1. A gated entry is proposed for each building; the gated areas would not be shared between the buildings. An 8-foot tall wrought iron fence is planned between Buildings 1 and 2 and would separate the row of contiguous truck/trailer parking spaces.

On the south side of the project site, Building 2 is proposed to be setback 245 feet from Phelan Road. Within the 245-foot setback, the front of the building would consist of truck loading docks followed by a single row of approximately 250 oversized parking stalls for truck s/trailers. The truck/trailer parking stalls would be setback 60 feet from Phelan Road. On the north side of the site, Building 1 is proposed to be setback 428 feet from Yucca Terrace Drive. Within the 428-foot setback, the front of the building would consist of truck loading docks, followed by 3 rows of approximately 400 oversized parking stalls for trucks/trailers. The truck/trailer parking stalls would be setback approximately 60 feet from the right-of-way. As proposed, an 8-foot high wrought iron fence would be constructed at the property line and a 60 foot wide landscape planter would be installed in front of both truck parking areas. The Specific Plan requires loading and truck parking areas to be screened. Therefore, as a condition of approval staff is requiring both truck parking areas that are adjacent to the right -of-way to be fully screened by a minimum 8- foot high decorative block wall.

Primary access to the site will be provided from a new public roadway (Caliente Road) that will be constructed by the project. Caliente Road is planned as a 70-foot wide Industrial Collector that will provide reciprocal access with the adjacent properties to the east and will form a connection between Yucca Terrace Drive to the north and Phelan Road to the south. The intersection of Caliente Road and Phelan Road will be fully signalized. A second primary access will be provided at the intersection of Yucca Terrace Drive and Highway 395. This intersection will be fully signalized and will allow full turning movements and controlled access onto Highway 395 .

Ultimately 9 driveway approaches will provide access from the perimeter streets to the project site; 7 driveway approaches will be provided off Caliente Road; one driveway approach will be provided off Phelan Road at the western end of the site that will provide right -in and right -out access to the site; and one driveway approach will be located off of Yucca Terrace drive at the western end of the site (Attachment 6).

The project would be responsible for the construction of curb, gutter and sidewalk along the project frontage of Yucca Terrace Drive, Phelan Road, the future public street (Caliente Road) and a portion of Highway 395. In addition, the project would be responsible for paving Yucca Terrace Drive, which is currently a n unimproved roadway, from the western boundary of the project to Highway 395. The project will also be responsible for the construction of Caliente Road that will connect Phelan Road to the south with Yucca Terrace Drive to the north. Finally, the project will be responsible for constructing the required traffic signals at the Phelan Road and Caliente Road intersection, and the Yucca Terrace Drive and Highway 395 intersection.

The architecture of the proposed warehouse buildings complies with the architectural requirements of the Specific Plan (Attachments 4 & 5). The large concrete tilt-up buildings within the project exhibit a clean, corporate look, exhibiting several exterior building colors and multiple expansion joints. The buildings have been designed to incorporate a prominent glass entry way

at the corners of each building. In addition, the sides of the building which are adjacent to the right-of-way feature prominent tower elements , copper accent panels, sand blasted concrete accent walls and decorative windows. The buildings also feature painted bands, reveals, and decorative panels on all four sides of the building. Building height will be approximately 48 feet.

The project also satisfies the minimum landscaping requirements. The minimum required landscape coverage is 10% of the developed site; the project provides 991,830,700 square feet (11.7%) of total landscape coverage, a majority of which will be located in front of the site and viewable from the right-of-way.

Water and Sewer. Sanitary sewer service to the project will be provided by a new sewer system that will be constructed as a part of the project (Attachment 7). The new sewer system will include a lift station located within the right of way of Yucca Terrace Drive (west of the Oro Grande Wash) and force main and gravity sewers (sizes to be determined) beginning at the intersection of Cataba Road and Acacia Road. From there the sewer system will extend north along Cataba Road to Yucca Terrace Drive, ultimately extending approximately 1,100 feet across the Oro Grande Wash, and then continuing west along Yucca Terrace Drive and crossing under Highway 395 to Caliente Road. From there the sewer system will extend south along Caliente Road to Phelan Road.

The project will also construct a new 16-inch water line to provide adequate water service for the project (Attachment 7). This new 16-inch transmission water line will begin at the intersection of Highway 395 and Sultana Street and traverse west along Sultana Street crossing the Oro Grande Wash to Los Banos Avenue. From there it will traverse north along Las Banos Avenue to Phelan Road, then east along Phelan Road to Caliente Road. From there it will traverse north to Yucca Terrace Drive.

Both the new 16-inch water pipeline and sewer system will be installed using the jack and bore method so as not disturb the Oro Grande Wash. A pit will be constructed at each end of the Wash and the new pipe will be bored through from one pit to the other without disturbing the ground surface.

Drainage. Stormwater collected by the project’s stormwater system would drain into two below - grade, open, earthen infiltration basins within the northeastern portion of the project site, and one below grade infiltration basin in the middle of the project site between Buildings 1 and 2. The infiltration/basin system would be designed to infiltrate and retain all of the stormwater generated by the 2-year through 100-year, 24-hour storm event.

Development Agreement. Construction of the 3,745,429 square foot project will likely take several years. The Development Code only provides an initial three- year effective period.

Consequently, the developer has negotiated a Development Agreement (DA) to allow the CUP to be effective for 12 years initially, with a provision allowing an automatic 8-year extension. In return, the City is requiring the Developer to construct the off-site water and sewer infrastructure within the first 3 years from when the Development Agreement is executed. In addition, the applicant is required to provide a one-time agreed upon community benefit contribution. The developer is also required to annex into the City-wide industrial community facilities district (CFD) within the first 6 months from when the DA is approved.

The Development Agreement will allow the reimbursement for the cost of the offsite infrastructure (i.e. construction of the offsite water and sewer facilities ). As future development occurs in the

area, development projects that directly connect to and benefit from the offsite water and sewer infrastructure will be conditioned to pay their fair share fee obligation to the developer. The requirement to construct all of the off -site infrastructure within the first 3 years from when the Development Agreement is executed will ultimately benefit the surrounding area and will provide the required infrastructure for other development projects to move forward. The Development Agreement allows the reimbursement provisions for a maximum of 10 years from when the Development Agreement is executed.

TPM22-00002 (Parcel Map No. 20257): A tentative parcel map has also been filed to rearrange the four existing parcels into four new parcels that generally follow the alignment of the future buildings. Recordation of the parcel map will allow separate ownership of the buildings. A n irrevocable reciprocal access and shared parking agreement is required as a condition of approval, ensuring that all businesses within the project will have adequate access and parking.

ENVIRONMENTAL ANALYSIS

Given the size and regional importance of this project, CEQA requires that the environmental impact of the project be analyzed. An initial study was prepared, which determined that the project may have a significant impact on the environment. As a result, an Environmental Impact Report (EIR) was required. A Notice of Preparation (NOP) was distributed for public review for a period of 30 days from November 21, 2019 thru December 20, 2019 and the Draft EIR was distributed for a 45 -day public period from September 16 , 2020 thru October 31, 2020. The public review period was subsequently extended until November 16, 2020 The environmental document was circulated to local, state and federal agencies and organizations as well as surrounding property owners. Eight comment letters were received during the Initial Study/NOP comment period; seven comment letters were received during the Draft EIR comment period; and two letters were received on the Draft EIR after the comment period was closed. The letters, as well as the responses to them are included in the Final EIR. The Draft and Final EIR are available for review on the City website and have been provided to the Commission under separate cover.

The Draft EIR identified potentially significant impacts of the project and discussed numerous mitigation measures proposed to address potential impacts of the project. Mitigation measures presented in the Draft EIR have been included in the Mitigation Monitoring Reporting Program, which is attached as Attachment 8 and also incorporated by reference in the conditions of approval (Attachments 9 & 10 ). The mitigation measures for the project will reduce potentially significant impacts to Aesthetics , Biological Resources, Cultural Resources, Hazards and Hazardous Materials, and Tribal Cultural Resources. However, the EIR concluded that in spite of mitigation measures, the project could result in significant and unavoidable impacts to Air Quality, Greenhouse Gas Emissions , Noise and Transportation. Consequently, pursuant to CEQA guidelines, a statement of overriding considerations must be made in order to approve the project.

The following is a summary of the significant and unavoidable impacts as a result of the project:

Air Quality: The Project site is located within the Main Street and Freeway Corridor Specific Plan and is designated for Commercial/Industrial Business Park (CIBP) uses. The CIBP designation is intended to provide for service commercial, light industrial, light manufacturing, and industrial support uses. The Project proposes land uses that are consistent with development anticipated under the site’s existing General Plan designation. The Project would therefore conform to local land use plans.

However, the long-term project operation will create vehicular emissions that would exceed the Mojave Desert Air Quality Management District’s (MDAQMD) daily emission thresholds . The project’s impacts related to volatile organic compounds (VOC), nitric oxide (NOx) and particulate matter (PM10) emissions will individually and cumulatively result in significant and unavoidable air quality impacts. In addition, the project would result in cumulatively considerable impacts related to the potential to conflict with the MDAQMD’s thresholds, result in a cumulatively considerable net increase of criteria pollutants (VOC, NOx, and PM10), and expose sensitive receptors to substantial pollutant concentrations (VOC, NOx, and PM10). Additionally, it should be noted that the majority of the Project’s NOX and PM10 emissions are derived from vehicle usage. Although mitigation measures would reduce operational emissions from on-road vehicles to the extent feasible, due to the size and type of the project, it is not feasible to implement mitigation measures to reduce the operational mobile source emissions. Therefore, the project’s impacts related to the potential to conflict with or obstruct implementation of the MDAQMD’s regional thresholds and the project operational VOC, NOx, and PM10 emissions would remain significant. In addition, the project would result in cumulatively considerable impacts related to the potential to conflict with the MDAQMD regional thresholds, result in a cumulatively considerable net increase of criteria pollutants (VOC, NOx, and PM10), and expose sensitive receptors to substantial pollutant concentrations (VOC, NOx, and PM10). The EIR concludes that there are significant unavoidable impacts to air quality and a finding of overriding considerations is included in the resolution certifying the EIR.

Greenhouse Gas Emissions: Long-term operations of the Project would result in greenhouse gas emissions through mobile sources and on- site equipment, area sources (landscape maintenance equipment); energy use (natural gas and generation of electricity consumed by the Project); generation of electricity associated with wastewater treatment and with water supply, treatment, and distribution; and solid waste disposal. Annual greenhouse gas emissions from these sources were estimated in the EIR.

With applicable regulatory requirements and project design features, the Project would result in approximately 55,599 MT CO2e per year, which would exceed the GHG threshold of 3,000 MT CO2e per year. Therefore, the Project would generate GHG emissions, either directly or indirectly, that may have a significant impact on the environment, and this would represent a cumulatively potentially significant impact. Mitigation measures would be required that would reduce p roject- generated construction and operational GHG emissions. The EIR determined that the effectiveness of the required mitigation measures cannot be accurately quantified. Therefore, project-generated greenhouse gas emissions would still exceed the applied threshold of 3,000 MT CO2e per year. T he EIR concludes that there are significant unavoidable impacts upon greenhouse gas emissions and a finding of overriding considerations is included in the resolution certifying the EIR for this project.

Noise: The EIR determined that the project would result in significant off -site operational traffic noise impacts along Main Street between U.S. Highway 395 and Cataba Road. Based on the infeasibility of potential mitigation to adequately reduce off-site project traffic noise levels to less- than-significant levels, and because there are no assurances that noise-reducing measures could be adequately implemented, no reasonably feasible and implementable mitigation measures have been identified. Thus, impacts related to the p roject’s off -site operational traffic noise impacts would remain significant and unavoidable and a finding of overriding considerations is included in the resolution certifying the EIR for this project.

Traffic/Circulation: Beginning on July 1, 2020, vehicle miles traveled (VMT) is used to determine the significance of transportation impacts. The San Bernardino Transportation Analysis Model (SBTAM) is an accepted program to estimate VMT as it considers interaction between different land uses based on socio-economic data such as population, households, and employment. The EIR determined that the project would exceed the current thresholds for VMT, resulting in a project-specific VMT impact that is significant and unavoidable. Mitigation Measures are proposed in the EIR to reduce impacts. However, the effectiveness of some of the mitigation strategies that have potential to reduce the p roject VMT are dependent on unknown building tenant(s). In addition, the EIR determined that the project may increase a hazardous condition due to queuing impacts at various intersections that the City does not have jurisdiction over, therefore, these improvements cannot be assumed to be in place prior to project’s occupancy. The EIR determined that the project’s impact to increase hazardous conditions (i.e. queuing) would be significant and unavoidable.

Mitigation measures are proposed to reduce potential transportation impacts, however, since implementation of the roadway improvements cannot be guaranteed by project opening or project build-out, mitigation and improvements are rendered infeasible. The significance determinations are based on a conservative worst -case scenario whereby it is assumed that mitigation for all significant impacts outside the control of the City are infeasible and therefore, the impacts are significant and unavoidable. A finding of overriding considerations is included in the resolution certifying the EIR for this project.

Overriding Considerations: Pursuant to CEQA, the City must balance the benefits of the project against any significant and unavoidable environmental impacts that cannot be mitigated to less than significant. If the benefits of the Project outweigh these environmental impacts, those impacts are considered “acceptable.” Since the impact upon Air Quality, Greenhouse Gas Emissions, Noise and Transportation are considered significant and unavoidable, findings for a Statement of Overriding Considerations must be made. T he project’s benefits include strengthening the local economy by providing new employment opportunities for local residents and generating tax revenues to maintain adequate infrastructure facilities. Further, the project will help satisfy the City's deficiency of high quality local jobs, as most residents must currently travel outside the City to obtain higher paying jobs . The proposed project would use the locational characteristics (specifically, the project’s proximity to the 15 freeway and Highway 395) to provide needed flexible industrial space to businesses wishing to invest in the City, as well as to provide approximately 3,134 permanent jobs both directly and indirectly in the region. The project’s social and economic benefits render these significant and unavoidable impacts acceptable.

Conclusion: In summary, because the project is consistent with the City’s General Plan, most of the project’s impacts, whether less than significant, mitigable, or significant and unavoidable were known and acknowledged by the City when the General Plan EIR was adopted in 2010.

Prior to acting on the project, the Planning Commission must recommend that the City Council make the environmental determination, certifying that the Final EIR is complete; that it has been prepared in compliance with CEQA; that it reflects the City’s independent judgment; and that all impacts from carrying out the project have been identified and disclosed to the public. Resolution PC-2022-03 has been prepared to document this determination. Once that has occurred, the Planning Commission can consider t he conditional use permit and the tentative parcel map. If recommended for approval, the mitigation monitoring and reporting program will be administered with the project approval.

FISCAL IMPACT

None. The development will be subject to payment of development impact fees and will be required to annex into the City Industrial CFD to pay for the ongoing maintenance of public infrastructure and services.

ALTERNATIVE(S)

1. Provide alternative direction to staff.

ATTACHMENT(S)

1. Site plan

2. General Plan / Zoning Map

3. Aerial photo

4. Color rendering

5. View Analysis

6. Traffic and Circulation Improvements

7. Off-site Water and Sewer Alignments

8. Resolution No. PC-2022-03 (Environmental findings to recommend adoption of the EIR including the Findings of Fact, Statement of Overriding Considerations and MMRP)

9. Resolution No. PC-2022-04, with list of conditions (CUP19-00010)

10. Resolution No. PC-2022-05, with list of conditions (TPM22-00002/PM-20257)

11. Draft EIR (provided under separate cover)

12. Final EIR (provided under separate cover)

13. Development Agreeement (provided under separate cover)

APPLICANT(S):

COVINGTON GROUP, INC.

FILE NO(S):

CUP19-00010, TPM22-00002 & DA22-00001
LOCATION:

ON THE NORTH SIDE OF PHELAN ROAD, WEST O F
HIGHWAY 395, SOUTH O F YUCCA TERRACE DRIV E AND
EAST OF THE TRANSMISSION LINE UTILITY CORRIDOR.

APNs:
3064-351-03, 3064-361-01, 3064-391-01,
3064-401-02
PROPOSAL:

CONSIDERATION OF A CONDITIONAL USE PERMIT TO CONSTRUCT A 3,745,429 MILLION

SQUARE FOOT DISTRIBU TION CENTER AND INDU STRIAL PARK IN CONJUNCTION WITH A

TENTATIVE PARCEL MAP TO REORGANIZE THE FOUR EXISTING PARCELS INT O FOUR NEW PARCELS AND A DEVELO PMENT AGREEMENT ON 194.8 GROSS ACRES. THE PROPOSAL

INCLUDES AN ENVIRONM ENTAL IM PACT REPORT PREPARED IN COMPLIANCE WITH THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
N


SITE PLAN
ATTACHMENT 1

APPLICANT(S):

COVINGTON GROUP, INC.

FILE NO(S):

CUP19-00010, TPM22-00002 & DA22-00001
LOCATION:

ON THE NORTH SIDE OF PHELAN ROAD, WEST OF
HIGHWAY 395, SOUTH O F YUCCA TERRACE DRIV E AND
EAST OF THE TRANSMISSION LINE UTILITY CORRIDOR.

APNs:
3064-351-03, 3064-361-01, 3064-391-01,
3064-401-02
PROPOSAL:

CONSIDERATION OF A CONDITIONAL USE PERMIT TO CONSTRUCT A 3,745,429 MILLION

SQUARE FOOT DISTRIBU TION CENTER AND INDU STRIAL PARK IN CONJUNCTION WITH A

TENTATIVE PARCEL MAP TO REORGANIZE THE FOUR EXISTING PARCELS INT O FOUR NEW PARCELS AND A DEVELO PMENT AGREEMENT ON 194.8 GROSS ACRES. THE PROPOSAL

INCLUDES AN ENVIRONM ENTAL IM PACT REPORT PREPARED IN COMPLIANCE WITH THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
N


GENERAL PLAN AND ZONING MAP
ATTACHMENT 2
SITE

APPLICANT(S):

COVINGTON GROUP, INC.

FILE NO(S):

CUP19-00010, TPM22-00002 & DA22-00001
LOCATION:

ON THE NORTH SIDE OF PHELAN ROAD, WEST OF
HIGHWAY 395, SOUTH O F YUCCA TERRACE DRIV E AND
EAST OF THE TRANSMISSION LINE UTILITY CORRIDOR.

APNs:
3064-351-03, 3064-361-01, 3064-391-01,
3064-401-02
PROPOSAL:

CONSIDERATION OF A CONDITIONAL USE PERMIT TO CONSTRUCT A 3,745,429 MILLION

SQUARE FOOT DISTRIBU TION CENTER AND INDU STRIAL PARK IN CONJUNCTION WITH A

TENTATIVE PARCEL MAP TO REORGANIZE THE FOUR EXISTING PARCELS INT O FOUR NEW PARCELS AND A DEVELO PMENT AGREEMENT ON 194.8 GROSS ACRES. THE PROPOSAL

INCLUDES AN ENVIRONM ENTAL IM PACT REPORT PREPARED IN COMPLIANCE WITH THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
N


AERIAL PHOTO
ATTACHMENT 3
SITE

APPLICANT(S):

COVINGTON GROUP, INC.

FILE NO(S):

CUP19-00010, TPM22-00002 & DA22-00001
LOCATION:

ON THE NORTH SIDE OF PHELAN ROAD, WEST OF
HIGHWAY 395, SOUTH O F YUCCA TERRACE DRIV E AND
EAST OF THE TRANSMISSION LINE UTILITY CORRIDOR.

APNs:
3064-351-03, 3064-361-01, 3064-391-01,
3064-401-02
PROPOSAL:

CONSIDERATION OF A CONDITIONAL USE PERMIT TO CONSTRUCT A 3,745,429 MILLION

SQUARE FOOT DISTRIBU TION CENTER AND INDU STRIAL PARK IN CONJUNCTION WITH A

TENTATIVE PARCEL MAP TO REORGANIZE THE FOUR EXISTING PARCELS INT O FOUR NEW PARCELS AND A DEVELO PMENT AGREEMENT ON 194.8 GROSS ACRES. THE PROPOSAL

INCLUDES AN ENVIRONM ENTAL IM PACT REPORT PREPARED IN COMPLIANCE WITH THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
N


COLOR RENDERING
ATTACHMENT 4

APPLICANT(S):

COVINGTON GROUP, INC.

FILE NO(S):

CUP19-00010, TPM22-00002 & DA22-00001
LOCATION:

ON THE NORTH SIDE OF PHELAN ROAD, WEST OF
HIGHWAY 395, SOUTH O F YUCCA TERRACE DRIV E AND
EAST OF THE TRANSMISSION LINE UTILITY CORRIDOR.

APNs:
3064-351-03, 3064-361-01, 3064-391-01,
3064-401-02
PROPOSAL:

CONSIDERATION OF A CONDITIONAL USE PERMIT TO CONSTRUCT A 3,745,429 MILLION

SQUARE FOOT DISTRIBU TION CENTER AND INDU STRIAL PARK IN CONJUNCTION WITH A

TENTATIVE PARCEL MAP TO REORGANIZE THE FOUR EXISTING PARCELS INT O FOUR NEW PARCELS AND A DEVELO PMENT AGREEMENT ON 194.8 GROSS ACRES. THE PROPOSAL

INCLUDES AN ENVIRONM ENTAL IM PACT REPORT PREPARED IN COMPLIANCE WITH THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
N


LINE OF SIGHT
ATTACHMENT 5

APPLICANT(S):

COVINGTON GROUP, INC.

FILE NO(S):

CUP19-00010, TPM22-00002 & DA22-00001
LOCATION:

ON THE NORTH SIDE OF PHELAN ROAD, WEST OF
HIGHWAY 395, SOUTH O F YUCCA TERRACE DRIV E AND
EAST OF THE TRANSMISSION LINE UTILITY CORRIDOR.

APNs:
3064-351-03, 3064-361-01, 3064-391-01,
3064-401-02
PROPOSAL:

CONSIDERATION OF A CONDITIONAL USE PERMIT TO CONSTRUCT A 3,745,429 MILLION

SQUARE FOOT DISTRIBU TION CENTER AND INDU STRIAL PARK IN CONJUNCTION WITH A

TENTATIVE PARCEL MAP TO REORGANIZE THE FOUR EXISTING PARCELS INT O FOUR NEW PARCELS AND A DEVELO PMENT AGREEMENT ON 194.8 GROSS ACRES. THE PROPOSAL

INCLUDES AN ENVIRONM ENTAL IM PACT REPORT PREPARED IN COMPLIANCE WITH THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
N


TRAFFIC AND CIRCULATION IMPROVEMENTS
ATTACHMENT 6

APPLICANT(S):

COVINGTON GROUP, INC.

FILE NO(S):

CUP19-00010, TPM22-00002 & DA22-00001
LOCATION:

ON THE NORTH SIDE OF PHELAN ROAD, WEST O F
HIGHWAY 395, SOUTH O F YUCCA TERRACE DRIV E AND
EAST OF THE TRANSMISSION LINE UTILITY CORRIDOR.

APNs:
3064-351-03, 3064-361-01, 3064-391-01,
3064-401-02
PROPOSAL:

CONSIDERATION OF A CONDITIONAL USE PERMIT TO CONSTRUCT A 3,745,429 MILLION

SQUARE FOOT DISTRIBU TION CENTER AND INDU STRIAL PARK IN CONJUNCTION WITH A

TENTATIVE PARCEL MAP TO REORGANIZE THE FOUR EXISTING PARCELS INT O FOUR NEW PARCELS AND A DEVELO PMENT AGREEMENT ON 194.8 GROSS ACRES. THE PROPOSAL

INCLUDES AN ENVIRONM ENTAL IM PACT REPORT PREPARED IN COMPLIANCE WITH THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
N


OFF-SITE WATER AND SEWER ALIGNMENTS
ATTACHMENT 7

RESOLUTION NO. PC-2022-03

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF

HESPERIA, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL

ADOPT ENVIRONMENTAL FINDINGS PURSUANT TO T HE CALIFORNIA

ENVIRONMENTAL QUALITY ACT, CERTIFY THE FINAL ENVIRONMENTAL IMPACT REPORT (SCH # 2019110418), ADOPT T HE STATEMENT OF

OVERRIDING CONSIDERATIONS, AND ADOPT A MITIGATION

MONITORING AND REPORTING PROGRAM

WHEREAS, the Hesperia C ommerce Center II project would consist of the construction of a 3,745,429 square foot distribution center and industrial park on 194.8 gross acres. The project includes the construction of three industrial/warehouse buildings with associated office spaces, surface parking and loading areas. The northwesternmost building (referred to as Building 1) is proposed to be 1,567,317 square feet ; the southernmost building (referred to as Building 2) is proposed to be 2,065,987 square feet; and the northeastern most building (referred to as Building 3) would be 112,125 square feet . A tentative parcel map has also been filed to rearrange the four exi sting parcels into four new parcels that generally follow the alignment of the future buildings. In addition, a Development Agreement (DA) is proposed that would among other things, allow the CUP to be effective for 12 years initially, with a provision to allow an automatic 8-year extension.

WHEREAS, the Project would be accessible to US Highway 395 and ultimately Interstate 15 and would promote the City's economic development by creating approximately 3,134 jobs for the citizens of Hesperia and surrounding communities, wou ld increase the City's tax base, would fulfill the growing demand for distribution and light industrial uses in the region, and would develop the land to the highest and best allowable use that is compatible with the City's General Plan, and Main Street and Freeway Corridor Specific Plan; and

WHEREAS, pursuant to the California Environmental Quality Act ("CEQA") (Public Resources Code $ 21000 et. seq,) and the State CEQA Guidelines (14 CCR $ 15000 et. seq.), the City of Hesperia is the lead agency for the Project as the public agency with general gover nmental powers; and

WHEREAS, the City of Hesperia, as lead agency, prepared an initial study, from which it was determined that an Environmental Impact Report ("EIR') should be prepared pursuant to CEQA in order to analyze all adverse environmental impacts of the Project; and

WHEREAS, a Notice of Preparation ( NOP") and the Initial Study identifying the scope of environmental issues were distributed to numerous state, federal, and local agencies and organizations from November 21, 2019 thru December 20, 2019 , for a period of 30 days, pursuant to State CEQA Guidelines sections 15082(a), 15103, and 15375. Eight comment letters were received during the Initial Study/NOP comment period and were incorporated into the Draft EIR ("DEIR"); and

WHEREAS, a public scoping meeting for the EIR was held at Hes peria City Hall on December 12, 2019; and

ATTACHMENT 8

WH
EREAS, the City completed the DEIR and circulated it with the Notice of Availability ('NOA") to affected public agencies and interested members of the public for a 45 -day public period from September 16, 2020 thru October 31, 2020 . The public review period was subsequently extended until November 16, 2020; and

WHEREAS, on April 14, 2022, the Planning Commission of the City of Hesperia conducted a duly noticed public hearing, at which time all interested parties were provided the opportunity to give testimony for or against the issue; and

WHEREAS, as contained herein, the City has endeavored in good faith to set forth the basis for its decision on the project; and

WHEREAS, the EIR for the project reflects the City’s independent judgment. The City has exercised independent judgment in accordance with Public Resources Code Section 21082.1(c)(3) in directing the consultant in the preparation of the EIR. The City has independently reviewed and analyzed the EIR and accompanying studies and finds that the report reflects the independent judgment of the City for the purposes of making decisions on the merits of the project; and

WHEREAS, all the requirements of CEQA, the State CEQA Guidelines, and the City's Local CEQA Guidelines have been satisfied in the EIR, which is sufficiently detailed so that all of the significant environmental effects of the project have been adequately evaluated; and

WHEREAS, the EIR prepared in connection with the project sufficiently analyzes both the feasible mitigation measures necessary to avoid or substantially lessen the p roject's environmental impacts and a range of feasible alternatives capable of eliminating or reducing these effects in accordance with CEQA, the State CEQA Guidelines, and the City's Local CEQA Guidelines.

WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.

NOW THEREFORE, BE IT RESOLVED BY THE CITY OF HESPERIA PLANNING COMMISSION AS FOLLOWS:

Section 1. The Planning Commission hereby specifically finds that all of the facts set forth in this Resolution are true and correct.

Section 2. Based upon substantial evidence presented to the Planning Commission during the above-referenced April 14, 2022, hearing, including public testimony and written and oral staff reports, this Commission specifically finds as follows:

a) The Planning Commission has independently reviewed, analyzed and considered the Final EIR and all written documentation and public comments prior to making recommendations on the proposed project; and

b) The Final EIR was prepared and completed in compliance with the provisions of CEQA, the State CEQA Guidelines, and the City's Local CEQA Guidelines; and

c) The i
nformation and analysis contained in the Final EIR reflects the City’s independent judgment as to the environmental consequences of the proposed Project; and

d) The documents and other materials, including without limitation, staff reports, memoranda, maps, letters, and minutes of all relevant meetings, which constitute the administrative record of proceedings upon which the Planning Commission's decision is based are located at the City of Hesperia, Planning Division, 9700 Seventh Avenue, Hesperia, C A 92345. The custodian of the records is the Planning Division.

Section 3. That on the basis of the evidence contained in the administrative record of the Final EIR, the Planning Commission finds based on the information submitted, following the conclusion of the public comment period on the Draft EIR, and following the consultant's responses thereto, there is no significant new information concerning the p roject's environmental effects, feasible mitigation measures, or feasible project alternatives; therefore there is no need or requirement to recirculate the EIR for additional public comment

Section 4. That the Planning Commission of the City of Hesperia hereby recommends that the City Council certify the Final EIR.

Section 5. Exhibit A (Findings of Facts and Statement of Overriding Considerations) and Exhibit B (Mitigation Monitoring and Reporting Program) of this Resolution provide findings required under Section 15091 of the State CEQA Guidelines for significant effects of the Project. Exhibit A of this Resolution provides the findings required under Section 15093 of the State CEQA Guidelines relating to the acceptable adverse impacts of the project due to overriding considerations. The City has balanced the economic, legal, social, technological, and other benefits of the project against the unavoidable environmental risks that may result, and finds that the specific economic, legal, social, technological, and other benefits outweigh the unavoidable adverse environmental effects. Therefore, the Planning Commission hereby recommends that the City Council adopt the Findings of Facts and Statement of Overriding Considerations attached hereto as Exhibit A.

Section 6. Pursuant to Public Resources Code Section 21081.6, the Planning Commission hereby recommends approval of the Mitigation Monitoring and Reporting Program attached as Exhibit B to this Resolution and recommends the Council require the Project to comply with the mitigation measures contained therein. The Planning Commission finds that these mitigation measures are fully enforceable on the Project and shall be binding upon the City and affected parties.

Section 7. The Secretary shall certify to the adoption of this Resolution.

ADOPT
ED AND APPROVED this 14th day of April 2022.

_____________________________________
Roger Abreo, Chair, Planning Commission ATT
EST:
________________
_______________________
Maricruz Montes, Secretary, Planning Commission

EXHIBIT A- FINDINGS OF FACT AND STATEMENT OF OVERRIDING CONSIDERATION

Findings of Fact and Statement of Overriding Considerations Hesperia Commerce Center II EIR
SCH No. 2019110418
Prepared for:

City of Hesperia, Planning Department
9700 Seventh Avenue
Hesperia, California 92645

Prepared by:

38 North Marengo Avenue
Pasadena, California 91101

MARCH 2022

Printed on 30% post-consumer recycled material.

12122
i March 2022
Table of Contents
SECTION PAGE NO.
1 INTRODUCTION ................................ ................................ ................................ ................................ ............. 1

1.1 Purpose ................................................................................................................................................... 1

1.1.1 Record of Proceedings ............................................................................................................. 2

1.1.2 Custodian and Location of Records ......................................................................................... 3 2 CEQA FINDINGS OF INDEPENDENT JUDGEMENT ................................ ................................ ......................... 5

2.1 Independent Review and Analysis ......................................................................................................... 5

2.2 Impacts Determined to Be Significant and Unavoidable ..................................................................... 5

2.2.1 Air Quality .................................................................................................................................. 6

2.2.2 Greenhouse Gas Emissions .................................................................................................. 15

2.2.3 Noise ....................................................................................................................................... 18

2.2.4 Transportation ........................................................................................................................ 21

2.3 Impacts Determined to Be Less Than Significant with Mitigation .................................................... 25

2.3.1 Aesthetics ............................................................................................................................... 26

2.3.2 Air Quality ............................................................................................................................... 32

2.3.3 Biological Resources ............................................................................................................. 33

2.3.4 Cultural Resources ................................................................................................................ 47

2.3.5 Geology and Soils .................................................................................................................. 52

2.3.6 Hazards and Hazardous Materials ....................................................................................... 53

2.3.7 Tribal Cultural Resources ...................................................................................................... 58

2.4 Impacts Determined to Be Less Than Significant ............................................................................. 59

2.4.1 Aesthetics ............................................................................................................................... 60

2.4.2 Agriculture and Forestry Resources ...................................................................................... 61

2.4.3 Air Quality ............................................................................................................................... 62

2.4.4 Biological Resources ............................................................................................................. 64

2.4.5 Energy ..................................................................................................................................... 66

2.4.6 Geology and Soils .................................................................................................................. 68

2.4.7 Greenhouse Gas Emissions .................................................................................................. 71

2.4.8 Hazards and Hazardous Materials ....................................................................................... 72

2.4.9 Hydrology and Water Quality ................................................................................................. 73

2.4.10 Land Use ................................................................................................................................ 82

2.4.11 Mineral Resources ................................................................................................................. 84

2.4.12 Noise ....................................................................................................................................... 84

2.4.13 Population and Housing ........................................................................................................ 88

2.4.14 Public Services ....................................................................................................................... 89

2.4.15 Recreation .............................................................................................................................. 92

2.4.16 Transportation ........................................................................................................................ 92

FINDINGS OF FACT, HESPERIA COMMERCE CENTER II EIR, SCH NO. 2019110418 12122
ii March 2022

2.4.17 Utilities and Service Systems ................................................................................................ 95

2.4.18 Wildfire ................................................................................................................................. 102 3 FINDINGS ON PROJECT ALTERNATIVES ................................ ................................ ................................ .... 109

3.1 Alternatives Considered and Eliminated During the Scoping/Project Planning Process .............. 109

3.2 Alternatives Selected for Further Analysis ....................................................................................... 111

3.2.1 Alternative 1: No Project/No Development Alternative ..................................................... 111

3.2.2 Alternative 2: No Project/Other Development Project Alternative ....................................... 113

3.2.3 Alternative 3: Reduced Development Intensity Alternative ............................................... 114

3.2.4 Environmentally Superior Alternative ................................................................................. 118 4 GENERAL CEQA FINDINGS ................................ ................................ ................................ ........................ 119

4.1 Findings Regarding Recirculation ..................................................................................................... 119

4.2 Legal Effects of Findings ................................................................................................................... 120 5 STATEMENT OF OVERRIDING CONSIDERATIONS ................................ ................................ ...................... 121 6 CONCLUSION ................................ ................................ ................................ ................................ ............. 125 7 REFERENCES CITED ................................ ................................ ................................ ................................ .. 127

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1 Introduction
This statement of Findings of Fact (Findings) addresses the environmental effects associated with the proposed Hesperia Commerce Center II Project (project), as described in the Environmental Impact Report (EIR). These Findings are made pursuant to the California Environmental Quality Act (CEQA) (California Public Resources Code, Section 21000 et seq.), specifically California Public Resourc es Code, Sections 21081, 21081.5, and 21081.6, and the CEQA Guidelines (14 CCR 15000 et seq.), specifically Sections 15091 and 15093. The EIR examines the full range of potential effects of construction and operation of the project and identifies standard mitigation practices that could be employed to reduce, minimize, or avoid those potential effects.

1.1 Purpose
California Public Resources Code, Section 21081, and CEQA Guidelines Section 15091 require that the lead agency, in this case the City of Hesperia (City), prepare written findings for identified significant effects, accompanied by a brief explanation of the rationale for each finding. Specifically, CEQA Guidelines Section 15091 states, in part, that:
a) No public agency shall approve or carry out a project for which an EIR has been certified which identifies one or more significant environmental effects of the project unless the public agency makes one or more written findings for each of those significant effects, accompanied by a brief explanation of the rationale for each finding. The possible findings are:
1) Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the final EIR. 2) Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding. Such changes have been adopted by such other agency or can and should be adopted by such other agency. 3) Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for h ighly trained workers, make infeasible the mitigation measures or project alternatives identified in the final EIR.

In accordance with California Public Resource Code, Section 21081, and CEQA Guidelines Section 15093, whenever significant effects cannot be mitigated to below a level of significance, the decision ‐making agency is required to balance, as applicable, the benefits of the project against its unavoidable environmental risks when determining whether to approve the project. If the benefits of a pro ject outweigh the unavoidable adverse environmental effects, the adverse effects may be considered “acceptable.” In that case, the decision -making agency may prepare and adopt a Statement of Overriding Considerations (SOC), pursuant to the CEQA Guidelines.

Section 15093 of the CEQA Guidelines state that:
a) CEQA requires the decision-making agency to balance, as applicable, the economic, legal, social, technological, or other benefits of a proposed project against its unavoidable environmental risks when determining whether to approve the project. If the specific economic, legal, social, technological, or other benefits of a proposed project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered "acceptable." b) When the lead agency approves a project which will result in the occurrence of significant effects which are identified in the final EIR but are not avoided or substantially lessened, the

FINDINGS OF FACT, HESPERIA COMMERCE CENTER II EIR, SCH NO. 2019110418 12122
2 March 2022
agency shall state in writing the specific reasons to support its action based on the Final EIR and/or other information in the record. The statement of overriding considerations shall be supported by substantial evidence in the record.
c) If an agency makes a statement of overriding considerations, the statement should be included in the record of the project approval and should be mentioned in the notice of determination. This statement does not substitute for, and shall be in addition to, findings required pursuant to Section 15091.

The Final EIR identified potentially significant effects that could result from the project. The City finds that the inclusion of certain mitigation measures as part of the approval of the project will reduce most, but not all, of those effects to less -than‐significant levels. Those impacts that are not reduced to less ‐than‐significant levels are identified and overridden due to specific project benefits (see Section 5, Statement of Overriding Considerations).

As required by CEQA, the City, in adopting these Findings, also adopts a Mitigation Monitoring and Reporting Program (MMRP) for the project. The City finds that the MMRP, which is incorporated by reference and made a part of these Findings, meets the requi rements of California Public Resources Code, Section 21081.6, by providing for the implementation and monitoring of measures intended to mitigate potentially significant effects of the project.

In accordance with the CEQA Statutes and Guidelines, the City adopts these Findings for the project. Pursuant to California Public Resources Code, Section 21082.1(c)(3), the City also finds that th ese Findings reflect the City’s independent judgment as the lead agency for the project.

1.1.1 Record of Proceedings
For the purposes of CEQA and the Findings herein set forth the record of proceedings for the project and consists of those items listed in CEQA Section 21167.6(e), along with other miscellaneous items contained within the City’s files that are relevant to th e consideration of the project. The record of proceedings for the City’s decision on the project consists of the following documents, at a minimum and without limitation, which are incorporated by reference and made part of the record supporting these Findings:
• The Notice of Preparation, Notice of Availability, and all other public notices issued by the City in conjunction with the project
• The Draft EIR for the project and all technical appendices and documents relied upon or incorporated by reference • All written comments submitted by agencies, organizations, or members of the public during the public review comment period on the Draft EIR and the City’s responses to those comments • The Final EIR for the project
• The MMRP for the project
• All reports, studies, memoranda, maps, staff reports, or other planning documents relating to the project prepared by the City or consultants to the City with respect to the City’s compliance with the requirements of CEQA and with respect to the City’s action on the project • All documents submitted to the City by other public agencies or members of the public in connection with the Draft EIR
• Any minutes and/or verbatim transcripts of all information sessions, public meetings, and public hearings held by the City in connection with the project

FINDINGS OF FACT, HESPERIA COMMERCE CENTER II EIR, SCH NO. 2019110418 12122
3 March 2022
• Any documentary or other evidence submitted to the City at such information sessions, public meetings, and public hearings
• All resolutions adopted by the City regarding the project, and all staff reports, analyses, and summarie s related to the adoption of those resolutions
• Matters of common knowledge to the City, including, but not limited to federal, state, and local laws and regulations • Any documents expressly cited in these Findings, in addition to those cited above; and any other materials required for the record of proceedings by CEQA Section 21167.6(e)

1.1.2 Custodian and Location of Records
The documents and other materials that constitute the Record of Proceedings for the City’s actions related to the project are located at the City of Hesperia, Planning D epartment, 9700 Seventh Avenue , Hesperia, California 92645. The City is the custodian of the Record of Proceedings for the project.

FINDINGS OF FACT, HESPERIA COMMERCE CENTER II EIR, SCH NO. 2019110418 12122
4 March 2022

INTENTIONALLY LEFT BLANK

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2 CEQA Findings of
Independent Judgement

2.1 Independent Review and Analysis
Under CEQA, the lead agency must (1) independently review and analyze the EIR; (2) circulate draft documents that reflect its independent judgment; (3) as part of the certification of an EIR, find that the report or declaration reflects the independent judgment of the lead agency; and (4) submit copies of the documents to the State Clearinghouse if there is state agency involvement or if the project is of s tatewide, regional, or area-wide significance (California Public Resources Code, Section 21082.1[c]).

This Findings reflects City’s independent judgment. The City has exercised independent judgment in accordance with CEQA Section 21082.1(c)(3) in retaining its own environmental consultant in the preparation of the EIR, as well as reviewing, analyzing and revising material prepared by the consultant.

Having received, reviewed, and considered the information in the Final EIR, as well as any and all other information in the record, the City hereby makes findings pursuant to and in accordance with CEQA Sections 21081, 21081.5, and 21081.6.

2.2 Impacts Determined to Be Significant
and Unavoidable
This section identifies the significant unavoidable impacts that require a statement of overriding considerations to be issued by the City, pursuant to Section 15093 of the CEQA Guidelines, if the project is approved. Based on the analysis contained in the EIR, the following impacts have been determined to fall within the “significant unavoidable impacts” category:
• Air Quality
o Applicable air quality plan
o Cumulatively considerable net increase of criteria pollutants • Long-term operational impacts
• Health effects of criteria air pollutants
o Expose sensitive receptors to substantial pollutant concentrations • Criteria air pollutant emissions and associated pollutant concentrations o Cumulative air quality impacts
• Greenhouse Gas Emissions
o Generation of greenhouse gas emissions
o Cumulative greenhouse gas impacts
• Noise
o Increase in noise levels
o Cumulative noise impacts

FINDINGS OF FACT, HESPERIA COMMERCE CENTER II EIR, SCH NO. 2019110418 12122
6 March 2022
• Transportation
o Conflict with CEQA Guidelines Section 15064.3(b)
o Design hazards
• Queuing analysis
o Cumulative transportation impacts
Other impacts addressed under cumulatively considerable net increase of criteria pollutants (construction) are addressed in Section 2.3, Impacts Determined to Be Less Than Significant with Mitigation, and other impacts under expose sensitive receptors to substantial pollutant concentrations (local carbon monoxide concentrations, toxic air contaminant exposure, and valley fever ) and other emissions (such as those leading to odors) are addressed in Section 2.4, Impacts Determined to Be Less Than Significant. In addition, other impacts not addressed under increase in noise levels (short-term construction impacts and on-site operational noise) are addressed in Section

2.4. Other impacts not addressed under conflicts with design hazards (hazardous design features and incompatible uses) are addressed in Section 2.4.

2.2.1 Air Quality

2.2.1.1 Potentially Significant Impacts to Air Quality
Applicable Air Quality Plan
The Federal Particulate Matter Attainment Plan and Ozone Attainment Plan f or the Mojave Desert set forth a comprehensive set of programs that will lead the MDAB into compliance with federal and state air quality standards.

The control measures and related emission reduction estimates within the Federal Particulate Matter Attainm ent Plan and Ozone Attainment Plan are based upon emissions projections for a future development scenario derived from land use, population, and employment characteristics defined in consultation with local governments. A project is non -conforming with an air quality plan if it conflicts with or delays implementation of any applicable attainment or maintenance plan. A project is conforming if it complies with all applicable MDAQMD rules and regulations, complies with all proposed control measures that are not yet adopted from the applicable plan(s), and is consistent with the growth forecasts in the applicable plan(s) (or is directly included in the applicable plan). Zoning changes, specific plans, general plan amendments and similar land use plan changes wh ich do not increase dwelling unit density, do not increase vehicle trips, and do not increase vehicle miles traveled are also deemed to comply with the applicable air quality plan (MDAQMD 2016).

The Project would be required to comply with all applicable MDAQMD Rules and Regulations, including, but not limited to Rules 401 (Visibile Emissions), 402 (Nuisance), and 403 (Fugitive Dust). The Project site is located within the Main Street and Freeway Corridor Specific Plan and is designated for Commercial/Industrial Business Park (CIBP) uses. The CIBP designation is intended to provide for service commercial, light industrial, light manufacturing, and industrial support uses. The Project Applicant proposes land uses that are consistent with development anticipated under the site’s existing General Plan designation. The Project would therefore conform to local land use plans.

As discussed below, Project construction -source emissions would not exceed applicable MDAQMD regional thresholds after implementation of Mit igation Measure (MM) AQ -1. However, Project operational -source air pollutant emissions would result in exceedances of regional thresholds for emissions of VOC, NOx, and PM10, even after implementation of MM -AQ-4 through MM -AQ-6. As such, VOC, NO x, and PM 10 emissions are considered

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significant and unavoidable and the Project would have the potential to increase the frequency or severity of a violation in the federal or state ambient air quality for on-going Project operations.

Based on the preceding considerations, the Project would conform to local land use plans and would comply with all applicable all MDAQMD Rules and Regulations. However, Project operational -source emissions have the potential to increase the frequency or severity of a violation in the f ederal or state ambient air quality standards.

On this basis, the Project is considered to potentially conflict with the Federal Particulate Matter Attainment Plan and Ozone Attainment Plan for the MDAB. Therefore, impacts associated with the conflicting w ith the MDAQMD would be significant and unavoidable.

Cumulatively Considerable Net Increase of Criteria Pollutants Construction and operation of the Project would result in emissions of criteria air pollutants from mobile, area, and/or stationary sources, which may cause exceedances of federal and state ambient air quality standards or contribute to existing nonattainment of ambient air quality standards. The following discussion identifies potential short-term construction and long-term operational impacts that would result from implementation of the Project.

Air pollution is largely a cumulative impact. The nonattainment status of regional pollutants is a result of past and present development, and the MDAQMD develops and implements plans for future attainment of ambient air quality standards. Although the area of the MDAB where the Project is located is currently designated a nonattainment area for federal and state O 3 standards and federal and state PM 10 standards, the MDAB has experienced a substantial reduction in maximum 8-hour concentrations of O3 over the past 30 years, as well as reductions in PM10 over time, as described in the respective MDAQMD O3 and PM10 attainment plans. CEQA thresholds are established at levels that the air basin can accommodate without affecting the attainment date for the AAQS. Based on these considerations, project-level thresholds of significance for criteria pollutants are relevant in the determination of whether a project’s individual emissions would have a cumulatively significant impact on air quality.

Long-Term Operational Impacts
Operation of the Project would generate VOC, NOx, CO, SOx, PM10, and PM2.5 emissions from mobile sources, including passenger vehicle and truck trips; area sources, including the use of consumer products, architectural coatings for repainting, and landscape maintenance equipment; energy sources, including combustion of fuels used for space and water heating; and on-site equipment. CalEEMod utilizes summer and winter EMFAC2017 emission factors in order to derive vehicle emissions associated with on-road vehicle activities, which vary by season.

The Project would exceed the numerical thresholds of significance established by the MDAQMD for emissions of VOC, NOX, and PM10. This impact would be potentially significant without mitigation.

Mitigation measures are required to minimize operational-related air quality impacts (MM-AQ-4 through MM-AQ-6).

For VOC emissions, the majority are derived from consumer products, including cleaning supplies, aerosols, and other consumer products. As such, the Project Applicant cannot meaningfully control the use of consumer products by future buildi ng users via mitigation; nonetheless, MM -AQ-6, requiring a low -VOC/green cleaning product educational program, would be implemented in effort to reduce VOC emissions from consumer products.

Additionally, the majority of the Project’s NOX and PM10 emissions are derived from vehicle usage, which n either the Project Applicant nor the City can substantively or materially affect reductions in Project mobile source emissions beyond what is already required. Nonetheless, MM-AQ-4 and MM-AQ-5 would be implemented to reduce mobile-source emissions of VOC, NOX, and PM10. While MM-AQ-4 through MM-AQ-6 would reduce Project-generated operational criteria air pollutant emissions, the associated emission reductions cannot be accurately quantified at

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this time; therefore, em issions of VOC, NO X, and PM 10 would still exceed the MDAQMD thresholds with implementation of mitigation. Furthermore, no feasible mitigation measures or project design features beyond those already identified exist that would reduce these emissions to levels that are less than significant. Therefore, even with the incorporation of mitigation, long -term impacts associated with a cumulatively considerable net increase of criteria pollutants for which the Project region is non-attainment would be significant and unavoidable.

Health Effects of Criteria Air Pollutants
Construction of the Project would result in emissions that would not exceed the MDAQMD thresholds for criteria air pollutants, including VOC, after implementation of MM -AQ-1. Operation of the Project, however, would result in emissions that would exceed the MDAQMD thresholds for criteria air pollutants including VOC, NOx, and PM10, even after implementation of MM-AQ-4 through MM-AQ-6.

Under the heading Pollutants and Effects, health effects associated with O 3 include respiratory symptoms, worsening of lung disease leading to premature death, and damage to lung tissue (CARB 2019 a). VOCs and NO x are precursors to O3, for which the MDAB is designated as nonattainment with respect to the NAAQS and CAAQS.

The contribution of VOCs and NO x to regional ambient O3 concentrations is the result of complex photochemistry.

The increases in O3 concentrations in the MDAB due to O3 precursor emissions tend to be found downwind of the source location because of the time required for the photochemical reactions to occur. Further, the potential for exacerbating excessive O 3 concentrations would also depend on the time of year that the VOC emissions would occur, because exceedances of the O 3 NAAQS and CAAQ S tend to occur between April and October when solar radiation is highest. Due to the lack of quantitative methods to assess this complex photochemistry, the holistic effect of a single project’s emissions of O 3 precursors is speculative. That being said, because the Project would exceed the MDAQMD VOC and NO x thresholds during Project operations, the Project could contribute to health effects associated with O3.

Health effects associated with NOx and NO2 include lung irritation and enhanced allergic responses (CARB 2019b).

Although Project-related NOx emissions would exceed the MDAQMD construction mass daily thresholds, because the MDAB is a designated attainment area for NO 2 (and NO 2 is a constituent of NO x) and the existing NO 2 concentrations in the area are well below the NAAQS and CAAQS standards, 1 it is not anticipated that the Project would cause an exceedance of the NAAQS and CAAQS for NO2 or result in potential health effects associated with NO2 and NO x. Nonetheless, because the Project would excee d the MDAQMD NO x threshold during Project operations, the Project could contribute to health effects associated with NOx and NO2.

Health effects associated with CO include chest pain in patients with heart disease, headache, light -headedness, and reduced mental alertness (CARB 2019 c). CO tends to be a localized impact associated with congested intersections. The potential for CO hotspots is discussed under the subsequent impact criterion below and determined to be less than significant. Thus, the Project’s CO emissions would not contribute to significant health effects associated with CO.

Health effects associated with PM10 include premature death and hospitalization, primarily for worsening of respiratory disease (CARB 2017). Operation of the Project would exceed the MDAQMD threshold for PM10. As such, the Project would potentially contribute to exceedances of the NAAQS and CAAQS for particulate matter and obstruct the MDAB from

1 Ambient concentrations of NO2 at the Victorville monitoring station have not exceeded the NAAQS or CAAQS between 2016 and 2018.

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coming into attainment for these pollutants. Because the Project has the potential to contribute substantial particulate matter during operation, the Project could result in associated health effects.

The California Supreme Court’s Sierra Club v. County of Fresno (2018) 6 Cal. 5th 502 decision (referred to herein as the Friant Ranch decision) (issued on December 24, 2018), addresses the need to correlate mass emission values for criteria air pollutants to specific health consequences, and contains the following direction from the California Supreme Court: “The Environmental Impact Report (EIR) must provide an adequate analysis to inform the public how its bare numbers translate to create potential adverse impacts or it must explain what the agency does know and why, given existing scientific constraints, it cannot translate potential health impacts further” (Italics original). Currently, MDAQMD, CARB, and EPA have not approved a quantitative method to reliably, meaningfully, and consistently translate the mass emissi on estimates for the criteria air pollutants resulting from the Project to specific health effects. In addition, there are numerous scientific and technological complexities associated with correlating criteria air pollutant emissions from an individual project to specific health effects or potential additional nonattainment days.

In connection with the judicial proceedings culminating in issuance of the Friant Ranch decision, the SCAQMD and the San Joaquin Valley Air Pollution Control District (SJVAPCD) filed amicus briefs attesting to the extreme difficulty of correlating an individual project’s criteria air pollutant emissions to specific health impacts. Both the SJVAPCD and the SCAQMD have among the most sophisticated air quality modeling and health impact evaluation capabilities of the air districts in the state. The key, relevant points from the SCAQMD and SJVAPCD briefs is summarized herein.

In requiring a health impact type of analysis for criteria air pollutants, it is important to understand how O3 and PM is formed, dispersed and regulated. The formation of O3 and PM in the atmosphere, as secondary pollutants,2 involves complex chemical and physical interactions of multiple pollutants from natural and anthropogenic sources. The O3 reaction is self-perpetuating (or catalytic) in the presence of sunlight because NO 2 is photochemically reformed from nitric oxide (NO). In this way, O 3 is controlled by both NO x and VOC emissions (NRC 2005). The complexity of these interacting cycles of pollutants means that incremental decreases in one emission may not result in proportional decreases in O3 (NRC 2005). Although these reactions and interactions are well understood, variability in emission source operations and meteorology creates uncertainty in the modele d O 3 concentrations to which downwind populations may be exposed (NRC 2005). Once formed, O3 can be transported long distances by wind and due to atmospheric transport, contributions of precursors from the surrounding region can also be important (EPA 2008).

Because of the complexity of O3 formation, a specific tonnage amount of VOCs or NOX emitted in a particular area does not equate to a particular concentration of O 3 in that area (SJVAPCD 2015). PM can be divided into two categories: directly emitted PM and secondary PM. Secondary PM, like O3, is formed via complex chemical reactions in the atmosphere between precursor chemicals such as SOx and NOx (SJVAPCD 2015). Because of the complexity of secondary PM formation, including the potential to be transport ed long distances by wind, the tonnage of PM - forming precursor emissions in an area does not necessarily result in an equivalent concentration of secondary PM in that area (SJVAPCD 2015). This is especially true for individual projects, like the Project, where Project-generated criteria air pollutant emissions are not derived from a single "point source," but from construction equipment and mobile sources (passenger cars and trucks) driving to, from and around the Project site.

Another important technical nuance is that health effects from air pollutants are related to the concentration of the air pollutant that an individual is exposed to, not necessarily the individual mass quantity of emissions associated with an individual project. For example, health effects from O3 are correlated with increases in the ambient level of O3 in the air a person breathes (SCAQMD 2015). However, it takes a large amount of additional precursor emissions to cause a modeled increase in ambient O3 levels over an entire region (SCAQMD 2015). The lack of link between

2 Air pollutants formed through chemical reactions in the atmosphere are referred to as secondary pollutants.

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the tonnage of precursor pollutants and the concentration of O 3 and PM2.5 formed is important because it is not necessarily the tonnage of precursor pollutants that causes human health effects; rather, it is the concentration of resulting O 3 that causes these effects (SJVAPCD 2015). Indeed, the ambient air quality standards, which are statutorily required to be set by EPA at levels that are requisite to protect the public health, are established as concentrations of O3 and PM2.5 and not as tonnages of their precursor pollutants (EPA 2018b). Because the ambient air quality standards are focused on achieving a particular concentration region -wide, the tools and plans for attaining the ambient air quality standards are regional in nature. For CEQA analyses, project-generated emissions are typically estimated in pounds per day or tons per year and compared to mass daily or annual emission thresholds. While CEQA thresholds are established at levels that the air basin can accommodate without affecting the attainment date for the AAQS, even if a project exceeds established CEQA significance thresholds, this does not mean that one can easily determine the concentration of O3 or PM that will be created at or near the project site on a particular day or month of the year, or what specific health impacts will occur (SJVAPCD 2015).

In regard to regional concentrations and air basin attainment, the SJVAPCD emphasized that attempting to identify a change in background pollutant concentrations that can be attributed to a single project, even one as large as the entire Friant Ranch Specific Plan, is a theoretical exercise. The SJVAPCD brief noted that it “would be extremely difficult to model the impact on NAAQS attainment that the emissions from the Friant Ranch project may have” (SJVAPCD 2015). The situation is further complicated by the fact that background concentrations of regional pollutants are not uniform either temporally or geographically throughout an air basin, but are constantly fluctuating based upon meteorology and other environmental factors. SJVAPCD noted that the currently available modeling tools are equipped to model the impact of all emission sources in the San Joaquin Valley Air Basin on attainment (SJVAPCD 2015). The SJVAPCD brief then indicated that, “Running the photochemical grid model used for predicting O3 attainment with the emissions solely from the Friant Ranch project (which equate to less than one-tenth of one percent of the total NOx and VOC in the Valley) is not likely to yield valid information given the relative scale involved” (SJVAPCD 2015).

SCAQMD and SJVAPCD have indicated that it is not feasible to quantify project -level health impacts based on existing modeling (SCAQMD 2015; SJVAPCD 2015). Even if a m etric could be calculated, it would not be reliable because the models are equipped to model the impact of all emission sources in an air basin on attainment and would likely not yield valid information or a measurable increase in O 3 concentrations sufficient to accurately quantify O3-related health impacts for an individual project.

Nonetheless, following the Supreme Court’s Friant Ranch decision, some EIRs where estimated criteria air pollutant emissions exceeded applicable air district thresholds have included a quantitative analysis of potential project-generated health effects using a combination of a regional photochemical grid model (PGM)3 and the EPA Benefits Mapping and Analysis Program (BenMAP or BenMAP–Community Edition [CE]).4 The publicly available health impact assessments (HIAs) typically present results in terms of an increase in health incidences and/or the increase in background health

3 The first step in the publicly available HIAs includes running a regional PGM, such as the Community Multiscale Air Quality (CMAQ) model or the Comprehensive Air Quality Model with extensions (CAMx) to estimate the increase in concentrations of O3 and PM2.5 as a result of project-generated emissions of criteria and precursor pollutants. Air districts use photochemical air quality models for regional air quality planning. These photochemical models are large -scale air quality models that simulate the changes of pollutant concentrations in the atmosph ere using a set of mathematical equations characterizing the chemical and physical processes in the atmosphere (EPA 2017).
4 After estimating the increase in concentrations of O3 and PM2.5, the second step in the five examples includes use of BenMAP or BenMAP-CE to estimate the resulting associated health effects. BenMAP estimates the number of health incidences resulting from changes in air pollution concentrations (EPA 2018a). The health impact function in BenMAP-CE incorporates four key sources of data: (i) modeled or monitored air quality changes, (ii) population, (iii) baseline incidence rates, and (iv) an effect estimate. A ll of the five example HIAs focused on O3 and PM2.5.

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incidence for various health outcomes resulting from the project’s estimated increase in concentrations of O3 and PM2.5.5 To date, the five publicly available HIAs reviewed have concluded that the evaluated project’s health effects associated with the estimated project-generated increase in concentrations of O3 and PM2.5 represent a small increase in incidences and a very small percentage of the number of background incidences, indicating that these health impacts are negligible and potentially within the models’ margin of error. It is also important to note that while the results of the five available HIAs conclude that the project emissions do not result in a substantial increase in health incidences, the estimated emissions and assumed toxicity is also conservatively inputted into the HIA and thus, overestimate health incidences, particularly for PM2.5.

As explained in the SJVAPCD brief and noted previously, running the PGM used for predicting O3 attainment with the emissions solely from an individual project like the Friant Ranch project or the Project is not likely to yield valid information given the relative scale involved. The five examples reviewed support the SJVAPCD’s brief contention that consistent, reliable, and meaningful results may not be provided by methods applied at this time. Accordingly, additional work in the industry and more importantly, air district participation, is needed to develop a more meaningful analysis to correlate project- level mass criteria air pollutant emissions and health effects for decision makers and the public. Furthermore, at the time of writing, no HIA has concluded that health effects estimated using the PGM and BenMAP approach are substantial provided that the estimated project-generated incidences represent a very small percentage of the number of background incidences, potentially within the models’ margin of error.

In summary, operation of the Project could result in exceedances of the MDAQMD significance thresholds for VOC, NOx, and PM10, and the Project would potentially result in health effects associated with those pollutants. Because construction of the Project would not exceed any MDAQMD thresholds (after mitigation), and operation of the Project would not exceed the MDAQMD thresholds for CO, SOx or PM2.5, and because the MDAQMD thresholds are based on levels that the MDAB can accommodate without affecting the attainment date for the AAQS and the AAQS are established to protect public health and welfare, the Project is not anticipated to result in health effects associated with CO, SOx or PM2.5.

Notably, there are numerous scientific and techn ological complexities associated with correlating criteria air pollutant emissions from an individual project to specific health effects or potential additional nonattainment days, and methods available to quantitatively evaluate health effects may not be appropriate to apply to emissions associated with the Project, which cannot be estimated with a high -level of accuracy. Notwithstanding, because operation of the Project could result in exceedances of MDAQMD significance thresholds for VOC, NO x, and PM10, even after implementation of MM -AQ-4 through MM-AQ-6, the potential health effects associated with criteria air pollutants are conservatively considered significant and unavoidable.

Expose Sensitive Receptors to Substantial Pollutant Concentrations Criteria Air Pollutant Emissions and Associated Pollutant Concentrations As discussed above, because operation of the Project could result in exceedances of the MDAQMD significance thresholds for VOC, NO x, and PM 10, the Project would potentially result in health effects associated with those pollutants. Because construction of the Project would not exceed any MDAQMD thresholds (after implementation of MM-AQ-4 through MM-AQ-6), and operation of the Project would not exceed the MDAQMD thresholds for CO, SOx

5 The following CEQA documents included a quantitative HIA to address Friant Ranch: (1) California State University Dominguez Hills 2018 Campus Master Plan EIR (CSUDH 2019), (2) March Joint Powers Association K4 Warehouse and Cactus Channel Improvements EIR (March JPA 2019), (3) Mineta San Jose Airport Amendment to the Airport Mas ter Plan EIR (City of San Jose 2019), (4) City of Inglewood Basketball and Entertainment Center Project EIR (City of Inglewood 2019), and (5) San Diego Stat e University Mission Valley Campus Master Plan EIR (SDSU 2019).

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or PM 2.5, and because the MDAQMD thresholds are based on levels that the MDAB can accommodate without affecting the attainment date for the AAQS and the AAQS are established to protect public health and welfare, the Project is not anticipated to result in health effects associated with CO, SOx or PM2.5.

Notably, there are numerous scientific and technological complexities associated with correlating criteria air pollutant emissions from an individual project to specific health effects or potential additional nonattainment days, and methods available to quantitatively evaluate health effects may not be appropriate to apply to emissions associated with the Project, which cannot be estimated with a high -level of accuracy. Notwithstanding, because operation of the Project could result in exceedances of MDAQMD significance thresholds for VOC, NO x, and PM10, even after implementation of MM -AQ-4 through MM-AQ-6, the potential health effects associated with criteria air pollutants are conservatively considered significant and unavoidable.

Cumulative Air Quality Impact
Air pollution is largely a cumulative impact. The nonattainment status of regional pollutants is a result of past and present development, and the MDAQMD develops and implements plans for future attainment of ambient air quality standards. Based on these considerations, project-level thresholds of significance for criteria pollutants are relevant in the determination of whether a project’s individual emissions would have a cumulatively significant impact on air quality. Individual projects that do not generate operational or construction emissions that exceed the MDAQMD’s recommended daily thresholds for project -specific impacts would also not cause a cumulatively considerable increase in emissions for those pollutants for which the MDAB is in nonattainment, and, therefore, would not be considered to have a significant, adverse air quality impact.

The area of the MDAB in which the Project is located is a nonattainment area for O 3 and PM10 under the NAAQS and/or CAAQS. The poor air quality in the MDAB is the result of cumulative emissions from motor vehicles, off-road equipment, commercial and industrial facilities, and other emission sources. Projects that emit these pollutants or their precursors (i .e., VOC and NO x for O 3) potentially contribute to poor air quality. Daily construction emissions associated with the Project would not exceed the MDAQMD significance thresholds after implementation of mitigation of MM-AQ-1. However, as presented in the pr eceding analysis, Project operational-source air pollutant emissions would result in exceedances of regional thresholds for emissions of VOC, NO X, and PM10. As previously stated, the majority of VOC emissions are derived from consumer products, the use of which the Project Applicant cannot meaningfully control for future building users via mitigation. On this basis, it is concluded that Project operational-source VOC emissions cannot be definitively reduced below applicable MDAQMD thresholds.

Additionally, it should be noted that the majority of the Project’s NOX and PM10 emissions are derived from vehicle usage. Although MM -AQ-4 through MM -AQ-6 would reduce operational emissions from on -road vehicles to the extent feasible, since neither the Project Applic ant nor the City of Hesperia have regulatory authority to control tailpipe emissions, no feasible MMs exist that would reduce these emissions to levels that are less-than-significant.

As such, Project operational-source VOC, NO X, and PM 10 emissions exceedances of applicable MDAQMD regional thresholds would be significant and unavoidable, and thus, cumulatively considerable.

2.2.1.2 Mitigation Measures
MM-AQ-1 The Project shall utilize “Super-Compliant” low VOC paints which have been reformulated to exceed the regulatory VOC limits put forth by MDAQMD’s Rule 1113. Super-Compliant low VOC paints shall be no more than 10 grams per liter (g/L) of VOC. Alternatively, the Project Applicant may utilize tilt- up concrete buildings that do not require the use of architectural coatings.

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MM-AQ-2 The Project shall implement the following measures in order to reduce construction air pollutant emissions to the extent feasible:
• Ensure the cleanest possible construction practices and equipment are used. This includes eliminating the idling of diesel-powered equipment and providing the necessary infrastructure (e.g., electrical hookups) to support zero and near-zero emission equipment and tools. • Implement, and plan accordingly for, the necessary infrastructure to support the zero and near- zero emission technology, vehicles, and equipment that will be operating onsite during construction. Necessary infrastructure may include the physical (e.g. needed footprint), energy, and fueling infrastructure for construction equipment, onsi te vehicles and equipment, and medium-heavy and heavy-heavy duty trucks.

MM-AQ-3 The Project shall include the following language within construction contracts in order to reduce construction air pollutant emissions to the extent feasible:
• All off-road diesel-powered equipment used during construction shall be equipped with Tier 4 or cleaner engines. If the operator lacks Tier 4 equipment, and it is not available for lease or short-term rental within 50 miles of the project site, Tier 3 or cleaner off -road construction equipment may be utilized subject to City approval.
• Heavy-duty trucks entering the construction site during grading and building construction phases should be model year 2014 or later. All heavy -duty trucks should also meet CARB’s lowest optional low oxides of nitrogen (NOx) standard starting in the year 2022.6 • All construction equipment and fleets shall be in compliance with all current air quality regulations.

MM-AQ-4 The Project shall implement the following measures in order to reduce operational air pollutant emissions to the extent feasible:
• Only haul trucks meeting model year 2010 engine emission standards shall be used for the on-road transport of materials to and from the Project site. • Legible, durable, weather-proof signs shall be placed at truck access gates, loading docks, and truck parking areas that identify applicable California Air Resources Board (CARB) anti -idling regulations. At a minimum, each sign shall include: 1) instructions for truck drivers to shut off engines when not in use; 2) instructions for drivers of diesel trucks to restrict idling to no more than 5 minutes once the vehicle is stopped, the transmission is set to "neutral" or "park," and the parking brake is engaged; and 3) telephone numbers of the building facilities manager and the CARB to report violations. Prior to the issuance of an occupancy permit, the City of Hesperia shall conduct a site inspection to ensure that the signs are in place. • Prior to tenant occupancy, the Project Applicant or success or in interest shall provide documentation to the City of Hesperia demonstrating that occupants/tenants of the Project site have been provided documentation on funding opportunities, such as the Carl Moyer Program, that provide incentives for using cleaner-than-required engines and equipment.

6 In 2013, CARB adopted optional lo w-NOx emission standards for on -road heavy -duty engines. CARB encourages engine manufacturers to introduce technologies to reduce NOx emissions below the current mandatory on-road heavy-duty diesel engine emission standards for model year 2010 and later. C ARB’s optional low -NOx emission standard is available at:
https://ww2.arb.ca.gov/our-work/programs/optional-reduced-nox-standards.

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• Automobile electric vehicle (EV) charging stations with Level 2 or faster chargers shall be provided. The number of EV charging stations shall equal at least 25% employee parking spots. • In addition, the buildings shall include electrical infrastructure sufficiently sized to accommodate the potential installation of additional auto and truck EV charging stations in the future. • Conduit shall be installed to tractor trailer parking areas in logical locations determined by the Project Applicant during construction document plan check, for the purpose of accommodating the future installation of EV truck charging stations at such time this technology becomes commercially available.
• The Project shall include rooftop solar panels for each proposed warehouse to the extent feasible, with a capacity that matches the maximum allowed for distributed solar connections to the grid.

The Project Applicant or successor in interest shall maintain, replace, and upgrade the solar panels per manufacturers recommendations through the life of the Project. Should the capacity for solar connections increase, additional solar panels shall be added to the Project.

MM-AQ-5 The Project shall include the following language within tenant lease agreements in order to reduce operational air pollutant emissions to the extent feasible:
• Require tenants to use the cleanest technologies available, and to provide the necessary infrastructure to support zero -emission vehicles, equipment, and appliances that would be operating on site. This requirement shall apply to equipment such as forklifts, handheld landscaping equipment, yard trucks, office appliances, etc. • Require future tenants to exclusively use zero-emission light and medium-duty delivery trucks and vans, when economically feasible.
• Tenants shall be in, and monitor compliance with, all current air quality regulations for on-road trucks including CARB’s Heavy -Duty (Tractor -Trailer) Greenhouse Gas Regulation 7, Periodic Smoke Inspection Program (PSIP)8, and the Statewide Truck and Bus Regulation9. • Cold storage operations shall be prohibited unless additional environmental review, including a Health Risk Assessment, is conducted and certified pursuant to the California Environmental Quality Act.

MM-AQ-6 Low-VOC/Green Cleaning Product Educational Program. Prior to the occupancy of any on -site development, the Applicant or its designee shall provide evidence to the City of Hesperia that the Applicant/phase developer has developed a Green Cleaning Product and Paint education program to be made available at rental offices, leasing spaces, and/or on websites.

7 In December 2008, CARB adopted a regulation to reduce greenhouse gas emissions by improving the fuel efficiency of heavy- duty tractors that pull 53-foot or longer box-type trailers. The regulation applies primarily to owners of 53-foot or longer box-type trailers, including both dry-van and refrigerated-van trailers, and owners of the heavy-duty tractors that pull them on California highways. CARB’s Heavy-Duty (Tractor-Trailer) Greenhouse Gas Regulation is available at: https://www.arb.ca.gov/ cc/hdghg/hdghg.htm.
8 The PSIP program requires that diesel and bus fleet owners conduct annual smoke opacity inspections of their vehicles and repair those with excessive smoke emissions to ensure compliance. CARB’s PSIP program is available at:
https://www.arb.ca.gov/enf/hdvip/hdvip.htm.
9 The regulation requires that newer heavier trucks and buses must meet particulate matter filter requirements beginning January 1, 2012. Lighter and older heavier trucks must be replaced starting January 1, 2015. By January 1, 2023, nearly all trucks and buses will need to have 2010 model year engines or equivalent. CARB’s Statewide Truck and Bus Regu lation is available at:
https://www.arb.ca.gov/msprog/onrdiesel/onrdiesel.htm.

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2.2.1.3 Findings per CEQA Guidelines
The City finds that the above mitigation measures are feasible, are adopted, and will reduce the proposed project’s air quality impact. Construction emissions would be reduced to below the MDAQMD’s regional thresholds with implementation of MM-AQ-1. However, Project operational -source air pollut ant emissions would result in exceedances of regional thresholds for emissions of VOC, NO x, and PM10, even after implementation of MM -AQ-4 through MM-AQ-6. As such, VOC, NOx, and PM10 emissions are considered significant and unavoidable. In addition, the project would result in cumulatively considerable impacts related to the potential to conflict with the MDAQMD’s thresholds, result in a cumulatively considerable net increase of criteria pollutants ( VOC, NO x, and PM 10), and expose sensitive receptors to substantial pollutant concentrations (VOC, NOx, and PM10). Additionally, it should be noted that the majority of the Project’s NOX and PM10 emissions are derived from vehicle usage. Although MM-AQ- 4 through MM-AQ-6 would reduce operational emissions from on-road vehicles to the extent feasible, since neither the Project Applicant nor the City of Hesperia have regulatory authority to control tailpipe emissions, no feasible MMs exist that would reduce these emissions to levels that are less-than-significant. As such, Project operational- source VOC, NOX, and PM10 emissions exceedances of applicable MDAQMD regional thresholds would be significant and unavoidable, and thus, cumulatively considerable.

Pursuant to Section 21081(a)(3) of the Californ ia Public Resources Code, as described in the Statement of Overriding Considerations, the City has determined that specific economic, legal, social, technological, or other considerations make infeasible the alternatives identified in the EIR, and the iden tified air quality impacts are thereby acceptable because of specific overriding considerations (see Section 5).

2.2.1.4 Facts in Support of the Findings Related to Air Quality Based on the impact analysis, the proposed project would result in significant operational VOC, NO x, and PM 10 emission impacts. Implementation of MM-AQ-1 through MM-AQ-6 would reduce potential impacts from criteria air pollutants and project emissions. However, due to the size and type of the project, it is not feasible to implement mitigation measures to reduce the operational mobile source emissions. Various mitigation measures were considered, including land use strategies such as proximity to transi t station; however, these strategies and MM- AQ-4 through MM-AQ-6 cannot be quantified due to the uncertainty. Thus, the project’s impacts related to potential to conflict with or obstruct implementation of the MDAQMD’s regional thresholds and the project operational VOC, NOx, and PM10 emissions would remain significant. In addition, the project would result in cumulatively considerable impacts related to the potential to conflict with the MDAQMD regional thresholds , result in a cumulatively considerable net increase of criteria pollutants (VOC, NOx, and PM10), and expose sensitive receptors to substantial pollutant concentrations (VOC, NOx, and PM10).

2.2.2 Greenhouse Gas Emissions

2.2.2.1 Potentially Significant Impacts to Greenhouse Gas Emissions Generation of Greenhouse Gas Emissions
For construction phase Project emissions, GHGs are quantified and amortized over the life of the Project. MDAQMD follows the SCAQMD recommendation in calculating the total GHG emissions for construction activities by amortizing the emissions over the life of the Project by dividing it by a 30-year Project life then adding that number

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to the annual operational phase GHG emissions. As such, construction emissions were amortized over a 30 -year period and added to the annual operational phase GHG emissions.

Total estimated GHG emissions generated during construction of the Project is approximately 3,885 MT CO2e. Estimated Project-generated construction emissions amortized over 30 years would be approximately 130 MT CO2e per year.

Long-term operations of the Project would result in GHG emissions through mobile sources and on-site equipment, area sources (landscape maintenance equipment); energy use (natural gas and generation of electricity consumed by the Project); generation of electricity associated with wastewater treatment and with water supply, treatment, and distribution; and solid waste disposal. Annual GHG emissions from these sources were estimated using CalEEMod.

To effectively analyze operational GHG emissions as sociated with the Project, two scenarios were modeled. The first scenario represents Project emissions under a without regulatory measures and PDFs (shown as “unmitigated” emissions in CalEEMod), which estimates Project emissions absent federal, state, and local measures and without Project features intended to reduce GHG emissions upon Project buildout. The second scenario (shown as “mitigated” emissions in CalEEMod) represents Project emissions with implementation of applicable federal, state, and local GHG reduction measures and Project features. Without accounting for applicable regulatory requirements and PDFs, the Project would result in approximately 63,906 MT CO2e per year.

The Project would be required to comply with all mandates imposed by the State of California and the MDAQMD. Those measures that are applicable to the Project and that would assist in the reduction of GHG emissions are as follows:
• Global Warming Solutions Act of 2006 (AB 32).
• Regional GHG Emissions Reduction Targets/Sustainable Communities Strategies (SB 375). • Pavley Fuel Efficiency Standards (AB 1493). Establishes fuel efficiency ratings for new vehicles. • Title 24 California Code of Regulations (California Building Code). Establishes energy efficiency requirements for new construction.
• Title 20 California Code of Regulations (Appliance Energy Efficiency Standards). Establishes energy efficiency requirements for appliances.
• Title 17 California Code of Regulations (Low Carbon Fuel Standard). Requires carbon content of fuel sold in California to be 10% less by 2020.
• California Water Conservation in Landscaping Act of 2006 (AB 1881). Requires local agencies to adopt the Department of Water Resources updated Water Efficient Landscape Ordinance or equivalent by January 1, 2010 to ensure efficient landscapes in new development and reduced water waste in existing landscapes. • Statewide Retail Provider Emissions Performance Standards (SB 1368). Requires energy generators to achieve performance standards for GHG emissions.
• Renewable Portfolio Standards (SB 1078). Requires electric corporations to increase the amount of energy obtained from eligible renewable energy resources to 20 % by 2010 and 33% by 2020. • SB 32. Requires the state to reduce statewide GHG emissions to 40% below 1990 level s by 2030, a reduction target that was first introduced in Executive Order B-30-15.

In addition to the above regulatory measures, the Project would implement PDFs and attributes promoting energy efficiency and sustainability, which are found below in Section 2.2.2.2, Project Design Features.

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With applicable regulatory requirements and PDFs, the Project would result in approximately 55,599 MT CO2e per year, which would exceed the SCAQMD GHG threshold of 3,000 MT CO2e per year. Therefore, the Project would generate GHG emissions, either directly or indirectly, that may have a significant impact on the environment, and this would represent a cumulatively potentially significant impact. Mitigation measures would be required that would reduce Project-generated construction and operational GHG emissions. As presented in Section 2.2.1, Air Quality, implementation of mitigation measures MM -AQ-2 and MM -AQ-3 would also reduce construction -related GHG emissions and mitigation measures MM -AQ-4 and MM -AQ-5 would also re duce operation -related GHG emissions. In addition, mitigation measures MM -GHG-1, requiring water conservation measures. and MM -GHG-2, implementing solid waste reduction strategies, would be implemented to reduce GHG emissions generated during operation of the Project. However, the effectiveness of the required mitigation measures cannot be accurately quantified at this time. Therefore, Project -generated GHG emissions would still exceed the applied threshold of 3,000 MT CO2e per year and impact would be significant and unavoidable.

Cumulative GHG Impacts
GHG emissions impacts are inherently cumulative in nature. The Project would result in GHG emissions in exceedance of the SCAQMD significance threshold. The Project would result in potentially significant impacts with regard to GHG emissions Implementation of MM -AQ-2 through MM -AQ-5 and MM -GHG-1 and MM -GHG-2 would reduce the Project’s GHG impacts; however, impacts would remain significant and unavoidable.

2.2.2.2 Project Design Features
Energy-saving and sust ainable design features and operational programs would be incorporated into facilities developed pursuant to the currently Project. The Project also incorporates and expresses the following project design features (PDFs) and attributes promoting energy eff iciency and sustainability. Because these features/attributes are integral to the Project, and/or are regulatory requirements, they are not considered to be mitigation measures.
• The Project will design building shells and building components, such as windows; roof systems: electrical and lighting systems: and heating, ventilating, and air conditioning systems to meet 2019 Title 24 Standards which expects 30% less energy for non-residential buildings. • To reduce water demands and associated energy use, subseq uent development proposals within the Project site would be required to implement a Water Conservation Strategy and demonstrate a minimum 20% reduction in indoor and outdoor water usage when compared to baseline water demand (total expected water demand without implementation of the Water Conservation Strategy).10 • In order to reduce the amount of waste disposed at landfills, the Project would implement a 75% waste diversion.

2.2.2.3 Mitigation Measures
MM-GHG-1 Water Conservation. Prior to the issuance of building permits for the Project, the Project applicant shall provide building plans that include the following water conservation measures:
• Install low-water use appliances and fixtures

10 Reduction of 20% indoor and outdoor water usage is consistent with the current CALGreen Code performance standards for residential and non-residential land uses. Per CALGreen, the reduction shall be based on the maximum allowable water use per plumbing fixture and fittings as required by the California Building Standards Code.

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• Restrict the use of water for cleaning outd oor surfaces and prohibit systems that apply water to non-vegetated surfaces
• Implement water-sensitive urban design practices in new construction • Install rainwater collection systems where feasible.

MM-GHG-2 Solid Waste Reduction. Prior to the issuance of building permits for the Project, the Project applicant shall provide building plans that include the following solid waste reduction measures:
• Provide storage areas for recyclables and green waste in new construction, and food waste storage, if a pick-up service is available.
• Evaluate the potential for onsite composting.

2.2.2.4 Findings Per CEQA Guidelines
The City finds that the above mitigation measures are feasible, are adopted, and will reduce the proposed project’s greenhouse gas emissions impact. The Project would result in GHG emissions in exceedance of the SCAQMD significance threshold even with implementation of MM -AQ-2 through MM -AQ-5 and MM -GHG-1 and MM -GHG-2.

However, the effectiveness of the required mitigation measures cannot be accurately quantified at this time.

Therefore, these impacts must be considered significant and unavoidable even after implementation of all feasible mitigation measures. Pursuant to Section 21081(a)(3) of the California Public Resources Code, as described in the Statement of Overriding Considerations, the City has determined that specific economic, legal, social, technological, or other considerations make infeasible the alternatives identified in the EIR, and the identified greenhouse gas emission impacts are thereby acceptable because of specific overriding considerations (see Section 5).

2.2.2.5 Facts in Support of the Findings Related to Greenhouse Gas Emissions Based on the impact analysis, the proposed project would result in significant greenhouse gas emission impacts.

Implementation of MM-AQ-2 through MM-AQ-5 and MM-GHG-1 and MM-GHG-2 would reduce potential impacts from greenhouse gas emissions. However, the effectiveness of the required mitigation measures cannot be accurately quantified at this time, therefore, greenhouse gas emission project impacts would remain significant and unavoidable.

2.2.3 Noise

2.2.3.1 Potentially Significant Impacts to Noise
Increase in Ambient Noise Levels
Long-Term Operational Noise
Off-Site Operational Traffic Noise
The Project would generate traffic along roadways in the community surrounding the Project site. Many of the roadways evaluated in the Traffic Impact Analysis serve commercial and industrial areas, which are not considered noise-sensitive in relation to noise from roadway traffic. However, a total of 12 roadway segments evaluated in the TIA are aligned along existing noise -sensitive (i.e., residential) areas. Potential noise effects from vehicular traffic

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were assessed using the Federal Highway Administrati on’s Traffic Noise Model version 2.5 (FHWA 2004).

Information used in the model included the site geometry, existing, existing plus Project, future without Project, and future with Project traffic volumes (provided in the Transportation Impact Analysis) and posted traffic speeds. Noise levels were modeled at a uniform distance from the roadway center-line along roadway segments with residences exiting along the right-of-way.

The City does not have a specific criterion for evaluating the significance of Pro ject-related increases in off -site traffic noise levels at residences or noise -sensitive areas. For the purposes of this analysis, traffic noise level increases are considered significant if they exceed ambient traffic noise levels by one dB or more, or ca use noise levels to exceed the 65 dBA CNEL noise threshold. An increase or decrease in noise level of three dBA is the minimum before any noticeable change in community response would be expected (Caltrans 1998).

The maximum noise level increase would below one (1) dB, and therefore insignificant, at every studied road segment except Main Street. Along Main Street, the Project would result in a maximum increase of 2.3 dB and 2 dB at the Mesa Linda Street and Cataba Road segments, respectively. While overall exterior noise exposure would remain within the City’s maximum exterior limits, the increase in traffic noise would be noticeable to residents along these segments.

To reduce the potentially significant Project traffic noise level increases on the tw o study area roadway segments for Existing plus Project, Opening Year Cumulative and Horizon Year Project conditions, potential noise mitigation measures were considered in the Noise Impact Analysis. Potential mitigation measures discussed in the report included rubberized asphalt hot mix pavement and off-site noise barriers for the existing non-conforming residential use adjacent to impacted roadway segments. However, while rubberized asphalt would provide some noise reduction, this mitigation is only effective for tire-on-pavement noise at higher speeds and would not reduce truck- related off-site traffic noise levels associated with truck engine and exhaust stacks.

The Noise Impact Analysis found that for off-site noise barriers at receiving noise-sensitive land uses experiencing Project-related traffic noise level increases would need to be high enough and long enough to block the line-of-sight from the noise source (at 11.5 feet high per Caltrans) to the receiver (at 5 feet high per FHWA guidance) in order to provide a 5 dBA reduction per FHWA guidance. Exterior noise mitigation in the form of noise barriers is not anticipated to provide the FHWA attainable reduction of 5 dBA required to reduce the off -site traffic noise level increases and would also require potential openings for driveway access to individual residential lots fronting the road. As such, off-site noise barriers would not be feasible and would not lower the off-site traffic noise levels below a level of significance.

In addition, implementation of both rubberized asphalt hot mix pavement and off-site noise barriers would need to occur within the public right-of-way and private property, respectively. Thus, the ability for the Project applicant to incorporate these measures could not be guaranteed, as there is no assurances that the respective property owners (e.g., the City and private residential property owners) would allow for these improvements on their respective properties. As such, there are no assurances that these measures could be adequately implemented.

Based on the infeasibility of potential mitigation to adequately reduce off -site Project traffic noise levels to less - than-significant levels, off -site Project -related traffic noise level increases at adjacent land uses would remai n significant. Therefore, long-term operational impacts associated with Project-related traffic noise increases would be significant and unavoidable.

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Cumulative Noise Impacts
The cumulative context for traffic noise is the traffic volume increases on roadw ays within Hesperia as a result of buildout of the City’s 2010 General Plan and the anticipated increase in traffic volumes along these roadways. The Project traffic analysis considered the addition of traffic trips from cumulative projects as identified by the City.

Non-transportation noise sources (e.g., Project operation) and construction noise impacts are typically project - specific and highly localized (i.e., these do not generally affect the community noise level at distances beyond several hundred feet). Construction activities associated with proposed or future development within the area would contribute to cumulative noise levels, but in a geographically limited and temporary manner. As other development occurs in the area, noise from different types of uses (e.g., traffic, aircraft, and fixed noise sources) would continue to combine, albeit on a localized basis, to cause increases in overall background noise conditions within the area.

As a result, such sources do not significantly contribute to cu mulative noise impacts at distant locations and are not evaluated on a cumulative level.

The analysis of off -site Project-related traffic noise levels included an evaluation of traffic volumes and resulting roadway traffic noise levels from cumulative projects. The maximum noise level increase for the cumulative versus cumulative plus Project scenario would be less than 1 dB at every studied road segment except Main Street. Along Main Street, the Project would result in a maximum increase of 2.3 dB and 2 dB at the Mesa Linda Street and Cataba Road segments, respectively. While overall exterior noise exposure would remain within the City’s maximum exterior limits, the increase in traffic noise would be clearly noticeable to residents along these two segments.

To reduce the potentially significant Project traffic noise level increases on the two study area roadway segments for Existing plus Project, Opening Year Cumulative and Horizon Year Project conditions, potential noise mitigation measures were considered in the Noise Impact Analysis. Potential mitigation measures discussed in the report included rubberized asphalt hot mix pavement and off-site noise barriers for the existing non-conforming residential use adjacent to impacted roadway segments. However, as further discussed in the Noise Impact Analysis, while rubberized asphalt would provide some noise reduction, this mitigation is only effective for tire-on-pavement noise at higher speeds and would not reduce truck -related off-site traffic noise levels ass ociated with truck engine and exhaust stacks.

The Noise Impact Analysis found that for off-site noise barriers at receiving noise-sensitive land uses experiencing Project-related traffic noise level increases would need to be high enough and long enough to block the line-of-sight from the noise source (at 11.5 feet high per Caltrans) to the receiver (at 5 feet high per FHWA guidance) in order to provide a 5 dBA reduction per FHWA guidance. Exterior noise mitigation in the form of noise barriers is not anticipated to provide the FHWA attainable reduction of 5 dBA required to reduce the off -site traffic noise level increases and would also require potential openings for driveway access to individual residential lots fronting the road. As such, off-site noise barriers would not be feasible and would not lower the off-site traffic noise levels below a level of significance.

In addition, implementation of the both rubberized asphalt hot mix pavement and off-site noise barriers would need to occur within the public right-of-way and private property, respectively. Thus, the ability for the Project applicant to incorporate these measures could not be guaranteed, as there is no assurances that the respective property owners (e.g., the City and private residential pro perty owners) would allow for these improvements on their respective properties. As such, there are no assurances that these measures could be adequately implemented.

Based on the infeasibility of potential mitigation to adequately reduce off -site Project traffic noise levels to less - than-significant levels, off -site Project -related traffic noise level increases at adjacent land uses would remain

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significant. Therefore, long-term operational impacts associated with Project-related traffic noise increases would be significant and unavoidable, and the Project would have cumulatively considerable impact related to noise.

2.2.3.2 Findings Per CEQA Guidelines
The Project would result in less -than-significant on-site operational impacts; however, the Project wou ld result in potentially significant off-site operational traffic noise impacts along Main Street between U.S. Highway 395 and Cataba Road. Based on the infeasibility of potential mitigation to adequately reduce off -site Project traffic noise levels to less-than-significant levels, and because there are no assurances that noise-reducing measures could be adequately implemented, no reasonably feasible and implementable mitigation measures have been identified. As such, off -site operational traffic noise impa cts would remain significant and unavoidable. Pursuant to Section 21081(a)(3) of the California Public Resources Code, as described in the Statement of Overriding Considerations, the City has determined that specific economic, legal, social, technological, or other considerations make infeasible the alternatives identified in the EIR, and the identified noise impacts are thereby acceptable because of specific overriding considerations (see Section 5).

2.2.3.3 Facts in Support of the Findings Related to Noise Based on the impact analysis, the proposed project would result in significant off-site operational traffic noise impacts along Main Street between U.S. Highway 395 and Cataba Road. Based on the infeasibility of potential mitigation to adequately reduce off-site Project traffic noise levels to less-than-significant levels, and because there are no assurances that noise -reducing measures could be adequately implemented, no reasonably feasible and implementable mitigation measures have been identified. Thus, impacts related to the Project’s off-site operational traffic noise impacts would remain significant and unavoidable.

2.2.4 Transportation

2.2.4.1 Potentially Significant Impacts to Transportation Conflict with CEQA Guidelines Section 15064.3 (b)
CEQA Guidelines Section 15064.3(b) focuses on newly adopted criteria (VMT) adopted pursuant to SB 743 for determining the significance of transportation impacts. Pursuant to SB 743, the focus of transportation analysis changes from vehicle delay to VMT. Th e related updates to the CEQA Guidelines required under SB 743 were approved on December 28, 2018. As stated in CEQA Guidelines Section 15064.3(c), the provisions of Section 15064.3 shall apply statewide on July 1, 2020.

The City of Hesperia has yet to ad opt its own VMT analysis guidelines and thresholds. City staff have recommended the VMT threshold of better than existing regional VMT until the City of Hesperia adopts its own guidelines and thresholds.

For the purposes of this EIR, the recommended VMT an alysis methodology and thresholds identified within the OPR’s Technical Advisory and SBCTA February 2020 guidelines have been used.

The San Bernardino Transportation Analysis Model (SBTAM) is a useful tool to estimate VMT as it considers interaction betwe en different land uses based on socio -economic data such as population, households, and

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employment. The SBCTA Guidelines identifies SBTAM as the appropriate tool for conducting VMT analysis for land use projects in San Bernardino County.

Project VMT has be en calculated using the most current version of SBTAM. Adjustments in socioeconomic data (SED) (i.e., employment) have been made to a traffic analysis zone (TAZ) within the SBTAM model to reflect the Project’s proposed land uses (i.e., warehouse). As menti oned previously, the SBTAM model includes a truck component. Therefore, Project truck trips and truck related VMT are included in the Project’s per -employee VMT, and the Project’s VMT is a conservative estimate.

The employment estimates for the Project are consistent with the employment density factors identified in SCAG’s Employment Density Study (SCAG 2001).

Adjustments to employment factors for the Project TAZ were made to both the SBTAM base year model (2012) and the cumulative year model (2040). Proje ct VMT was then calculated for both the base year model (2012) and cumulative year model (2040) and linear interpolation was used to determine the Project’s baseline (2020) VMT.

The VMT is then normalized by dividing by the Project’s service population (SP ) (e.g., employees). The Project baseline (2020) VMT per SP is 39.25.

SBCTA provides VMT calculations for each of its member agencies and for the County of San Bernardino region.

Urban Crossroads has obtained this data from SBCTA which identifies that the existing San Bernardino County VMT per SP for is 32.66.

The comparison between Project-generated VMT per SP to the baseline (2016) regional (San Bernardino County) VMT per SP, which was derived from the SBTAM base year model by SBCTA and their consulta nt. As shown, the Project would exceed the current threshold of the baseline County of San Bernardino VMT per SP. The Project VMT impact is therefore significant and unavoidable.

Design Hazards
Queuing Analysis
A queuing analysis was performed for U.S. Highway 395 from Luna Road to Joshua Street to assess vehicle queues along the roadways. There are no intersection turning movements that currently experience periodic queuing issues during the peak hours based on the 95th percentile peak hour traffic flows.

A queuing analysis was performed for the off -ramps at the I -15 and Main Street interchange to assess vehicle queues for the off ramps that may potentially result in deficient peak hour operations at the ramp -to-arterial intersections and may potentially “ spill back” onto the I -15 mainline. There are no off -ramp movements that are currently experiencing queuing issues during the weekday AM or weekday PM peak 95th percentile traffic flows.

Existing plus Project
The following intersection is anticipated to experience periodic queuing issues during the peak hours based on the 95th percentile peak hour traffic flows with the addition of Project traffic under Existing plus Project traffic conditions:
• U.S. Highway 395/Phelan Road/Main Street (#12) Southbound Left – AM and PM peak hours

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There are no off -ramp movements that are anticipated to experience queuing issues during the weekday AM or weekday PM peak 95th percentile traffic flows.

Opening Day plus Project
The following intersection turning movements are anticipated to experience periodic queuing issues during the peak hours based on the 95th percentile peak hour traffic flows for Opening Year Cumulative (2021) Without Project traffic conditions:
• U.S. Highway 395/Phelan Road/Main Street (#12) Southbound Left – AM and PM peak hours • U.S. Highway 395/Three Flags Road (#14) Northbound Left – AM and PM peak hours The following additional intersection turning movement is anticipated to experience queuing issues during the peak hours based on the 95th percentile peak hour traffic flows with the addition of Project traffic for Opening Year Cumulative (2021) With Project traffic conditions:
• U.S. Highway 395 and Phelan Road/Main Street (#12) Northbound Left – AM and PM peak hours There are no off-ramp movements that are anticipated to experience queuing issues during the weekday AM or weekday PM peak 95th percentile traffic flows under Opening Year Cumulative (2021) With Project traffic conditions.

Horizon Year (2040) plus Project
The following intersection turning movements are anticipated to experience periodic queuing issues during the peak hours based on the 95th percentile peak hour traffic flows for Horizon Year (2040) Without Project traffic conditions:
• U.S. Highway 395/Bear Valley Road (#9) Northbound Left – AM and PM peak hours • U.S. Highway 395/Bear Valley Road (#9) Southbound Left – AM and PM peak hours • U.S. Highway 395/Phelan Road/Main Street (#12) Northbound Left – PM peak hour only • U.S. Highway 395/Phelan Road/Main Street (#12) Southbound Left – AM and PM peak hours • U.S. Highway 395/Poplar Street (#13) Southbound Left – AM and PM peak hours • U.S. Highway 395/Three Flags Road (#14) Northbound Left – AM and PM peak hours • U.S. Highway 395/Joshua Street (#15) Southbound Left – AM and PM peak hours There are no additional intersection turning movements that are anticipated to experience queuing issues during the peak hours based on the 95th percentile peak hour traffic flows for Horizon Year (2040) With Project traffic conditions, in addition to the movements identified under Horizon Year (2040) Without Project traffic conditions.

There are no off -ramp movements that are anticipated to experience queuing issues during the weekday AM or weekday PM peak 95th percentile traffic flows with the addition of Pr oject traffic under Horizon Year (2040) With Project traffic conditions.

Improvement measures required to mitigate Project’s impact would include fair-share contribution to Intersections #9, #12, #13, #14, and #15. Since the City does not have jurisdiction over some of these facilities, these improvements cannot be assumed to be in place prior to Project’s occupancy. Therefore, Project’s impact to increase in hazardous conditions (i.e. queuing) would be significant and unavoidable.

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Cumulative Transportation Impacts
A TIA was prepared to evaluate the Project’s effects on the LOS on transportation facilities in the Project area. The Project’s cumulative contribution to traffic-related impacts has been analyzed under Opening Year and Horizon Year analyses within the TIA and summarized under Threshold A. Some of the study area intersections would not comport with Policy CI -2.1, 2.2 and 2.3 under General Plan Goal: CI -2 Develop and implement a City -wide Congestion Management Plan of the City’s General Plan, as th ey would operate or are forecast to operate at unsatisfactory (LOS E or F) conditions during either the AM or PM peak hours. However, LOS has been addressed herein for informational purposed only and can no longer be used to determine significant transportation impacts under CEQA and SB 743.

As discussed above, the Project would exceed the current threshold of the baseline County of San Bernardino VMT per SP, resulting in a Project -specific VMT impact that is therefore significant and unavoidable. OPR’s Tec hnical Advisory states the following, “a project that falls below an efficiency-based threshold that is aligned with long-term goals and relevant plans has no cumulative impact distinct from the project impact. Accordingly, a finding of a less- than-significant project impact would imply a less than significant cumulative impact and vice versa. Therefore, the Project’s finding related to cumulative VMT impacts is considered potentially significant. MM -TRA-1 would be implemented. However, the effectiveness of some of the TDM strategies that have potential to reduce the Project VMT are dependent on yet unknown Project building tenant(s); and as noted above, VMT reductions from TDM strategies cannot be guaranteed in most cases. Therefore, Project’s cumulative impact with respect to VMT would be significant and unavoidable.

In addition, the Project may increase a hazardous condition due to queuing impacts at the intersections #9, #12, #13, #14, and #15 under the Horizon Year (2040) plus Project analysis scenario. Since the City does not have jurisdiction over some of these facilities, these improvements cannot be assumed to be in place prior to Project’s occupancy. Therefore, Project’s impact to increase in hazardous conditions (i.e. queuing) would be significant and unavoidable, and thus, the Project could contribute to a cumulatively considerable impact associated with queuing and hazardous design features.

2.2.4.2 Mitigation Measures
MM-TRA-1 The Project applicant shall submit a Transportation Demand Management (TDM) plan prepared by a qualified transportation consultant acceptable to the City of Hesperia to reduce Project’s vehicle miles traveled. The TDM plan shall be approved by the City prior to the issuance of the first occupancy permit. The TDM plan shall apply to Project tenants through tenant leases. The TDM plan shall discourage single -occupancy vehicle trips and encourage alternative modes of transportation such as carpooling, taking transit, walking, and biking. Examples of trip reduction measures may include, but are not limited to:
• Transit passes
• Car-sharing programs
• Telecommuting and alternative work schedules
• Ride sharing programs

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2.2.4.3 Findings per CEQA Guidelines
The City finds that the above mitigation measure is feasible, is adopted, and will reduce some of the proposed project transportation impacts attributable to trips generated by the proposed project. The Project would exceed the current threshold of the baseline County of San Bernardino VMT per SP, resulting in a Project -specific VMT impact that is therefore significant and unavoidable. MM-TRA-1 would be implemented. However, the effectiveness of some of the TDM strategies that have potential to reduce the Project VMT are dependent on yet unknown Project building tenant(s).

In addition, the Project may increase a hazardous condition due to queuing impacts at various intersections that the City does not have jurisdiction over, therefore, these improvements cannot be assumed to be in place prior to Project’s occupancy. Therefore, the Project’s impact to increase in hazardous conditions (i.e. queuing) would be significant and unavoidable. Pursuant to Section 21081(a)(3) of the California Public Resources Code, as described in the Statement of Overriding Considerations, the City has determined that specific economic, legal, social, technological, or other considerations make infeasible the alternatives identified in the EIR, and the identified transportation impacts are thereby acceptable because of specific overriding considerations (see Section 5).

2.2.4.4 Facts in Support of the Findings Related to Transportation The Project would exceed the current threshold of the baseline County of San Bernardino VMT per SP, resulting in a Project -specific VMT impact that is therefore significant and unavoidable. MM -TRA-1 would be implemented.

However, the effectiveness of some of the TDM strategies that have potential to reduce the Project VMT are dependent on yet unknown Project building tenant(s).

Some intersection impacts remain significant and unavoidable because they are outside the City’ s control to implement mitigation. The Project may increase a hazardous condition due to queuing impacts at the intersections #9, #12, #13, #14, and #15 under the Horizon Year (2040) plus Project analysis scenario. Since the City does not have jurisdiction over some of these facilities, these improvements cannot be assumed to be in place prior to Project’s occupancy.

Mitigation measures are proposed to reduce potential transportation impacts, however, since implementation of the roadway improvements cannot be guaranteed by project opening or project build -out, mitigation and improvements are rendered infeasible. The significance determinations are based on a conservative worst -case scenario whereby it is assumed that mitigation for all significant impacts outside the control of the City are infeasible and therefore, the impacts are significant and unavoidable.

2.3 Impacts Determined to Be Less Than Significant
with Mitigation
This section identifies significant adverse impacts of the project that require f indings to be made under CEQA Section 21081(a) and CEQA Guidelines Section 15091(a)(1). Based on substantial evidence, the City finds that adoption of the mitigation measures set forth in this section will reduce the identified significant impacts to less than significant levels:
• Aesthetics
o Scenic vistas

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o Regulations governing scenic quality
o Cumulative aesthetics impacts
• Air Quality
o Cumulatively considerable net increase of criteria pollutants • Short-term construction impacts
• Biological Resources
o Candidate, sensitive, or special-status species
o Adverse impact on riparian habitat/sensitive natural communities o Adverse effect on wetlands
o Conflict with biological resources protection policies and ordinances o Cumulative biological impacts
• Cultural Resources
o Historic resources
o Archaeological resources
o Disturbance of human remains
o Cumulative cultural impacts
• Geology and Soils
o Unique paleontological resource or site or unique geologic feature • Hazards and Hazardous Materials
o Routine transport, use, or disposal of hazardous materials o Release of hazardous materials and the potential for upset conditions o Cumulative hazards impacts
• Tribal Cultural Resources
o Register of Historical Resources
o California Public Resource Code, Section 5024.1
o Cumulative tribal cultural impacts
Other impacts addressed under cumulatively considerable net increase of criteria pollutants are addressed in Section 2.2, Impacts Determined to be Significant and Unavoidable. In addition, other impacts not addressed under special-status wildlife species are addressed in Section 2.4.4.

2.3.1 Aesthetics

2.3.1.1 Potentially Significant Impacts to Aesthetics
Scenic Vistas
The Project would involve the construction of three industrial/warehouse buildings, surface parking and loading areas. Buildings 1 and 3 would be in the northern portion of the Project site, and Building 2 would be in the southern portion of the Project site and would front Phelan Road.

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The Project site is located on relatively flat land within a wide, valley floor. The City of Hesperia General Plan identifies natural scenic open space as a valuable scenic resource that contributes to the visual landscape and states that these areas should be preserved. Open space areas within the City include the Mojave River to the east, the San Bernardino and San Gabriel Mountain ranges and the surrounding Victor Valley to the south, and the neighboring undeveloped hillsides and the natural desert environment. Additionally, several washes and natural water courses traverse the City, and are identified in the City’s General Plan as providing physical and visual relief from surrounding urban development (City of Hesperia 20 10a).The City protects wash areas through the Main Street and Freeway Corridor Specific Plan Wash Protection Overlay. The nearest protected wash area to the Project site is the Oro Grande Wash, which is located approximately 0.25 -mile to the east of the Pr oject site beyond U.S.

Highway 395.

Photographs of the Project site and surrounding area were taken from public vantage points to document the existing visual environment and to identify locations from which to assess the potential for Project impacts on scenic vistas. Key view locations were selected to depict existing views toward the Project site available from public vantage points, and KOPs 1 and 2 were selected to depict existing conditions and visual simulations of the Project.

Visual simulations pro vide 3 -dimensional photo -realistic before and after images of the Project. The key view locations and KOPs were selected based on the variety of viewer groups in the area and existing views to natural scenic resources. Motorists constitute the largest view er group in the Project area, and thus, views are depicted from public roadways. Other land uses in the Project area include rural residential uses and commercial/light industrial uses. These land uses are located in close proximity to the key view locatio ns and KOPs, and would be afforded similar views as presented in the photographs.

Existing views toward and across the immediate and broader Project area consist of natural scenic elements such as the flat valley floor, sloping natural terrain within nearby washes, including the Oro Grande Wash and the smaller wash/drainage area adjacent to the Project site, a variety of natural vegetation, including scattered Joshua trees and Juniper, and distant ridgelines of the San Gabriel and San Bernardino Mountains that form a backdrop.

Additionally, there are several man -made elements located throughout the Project area that intervene between viewers and natural scenic elements. These intervening elements include roadways, roadway signage, rural residential buildings, light industrial uses (e.g., truck yards, warehouses, and scrapyards), and transmission lines.

As discussed in further detail below, implementation of the Project would result in the development of three warehouse buildings within an area that contains limited levels of development. While development of these structures would result in some levels of blockage of views of natural scenic elements, these views would still largely be afforded to viewers as they move through the Project area. Moreover, the p resence of existing man -made elements (i.e., transmission lines, signage, and light-industrial uses) within the existing viewshed precludes views of the Project site from being particularly significant. In addition, implementation of MM -AES-1 would require that Project buildings are designed such that building colors mimic the colors and tones found in the natural desert landscape to soften the contrast with the surrounding desert terrain, to the extent feasible. These factors and significance determinations are discussed in further detail below in the context of specific key observation points, which are representative of other views in and around the Project site.

Visual Simulations
KOP 1
KOP 1 provides an existing conditions image and a visual simulation of the Project from Phelan Road/Main Street, located approximately 0.15-mile southwest of the Project site. A residential development is located immediately

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north of KOP 1, across Phelan Road atop elevated terrain on the western side of the wash/drainage a rea. Views afforded to eastbound motorists include natural scenic resources such as the gently to moderately sloping desert terrain covered with a variety of natural vegetation within a small wash/drainage area that flanks the western side of the Project s ite (within the Los Angeles Bureau of Power and Light Road corridor). A rise in the terrain encompassed by the eastern bank the wash/drainage area is visible and covered with grasses and scattered small to medium sized shrubs, and large Joshua and Juniper trees. The Project site portrays as a flat plateau elevated atop vegetation covered slopes. Multiple transmission lines are apparent in the immediate foreground and middle- ground and are located adjacent to the Project site’s western and southern boundarie s. Associated with these transmission lines are the tall lattice structures within the Los Angeles Bureau of Power and Light Road right-of-way and the smaller wooden t-pole structures along Phelan Road.

The Project would introduce wide, lower-profile warehouse buildings to the Project site. The approximately 48-foot-tall western and southern façades of Building 2 would be prominently visible from KOP 1. The southern façade of the building would be visible extending to the east, as the building fronts Phelan Road for approximately 3,000 feet. The building façades would include vertical and horizontal color variation that would break up the overall massing of the buildings and provide visual interest. While the warehouse buildings would be prominently visible and would alter the existing view, the Project would not substantially block or disrupt views of the natural features from KOP 1. The sloping terrain and existing desert vegetation within the wash/drainage area west of the Project site would remain intact.

Project buildings would not block views across the desert landscape from KOP 1, as under existing conditions, the elevated plateau impedes long distance views across the landscape from KOP 1. As motorists travel east on Phelan Road, the road slopes upward to meet the elevation of the Project site. Phelan Road is a major arterial, which is meant to accommodate large volumes of through-traffic traveling at higher speeds (City of Hesperia 2010a). Assuming drivers are traveling on Phelan Road at prevailing speeds (55 mph), Building 2 would front Phelan Road and screen immediate views across the landscape to the north for a brief period (approximately 38 seconds) and views would be quickly restored. Some Joshua trees that are visible from KOP 1 and additional trees within the Project site would be removed.

However, Joshua trees would be relocated according to the Joshua Tree Relocation Plan (see Section 2.3.2, Biological Resources). Thus, views from KOP 1 would not be substantially impacted such that views of scenic vistas or scenic resources would be substantially blocked or screened from view.

KOP 2
KOP 2 provides an existing conditions image and a visual simulation of the Project from the intersection of Bellflower Street and Yucca Terrace Drive, approximately 0.28-mile northwest of the Project site. KOP 2 is representative of views to toward the Project site from local roads within the rural residential and light industrial/commercial areas surrounding the Project site. Rural residential properties are located within close proximity of KOP 2. Scenic vistas and scenic resources visible from this location include the expansive desert terrain and natural vegetation (including Joshua trees) and the background ridgeline of the San Bernardino Mountains. Similar other views surrounding the Project site, existing transmission lines and tall lattice towers and t-poles are the primary built structures that intervene between viewers and scenic backdrops. While these features do not block views of the desert landscape or Sa n Bernardino Mountains, the disorganized repetition of the linear and angular features detract from the overall integrity of the viewshed. Additionally, several medium-duty and heavy-duty trucks are visible in the foreground and middle- ground, in an area immediately north of the Project site. These trucks are parked on one of many truck storage lots located throughout the Project area and throughout the U.S. Highway 395 corridor.

Upon Project implementation the Project would introduce warehouse buildings (o nly Buildings 1 and 2 would be visible from KOP 2) into the viewshed. The existing view of the foreground desert terrain and natural vegetation would remain intact, and Joshua trees removed from the Project site would be relocated according to the Joshua

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Tree Relocation Plan (see Section 2.3.2). Project buildings would display a low, flat profile that would mimic the flat desert terrain. As shown in the visual simulation, Project buildings would display a variety of tan and brown colors with vertical and horizontal elements, which would disrupt the monotony of the building facades. However, the bright/light tan of the western façade of the buildings would be prominently visible and would contrast with the natural desert terrain. MM-AES-1 would require that Project buildings are designed such that building colors mimic the colors and tones found in the natural desert landscape to soften the contrast with the desert terrain, to the extent feasible.

Further, the Project would include landscaping that would incorporate natural vegetation and that would complement the desert landscape. With implementation of MM-AES-1 and through site specific landscaping, the visible contrast with the surrounding environment would be softened. Additionally, introduction of Project buildings on the Project site would shorten the available views across the flat desert landscape, and when viewed directly across the Project site, would block a portion of San Bernardino Mountains from view. However, given the low profile and limited extent of Project buildings, these views would only be partially blocked from view and would be fully restored to viewers as they travel around the Project area. Moreover, these views of the desert landscape and San Bernardino Mountains are already interrupted by existing transmission facilities and trucking-related use which detract from the overall integrity of the viewshed. Thus, placement of Project structures within the viewshed of this KOP, which is representative of other views in and around the Project site, would not result in a significant impact to scenic vistas, as the Project buildings would only result in minor blockage of views of desert landscape and the San Bernardino Mountains; views would be restored upon moving around the Project site; and existing intervening features within and surrounding the Project site detract from existing views through and beyond the Project site. Therefore, with incorporation of MM-AES- 1, impacts associated with scenic vistas would be less than significant.

Regulations Governing Scenic Quality
California Public Resources Code Section 21071 defines an “urbanized area” as “an incorporated city that meets either of the following criteria: (1) Has a population of at least 100,000 persons, or (2) Has a population of less than 100,000 persons if the population of that city and not more than two contiguous incorporated cities combined equals at least 100,000 persons.” T he City’s population in 2019 was approximately 95,750 people (U.S. Census 2019). However, the City is border ed by the City of Victorville to the north, City of Apple Valley to the east, unincorporated San Bernardino County land to the south, and the unincorporated community of Oak Hills to the west. The combined population of the City of Hesperia and any one of these adjacent Cities is over 100,000 persons. Thus, the Project site is considered to be within an urbanized area and following analysis considers whether the Project would conflict with applicable zoning or other regulations governing scenic quality. Nonetheless, the Project’s compatibility with the existing visual character and quality of the surrounding area as viewed from public vantage points has also been considered and discussed throughout this analysis.

The Project would result in the construction of three industrial/warehouse buildings on relatively flat, vacant land.

The Project would result in an increase in the intensity of use on currently undeveloped site, as the Project would support a variety of activities associated with the three industri al/warehouse buildings, including the ingressing and egressing of passenger vehicles and trucks, the loading and unloading of trucks with designated truck courts/loading areas, and the internal and external movement of materials around the Project site via forklifts, pallet jacks, and similar equipment. In an attempt to ensure that current and future development within the City is designed and constructed to conform to existing the visual character and quality, the City of Hesperia Development Code (Title 16 of the City’s Municipal Code) includes design standards related to building size, height, floor area ratio, and setbacks, as well as landscaping, signage, and other visual considerations. These design standards help adjacent land uses to be visually consistent with one another and their surroundings, and reduces the potential for conflicting visual elements. More specific to the Project site, the Main Street and Freeway Corridor Specific Plan sets forth development standards for the CIBP Zone and industrial development. The design specifications for the

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Project would be reviewed by the City for compliance with all applicable provisions set forth by the City’s Development Code and the Specific Plan. As part of the City’s development review process, the Proj ect’s architectural plans would be reviewed by City staff and the Planning Commission to determine whether Project design conforms to the Development Code and Specific Plan, and promotes the visual character and quality of the surrounding area.

Due to the size and scale of industrial buildings, it is especially important to consider design to ensure compatibility with other parts of the community. Chapter 11 of the Specific Plan provides additional details regarding design standards and guidelines for indu strial development. In accordance with the Specific Plan design guidelines, all setback areas would be landscaped, and building orientation, siting and entrances would be designed to minimize conflicts with the surrounding visual environment. For instance, landscaping and vegetation would be used to provide visual screening, and building facades would feature a complementary neutral color palette and a variety of building materials.

With implementation of MM-AES-1, building colors shall be reviewed to incorporate the colors and tones that match or complement the natural desert environment such that color contrasts with the surrounding environment would be minimized. Buildings would include materials such as concrete, metal, aluminum entry framing, and glass, and building elevations would include vertical and horizontal elements that would break up the overall massing of the buildings and provide visual interest.

Project buildings and streetscape elements (e.g., lighting and paving materials) would be designe d to minimize conflicts between the Project and existing residential neighborhoods to the north, west, east and south by locating the most intensive components of the Project as far away from residences as possible. The existing natural and semi-natural land uses, such as Oro Grande Wash corridor and the adjacent wash/drainage area to the west of the Project site (within the Los Angeles Bureau of Power and Light Road transmission corridor), would serve as natural buffers between the Project site and surrounding residential areas.

The Project would be of similar bulk and scale as other industrial and commercial development located throughout the City and region, such as the existing manufacturing, distributing and commercial uses located approximately 1 mile east and south of the Project site, near I-15 and U.S. Highway 395. Further, the flat, low appearance of Project buildings would mimic the surrounding, relatively flat desert landscape.

The visual setting surrounding the Project site currently consists of primarily undeveloped desert landscape with scattered residential, commercial and light industrial uses, and panoramic views of the surrounding valley and mountains. The visual integrity of the site itself has been disrupted by the disturbed nature of the site, which is crossed by dirt trails and roads and scattered debris piles due to ongoing trespassing and illegal dumping on site, debris piles and exposed soils are visible near the road as well as scattered throughout the site). Overall, Project development would alter the existing rural character of the Project area. However, the proposed building elevations are consistent with the design standards and guidelines outlined in the Specific Plan.

The Main Street and Freeway Corridor Specific Plan encourag es architectural design to maximize views of the landscape and incorporate natural elements. Project landscaping would include a plant palette that complements and reflects the natural desert environment. Further, with incorporation of MM-AES-1, natural desert tones would be used in Project colors and materials to reduce contrast with the surrounding environment. The Project would eliminate the illegal uses currently occurring on site (trespassing and illegal dumping), and develop the vacant parcels with maintained development and landscaping. Therefore, compliance with the City’s Development Code and the Main Street Corridor Specific Plan design standards and guidelines, implementation of site specific landscaping, and with

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implementation of MM-AES-1, the Project would not conflict applicable zoning or other regulations governing scenic quality and impacts related to visual character and quality would be less than significant.

Cumulative Aesthetics Impacts
The Project is located within the Main Street and Freeway Corridor Specific Plan area, and thus, would be designed and constructed according to the design guidelines and standards outlined in the Specific Plan for the CIBP Zone and industrial development. These guidelines and standards aim to protect the Specific Plan area’s high desert setting and panoramic mountain views. All related projects located within the Specific Plan area would be subject to these design guidelines and standards, which include rec ommendations for the architectural character of new buildings to maximize views of the landscape while taking inspiration from surrounding natural elements.

The development and design standards provide the framework for the desired aesthetic and visual en vironment.

Other development projects in the area will incorporate development standards, design guidelines, and other strategies outlined in the Specific Plan. In addition, with implementation of MM -AES-1, the Project’s proposed building colors shall be reviewed to incorporate the colors and tones that match or complement the natural desert environment such that color contrasts with the surrounding cumulative environment would be minimized. Thus, cumulative impacts related to the visual quality and charact er of the Project area would not be cumulatively considerable, assuming that related Projects would implement the same mandatory design standards set forth in the Specific Plan to which the Project must adhere.

Related development in the Specific Plan area and surrounding areas would introduce new sources of light in a setting that includes large areas of undeveloped land. However, Project lighting would comply with existing requirements (i.e., lighting would be directed downward, shielded, and focused on the Project site) to ensure lighting has a minimal effect on the overall night sky and reduce the potential for glare. Other projects located throughout the Specific Plan area would similarly be required to comply with these regulations. Therefore, complian ce with these regulations would ensure that lighting and glare impacts would be less than significant with mitigation incorporated.

2.3.1.2 Mitigation Measures
MM-AES-1: Project buildings and elements shall include colors and tones that mimic the natural desert environment. The Project applicant shall present to the City of Hesperia a materials board showing the proposed building color palette for review and approval prior to issuance of the first building permit. City staff shall review the color palette to ensure that the selected colors and tones largely conform to those colors and tones already found in the surrounding natural desert landscape. The color palette, along with the Project design as a whole, shall also be reviewed to assure conformance with the development standards of the Hesperia Municipal Code and the Main Street and Freeway Corridor Specific Plan in order to promote the visual character and quality of the surrounding area.

2.3.1.3 Findings Per CEQA Guidelines
Consistent with CEQA Guidelines Section 15126.4(a)(1), feasible measures that can minimize significant adverse impacts were developed for the potentially significant impacts described in Section 2.3.1.1. This feasible measure, MM-AES-1, is described in Section 2.3.1.2.

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The City finds that this mitigation measure is feasible, is adopted, and will reduce the potential aesthetics impacts of the proposed project to less -than-significant levels. Accordingly, the City finds that, pursuant to CEQA Section 21081(a)(1) and CEQA Guideli nes Section 15091(a)(1), changes or alterations have been required in, or incorporated into, the proposed project that mitigate or avoid potentially significant aesthetics‐related impacts of the proposed project identified in the Final EIR.

2.3.1.4 Facts in Support of the Findings Related to Aesthetics The City finds that the mitigation measure is feasible, is adopted, and will reduce the proposed project’s aesthetics impact. Potential impacts to scenic vistas and cumulative aesthetics would be reduced to a less-than-significant level with implementation of MM-AES-1. Furthermore, the Project’s conflicts with regulations governing scenic quality would be reduced to less than significant with implementation of MM-AES-1.

2.3.2 Air Quality

2.3.2.1 Potentially Significant Impacts to Air Quality Resources Cumulatively Considerable Net Increase of Criteria Pollutants Short-Term Construction Impacts
Construction of the Project would result in the temporary addition of pollutants to the local airshed ca used by on- site sources (i.e., off -road construction equipment and soil disturbance) and off -site sources (i.e., on -road haul trucks, vendor trucks, and worker vehicle trips). Construction emissions can vary substantially from day to day, depending on the level of activity, the specific type of operation, and for dust, the prevailing weather conditions.

Therefore, such emission levels can only be approximately estimated with a corresponding uncertainty in precise ambient air quality impacts.

Criteria air po llutant emissions associated with temporary construction activity were quantified using CalEEMod.

CalEEMod calculates maximum daily emissions for summer and winter periods. Under the assumed scenarios, emissions resulting from the Project construction woul d exceed criteria pollutant thresholds established by the MDAQMD for VOC emissions. This impact would be potentially significant without mitigation.

MM-AQ-1 will be implemented to reduce the impacts, which requires that the Project shall utilize “Super-Compliant” low VOC paints which have been reformulated to exceed the regulatory VOC limits put forth by MDAQMD’s Rule 1113. Super-Compliant low VOC paints shall be no more than 10 grams per liter (g/L) of VOC. Alternatively, the Project Applicant may utilize tilt-up concrete buildings that do not require the use of architectural coatings. In addition, MM -AQ-2 and MM -AQ-3 would be implemented to further reduce Project -generated construction emissions, including VOC emissions, associated with equipment and vehicle exhaust. The effectiveness of MM-AQ-1 is quantified in the mitigated emissions estimate; however, the emission reductions associated with implementation of MM-AQ-2 cannot be accurately quantified at this time and the emission reductions associated with MM-AQ-3 are conservatively not assumed.

After implementation of MM-AQ-1, regional construction emissions would not exceed the applicable MDAQMD thresholds of significance for any criteria pollutant. Mitigation measures MM-AQ-2 and MM-AQ-3 would further reduce Project- generated construction emissions; however, the associated emission reductions are not estimated herein. Therefore,

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with the incorporation of mitigation, short-term impacts associated with a cumulatively considerable net increase of any criteria pollutant for which the Project region is non-attainment would be less than significant.

2.3.2.2 Mitigation Measures
MM-AQ-1 through MM-AQ-3 can be found in Section 2.2.1.2, above.

2.3.2.3 Findings Per CEQA Guidelines
Consistent with CEQA Guidelines Section 15126.4(a)(1), feasible measures that can minimize significant adverse impacts were developed for the potentially significant impacts described in Section 2.3.2.1. These feasible measures, MM-AQ-1 through MM-AQ-3, are listed in Section 2.2.1.2.

The City finds that these mitigation measures are feasible, are adopted, and will reduce the potential air quality impacts of the proposed project to less than significant levels. Accordingly, the City finds that, pursuant to CEQA Section 21081(a)(1) and CEQA Guidelines Section 15091(a)(1), changes or alterations have been required in or incorporated into the proposed project that will mitigate or avoid potentially significant impacts on air quality.

2.3.2.4 Findings Per CEQA Guidelines
Implementation of MM-AQ-1 through MM-AQ-3 would reduce potentially significant impacts related to air quality as described in Section 2.3.2.1 to a less than significant level. There would be no significant, unavoidable impacts related to air quality as described in Section 2.3.2.1 after implementation of these mitigation measures.

2.3.3 Biological Resources

2.3.3.1 Potentially Significant Impacts to Biological Resources Candidate, Sensitive, or Special-Status Species
The following section evaluates the Project’s effects on plant and wildlife species identified as candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the CDFW or USFWS.

Special-Status Plant Species
Direct Impacts
Desert native plants protected under the City of Hesperia’s Municipal Code and California Desert Native Plants Act Plants are described below. No non-listed special-status plant species were observed within the Project site or Off- Site Utilities Alignments (the Off-Site Sewer Alignment and the Off-Site Water Alignment) and none are expected to occur. Western Joshua tree, a candidate for state listing under CESA, was observed and would be directly impacted by the Project. Based on the site plan, implementation of the Project would result in direct impacts to 1,367 western Joshua tree individuals. All ground -disturbing activities, even areas temporarily impacted, are considered permanent impacts to western Joshua trees.

As required by MM-BIO-1, mitigation for direct impacts to 1,367 western Joshua trees will be fulfilled through conservation of Western Joshua tree through purchase of credits at a CDFW -approved mitigation bank or other

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conservation mechanism approved by the City of Hesperia and CDFW. Additionally, as required by MM-BIO-2 and in accordance with Chapter 16.24 of the Hesperia Municipal Code, the preparation of a Joshua tree and desert native plants relocation plan is required to mitigate impacts to western Joshua trees as a result of the Project. As such, a Joshua Tree Preservation, Protection, and Relocation Plan, and California Desert Native Plant Relocation Plan was prepared to provide detailed specifications for the Project Applicant to meet the requirements of Chapter 16.24 of the Hesperia Municipal Code to protect, preserve, and mitigate impacts to Joshua trees.

Indirect Impacts
Construction-related indirect impacts may include inadvertent spillover impacts outside of the construction footprint, dust accumulation on individual western Joshua tre es, chemical spills, stormwater erosion and sedimentation, and increased wildfire risk.

Implementation of MM-BIO-3 gives the Project’s Designated Biologist the authority to stop work if construction is not compliant with this CEQA document. MM-BIO-4 requires that an experienced biologist oversee compliance with the protective measures, including limiting impacts to the Project impact footprint. MM-BIO-5 would provide construction personnel with training related to western Joshua trees that are present on and adjacent to the impact footprint. MM-BIO-6 provides for documentation that the education program was administered to applicable personnel. MM-BIO-7 requires that impacts occur within the fenced, staked, or flagged area that is clearly delineated within the Project impact footprint. The construction crew will be responsible for unauthorized impacts from construction activities to western Joshua trees that are outside the permitted Project footprint. Thus, implementation of MM-BIO-3 through MM-BIO-7 will enable the Project to avoid and minimize inadvertent spillover impacts outside of the approved impact footprint.

To reduce fugitive dust resulting from Project construction and to minimize adverse air quality impacts, the Project would employ dust mitigation measures in accordance with the Mojave Desert Air Quality Management District’s Rules 401 and 403.2, which limit the amount of fugitive dust generated during construction.

MM-BIO-8 would ensure that a prompt and effective response to any accidental chemical spills will be implemented and that repair and clean-up of any hazardous waste occurs. Thus, implementation of MM-BIO-8 would help to avoid and minimize impacts to western Joshua tree from any construction-related chemical spills.

A Stormwater Pollution Prevention Plan would be prepared and implemented to prevent all construction pollutants from contacting stormwater during construction activities, with the intent of keeping sediment and any other pollutants from moving off site and into receiving waters. Best management practice categories employed on site would include erosion control, sediment control, and non -stormwater good housekeeping. Preparation and implementation of a Stormwater Pollution Prevention Plan would help to avoid and minimize the p otential effects of stormwater erosion during construction.

Construction of the Project would introduce potential ignition sources to the Project site, including the use of heavy machinery and the potential for sparks during welding activities or other ho t work. However, the Project would be required to comply with City of Hesperia and state requirements for fire safety practices to reduce the possibility of fires during construction activities. Further, vegetation would be removed from the site prior to t he start of construction. Adherence to City of Hesperia and state regulatory standards during Project construction would reduce the risk of wildfire ignition and spread during construction activities. Therefore, short -term construction impacts involving wildland fires would not be substantial.

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Potential long-term (post-construction) indirect impacts from operations and maintenance activities may include effects of herbicides, changes in water quality, increased wildfire risk, and accidental chemical spills.

MM-BIO-9 would limit herbicide use to instances where hand or mechanical efforts are infeasible and would only be applied when wind speeds are less than 7 miles per hour to prevent drift into off-site western Joshua trees.

Implementation of low-impact-development features and best management practices would, to the maximum extent practicable, reduce the discharge of pollutants into receiving waters, including inadvertent release of pollutants (e.g., hydraulic fluids and petroleum); the improper management of hazardous materials; trash and debris; and the improper management of portable restroom facilities (e.g., regular service) in accordance with all relevant local and state development standards. In addition, in accordance with CalGreen requirements (Cal ifornia Green Building Standards Code, CCR, Title 24, Part 11), Project source controls to improve water quality would be provided for outdoor material storage areas, outdoor trash storage/waste handling areas, and outdoor loading/unloading areas. Therefore, impacts to western Joshua trees due to changes in water quality would be avoided and minimized through implementation of low-impact-development features and best management practices.

Upon completion of Project construction, with adherence to the City of Hesperia’s Municipal Code and because of the low ignitability of the proposed structures and implementation of fire -resistant and irrigated landscaping, the Project would not facilitate wildfire spread or exacerbate wildfire risk. Further, given that surrounding off-site fuels consist of moderately spaced vegetation, wildfires in the immediate surrounding area are not common, and it is unlikely that the Project site would be exposed to the uncontrolled spread of a wildfire. It is not anticipated that the Project, due to slope, prevailing winds, and other factors, would exacerbate wildfire risks or the uncontrolled spread of a wildfire; thus, with adherence to the City of Hesperia’s Municipal Code, long -term indirect impacts to western Joshua tree associated with increased wildlife risk is not expected to occur.

Special-Status Wildlife
Burrowing Owl
Direct Impacts
Burrowing owl was not observed on the Project site or Off-Site Utilities Alignments; however, suitable habitat exists on site, and the species could eventually occupy the Project site or Off -Site Utilities Alignments prior to construction.

Pursuant to the California Fish and Game Code and the MBTA, a pre ‐construction survey in compliance with Staff Report on Burrowing Owl Mitigation, State of California Natural Resource Agency, Department of Fish and Game, May 7, 2012 (CDFW 2012) would be necessary to reevaluate the locations of potential burrowing owl burrows located within the Project limits so take of owls or active owl nests can be avo ided. Consistent with MM -BIO-3, a pre - construction survey for burrowing owl shall be conducted in areas supporting potentially suitable habitat and within 14 days prior to the start of construction activities. Additionally, a burrowing owl relocation plan has been prepared.

The Project would result in the loss of 192.5 acres of suitable habitat for burrowing owl. As required by MM-BIO-1, mitigation for direct impacts to western Joshua trees will be fulfilled through conservation of Western Joshua tree through purchase of credits at a CDFW-approved mitigation bank or other conservation mechanism approved by the City of Hesperia and CDFW. Conservation efforts for western Joshua tree associated with this mitigation will focus on the conservation of large, interconnected Joshua tree woodlands on lands where edge effects are limited, versus lands in urban settings that are subject to habitat fragmentation and edge effects, such as the Project site. Thus, mitigation for impacts to western Joshua tree will also mitigate for impacts to loss of suitable habitat for burrowing owl.

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Indirect Impacts
Construction activities have the potential to result in indirect impacts to burrowing owls and their habitat. Those impacts could include dust, noise and vibration, trash and debris, increased human presence, vehicle collisions, chemical spills, and night-time lighting. These potential short-term or temporary indirect impacts to burrowing owls are considered significant absent mitigation.

MM-BIO-10 would require burrowing owl surveys and result in establishment of construction buffers around any burrowing owl dens found, thus limiting effects from most short-term indirect impacts, including noise and vibration, increased human presence, night-time lighting, and vehicle collisions. MM-BIO-11 would require night-time lighting during construction within 50 feet of habitat for special-status species to be shielded downward. MM-BIO-3, MM-BIO- 4, and MM-BIO-6 would require that all workers complete a Worker Environmental Awareness Program (WEAP) training and would require ongoing biological monitoring and compliance with all biological resource mitigation requirements.

MM-BI0-12 would require trash and debris to be removed regularly and would require animal -resistant trash receptacles to avoid attracting urban-related, predator species. MM-BIO-8 would ensure that a prompt and effective response to any accidental chemical spills will be implemented and that repair and clean-up of any hazardous waste occurs. To reduce fugitive dust resulting from project construction and to minimize adverse air quality impacts, the Project would employ dust mitigation measures in accordance with the Mojave Desert Air Quality Management District’s Rules 401 and 403.2, which limit the amount of fugitive dust generated during construction.

Potential long-term indirect impacts that could result from development within or adjacent to burrowing owl habitat include nighttime lighting and increased invasive plant species that may degrade habitat. MM-BIO-11 would require night-time lighting during operations within 50 feet of habitat for special -status species to be shielded downward.

MM-BIO-4 would result in restoration of temporary impact areas that would limit the introduction of non -native species in burrowing owl habitat and avoid long-term habitat degradation.

With the incorporation of mitigation, direct and indirect impacts to burrowing owl would be less than significant.

Loggerhead Shrike
The loggerhead shrike is a CDFW species of special concern during its nesting period. It can be found in lowlands and foothills throughout California. It prefers open habitats with scattered shrubs, trees, posts, fences, utility lines, or other perches. Highest density occurs in open-canopied valley foothill hardwood, valley foothill hardwood-conifer, valley foothill riparian, pinyon-juniper, juniper, desert riparian, and Joshua tree habitats. Loggerhead shrike was not observed during the biological surveys, but has a moderate potential to occur on the Project site and within the Off- Site Utilities Alignments. Extensive suitable nesting habitat, particularly near Joshua trees, is present within the Project site and Off-Site Utilities Alignments.

Direct Impacts
To avoid potential impacts to nesting loggerhead shrike, it is recommended that the vegetation removal activities be conducted outside the general bird nesting season (February 1 through August 31). If vegetation cannot be removed outside the bird nesting season, a pre‐construction nesting bird survey by a qualified biologist is required prior to vegetation removal. This requirement is outlined in MM-BIO-15. Also, the Project would result in the loss of 192.5 acres of suitable habitat for loggerhead. As required by MM-BIO-1, mitigation for direct impacts to weste rn Joshua trees will be fulfilled through conservation of Western Joshua tree through purchase of credits at a CDFW - approved mitigation bank or other conservation mechanism approved by the City of Hesperia and CDFW.

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Conservation efforts for western Joshua tree associated with this mitigation will focus on the conservation of large, interconnected Joshua tree woodlands on lands where edge effects are limited, versus lands in urban settings that are subject to habitat fragmentation and edge effects, such as t he Project site. Thus, mitigation for impacts to western Joshua tree will also mitigate for impacts to loss of suitable habitat for loggerhead shrike.

Indirect Impacts
Construction activities have the potential to result in indirect impacts to loggerhead shrike and their habitat. Those impacts could include dust, noise and vibration, increased human presence, vehicle collisions, chemical spills, and night-time lighting. These potential short -term or temporary indirect impacts to loggerhead shrike are consid ered significant absent mitigation.

MM-BIO-15 would require nesting bird surveys and would result in establishment of construction buffers around nests, thus limiting effects from most short-term indirect impacts, including noise and vibration, increased human presence, night-time lighting, and vehicle collisions. MM-BIO-11 would require night-time lighting during construction within 50 feet of habitat for special-status species to be shielded downward. MM-BIO-3, MM-BIO-4, and MM-BIO-6 would require that all workers complete a WEAP training and would require ongoing biological monitoring and compliance with all biological resource mitigation requirements. MM-BIO-8 would ensure that a prompt and effective response to any accidental chemical spills will be implemented and that repair and clean-up of any hazardous waste occurs. To reduce fugitive dust resulting from project construction and to minimize adverse air quality impacts, the Project would employ dust mitigation measures in accordance with the Mojave Desert Air Quality Management District’s Rules 401 and 403.2, which limit the amount of fugitive dust generated during construction.

Potential long-term indirect impacts that could result from development within or adjacent to loggerhead shrike habitat include nighttime lighting and increased invasive plant species that may degrade habitat. MM-BIO-11 would require night-time lighting during operations within 50 feet of habitat for special -status species to be shielded downward. MM-BIO-4 would result in restoration of temporary impact areas that would limit the introduction of non- native species in burrowing owl habitat and avoid long-term habitat degradation.

With the incorporation of mitigation, direct and indirect impacts to loggerhead shrike would be less than significant.

Desert Kit Fox and American Badger
Neither the Biological Resources Letter Report nor any other subsequent fieldwork and reporting observed desert kit fox (Vulpes macrotis arsipus) or American badger (Taxidea taxus) on the Project site or identified suitable habitat for these species within the Project area. The desert kit fox lives in the open desert, on creosote bush flats, and amongst the sand dunes, while American badgers prefer open scrub or grassy areas (NPS 2015; USGS 2020). The Project site is predominated by Joshua tree woodland, and lacks creosote bush flats, sand dunes, or larger areas of open scrub or grassy areas. Thus, the Project site is not expected to support either desert kit fox or American badger.

Notwithstanding, in their scoping comment letter dated December 19, 2019, CDFW staff requested that development of a desert kit fox and American badger mitigation and monitoring plan be developed. As such, in an abundance of caution and to ensure that potential impacts to these species are less than significant, the Project Applicant shall prepare a mitigation and monitoring plan that addresses desert kit fox and American badger if either species is determined to occur on the Project site prior to the start of construction, pur suant to MM-BIO-14. With the incorporation of mitigation, impacts associated with desert kit fox and American badger would be less than significant.

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Nesting Migratory Birds and Raptors
Similar to most other sites containing trees, shrubs, and other vegetat ion, the Project site contains opportunities for birds of prey (raptors) and other avian species to nest on site. Native nesting bird species with potential to occur within the Project site are protected by California Fish and Game Code Sections 3503 and 3 503.5, and by the federal MBTA (16 USC 703 –711). In particular, Section 3503 provides that it is unlawful to take, possess, or needlessly destroy the active nests or eggs of any bird in California; Section 3503.5 protects all raptors and their eggs and active nests; and the MBTA prohibits the take (including killing, capturing, selling, trading, and transport) of native migratory bird species throughout the United States. Recently, the Department of Interior ruled that the MBTA should apply only to “… affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs” and will not be applied to incidental take of migratory birds pursuant to otherwise lawful activities However, that ruling is now under review a s a revision to the MBTA that would include prohibitions to incidental take has recently been proposed.

To ensure compliance with the California Fish and Game Code and MBTA and to avoid potential impacts to nesting birds, it is recommended that the vegetat ion removal activities be conducted outside the general bird nesting season (February 1 through August 31, depending on the species), and if vegetation cannot be removed outside the bird nesting season, a pre‐construction nesting bird survey by a qualified biologist is required prior to vegetation removal. This requirement is outlined in MM-BIO-15. With the incorporation of mitigation, impacts associated with nesting birds, including raptors, would be less than significant.

Adverse Impact on Riparian Habitat/Sensitive Natural Communities Joshua tree woodland is a sensitive CDFW natural community. As described above, western Joshua trees are also protected under CESA as a candidate species.

Direct Impacts
All ground-disturbing activities, even areas temporarily impacted, are considered permanent impacts to Joshua tree woodland. The Project will result in permanent impacts to 192.5 acres of Joshua tree woodland, which would be considered a significant impact under CEQA.

The Project would also result in permanent impacts to 12.4 acres and temporary impacts to 2.6 acres of disturbed habitat and urban/developed lands. These land cover types are not considered sensitive by CDFW and provide little biological value. Therefore, these direct impacts are considered less than significant under CEQA.

As required by MM-BIO-1, mitigation for direct impacts to 1,367 western Joshua trees will be fulfilled through conservation of Western Joshua tree through purchase of credits at a CDFW -approved mitigation bank or oth er conservation mechanism approved by the City of Hesperia and CDFW. Conservation efforts for western Joshua tree will focus on the conservation of large, interconnected Joshua tree woodlands on lands where edge effects are limited, versus lands in urban settings that are subject to habitat fragmentation and edge effects, such as the Project site. Thus, mitigation for impacts to western Joshua tree will also mitigate for impacts to Joshua tree woodland.

Additionally, as required by MM-BIO-2 and In accordance with Chapter 16.24 of the Hesperia Municipal Code, the preparation of a Joshua tree and desert native plants relocation plan is required to mitigate impacts to western Joshua trees as a result of the Project. As such, a Joshua Tree Preservation, Protect ion, and Relocation Plan was prepared for Project to provide detailed specifications for the Project Applicant to meet the requirements of Chapter

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16.24 of the Hesperia Municipal Code to protect, preserve, and mitigate impacts to Joshua trees. Thus, mitigation for impacts to western Joshua tree will also mitigate for impacts to Joshua tree woodland.

Indirect Impacts
Potential construction- and operation-related indirect impacts to Joshua tree woodland, would be the same as the indirect impacts to western Joshua tree, as described above.

With the incorporation of mitigation, and with adherence to both the CDNPA and the Hesperia Municipal Code, impacts associated with Joshua tree woodland would be less than significant.

Adverse Effect on Wetlands
No potential jurisdictional features subject to regulation by ACOE, CDFW, or RWQCB were found to be present within the limits of the Project site. The Off-Site Utilities Alignments would traverse and come in close proximity to waters of the state and waters potential ly subject to CDFW jurisdiction. As currently designed, the Off -Site Utilities Alignments traverse several upland ephemeral drainage features associated with Oro Grande Wash.

Based on current site plans, the proposed Off-Site Utilities Alignments would bore beneath the Oro Grande Wash at two different locations both east and south/southeast of the Project site, with the proposed sanitary sewer line and domestic water line will be placed outside of any potentially jurisdictional limits. By boring beneath the jurisdictional limits within this drainage, the Project will eliminate the potential impacts to regulated waters of the state, including RWQCB and CDFW.

However, if the final Project design results in the encroachment or placement of fill within the jur isdictional limits of Oro Grande Wash, adherence to the Porter-Cologne Water Quality Act and Section 1600, et seq., of the California Fish and Game Code will be required. A Waste Discharge Requirement from the RWQCB and a Streambed Alteration Agreement from CDFW would be required. These permits would need to be issued prior to the start of construction within Oro Grande Wash.

Direct Impacts
The Project could potentially result in significant direct impacts to areas under the jurisdiction of CDFW and RWQCB absent mitigation. As described, to the extent practicable, the Project shall be designed to avoid impacts to the jurisdictional waters of the state; if jurisdictional areas cannot be avoided, necessary resource agency permits shall be obtained, and compensatory mitigation would occur at a ratio not less than 1:1 for the impacts to jurisdictional waters in accordance with MM-BIO-16.

Indirect Impacts
Construction-related indirect impacts may include inadvertent spillover impacts outside of the construction footprint, chemical spills, and stormwater erosion and sedimentation.

Implementation of MM-BIO-3 gives the Project’s Designated Biologist the authority to stop work if construction is not compliant with this CEQA document. MM-BIO-4 requires that an experienced biologist oversee compliance with the protective measures, including limiting impacts within the Project footprint. MM-BIO-5 would provide construction personnel with training related to waters of the state that are present on and adjacent to the imp act footprint. MM-BIO-6 provides for documentation that the education program was administered to applicable

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personnel. MM-BIO-7 requires that impacts occur within the fenced, staked, or flagged area that is clearly delineated within the Project impact footprint. The construction crew will be responsible for unauthorized impacts from construction activities to waters of the state that are outside the permitted project footprint. Thus, implementation of MM-BIO-3 through MM-BIO-7 will enable the Project to avoid and minimize inadvertent spillover impacts outside of the approved impact footprint.

MM-BIO-8 would ensure that a prompt and effective response to any accidental chemical spills will be implemented and that repair and clean-up of any hazardous waste occurs. Thus, implementation of MM-BIO-8 would help to avoid and minimize impacts to waters of the state from any construction-related chemical spills.

A Stormwater Pollution Prevention Plan would be prepared and implemented to prevent all construction pollutants from contacting stormwater during construction activities, with the intent of keeping sediment and any other pollutants from moving off site and into receiving waters. Best management practice categories employed on site would include erosion contr ol, sediment control, and non -stormwater good housekeeping. Preparation and implementation of a Stormwater Pollution Prevention Plan would help to avoid and minimize the potential effects of stormwater erosion during construction.

Potential long-term (post-construction) indirect impacts from operations and maintenance activities may include changes in water quality and accidental chemical spills.

Implementation of low-impact-development features and best management practices would, to the maximum extent practicable, reduce the discharge of pollutants into receiving waters, including inadvertent release of pollutants (e.g., hydraulic fluids and petroleum); the improper management of hazardous materials; trash and debris; and the improper management of portable restroom facilities (e.g., regular service) in accordance with all relevant local and state development standards. In addition, in accordance with CalGreen requirements (California Green Building Standards Code, CCR, Title 24, Part 11), Project source controls to improve water quality would be provided for outdoor material storage areas, outdoor trash storage/waste handling areas, and outdoor loading/unloading areas. Therefore, impacts to western Joshua trees due to changes in water quality would be avoi ded and minimized through implementation of low-impact-development features and best management practices.

BIO-MM-8 would ensure that a prompt and effective response to any accidental chemical spills will be implemented, and repair and clean -up of any haz ardous waste occurs. Thus, implementation of BIO-MM-8 would help to avoid and minimize impacts to western Joshua tree from any operations-related chemical spills.

With the incorporation of mitigation, and with adherence to both the Porter-Cologne Water Quality Act and Section 1600, et seq., of the California Fish and Game Code, potential impacts to waters of the state would be less than significant.

Conflict with Biological Resources Protection Policies and Ordinances California Desert Native Plants
In addition to western Joshua tree, one desert native plant species, Wiggins’ cholla ( Cylindropuntia echinocarpa), was recorded on the Project site and within the Off-Site Utilities Alignments. A total of 66 living and 6 dead plants were documented on the Project site and within the Off-Site Utility Alignments. Because the focused desert native plant survey was positive for Wiggins’ cholla, and in accordance with the California Desert Native Plants Act and the Hesperia Municipal Code, Chapter 16.24, a native plant removal permit must be obtained from the City of Hesperia prior to the removal of Wiggins’ cholla. Additionally, Wiggins’ cholla is addressed in the Joshua Tree Preservation,

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Protection, and Relocation Plan, and Desert Native Plant Relocation Plan, pre pared to provide detailed specifications for the Project Applicant to meet the requirements of Chapter 16.24 of the Hesperia Municipal Code to protect, preserve, and mitigate impacts to desert native plants.

Pursuant to MM-BIO-2, the Project Applicant sha ll submit an application and applicable fee paid to the City of Hesperia for removal or relocation of protected native desert plants under Hesperia Municipal Code Chapter 16.24.

The application shall include certification from a qualified Joshua tree and native desert plant expert(s) to determine that proposed removal or relocation of protected native desert plants are appropriate, supportive of a healthy environment, and in compliance with the City of Hesperia Municipal Code. The application will include t he Joshua Tree Preservation, Protection, and Relocation Plan and Desert Native Plant Relocation Plan. The plan shall be prepared by a qualified Joshua tree and native desert plant expert(s). With the incorporation of mitigation, and with adherence to both the CDNPA and the Hesperia Municipal Code, impacts associated with desert native plants would be less than significant.

Joshua Trees
In accordance with Chapter 16.24 of the Hesperia Municipal Code, the preparation of a Joshua tree and desert native plants relocation plan is required to mitigate impacts to Joshua trees as a result of the Project. As such, a Joshua Tree Preservation, Protection, and Relocation Plan and Desert Native Plant Relocation Plan was prepared for the Project to provide detailed specifications for the Project Applicant to meet the requirements of Chapter 16.24 of the Hesperia Municipal Code to protect, preserve, and mitigate impacts to Joshua trees.

The Joshua Tree Preservation, Protection, and Relocation Plan addresses the requirements of the City’s Protected Plant Policy and provides details for the initial survey of the Project site’s Joshua trees, detailed speci fications for the protection of trees to be preserved on site, and relocation/salvage requirements for those trees requiring removal and relocation.

Pursuant to MM-BIO-2, the Project Applicant shall submit an application and applicable fee paid to the Cit y of Hesperia for removal or relocation of protected native desert plants under Hesperia Municipal Code Chapter 16.24.

The application shall include certification from a qualified Joshua tree and native desert plant expert(s) to determine that proposed rem oval or relocation of protected native desert plants are appropriate, supportive of a healthy environment, and in compliance with the City of Hesperia Municipal Code. The application shall include a detailed plan for removal of all protected plants on the Project site. The plan shall be prepared by a qualified Joshua tree and native desert plant expert(s). With the incorporation of mitigation, and with adherence to both the CDNPA and the Hesperia Municipal Code, impacts associated with Wiggins’ cholla and J oshua tree woodland would be less than significant.

Cumulative Biological Resources Impacts
The Project would result in potentially cumulatively considerable impacts to western Joshua trees and Joshua tree woodland vegetation on the Project site and Off-Site Utilities Alignments. Western Joshua trees are a state candidate species for listing under CESA and are locally protected by the City of Hesperia and by the California Desert Native Plant Act. Joshua tree woodlands are considered a sensitive natural community by CDFW. As required by MM-BIO-1, mitigation for direct impacts to 1,367 western Joshua trees will be fulfilled through conservation of Western Joshua tree through purchase of credits at a CDFW-approved mitigation bank or other conservation mechanism approved by the City of Hesperia and CDFW. Additionally, as required by MM-BIO-2 and in accordance with Chapter 16.24 of the Hesperia Municipal Code, the preparation of a Joshua tree and desert native plants relocation plan is required

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to mitigate impac ts to western Joshua trees as a result of the Project. As such, a Joshua Tree Preservation, Protection, and Relocation Plan, and Desert Native Plant Relocation Plan was prepared.

Conservation efforts for western Joshua tree (MM-BIO-1) would focus on the conservation of large, interconnected Joshua tree woodlands on lands where edge effects are limited, versus lands in urban settings that are subject to habitat fragmentation and edge effects, such as the Project site. Mitigation efforts would contribute to the conservation of large, interconnected Joshua tree woodlands. Larger preserves have a greater chance of preserving habitat diversity at all scales, support larger local populations, help maintain functioning metapopulations (partially isolated subpopula tions of the same species that support immigration and emigration and provide for recolonizations following local extirpations), support greater species genetic diversity, and are more likely to maintain intact watershed functions. Larger preserves also ha ve less habitat fragmentation and provide greater protection from edge effects due to a larger area -to-perimeter ratio compared to smaller preserves. Additionally, large preserves usually facilitate more cost -effective land management. Pursuant to MM-BIO-2, the Project Applicant shall submit an application and applicable fee paid to the City of Hesperia for removal or relocation of protected native desert plants, including western Joshua tree, under Hesperia Municipal Code Chapter 16.24. The application shall include certification from a qualified Joshua tree and native desert plant expert(s) to determine that proposed removal or relocation of protected native desert plants are appropriate, supportive of a healthy environment, and in compliance with the City of Hesperia Municipal Code. The application shall include a detailed plan for removal of all protected plants on the Project site. The plan shall be prepared by a qualified Joshua tree and native desert plant expert(s). Implementing these mitigation measure (MM-BIO-1 and MM-BIO-2) would reduce potential impacts to a less than significant level and would significantly reduce the potential for a cumulative considerable impact to Joshua tree.

Potential impacts to special-status wildlife species and nesting b irds would be reduced to a less than significant level through Project implementation of MM-BIO-3 through MM-BIO-15. Implementing these mitigation measures would reduce potential impacts to a less than significant level and would significantly reduce the potential for direct or indirect impacts to special-status species. Therefore, there would not be a cumulatively considerable impact on any special-status species.

Potential impacts to jurisdictional waters of the state, if necessary, would be reduced to a less than significant level through implementation of MM-BIO-3, MM -BIO-4, MM -BIO-5, MM -BIO-6, MM -BIO-7, MM -BIO-8, and MM-BIO-16.

Implementing these mitigation measures would reduce potential impacts to a less than significant level and would significantly reduce the potential for direct or indirect impacts to waters of the state. Therefore, there would not be a cumulatively considerable impact to waters of the state.

Additionally, the Project would not result in a significant impact to wildlife corridors and linkages, nor to local policies and regional conservation plans. The Project would therefore not contribute to a cumulative impact on these resources.

2.3.3.2 Mitigation Measures
MM-BIO-1 Conservation of Western Joshua Tree Lands. Mitigation for direct impacts to western Joshua trees will be fulfilled through conservation of western Joshua trees at a 1:1 habitat replacement of equal or better functions and values to those impacted by the project. Mitigation can be through purchases of credits at a California Department of Fish and Wildlife-approved mitigation bank for western Joshua tree or through conservation lands that meet the functions and values criteria. If mitigation is not purchased through a mitigation bank and lands are conserved separately, a cost estimate will be prepared to estimate the initial start -up costs, and ongoing annual costs, of