City of Irwindale
5050 N. IRWINDALE AVE., IRWINDALE CA 91706 • PHONE: (626) 430-2200 • FACSIMILE: 962-4209
NOTICE AND AGENDA FOR THE SPECIAL AND
REGULAR MEETING OF THE
CITY COUNCIL
SUCCESSOR AGENCY TO THE
IRWINDALE COMMUNITY REDEVELOPMENT AGENCY
HOUSING AUTHORITY
JANUARY 25, 2023
SPECIAL MEETING – 5:30 P.M.
REGULAR MEETING - 6:30 P.M.
IRWINDALE CITY COUNCIL CHAMBER
CLOSED SESSION / OPEN SESSION – CITY COUNCIL CHAMBER
Limited Public Access
Pursuant to Irwindale Resolution No. Resolution No. 2023-05-3383 The Irwindale City Council has authorized the conduct of hybrid meetings of the City Council, including all City Commissions and committee meetings, and all regularly scheduled meetings that would normally take place in the City Council Chambers, under the provisions of Government Code Section 54956 § E, as authorized by AB 361.
The public’s health and well-being are the top priority for the City, and you are urged to take all appropriate health safety precautions. To facilitate this process, the meeting and opportunities to participate are available through the following:
In-Person at the City Council Chambers
Via Zoom Webinar at https://us02web.zoom.us/j/87104592389 Webinar ID: 871 0459 2389
H. MANUEL ORTIZ
MAYOR
Albert f. ambriz
Mayor pro tem
MARK A. BRECEDA
councilmember
LARRY G. BURROLA
councilmember
MANUEL R. GARCIA
Councilmember
January 25, 2023
Spontaneous Communications: The public is encouraged to address the City Council on any matter listed on the agenda or on any other matter within its jurisdiction. The City Council will hear public comments on items listed on the agenda during discussion of the matter and prior to a vote. The City Council will hear public comments on matters not listed on the agenda during the Spontaneous Communications period.
Pursuant to provisions of the Brown Act, no action may be taken on a matter unless it is listed on the agenda, or unless certain emergency or special circumstances exist. The City Council may direct staff to investigate and/or schedule certain matters for consideration at a future City Council meeting.
Americans with Disabilities Act: In compliance with the ADA and Government Code section 54953(g), the City Council has adopted a reasonable accommodation policy to swiftly resolve accommodation requests. The policy can be found on the City’s website:
https://www.irwindaleca.gov/DocumentCenter/View/8075/AB-2449-Reasonable-Accommodation-Policy. If you need special assistance to participate in a City Council or Commission meeting or other services offered by this City, including an electronic or printed copy of the City’s reasonable accommodation policy, please contact City Hall at (626) 430-2200. Notification of at least 48 hours prior to the meeting or time when services are needed will assist the City staff in assuring that reasonable arrangements can be made to provide accessibility to the meeting or service.
Note: Staff reports are available for inspection at the office of the Chief Deputy City Clerk, City Hall, 5050 N. Irwindale Avenue, during regular business hours (8:00 a.m. to 6:00 p.m., Monday through Thursday).
January 25, 2023
Code of Ethics
As City of Irwindale Council Members, our fundamental duty is to serve the public good. We are committed to the principle of an efficient and professional local government. We will be exemplary in obeying the letter and spirit of Local, State and Federal laws and City policies affecting the operation of the government and in our private life. We will be independent and impartial in our judgment and actions.
We will work for the common good of the City of Irwindale community and not for any private or personal interest. We will endeavor to treat all people with respect and civility. We will commit to observe the highest standards of morality and integrity, and to faithfully discharge the duties of our office regardless of personal consideration. We shall refrain from abusive conduct, personal charges or verbal attacks upon the character or motives of others.
We will inform ourselves on public issues, listen attentively to public discussions before the body, and focus on the business at hand. We will base our decisions on the merit and substance of that business. We will be fair and equitable in all actions, claims or transactions. We shall not use our official position to influence government decisions in which we have a financial interest or where we have a personal relationship that could present a conflict of interest, or create a perception of a conflict of interest.
We shall not take advantage of services or opportunities for personal gain by virtue of our public office that are not available to the public in general. We shall refrain from accepting gifts, favors or promises of future benefit that might compromise our independence of judgment or action or give the appearance of being compromised.
We will behave in a manner that does not bring discredit or embarrassment to the City of Irwindale. We will be honest in thought and deed in both our personal and official lives.
Ultimate responsibility for complying with this Code of Ethics rests with the individual elected official. In addition to any other penalty as provided by law, violation of this Code of Ethics may be used as a basis for disciplinary action or censure of a Council Member.
These things we hereby pledge to do in the interest and purposes for which our government has been established.
Irwindale City Council
January 25, 2023
SPECIAL MEETING – 5:30 P.M.
A. CALL TO ORDER
B. ROLL CALL: Councilmembers:, Mark A. Breceda, Larry G. Burrola, Manuel R. Garcia; Mayor Pro Tem Albert F. Ambriz; Mayor H. Manuel Ortiz
C. AB 2449 DISCLOSURES
Remote participation by a member of the legislative body for just cause or emergency circumstances
SPONTANEOUS COMMUNICATIONS
Spontaneous communications are limited to the special meeting agenda items only.
D. RECESS TO CLOSED SESSION
1. Conference with Legal Counsel – Existing Litigation
Pursuant to California Government Code Section 54956.9
Name of Case: Five Points, LP vs. City of Irwindale
Case Number: 22STCV01394
2. Public Employee Performance Evaluation
Pursuant to California Government Code Section 54957
Title: City Manager
3. Liability Claims
Pursuant to Government Code section 54956.95)
A) Claimant: Robert Avila
Agency claimed against: City of Irwindale
B) Claimant: Mariela Avila
Agency claimed against: City of Irwindale
E. RECONVENE IN OPEN SESSION
F. REPORT FROM CLOSED SESSION
G. ADJOURNMENT
January 25, 2023
OPEN SESSION – 6:30 P.M.
A. CALL TO ORDER
B. PLEDGE OF ALLEGIANCE
C. INVOCATION
D. AB 2449 DISCLOSURES
Remote participation by a member of the legislative body for just cause or emergency circumstances E. ROLL CALL: Councilmembers: Mark A. Breceda, Larry G. Burrola, Manuel R. Garcia; Mayor Pro Tem Albert F. Ambriz; Mayor H. Manuel Ortiz
F. CHANGES TO THE AGENDA
G. COUNCIL MEMBER TRAVEL REPORTS
H. COUNCILMEMBER COMMENTS
I. INTRODUCTION OF NEW EMPLOYEES/PROMOTIONS
J. PROCLAMATIONS / PRESENTATIONS / COMMENDATIONS
1. Chamber of Commerce Business of the Month - Vulcan Materials
SPONTANEOUS COMMUNICATIONS
This is the time set aside for members of the audience to speak on items not on this agenda. State law prohibits any Council discussion or action on such communications unless 1) the Council by majority vote finds that a catastrophe or emergency exists; or 2) the Council by at least four votes finds that the matter (and need for action thereon) arose within the last five days. Since the Council cannot (except as stated) participate it is requested that all such communications be made in writing so as to be included on the next agenda for full discussion and action. If a member of the audience feels he or she must proceed tonight, then each speaker will be limited to 3 minutes unless such time limits are extended.
In the hybrid format, both in-person and hybrid audience members will participate in the following order:
Tier 1: In-person attendees
Tier 2: Teleconference attendees
Tier 3: In-person attendees who have not previously provide comments on the matter(s) being discussed by the legislative body
Tier 4: Teleconference attendees who have not previously provide comments on the matter(s) being discussed by the legislative body
January 25, 2023
1. CONSENT CALENDAR
The Consent Calendar contains matters of routine business and is to be approved with one motion unless a member of the City Council requests separate action on a specific item. At this time, members of the audience may ask to be heard regarding an item on the Consent Calendar.
A. Minutes
Department: Administration / City Clerk
Recommendation: Approve the following minutes:
1. Special joint meeting held December 14, 2022
2. Regular meeting held December 14, 2022
B. Warrants/Demands/Payroll
Department: Finance
Recommendation: Approve
C. Investment Quarterly Report for Fiscal Quarter Ending December 31, 2022 (Joint Item on Successor Agency and Housing Authority)
Department: Finance
Recommendation: Receive and file the Investment Quarterly Report for the fiscal quarter ending December 31, 2022.
D. Claim Rejection – Natalie Diaz
Department: Administration
Recommendation: (1) Reject the claim of Natalie Diaz vs. City of Irwindale; and (2) Direct staff to send a letter of rejection.
E. Approval of Plans and Specifications for the 2022-2023 Resurfacing Program: Residential Resurfacing Project – Phase II; P-1043
Department: Engineering
Recommendation: (1) Approve the plans and specifications for the 2022-2023 Resurfacing Program: Residential Resurfacing Project – Phase II; and (2) authorize staff to solicit bids for construction of the project.
January 25, 2023
2. NEW BUSINESS
At this time, members of the audience may ask to be heard regarding an item on New Business.
A) Direction Regarding United Rock Products Request to Submit an Application to Modify the Development Agreement for the Olive Pit
Department: Community Development
Recommendation: Discuss and authorize the City Manager to sign the application for the modification of the Development Agreement for the Olive Pit, located at 4407 Azusa Canyon Road.
B) Approval of Settlement Agreement between Five Points, LP and City of Irwindale regarding settlement of the lawsuit Five Points, LP vs. City of Irwindale, Los Angeles County Superior Court, Case No. 22STCV01394
Recommendation: 1) Approve the Settlement Agreement between the City of Irwindale and Five Points, LP regarding settlement of the lawsuit Five Points, LP vs. City of Irwindale, Los Angeles County Superior Court, Case No. 22STCV01394, and 2) Authorize the City Manager to execute the Settlement Agreement subject to City Attorney approval as to form with authorization to the City Manager to approve any non-substantive changes to the agreement prior to execution.
C) Request to approve Amendment No. 3 to the professional consulting contract with De Novo Planning Group for the preparation of an additional air quality analysis for the Environmental Impact Report for the construction of a ±495,000 square-foot concrete tiltup building and associated parking at 5175 Vincent Avenue [APNS: 8417-034-015 and 8417-034-016 as per the 2018 Assessor’s Parcel Map. (Formerly APNS: 8417-034-904, 8417-034-910, 8417-034-911)]
Department: Community Development
Recommendation: Approve contract amendment No. 3 with De Novo Planning Group for the preparation of additional air quality analysis for the proposed project at 5175 Vincent Avenue. This analysis is being prepared as part of the Environmental Impact Report.
3. PUBLIC HEARINGS
At this time, members of the audience may ask to be heard regarding an item on Public Hearings.
4. CITY MANAGER’S REPORT
5. AGENDA ITEMS REQUESTED BY COUNCIL MEMBERS
6. ADJOURN
January 25, 2023
SUCCESSOR AGENCY TO THE IRWINDALE
COMMUNITY REDEVELOPMENT AGENCY
AB 2449 DISCLOSURES
Remote participation by a member of the legislative body for just cause or emergency circumstances
SPONTANEOUS COMMUNICATIONS
This is the time set aside for members of the audience to speak on items not on this agenda.
Spontaneous Communications for the Successor Agency are subject to the same State prohibitions and City guidelines as cited on the City Council agenda.
1. CONSENT CALENDAR
A. Minutes
Department: Administration / City Clerk
Recommendation: Approve the following minutes:
1. Special joint meeting held December 14, 2022
2. Regular meeting held December 14, 2022
B. Warrants
Department: Finance
Recommendation: Approve
C. Investment Quarterly Report for Fiscal Quarter Ending December 31, 2022 (Joint Item on City Council and Housing Authority)
Department: Finance
Recommendation: Receive and file the Investment Quarterly Report for the fiscal quarter ending December 31, 2022.
2. NEW BUSINESS
At this time, members of the audience may ask to be heard regarding an item on New Business.
3. PUBLIC HEARINGS
At this time, members of the audience may ask to be heard regarding an item on Public Hearings.
4. ADJOURN
January 25, 2023
HOUSING AUTHORITY
AB 2449 DISCLOSURES
Remote participation by a member of the legislative body for just cause or emergency circumstances
SPONTANEOUS COMMUNICATIONS
This is the time set aside for members of the audience to speak on items not on this agenda.
Spontaneous Communications for the Housing Authority are subject to the same State prohibitions and City guidelines as cited on the City Council agenda.
1. CONSENT CALENDAR
A. Minutes
Department: Administration / City Clerk
Recommendation: Approve the following minutes:
1. Special joint meeting held December 14, 2022
2. Regular meeting held December 14, 2022
B. Investment Quarterly Report for Fiscal Quarter Ending December 31, 2022 (Joint Item on City Council and Successor Agency)
Department: Finance
Recommendation: Receive and file the Investment Quarterly Report for the fiscal quarter ending December 31, 2022.
2. NEW BUSINESS
At this time, members of the audience may ask to be heard regarding an item on New Business.
A. Las Casitas Verbal Update
3. PUBLIC HEARINGS
At this time, members of the audience may ask to be heard regarding an item on Public Hearings.
4. ADJOURNMENT
AFFIDAVIT OF POSTING
I, Laura M. Nieto, Chief Deputy City Clerk, certify that I caused the agenda for the regular meeting of the City Council, Irwindale Successor Agency to the Irwindale Community Redevelopment Agency, and Housing Authority, to be held on January 25, 2023, be posted at the City Hall, Library, and Post Office on January 20, 2023.
Laura M. Nieto, MMC
Laura M. Nieto, MMC
Chief Deputy City Clerk
IRWINDALE CITY COUNCIL CHAMBERS
5050 N. IRWINDALE AVENUE
IRWINDALE, CALIFORNIA 91706
CC, SA& HA
ITEM 1A1 DECEMBER 14, 2022
WEDNESDAY
5:30 P.M.
The Irwindale CITY COUNCIL, SUCCESSOR AGENCY TO THE COMMUNITY
REDEVELOPMENT AGENCY, HOUSING AUTHORITY, AND RECLAMATION AUTHORITY met in special joint session at the above time and place.
ROLL CALL:
SPONTANEOUS
COMMUNICATIONS
CONSENT CALENDAR
MOTION
ITEM NO. D1
A RESOLUTION TO
RE-RATIFY THE
EXISTENCE OF A
LOCAL EMERGENCY
AND AUTHORIZE
REMOTE MEETINGS
FOR THE LEGISLATIVE
BODIES OF THE CITY
OF IRWINDALE FOR
THE 30-DAY PERIOD
BEGINNING
DECEMBER 14, 2022
THROUGH
JANUARY 13, 2023
RESOLUTIONS
ADOPTED
Present: Council/Board Members Mark A. Breceda (arrived at 6:38 p.m.), Manuel R. Garcia, H. Manuel Ortiz; Mayor Pro Tern /Vice Chair Albert F. Ambriz; Mayor I Chair Larry G. Burrola
Also Present: Julian A. Miranda, City Manager I Executive Director; Adrian Guerra, City Attorney I General Counsel
There were no speakers.
A motion was made by Mayor Pro Tern Ambriz, seconded by Councilmember Ortiz, to approve the Consent Calendar. The motion was unanimously approved; Councilmember Breceda absent at the time of the roll call.
A RESOLUTION TO RE-RATIFY THE EXISTENCE OF A LOCAL
EMERGENCY AND AUTHORIZE REMOTE MEETINGS OF THE
LEGISLATIVE BODIES OF THE CITY OF IRWINDALE FOR THE 30- DAY PERIOD BEGINNING DECEMBER 14, 2022 THROUGH
JANUARY 13, 2023
Joint Resolution Nos. 2022-112-3362, SA 2022-113-3363, HA 2022-21-131, and RA 2022-08-035 entitled:
"A JOINT RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE, SUCCESSOR AGENCY TO THE IRWINDALE
COMMUNITY REDEVELOPMENT AGENCY, AND THE BOARD OF
THE HOUSING AUTHORITY RE-RATIFYING THE
PROCLAMATION OF A STATE OF EMERGENCY BY GOVERNOR
NEWSOM ON MARCH 4, 2020, AND AUTHORIZING REMOTE
HYBRID MEETINGS OF THE LEGISLATIVE BODIES OF THE CITY
OF IRWINDALE FOR THE 30-DAY PERIOD BEGINNING
CC, SA, HA AND RA MINUTES
SPECIAL JOINT MEETING
DECEMBER 14, 2022
PAGE2
RECESS TO
CLOSED SESSION
DECEMBER 14, 2022, THROUGH JANUARY 13, 2023, PURSUANT
TO THE RALPH M. BROWN ACT AND ASSEMBLY BILL NO. 361,"
was adopted, Councilmember Breceda absent.
At 5:35 p.m., the City Council met in Closed Session to discuss the following:
Conference with Legal Counsel - Existing Litigation
Pursuant to California Government Code Section 54956.9
Name of Case: Five Points, LP vs. City of Irwindale
Case Number: 22STCV01394
ACTION: Discussed, direction provided; no reportable action taken (Councilmember Breceda did not participate).
Liability Claims
Pursuant to Government Code Section 54956.95
Claimant: Unspecified pursuant to Government Code Section 54961 Agency claimed against: City of Irwindale
ACTION: Update provided; no direction or action taken.
Conference with Real Property Negotiator
Pursuant to California Government Code Section 54956.8
Property: Olive Pit (APN 8415-001-906, 908)
Agency Negotiators: Julian A. Miranda, City Manager and Arsanious Hanna, Director of Engineering I Building Official
Negotiating Parties: United Rock Products Corp.
Under Negotiation: Sublease Price and Terms
ACTION: Discussed, update provided. No action taken.
Property: 5223 Morada Street (APN 8619-012-907)
Agency Negotiators: Julian A. Miranda, City Manager
Negotiating Parties: TBD
Under Negotiation: Price and Terms
ACTION: Discussed, direction provided; no reportable action taken (Councilmember Breceda did not participate).
Property: 5239 Morada Street (APN 8619-012-910)
Agency Negotiators: Julian A. Miranda, Executive Director Negotiating Parties: TBD
Under Negotiation: Price and Terms
ACTION: Discussed, direction provided; no reportable action taken (Councilmember Breceda did not participate).
CC, SA, HA AND RA MINUTES
SPECIAL JOINT MEETING
DECEMBER 14, 2022
PAGE3
RECONVENE IN
OPEN SESSION
ADJOURNMENT
Conference with Legal Counsel - Anticipated Litigation
Initiation of litigation pursuant to paragraph (4) of subdivision (d) of Section 54956.9
Number of cases: One
ACTION: Discussed, update provided; no reportable action taken (Councilmember Breceda did not participate).
At 6:38 p.m., the City Council reconvened in Open Session with all members present.
There being no further business to conduct, the meeting was adjourned at 6:40 p.m.
Laura M. Nieto, MMC
Chief Deputy City Clerk
IRWINDALE CITY COUNCIL CHAMBERS
5050 N. IRWINDALE AVENUE
IRWINDALE, CALIFORNIA 91706
CC ITEM 1A2 1 ECEMBER 14, 2022
L-~~~~~~~' WEDNESDAY
6:40 P.M.
The Irwindale CITY COUNCIL met in regular session at the above time and place.
ROLL CALL:
CHANGES TO THE
AGENDA
CITY MANAGER
MIRANDA
REPORT FROM THE
SPECIAL MEETING
HELD DECEMBER 7,
2022
CITY ATTORNEY
GUERRA
COUNCILMEMBER
TRAVEL REPORT
DECLARING RESULTS
OF NOVEMBER 8, 2022
ELECTION
CITY MANAGER
MIRANDA
Present: Councilmembers Mark A. Breceda, Manuel R. Garcia, H. Manuel Ortiz; Mayor Pro Tern Albert F. Ambriz;
Mayor Larry G. Burrola
Also Present: Julian A. Miranda, City Manager; Adrian Guerra, City Attorney; Robert Castro, Interim Chief of Police; Theresa Olivares, Assistant City Manager; Kambiz Borhani, Director of Finance I City Treasurer; Arsanious Hanna, Director of Engineering I Building Official; Marilyn Simpson, Community Development Director; Mary Hull, Human Resources Manager, and Laura Nieto, Chief Deputy City Clerk
City Manager Miranda advised that: 1) Irwindale Police Detective Sergeant Rudy Gatto and Police Services Specialist Yvonne Benner would be recognized tonight by the Council due to their upcoming retirements, 2) staff is requesting to pull Item No. 1 C so that it could be discussed and so that amendments to the report could be identified, 3) Item Nos. 2B and 2C have been updated to include the submittal of new applications to the Parks and Recreation and Planning Commissions, and 4) the City Attorney will read the corrected title of the ordinance included with Item No. 2E.
City Attorney Guerra reported on the outcome of the items on the special meeting held December 7, 2022. The results are reflected on the minutes for said meeting.
None.
City Manager Miranda presented the staff report.
CITY COUNCIL MINUTES
REGULAR MEETING
RESOLUTION NO.
2022-114-3364
ADOPTED
ADMINISTRATION OF
OATHS OF OFFICE TO
ALBERT F. AMBRIZ
AND H. MANUEL ORTIZ
REORGANIZATION OF
CITY COUNCIL
CITY MANAGER
MIRANDA
COUNCILMEMBER
BURROLA
COUNCILMEMBER
ORTIZ
ROLL CALL
RECESS
RECONVENE
MAYOR ORTIZ
COUNCILMEMBER
BRECEDA
Resolution No. 2022-114-3364, entitled:
DECEMBER 14, 2022
PAGE2
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE, CALIFORNIA, RECITING THE FACT OF THE
CONSOLIDATED GENERAL MUNICIPAL ELECTION HELD ON
NOVEMBER 8, 2022, ACCEPTING THE OFFICIAL CANVASS AND
OFFICIAL STATEMENT OF VOTES CAST FROM THE COUNTY OF
LOS ANGELES REGISTRAR RECORDER'S OFFICE, AND
DECLARING THE RESULTS AND SUCH OTHER MATTERS AS
PROVIDED BY LAW," was passed, approved, and adopted, on the motion of Mayor Pro Tern Ambriz, seconded by Councilrnember Breceda, and unanimously approved.
The oaths of office were administered.
City Manager Miranda presented the staff report and opened the floor for nominations for the office of Mayor.
Councilrnember Burrola nominated Councilrnember Ortiz.
Councilmember Ortiz nominated Councilmember Ambriz.
There being no further nominations, Chief Deputy City Clerk Nieto closed the nomination period and, upon roll call vote, Councilmember Ortiz was unanimously appointed as Mayor; Councilmember Ambriz initially voting against the nomination but changing it to favor the nomination after the roll call vote concluded.
At 6:59 p.m., the City Council took a short recess.
At 7:03 p.m., the City Council reconvened in Open Session with all members present.
Mayor Ortiz then opened the floor to nominations for the office of Mayor Pro Tern.
Mayor Ortiz nominated Councilmember Ambriz.
Councilmember Breceda nominated Councilmember Garcia.
CITY COUNCIL MINUTES DECEMBER 14, 2022
REGULAR MEETING PAGE 3
ROLL CALL There being no further nominations, Mayor Ortiz closed the nomination period and upon roll call vote, Councilmember Ambriz was appointed Mayor Pro Tern, with Councilmembers Ambriz, Burrola, and Mayor Ortiz voting in favor; Councilmembers Breceda and Garcia opposed.
ROLL CALL OF NEWLY
SEATED CITY COUNCIL The roll call for the newly seated City Council was conducted.
COUNCILMEMBER
COMMENTS
COUNCILMEMBER
BURROLA
MAYOR PRO TEM
AMBRIZ
MAYOR ORTIZ
INTRODUCTION OF
NEW EMPLOYEES I
PROMOTIONS
PROCLAMATIONS I
PRESENTATIONS I
COMMENDATIONS
CHAMBER OF
COMMERCE
BUSINESS OF THE
MONTH - FIT4DUTY
CONSULTING
PRESENTATION TO
YVONNE BENNER,
POLICE SERVICES
SPECIALIST
PRESENTATION TO
RUDY GATTO,
POLICE DETECTIVE
SERGEANT
Councilmember Burrola thanked the community for supporting him during his time as Mayor.
Mayor Pro Tern Ambriz also thanked the community for re-electing him to the Council and thanked Councilmember Burrola for his service as Mayor.
Mayor Ortiz thanked all his supporters for his reelection, and commended Councilmember Burrola for his service as Mayor.
There were none.
CHAMBER OF COMMERCE BUSINESS OF THE MONTH -
FIT4DUTY CONSULTING
The recognition was made.
PRESENTATION TO YVONNE BENNER, POLICE SERVICES
SPECIALIST
The recognition was made in light of Mrs. Benner's upcoming retirement.
PRESENTATION TO RUDY GATTO, POLICE DETECTIVE
SERGEANT
The recognition was made in light of Sgt. Gatto's upcoming retirement.
CITY COUNCIL MINUTES
REGULAR MEETING
SPONTANEOUS
COMMUNICATIONS
DENA ZEPEDA
BILL SALAZAR
ANGELO VILLA
COUNCILMEMBER
BRECEDA
DANTE VILLA
SEBASTIAN
DEL CASTILLO
DIRECTOR HANNA
CONSENT CALENDAR
MOTION
DECEMBER 14, 2022
PAGE4
Dena Zepeda congratulated Mayor Ortiz and Mayor Pro Tern Ambriz on their reelection and Sergeant Gatto and Specialist Benner on their retirements, thanked staff for the wonderful new programs being offered, and thanked the Irwindale Community Foundation for its contributions to said programs.
Bill Salazar, with Royal Coaches Towing, noted an item on the agenda relating to towing, and stated his hope that Royal Coaches could continue providing towing services to the city.
Angelo Villa spoke on county taxes being imposed on the house he purchased, which covered a period of time before he owned said property. He requested staff assistance, to which Mayor Ortiz stated that staff would look into the matter.
Councilrnernber Breceda advised that Mr. Villa has also spoken to him regarding his concerns told him that staff would look into the situation.
Dante Villa, father of Angelo Villa, expressed his disappointment that his son's concern has been brought up to city staff months ago with little apparent progress.
Sebastian Del Castillo congratulated Mayor Ortiz, spoke on traffic incidents that have occurred on Meridian Street, and stated that he has spoken with staff regarding his concerns, but has not yet seen a resolution, to which City Manager Miranda advised that staff is looking into the matter and mentioned the possibility of painting the curbs red to mitigate accidents.
Director Hanna noted that he has met with City Manager Miranda and Assistant City Manager Olivares regarding the street, and indicated that Irwindale staff is working with Duarte staff to address the incidents. He added that staff is also looking into reports of mail delivery issues being experienced by residents in the area.
A motion was made by Councilrnernber Breceda, seconded by Mayor Pro Tern Ambriz, to approve the Consent Calendar, with the exception of Item Nos. 1 C and 1 G, which were removed for separate consideration. The motion was unanimously approved;
Councilrnernber Breceda abstaining on Item No. 1 M, Councilrnernber Garcia abstaining on Item Nos. 1 E and 1 M; Mayor Ortiz abstaining on Item No. 1 D.
CITY COUNCIL MINUTES DECEMBER 14, 2022
REGULAR MEETING PAGE 5
ITEM NO. 1A MINUTES
MINUTES
ITEM N0.1B
WARRANTS
ITEM N0.1D
REQUEST TO
APPROVE A FEE
WAIVER FOR THE
PROCESSION OR
PARADE'S PUBLIC
SAFETY SERVICES
PERFORMED BY
IRWINDALE POLICE
DEPARTMENT FOR
THE "OUR LADY OF
GUADALUPE
CHURCH FIESTA" ON
DECEMBER 11, 2022
RESOLUTION NO.
2022-121-3371
ADOPTED
ITEM NO. 1E
AUTHORIZING
FINANCE DIRECTOR
TO AMEND FY 22/23
ADOPTED BUDGET
BY APPROPRIATING
$4,349,965.75 FROM
THE GENERAL FUND
RESERVE TO THE
CAPITAL
IMPROVEMENT
PROGRAM PROJECT
8230, AND ISSUE A
LETTER TO THE
The following minutes were approved:
1) Regular meeting held August 25, 2021
2) Special joint meeting held November 9, 2022
3) Regular meeting held November 9, 2022
4) Special joint meeting held November 17, 2022
WARRANTS
The warrants were approved.
REQUEST TO APPROVE A FEE WAIVER FOR THE PROCESSION
OR PARADE'S PUBLIC SAFETY SERVICES PERFORMED BY
IRWINDALE POLICE DEPARTMENT FOR THE "OUR LADY OF
GUADALUPE CHURCH FIESTA" ON DECEMBER 11, 2022
Resolution No. 2022-121-3371, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE RETROACTIVELY APPROVING THE PUBLIC
SAFETY SERVICE FEE WAIVER FOR THE PROCESSION
PARADE OF OUR LADY OF GUADALUPE CHURCH FIESTA ON
DECEMBER 11, 2022," was adopted; Mayor Ortiz abstaining.
AUTHORIZING FINANCE DIRECTOR TO AMEND FISCAL YEAR
2022-2023 ADOPTED BUDGET BY APPROPRIATING
$4,349,965.75 FROM THE GENERAL FUND RESERVE TO THE
CAPITAL IMPROVEMENT PROGRAM PROJECT 8230, AND
ISSUE A LETTER TO CALIFORNIA STATE LIBRARY
GUARANTEEING AND CONFIRMING CITY OF IRWINDALE'S
AVAILABILITY OF ALL MATCHING FUNDS
CITY COUNCIL MINUTES
REGULAR MEETING
CA STATE LIBRARY
GUARANTEEING
AND CONFIRMING
CITY OF IRWINDALE'S
AVAILABILITY OF ALL
MATCHING FUNDS
RESOLUTION NO.
2022-123-3373
ADOPTED
ITEM NO. 1F
2023 LIST OF LOCAL
APPOINTMENTS
RESOLUTION NO.
2022-115-3365
ADOPTED
Resolution No. 2022-123-3373, entitled:
DECEMBER 14, 2022
PAGE6
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE AMENDING THE FISCAL YEAR 2022-2023 ADOPTED
CAPITAL IMPROVEMENT PROGRAM BUDGET, APPROPRIATING
$4,349,965.75 FROM THE GENERAL FUND RESERVE TO THE
CITY OF IRWINDALE PUBLIC LIBRARY IMPROVEMENT
PROJECT, AND AUTHORIZING THE ISSUANCE OF A LETTER TO
THE CALIFORNIA STATE LIBRARY GUARANTEEING AND
CONFIRMING THE CITY OF IRWINDALE'S AVAILABILITY OF ALL
MATCHING FUNDS FOR THE CITY OF IRWINDALE PUBLIC
LIBRARY IMPROVEMENT PROJECT," was adopted;
Councilmember Garcia abstaining.
2023 LIST OF LOCAL APPOINTMENTS
Resolution No. 2022-115-3365, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE, STATE OF CALIFORNIA, REGARDING THE
PREPARATION OF THE 2023 LOCAL APPOINTMENTS LIST AND
POSTING OF THE SAME," was adopted.
ITEM NO. 1H REQUEST TO APPROVE THE AMENDED AND RESTATED
REQUEST TO PROJECT REIMBURSEMENT AGREEMENT BETWEEN THE CITY APPROVE THE AND IRWINDALE INDUSTRIAL, LLC ("APPLICANT") FOR CITY
AMENDED AND AND CONSUL TANT COSTS ASSOCIATED WITH A PROPOSED
RESTATED PROJECT INDUSTRIAL I COMMERCIAL BUSINESS PARK TO BE LOCATED REIMBURSEMENT AT 500 SPEEDWAY DRIVE (APNS): 8532-004-022, 8532-004-026, AGREEMENT WITH AND 8532-004-025
IRWINDALE INDUSTRIAL,
LLC
ITEM NO. 11
REQUEST TO
APPROPRIATE
The Amended and Restated Project Reimbursement Agreement with Irwindale Industrial, LLC for the reimbursement of city and consultant costs associated with the proposed industrial I commercial business park to be located at 500 Speedway Drive (APNs): 8532-004-022, 8532-004-026, and 8532-004-025, was approved.
REQUEST TO APPROPRIATE ADDITIONAL FUNDS, WAIVE
FORMAL BIDDING AND APPROVE THE PURCHASE OF A NEW
REPLACEMENT VEHICLE FOR THE COMMUNITY
CITY COUNCIL MINUTES
REGULAR MEETING
ADDITIONAL FUNDS,
WAIVE FORMAL
BIDDING, AND
APPROVE THE
PURCHASE OF A NEW
REPLACEMENT
VEHICLE FOR THE
COMMUNITY
DEVELOPMENT DEPT.
RESOLUTION NO.
2022-122-3372
ADOPTED
ITEM NO. 1J
ISSUE REQUEST
FOR PROPOSALS (RFP)
FOR TOW SERVICES
RESOLUTION NO.
2022-120-3370
ADOPTED
ITEM NO. 1K
RESOLUTION CASTING
THE CITY OF
IRWINDALE'S VOTE
FOR CITY OF COVINA
COUNCILMEMBER
HECTOR DELGADO
TO REPRESENT
CITIES WITH
PRESCRIPTIVE
PUMPING RIGHTS
AS AN ALTERNATE
MEMBER ON THE
BOARD OF THE SAN
GABRIEL BASIN
WATER QUALITY
AUTHORITY
DEVELOPMENT DEPARTMENT
Resolution No. 2022-122-3372, entitled:
DECEMBER 14, 2022
PAGE 7
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE APPROVING THE APPROPRIATION OF ADDITIONAL
FUNDING FOR AND THE PURCHASE AND OUTFITTING OF ONE
REPLACEMENT VEHICLE FOR THE COMMUNITY
DEVELOPMENT DEPARTMENT AND WAIVING FORMAL BIDDING
PROCEDURES PER IRWINDALE MUNICIPAL CODE SECTION
3.44.0SO(F)", was adopted.
ISSUE REQUEST FOR PROPOSALS (RFP) FOR TOW SERVICES
Resolution No. 2022-120-3370, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE AUTHORIZING THE ISSUANCE OF A REQUEST
FOR PROPOSALS FOR TOW SERVICES," was adopted.
RESOLUTION CASTING THE CITY OF IRWINDALE'S VOTE FOR
CITY OF COVINA COUNCILMEMBER HECTOR DELGADO TO
REPRESENT CITIES WITH PRESCRIPTIVE PUMPING RIGHTS
AS AN ALTERNATE MEMBER ON THE BOARD OF THE SAN
GABRIEL BASIN WATER QUALITY AUTHORITY
CITY COUNCIL MINUTES
REGULAR MEETING
RESOLUTION NO.
2022-127-3377
ADOPTED
ITEM NO. 1L
REASONABLE
ACCOMMODATIONS
POLICY FOR PUBLIC
AGENCY BROWN
ACT MEETINGS
ITEM NO. 1M
AWARD OF CONTRACT
TO VECTORUSA FOR
THE SECURITY
SURVEILLANCE
SYSTEM &
INSTALLATION
RESOLUTION NO.
2022-125-3375
ADOPTED
ITEM NO. 1N
ACCEPTANCE OF
THE 2021-2022
RESURFACING
PROGRAM;
RESIDENTIAL
RESURFACING
PROJECT - PHASE I;
P-1034
Resolution No. 2022-127-3377, entitled:
DECEMBER 14, 2022
PAGES
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE, CALIFORNIA, CASTING ITS VOTE FOR CITY OF
COVINA COUNCILMEMBER HECTOR DELGADO TO
REPRESENT CITIES WITH PRESCRIPTIVE PUMPING RIGHTS
AS AN ALTERNATE MEMBER ON THE BOARD OF THE SAN
GABRIEL BASIN WATER QUALITY AUTHORITY," was adopted.
REASONABLE ACCOMMODATIONS POLICY FOR PUBLIC
AGENCY BROWN ACT MEETINGS
The Reasonable Accommodations Policy for Public Agency Brown Act Meetings was approved and adopted.
AWARD OF CONTRACT TO VECTORUSA FOR THE SECURITY
SURVEILLANCE SYSTEM & INSTALLATION
Resolution No. 2022-125-3375, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE WAIVING THE FORMAL BIDDING PROCEDURES
PURSUANT TO IRWINDALE MUNICIPAL CODE SECTION
3.44.080(E), AUTHORIZING THE ISSUANCE OF A PURCHASE
ORDER AND AUTHORIZING THE ASSISTANT CITY MANAGER
TO EXECUTE A CONTRACT TO VECTORUSA, AND
APPROPRIATING ADDITIONAL FUNDS FOR THE PURCHASE
AND EQUIPMENT INSTALLATION OF THE SECURITY
SURVEILLANCE SYSTEM & INSTALLATION," was adopted;
Councilmembers Breceda and Garcia abstaining.
ACCEPTANCE OF THE 2021-2022 RESURFACING PROGRAM:
RESIDENTIAL RESURFACING PROJECT- PHASE I; P-1034
1) The changes to the original scope of work were ratified and the improvements and maintenance responsibilities for the constructed improvements of the 2021-2022 Resurfacing Program: Residential Resurfacing Project - Phase I, were accepted; 2) the final construction project amount of $623,539.82 under the construction contract with Hardy and Harper, Inc., was approved; 3) the final construction management and inspection services contract with Z&K Consultants in the amount of $71,962.00 was approved; 4) the City Clerk was authorized to record the Notice of Completion; and 5) the Finance Director was authorized to release the 5% retention amount for the construction project.
CITY COUNCIL MINUTES
REGULAR MEETING
DECEMBER 14, 2022
PAGE9
ITEM NO. 10 AMENDMENT NO. 1 TO CONTRACT SERVICES AGREEMENT AMENDMENT NO. 1 WITH JOHNSON-FRANK & ASSOCIATES, INC. FOR TO CONTRACT TOPOGRAPHIC-HYDROGRAPHIC SURVEY OF EIGHT (8) SAND SERVICES AGMT. AND GRAVEL MINES; P-1048
WITH JOHNSON-FRANK
& ASSOCIATES, INC.
FOR TOPOGRAPHIC
HYDROGRAPHIC
SURVEY OF EIGHT (8)
SAND AND GRAVEL
MINES
ITEM NO. 1P
APPROVE ADDITIONAL
FEE WAIVER FOR THE
TOURNAMENT OF
ROSES CITY
TRANSPORTATION I
OVERSIZED VEHICLE
FEES
RESOLUTION NO.
2022-128-3378
ADOPTED
ITEM NO. 1Q
REJECTION OF CLAIM:
JOSE HERRERA
GUDINO VS. CITY OF
IRWINDALE
The Amendment to the Contract Agreement with Johnson-Frank & Associates, Inc., for Topographic-Hydrographic Survey of Eight (8) Sand and Gravel Mines (P-1048) to increase the contract amount from $135,400 to $161,763 (an increase of $26,363) was approved and the City Manager was authorized to make the amendment.
APPROVE ADDITIONAL FEE WAIVER FOR THE TOURNAMENT
OF ROSES WAIVING CITY TRANSPORTATION I OVERSIZED
VEHICLE FEES
Resolution No. 2022-128-3378, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE APPROVING A FEE WAIVER FOR THE PASADENA
TOURNAMENT OF ROSES 501(C)(3) NONPROFIT
ORGANIZATION, WAIVING ADDITIONAL CITY
TRANSPORTATION I OVERSIZED VEHICLE FEES IN THE
AMOUNT OF $64.00", was adopted.
REJECTION OF CLAIM: JOSE HERRERA GUDINO VS. CITY OF
IRWINDALE
The claim of Jose Herrera Gudino vs. City of Irwindale was rejected and staff was directed to send a letter of rejection.
END OF CONSENT CALENDAR
ITEM NO. 1C
DEVELOPMENT
IMPACT FEE
COMPLIANCE
REPORT REQUIRED
PURSUANT TO
GOVERNMENT CODE
§66006
DIRECTOR BORHANI
DEVELOPMENT IMPACT FEE COMPLIANCE REPORT
REQUIRED PURSUANT TO GOVERNMENT CODE §66006
Director Borhani presented the staff report and advised of updates to the report: #3 on page 4 and #5-7.
CITY COUNCIL MINUTES
REGULAR MEETING
MOTION
ITEM NO. 1G
REQUEST TO
APPROVE
AMENDMENT NO. 1
TO A PROFESSIONAL
CONSULTING
CONTRACT WITH
LSAASSOCIATES, INC.
MAYOR ORTIZ
COUNCILMEMBER
GARCIA
MAYOR PRO TEM
AMBRIZ
DECEMBER 14, 2022
PAGE 10
A motion was made by Councilmember Breceda, seconded by Councilmember Garcia, to receive and file the Development Impact Fee Compliance Report for Fiscal Year ending June 30, 2022. The motion was unanimously approved.
REQUEST TO APPROVE AMENDMENT NO. 1 TO A
PROFESSIONAL CONSUL TING CONTRACT WITH LSA
ASSOCIATES, INC. FOR THE PREPARATION OF CEQA
DOCUMENTS (INITIAL STUDY AND ENVIRONMENTAL IMPACT
REPORT) FOR THE CONSTRUCTION OF ELEVEN (11)
SPECULATIVE CONCRETE TILT-UP BUILDINGS FOR A TOTAL
OF 1.27 MILLION SQUARE FEET OF LIGHT INDUSTRIAL
COMMERCIAL BUSINESS PARK USES ON AN APPROXIMATELY
62.7 ACRE PROJECT SITE LOCATED AT 500 SPEEDWAY DRIVE
(APNS): 8532-004-022, 8532-004-026, AND 8532-004-025
Mayor Ortiz questioned the timing of the EIR, to which Director Simpson discussed the staff report, and noted that the data is being compiled as a disclosure document to analyze any impacts related to the project. A mitigation and monitoring report will also be prepared.
Conditions of Approval will also be added to address construction; however, the construction is not being considered at this point. She also noted that the owner of the land intends to move forward with the project, and indicated that there will be a need for remediation.
In response to a question by Councilmember Garcia, City Attorney Guerra advised that approving additional funding for testing would not obligate the City to approve the proposed facility. He advised that this agreement merely permits the City to retain a consultant to perform the environmental analysis; the applicant would still be required to go through the planning process.
Councilmember Garcia also asked whether drilling would be conducted to determine the site's compaction rating, to which City Attorney Guerra advised that this agreement would not cover that. In terms of design, that would be a separate analysis, depending on where they drill.
Responding to an additional comment by Councilmember Garcia, City Attorney Guerra noted that the owner I developer would have to submit plans with regard to the project they would like to develop.
Once that is determined, a study could be performed to determine whether the building they propose would be supported based on the site conditions. The developer would also have to demonstrate that they could actually build it. He stated his assumption that the developer performed its due diligence before purchasing the property.
Mayor Pro Tern Ambriz stated that the Council is aware of what exists underneath the pad and expressed concern over potential liability if the developer disturbs the site contents, to which City Attorney
CITY COUNCIL MINUTES
REGULAR MEETING
MAYOR PRO TEM
AMBRIZ
COUNCILMEMBER
BRECEDA
COUNCILMEMBER
BURROLA
CITY MANAGER
MIRANDA
MOTION
NEW BUSINESS
ITEM NO. 2A
MAYOR'S
APPOINTMENT OF
DELEGATES AND
ALTERNATES
CITY MANAGER
MIRANDA
RESOLUTION NO.
2022-116-3366
ADOPTED
DECEMBER 14, 2022
PAGE 11
Guerra stated that whatever is built would need to be constructed according to the Building Code, and that the Building Official has to sign off on it. The EIR would determine remedies to correct impacts and prepare the site for development.
Mayor Pro T em Ambriz reiterated this concerns over the potential affects to the environment and resulting liability for the city, to which City Manager Miranda advised that city staff will meet with geological support staff to determine remediation measures and the type of development that would be allowed.
Mayor Pro Tern Ambriz stated that the Council must ensure that the public is informed of what could occur.
Councilmember Breceda stated his surprise that the site has not been declared a superfund, and expressed his opinion that the site should probably remain as the Speedway.
In response to comments by Councilmember Burrola, City Attorney Guerra noted that city staff will also need to work with county staff for certain services.
City Manager Miranda advised that the developer would be required to submit a plan to the city, which will then be scrutinized to ensure compliance with the Building Code.
A motion was made by Mayor Ortiz, seconded by Councilmember Burrola, to approve Amendment No. 1 to the Contract with LSA Associates, Inc. for the preparation of an initial Study and Environmental Impact Report to be prepared in association with a land use entitlement application for property located at 500 Speedway Drive, Irwindale, CA 91706. The motion was unanimously approved; Mayor Pro Tern Ambriz abstaining.
MAYOR'S APPOINTMENT OF DELEGATES AND ALTERNATES
City Manager Miranda presented the staff report.
Resolution No. 2022-116-3366, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE APPOINTING TWO MEMBERS TO THE PARKS &
RECREATION COMMISSION OF THE CITY OF IRWINDALE," was
CITY COUNCIL MINUTES
REGULAR MEETING
DECEMBER 14, 2022
PAGE12
adopted with Mayor Ortiz's appointments, on the motion of Mayor Pro Tern Ambriz, seconded by Councilmember Garcia, and unanimously approved.
ITEM NO. 2B PARKS & RECREATION COMMISSION APPOINTMENTS
PARKS & RECREATION
COMMISSION
APPOINTMENTS
CITY MANAGER City Manager Miranda presented the report.
MIRANDA
MAYOR ORTIZ
RESOLUTION NO.
2022-177-3367
ADOPTED
ITEM NO. 2C
PLANNING
COMMISSION
APPOINTMENTS
CITY MANAGER
MIRANDA
MAYOR ORTIZ
RESOLUTION NO.
2022-118-3368
ADOPTED
Mayor Ortiz nominated Carmen Roman, with Councilmember
Burrola, Mayor Pro Tern Ambriz, and Mayor Ortiz in favor; Councilmembers Breceda and Garcia opposed.
Mayor Ortiz nominated Michelle Duran, with unanimous support by the Councilmembers.
Resolution No. 2022-117-3367, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE APPOINTING TWO MEMBERS TO THE PARKS AND
RECREATION COMMISSION OF THE CITY OF IRWINDALE," was
adopted, thereby appointing Carmen Roman and Michelle Duran to the Commission.
PLANNING COMMISSION APPOINTMENTS
City Manager Miranda presented the report.
Mayor Ortiz nominated Suzanne Gomez. Councilmember Breceda expressed opposition; all other Councilmembers in favor of the appointment.
Mayor Ortiz nominated Maricela Frymark, with unanimous support by the Councilmembers.
Resolution No. 2022-118-3368, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE APPOINTING TWO MEMBERS TO THE PLANNING
COMMISSION OF THE CITY OF IRWINDALE," was adopted,
thereby appointing Suzanne Gomez and Maricela Frymark to the Commission.
CITY COUNCIL MINUTES
REGULAR MEETING
ITEM NO. 2D
SENIOR CITIZEN
COMMISSION
APPOINTMENT
CITY MANAGER
MIRANDA
MAYOR ORTIZ
RESOLUTION NO.
2022-119-3369
ADOPTED
ITEM NO. 2E
INTRODUCTION AND
FIRST READING OF
ORDINANCE NO. 764
DIRECTOR HANNA
ORDINANCE NO. 764
INTRODUCED FOR
FIRST READING
DECEMBER 14, 2022
PAGE13
SENIOR CITIZEN COMMISSION APPOINTMENT
City Manager Miranda presented the report.
Mayor Ortiz nominated Christina Fraijo, with unanimous support by the Councilmembers.
Resolution No. 2022-119-3369, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE APPOINTING A MEMBER TO THE SENIOR CITIZEN
COMMISSION OF THE CITY OF IRWINDALE," was adopted,
thereby appointing Christina Fraijo to the Commission.
INTRODUCTION AND FIRST READING OF ORDINANCE NO. 764
ENTITLED: "AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF IRWINDALE REPEALING ORDINANCE NOS. 709 AND
743 IN THEIR ENTIRETY, AND ALL OTHER ORDINANCES OR
PORTIONS OF ORDINANCES IN CONFLICT THEREWITH,
AMENDING TITLE 15 OF THE IRWINDALE MUNICIPAL CODE BY
ADDING CHAPTER 15.07 - "EXISTING BUILDING CODE," AND
ADOPTING BY REFERENCE THE LOS ANGELES COUNTY
BUILDING CODE (2023 EDITION) WITH IRWINDALE
AMENDMENTS, LOS ANGELES COUNTY ELECTRICAL CODE
(2023 EDITION), LOS ANGELES COUNTY PLUMBING CODE (2023
EDITION), LOS ANGELES COUNTY MECHANICAL CODE (2023
EDITION), LOS ANGELES COUNTY GREEN BUILDING
STANDARDS CODE (2023 EDITION), LOS ANGELES COUNTY
RESIDENTIAL CODE (2023 EDITION), EXISTING BUILDING CODE (2023 EDITION), AND ADOPTING LOCAL AMENDMENTS
THERETO PURSUANT TO GOVERNMENT CODE SECTION
50022.2 ET SEQ.
Director Hanna presented the report.
Ordinance No. 764, entitled:
"AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE REPEALING ORDINANCE NOS. 709 AND 743 IN
THEIR ENTIRETY, AMENDING TITLE 15 OF THE IRWINDALE
MUNICIPAL CODE BY ADDING CHAPTER 15.07 - "EXISTING
BUILDING CODE," AND ADOPTING BY REFERENCE THE LOS
ANGELES COUNTY BUILDING CODE (2023 EDITION) WITH
IRWINDALE AMENDMENTS, LOS ANGELES COUNTY
ELECTRICAL CODE (2023 EDITION), LOS ANGELES COUNTY
PLUMBING CODE (2023 EDITION), LOS ANGELES COUNTY
CITY COUNCIL MINUTES
REGULAR MEETING
ITEM NO. 2F
REQUEST TO
EXTEND THE HOURS
OF OPERATION FOR
TRANSPORTATION
OF EXCAVATED
AGGREGATES FROM
THE OLIVE PIT TO
UNITED ROCK
PRODUCTS PIT NO. 2
FROM DECEMBER 31,
2022, UNTIL JULY 31,
2023
DIRECTOR HANNA
MOTION
MAYOR ORTIZ
COUNCILMEMBER
GARCIA
DECEMBER 14, 2022
PAGE14
MECHANICAL CODE (2023 EDITION), LOS ANGELES COUNTY
GREEN BUILDING STANDARDS CODE (2023 EDITION), LOS
ANGELES COUNTY RESIDENTIAL CODE (2023 EDITION),
EXISTING BUILDING CODE (2023 EDITION), AND ADOPTING
LOCAL AMENDMENTS THERETO PURSUANT TO GOVERNMENT
CODE SECTION 50022.2 ET SEQ.", was introduced for first reading, reading by title only and waiving further reading thereof, on the motion of Mayor Pro Tern Ambriz, seconded by Councilmember Burrola, and unanimously approved.
REQUEST TO EXTEND THE HOURS OF OPERATION FOR
TRANSPORTATION OF EXCAVATED AGGREGATES FROM THE
OLIVE PIT TO UNITED ROCK PRODUCTS PIT NO. 2 FROM
DECEMBER 31, 2022, UNTIL JULY 31, 2023
Director Hanna presented the report.
A motion was made by Councilmember Garcia to approve the request from United Rock Products, Inc. (United) to extend the hours of operation for transportation of excavated aggregates from the Olive Pit to United Rock Products Pit No. 2 (URP-2) from December 31, 2022 until July 31, 2023. The extended hours of operation during this time period would be: Monday to Friday, 7 a.m. to 3 p.m., and Saturday, 7 a.m. to 5 p.m. (only 2nd and 4th Saturday of each month.) Mayor Ortiz noted that, in September, the Council gave United Rock an extension that would end this month, and noted that they are once again asking for another extension. However, United still has not provided an exact timeline for the installation of a traffic signal at Los Angeles Street, to which Director Hanna stated that, per United Rock's estimate, the construction of the signal should take place in February 2023, with a scheduled completion in June 2023.
Mayor Ortiz suggested providing United Rock an extension of three months, with the possibility of an additional three-month extension, depending on United Rock's progress in constructing the traffic signal.
Councilmember Garcia repeated his motion.
CITY COUNCIL MINUTES
REGULAR MEETING
MAYOR PRO TEM
AMBRIZ
MARK PACHURA
COUNCILMEMBER
BURROLA
COUNCILMEMBER
BRECEDA
COUNCILMEMBER
MOTION
ITEM NO. 2G
ASSEMBLY BILL 2449
BROWN ACT
TELECONFERENCING
REQUIREMENTS
ASSISTANT CITY
MANAGER OLIVARES
DECEMBER 14, 2022
PAGE15
Mayor Pro Tern Ambriz concurred with Mayor Ortiz, and agreed that United Rock is not moving forward quickly enough with regard to the installation of the traffic signal. He agreed that the extension be granted depending on United Rock's progress on the traffic signal i nsta llatio n.
Mark Pachura, with United Rock Products, concurred that the threemonth extension mentioned by Mayor Ortiz is fair. He added that United Rock feels that the signal work will begin in February, and stated that United is amenable to returning after three months to request another extension.
In reply to a comment by Councilmember Burrola, Director Hanna advised that the Engineering Department has not received any complaints about truck traffic at the subject site since September.
Councilmember Breceda agreed that a three-month extension is sufficient at this time and would allow United Rock the opportunity to make progress on the installation of the traffic signal.
Councilmember Garcia withdrew his motion.
A motion was made by Mayor Pro Tern Ambriz, seconded by Councilmember Breceda, to approve the extension of the hours of operation for United Rock Products, lnc.'s transportation of excavated aggregates from the Olive Pit to United Rock Products Pit No. 2 (URP-2) from December 31, 2022, until March 31, 2023. The extended hours of operation during this time would be Monday to Friday, 7 a.m. to 3 p.m., and Saturday, 7 a.m. to 5 p.m. (only 2nd and 4th Saturday of each month). The motion was unanimously approved.
ASSEMBLY BILL 2449 BROWN ACT TELECONFERENCING
REQUIREMENTS
Assistant City Manager Olivares presented the report and made a PowerPoint presentation.
COUNCIL CONSENSUS Council consensus was reached to receive and file the report.
PUBLIC HEARINGS None.
CITY MANAGER'S None.
REPORT
AGENDA ITEMS
REQUESTED BY
COUNCILMEMBERS
CITY COUNCIL MINUTES
REGULAR MEETING
MAYOR PRO TEM
AMBRIZ
COUNCILMEMBER
GARCIA
COUNCILMEMBER
BRECEDA
COUNCILMEMBER
GARCIA
COUNCILMEMBER
ORTIZ
ADJOURNMENT
DECEMBER 14, 2022
PAGE16
Mayor Pro Tern Ambriz asked that the issue Angelo Villa mentioned during Spontaneous Communications be researched and reported to the Housing Authority as soon as possible.
Councilmember Garcia suggested that staff reach out to new homeowners to determine whether they are facing issues similar to that of Mr. Villa's.
In response to a question by Councilmember Breceda, Assistant City Manager Olivares noted that Mr. Villa's property was initially purchased by the Housing Authority, but was subsequently sold to Mayans as part of the housing development. Mayans took ownership of the site while it was being developed, and a sale transaction took place afterward between Mayans as the seller and the individuals that acquired each property. She provided additional details relating to property taxes incurred, and advised that staff would research the concern further.
Councilmember Breceda also reported a damaged sidewalk across the street from his home, to which City Attorney Guerra noted that staff would look into it.
Councilmember Garcia requested that staff practice common courtesy and reply to voicemails that they receive.
Councilmember Ortiz agreed that Mr. Villa's concerns should be addressed as soon as possible.
There being no further business to conduct, the meeting was adjourned at 8:53 p.m.
Laura M. Nieto, MMC
Chief Deputy City Clerk
Payroll Batch
DATE OF ISSUE
1211122
Payroll Batch
DATE OF ISSUE
12115122
Payroll Batch
DATE OF ISSUE
12129/22
Payroll Batch
DATE OF ISSUE
12/30/22
CITY OF IRWINDALE
PAYROLL WARRANT REGISTER
December 2022
408-01-11, 409-01-11
DEPARTMENT
11 City Council
13 City Administrative Office
14 Finance Department
35 Police Department
40 Recreation Department
41 Aquatics Department
42 Senior Citizens' Center
44 Library
51 Planning & Community Development
52 Public Works - Engineering
57 Public Works - Services
422-01-11, 423-01-11
DEPARTMENT
11 City Council
13 City Administrative Office
14 Finance Department
35 Police Department
40 Recreation Department
41 Aquatics Department
42 Senior Citizens' Center
44 Library
Gross Payroll
Required Deductions
Voluntary Deductions
Net Payroll
51 Planning & Community Development
52 Public Works - Engineering
57 Public Works - Services
430-01-11
DEPARTMENT
11 City Council
13 City Administrative Office
14 Finance Department
35 Police Department
40 Recreation Department
41 Aquatics Department
42 Senior Citizens' Center
44 Library
Gross Payroll
Required Deductions
Voluntary Deductions
Net Payroll
51 Planning & Community Development
52 Public Works - Engineering
57 Public Works - Services
430-01-11 .
DEPARTMENT
11 City Council
40 Recreation Department
Gross Payroll
Required Deductions
Voluntary Deductions
Net Payroll
Gross Payroll
Required Deductions
Voluntary Deductions
Net Payroll
CC ITEM 18
AMOUNT
1,731.15
52, 194.21
28,883.41
226,827.74
24,257.87
5,836.06
23,696.82
9,939.25
29,619.58
28,408.87
59,078.05
490,473.01
(136, 148.06)
(15,809.36)
338,515.59
AMOUNT
5,635.59
51,829.12
25,534.64
234,455.07
26,631.45
3,036.05
16,516.79
13,882.14
30,262.67
30,738.49
51,257.37
489,779.38
(138,837.07)
(27,466.36)
323,475.95
AMOUNT
1,731.15
52,384.21
25,596.75
195,608.35
25,549.89
2,966.85
16,410.95
12,743.46
28,456.16
27,758.19
51,464.59
440,670.55
(116,787.17)
(15,542. 70)
308,340.68
AMOUNT
300.00
218.04
518.04
(29.70)
488.34
Accounts Payable
Checks by Date - Summary by Check Number
User: imarin
Printed: 1/19/2023 4:37 PM
IRWINDALE
Check No Vendor No Vendor Name Check Date Check Amount
78773 ALESHIRE Aleshire & Wynder, LLP 12/22/2022 42,730.50 78774 ALESHIRE Aleshire & Wynder, LLP 12/22/2022 27,206.00 78775 ALLCIOI All City Management Services, Inc 12/22/2022 932.lO 78776 AMAZON! Amazon Capital Services, Inc. 12/22/2022 l,565.80 78777 AMERIC34 American Fidelity Assurance Co 12/22/2022 7,857.18 78778 AT&T06 AT&T 12/22/2022 l,679.53
78779 CINGULAR AT & T Mobility 12/22/2022 l,756.62
78780 BRIGHT02 Bright Stars Academy 12/22/2022 500.00
78781 CALIF026 California Police Chiefs 1212212022 400.00 78782 GALLARDC Claudia Carlos 12/22/2022 308.00
78783 CORNEJOD Diego Cornejo 12/22/2022 765.93
78784 PMIDEN Delta Dental Insurance Company 12/22/2022 807,63 78785 PMIDENOI Delta Dental of California 12/22/2022 13,143.68 78786 DeptJust Dept of Justice 12/22/2022 64.00
78787 FRONTOI Frontier Comn1unications 12/22/2022 490.20 78788 HARDYOI Joseph Hardy 12/22/2022 142.41
78789 HO MEDE Home Depot Credit Services 12/22/2022 4,002.55 78790 NATION23 National Union Fire Insurance 12/22/2022 705.49 78791 NIETOOI Laura Nieto 12/22/2022 185.00
78792 OPTUMOI OptumRx, Inc. 12/22/2022 28,929.27
78793 ORTIZ03 Norma Ortiz 12/22/2022 761.51
78794 SMART& Smart & Final 12/22/2022 765.81
78795 STANDAOI Standard Insurance Co. RV 12/22/2022 475.45 78796 STANDA03 Standard Insurance Company 12/22/2022 2,402.47 78797 STROBE03 Gary Strobehn 12/22/2022 732.66
78798 TAPIA02 Sofia Tapia 12/22/2022 300,00
78799 TAPIA!! Sylvia Tapia 12/22/2022 354.00
78800 TEXASOl Texas Life Insurance Co. 12/22/2022 4,818.43 78801 TPXOI TPX Communications 12/22/2022 2,559.82
78802 VARGAS03 Jose Vargas 12/22/2022 438.98
78803 verizonw Verizon Wireless 12/22/2022 3,068.45
78804 VISJONOI Vision Service Plan - (CA) 12/22/2022 4,573.00 78805 VISIONOl Vision Service Plan - (CA) 12/22/2022 1,642.20 78806 CALIF056 California State Disbursement Unit 12/29/2022 604.15 78807 CALIF057 California State Disbursement Unit 12/29/2022 143.07 78808 !CEA Irwindale City Employee Assoc. 12/29/2022 1,089.00 78809 AGUILA07 Berlyn Aguila 12/29/2022 3,972.00
78810 AyalaOI Leonor Ayala 12/29/2022 189.00
78811 AZUSALW Azusa Light & Water 12/29/2022 595.67
78812 BANKOF03 Bank of The West 12/29/2022 16,954.67
78813 CALIF002 California American Water 12/29/2022 19.41 78814 SANGAB!l California Newspapers Partnership 12/29/2022 743.00 78815 SOUTHEl7 Golden State Water Company 12/29/2022 441.04 78816 GONZALO? Raymond Gonzales 12/29/2022 184.00
78817 HO YEN Noelle Hoye 12/29/2022 910.00
78818 IRWIND21 Irwindale Hand Wash & Auto Detail 12/29/2022 875.69 78819 LIEBERT Liebert Cassidy Whitmore 12/29/2022 5,441.00 AP Checks by Date - Summary by Check Number (1/19/2023 4:37 PM) Page 1 Check No Vendor No Vendor Name Check Date Check Amount
78820 LOPE03 Amanda Lopez 12/29/2022 759.00
78821 PURCHA Purchase Power 12/29/2022 2,020.99
78822 SCE02 Southern California Edison 12/29/2022 83,003.39 78823 VALLEYOI Valley County Water District 12/29/2022 11,290.45 78824 VALLEY09 Valley View Mutual Water Co. 12/29/2022 83.66 Report Total (52 checks): 286,383.86
AP Checks by Date - Summary by Check Number (1119/2023 4:37 PM) Page2 Accounts Payable
Checks by Date - Summary by Check Number
User: imarin
Printed: 1119/2023 4:38 PM
IRWINDALE
Check No Vendor No Vendor Name Check Date Check Amount
78826 AMERIFID American Fidelity Assurance 01/12/2023 8,195.98 78827 AMERIC34 American Fidelity Assurance Co 01/12/2023 4,473.16 78828 AyalaOl Leonor Ayala 01/12/2023 180.00
78829 CARDENOl Rudy Cardenas 01/12/2023 150.00
78830 COO! Daniel Co 01/12/2023 111.66
78831 CONCEOl Concentra 01/12/2023 75.00
78832 COSTC002 Costco Wholesale 01112/2023 522.42
78833 OPTUMOl OptumRx, Inc. 01112/2023 28,014.83
78834 COLINOl Sheyla Pedraza Colin 01112/2023 216.64
78835 VISIONOl Vision Service Plan - (CA) 01/12/2023 1,541.31 78836 CALIF056 California State Disbursement Unit 01/12/2023 604.15 78837 CALIF057 California State Disbursen1ent Unit 01/12/2023 143.07 78838 ADVANT Advantage Ford 01/25/2023 2,785.49
78839 ALLC!Ol All City Management Services, Inc 01/25/2023 2,143.83 78840 ALLSTATE All State Police Equipment Co. 01/25/2023 431.33 78841 ALLISOOl Allison Mechanical, Inc 01/25/2023 6,063.99 78842 ARAMOl Aramark Uniform & Career Apparel Group 01/25/2023 218.04 78843 B&BTIR B & B Tires Service 01/25/2023 4,510.13
78844 BAKEROl Baker & Taylor Books 01/25/2023 154.37
78845 BARNEY Barney1s Locksmith Service 01/25/2023 57.33 78846 BILLST Bill's Truck Repair, Inc. 01/25/2023 318.00 78847 BRITEW Brite Works, Inc. 01/25/2023 13,539.95
78848 BURROOl ButTo Canyon Ent. Inc. 01/25/2023 60.00
78849 CALl22 CAP IO 01/25/2023 90.00
78850 CARQUEST Carquest 01/25/2023 121.40
78851 Cat Spec Cat Specialities Inc 01/25/2023 537.66
78852 CHARTE03 Charter Communications 01/25/2023 5,022.21 78853 CINTAS Cintas Corporation #693 01/25/2023 194.25
78854 CITYOF18 City of Santa Fe Springs 01/25/2023 13,830.38 78855 COSTAOl Costar Realty lnfom1ation, Inc. 01/25/2023 1,200.00 78856 DEPTOF02 County of LA Dept of Animal Care & Cont 01/25/2023 1,588.81 78857 COUNTY04 County of Los Angeles 01/25/2023 9,735.71 78858 LOSANG33 County of Los Angeles 01/25/2023 94,096.42 78859 DEMCOI Demeo, Inc. 01/25/2023 85.69
78860 BAL LOO Carol Diess 01/25/2023 65.00
78861 DUKEOl Dnke Realty, LP 01/25/2023 30,000.00
78862 BATEOl Elior Inc. 01/25/2023 3,130.88
78863 FILLGOl Fill Good Landscaping 01/25/2023 400.00
78864 GRAING Grainger 01/25/2023 211.99
78865 HOSEMA Hose-Man, The 01/25/2023 106.08
78866 INDEPE Independent Cities Association 01/25/2023 700.00 78867 IRWIND04 Irwindale Chamber Of Comn1erce 01/25/2023 7,500.00 78868 ITERIS Iteris, Inc. 01/25/2023 192.00
78869 JCBOl JCB Inc 01/25/2023 210.22
78870 COOR YE Samir M. Khoury 01/25/2023 68,123.00
78871 LAND SC Landscape Warehouse III Inc. 01/25/2023 171.38 78872 LEWISE Lewis Engraving, Inc. 01/25/2023 151.60
AP Checks by Date - Summary by Check Number (1/19/2023 4:38 PM) Pagel Check No Vendor No Vendor Name Check Date Check Amount
78873 LEXISN LexisNexis Risk Solutions 01/25/2023 151.50 78874 LAEDCOl Los Angeles County Economic Developmei 01/25/2023 2,500.00 78875 MAINTEOl Maintex 01/25/2023 162.85
78876 MIDAS Manuel C Muratalla 01/25/2023 1,382.26
78877 CALIBEOl Lawrence E. Marino 01/25/2023 1,855.80
78878 MARIPO Mariposa Landscapes, Inc. 01/25/2023 8,796.00 78879 MMASC MMASC 01/25/2023 90.00
78880 MOTOROl Motorola Solutions, Inc. 01/25/2023 11,388.00 78881 OFFICE03 Office Depot 01/25/2023 867.61
78882 ORKINP Orkin Pest Control 01/25/2023 390.00
78883 PRO PRINT Pro Printing, Inc. 01/25/2023 330.75
78884 RIGHTOl Right of Way, Inc. 01/25/2023 5,359.73
78885 ROGEL! Rogelio's Upholstery 01/25/2023 310.00
78886 SlERRMOl Marcos Sierra 01/25/2023 759.63
78887 SlERRAOl Sierra Chevrolet 01/25/2023 260.05
78888 SIERRA02 Sierra Chrysler/Dodge/Jeep/Ram 01/25/2023 211.84 78889 SOUTHE26 Southern California Library Cooperative 01/25/2023 1,720.00 78890 SPRINTOl Sprint 01/25/2023 100.00
78891 NORTHR The Northridge Group, Inc. 01/25/2023 5,947.54 78892 THOMOl Thomson Reuters- West 01/25/2023 418.96
78893 WESTC005 West Coast Arborists, Inc. 01/25/2023 15,624.00 78894 YTIRES Y Tire Sales 01/25/2023 915.69
Report Total (69 checks): 371,517.57
AP Checks by Date~ Summary by Check Number (1/19/2023 4:38 PM) Page2 DCity Council
DSuccessor Agency
D Housing Authority
0 Reclamation Authority
DJoint Powers Authority
Date: January 25, 2023
Otyof
IRWINDALE
AGENDA REPORT
To: Honorable Mayor and Members of the City Council
Successor Agency Board
Housing Authority Board
From: Julian A. Miranda, City Manager/Executive Director CC & SA Item 1C
HA Item 18
Issue: Investment Quarterly Report for Fiscal Quarter Ending December 31, 2022.
City Manager/Executive Director's Recommendation:
Receive and file the Investment Quarterly Report for the fiscal quarter ending December 31, 2022.
Administrative Action:
Submitted & Prepared by:
Kambiz Borhani
Authority Finance Director/ Authority Treasurer
(626) 430-2221
Reviewed by:
Adrian R. Guerra, City Attorney/General Counsel
Kambiz Borhani
Authority Finance Director/ Authority Treasurer
Approved by:
Electronically Approved
Julian A, Miranda, City Manager/Executive Director ~ / . 4 . /J . L--. _ _;/
Background and Analysis:
California Government Code Section 53646 requires that the City Treasurer submit a quarterly report of investments (Investment Report) to the City Council/Board Members for review and compliance with the City's adopted investment policy (City's Investment Policy).
The attached Investment Report summarizes the cash balances and investments as of December 31, 2022, for each agency. The City of lrwindale's balances include investments of all funds of the City and its agencies, which are pooled to maximize the interest yield. The cash balances in the general and money market accounts also include all funds of the City and its agencies, which also earn interest on the pooled cash balances. All investments comply with the City's Investment Policy.
As previously noted, all funds held by the City, Successor Agency, Housing Authority, and Reclamation Authority are pooled to maximize interest yields. The Reclamation Authority Board is not scheduled to meet again until March 8, 2023. Therefore, this same Investment Report will be included in the Reclamation Authority's Agenda for that meeting for review by the Reclamation Authority Board as well.
Fiscal Impact:
There is no fiscal impact to receive and file this report.
Attachment:
City of Irwindale Investment Report- December 31, 2022
Page2
CITY OF IRWINDALE
INVESTMENT REPORT
December 31, 2022
PAR VALUE f CURRENT PURCHASE MATURITY MKTVALUE/ INVESTMENT SECURITY DESCRIPTION ORIGINAL YIELD TO DATE DATE ENDING RATINGS COST MATURITY BALANCE CITY OF IRWINDALE {POOLED MALL FUNDS INCLUDING RECLAMATION AUTHORITY} BANK OF THE WEST GENERAL ACCOUNT $ 370,964 0.36% $ 370,964 WELLS FARGO BANK MONEY MARKET ACCOUNT $ 1,100,000 3.92% $ 1,447,026 LOCAL AGENCY INVESTMENT FUND (LAIF) $ 48,891,456 2.07% $ 47,950,832
US GOVERNMENT AGENCIES
FEDERAL HOME LN BKS CONS SD (FHLB) $ 5,000,000 0.52% 07/28/21 01/28/25 $ 4,586,900 Aaa/ AA+ FEDERAL FARM CR BKS CONS SYSTEMWIDE (FFCB) 5,000,000 0.58% 06/23/21 06123125 4,536,300 Aaa I AA.+ FEDERAL FARM CR BKS CONS SYSTEMWJDE (FFCB) 3,000,000 0.90% 06/15/21 06/15126 2,666,730 Aaa/AA+ FEDERAL HOME LN BKS CONS BO (FHLB) 5,000,000 1.00% 06/30/21 06126126 4,448,850 Aaa/AA+ FEDERAL HOME LN BKS CONS BO (FHLB) 5,000,000 0.50% 06/30121 06/30/26 4,436,300 Aaa/ AA+ FEDERAL FARM CR BKS CONS SYSTEMWIDE (FFCB) 5,000,000 0.87% 07/28/21 01128126 4,424,100 Aaa/AA+ FEDERAL HOME LN BKS (FHLB) 5,000,000 0.50% 07/29/21 01129126 4,426,050 Aaa/AA+ FEDERAL HOME LN BKS CONS BD (FHLB) 1,000,000 3.42% 08/29/22 11/15/24 935,152 Aaa/AA+ FEDERAL HOME LN BKS CONS BO {FHLB) 1,000,000 3.45% 08/29/22 12/27/24 934,442 Aaa/ AA+ FEDERAL HOME LN BKS CONS BO {FHLB) 1,000,000 3.28% 08/29/22 02/22/27 915 016 Aaa/AA+ Sub-Total US Government Agencies: $ 36,000,000 $ 32,309,840
MUNICIPAL BONDS
CALIFORNIA STATE TAXABLE $ 1,000,000 3.35% 08/30/22 04/01/24 $ 982,355 Aa2 I AABAY AREA CALIFORNIA TOLL AUTHORITY 1,000,000 3.50% 08/30/22 04/01/25 953,732 Aa3 /AA Sub-Total Municipal Bonds: $ 2,000,000 $ 1,936,087
CORPORATE BONDS
Wells Fargo & Company $ 2,000,000 6.25% 10/21/22 10/21/27 $ 2,016,963 A1/BBB+ Toyota Motor Credit Corporation 1,000,000 5.00% 11/10/22 10/16/25 895,995 A1 /A+ $ 3,000,000 $ 2,912,958
CERTIFICATES OF DEPOSIT
BANK OF CHINA $ 245,000 3.159% 08131/22 02/28/24 $ 240,911 FDIC Insured JP MORGAN CHASE BANK 245,000 3.40% 08131/22 08/30/24 240,272 FDIC Insured APEX BANK 245,000 3.153% 08131/22 08/30/24 239,255 FDIC Insured UBS BANK USA 245,000 3.40 % OB/31/22 09/02/25 237,716 FDIC Insured AMERICAN EXPRESS NATIONAL BANK 245,000 3.35% 08/31/22 09/02/25 237,467 FDIC Insured COMMUNITY BANK OF THE BAY 245,000 3.50% 08131/22 08131/27 233,781 FDIC Insured CAPITAL ONE BANK USA 245,000 3.45 % 08/31/22 08131/27 233,315 FDIC Insured CAPITAL ONE NATIONAL ASSN VA 245,000 3.45 % 08/31/22 08/31/27 233,315 FDlC Insured ALLY BANK 245,000 3.35% 09/01/22 09/01/26 234,928 FDIC Insured SYNCHRONY BANK 245,000 3.45 % 09102122 09/02/27 233,306 FDIC Insured CUSTOMERS BANK 245,000 3.00% 09/06/22 09/06/23 242,474 FDIC Insured MEDALLION BANK 245,000 3.25% 09/07/22 09/08/25 236,746 FDIC Insured BMO HARRIS BANK 245,000 3.15% 09/09/22 03/11/24 240,817 FDIC Insured DR BANK 245,000 3.60% 09/09/22 09/09/26 236,863 FDIC Insured SAFRA NATIONAL BANK 245,000 3.05% 09/09/22 10/10/23 242,195 FDIC Insured MORGAN STANLEY BANK 245,000 3.45 % 09/09/22 09/09/27 233,308 FDIC Insured MORGAN STANLEY BANK 245,000 3.45 % 09/09/22 09/09/27 233,308 FD1C Insured TRADITIONAL CAPITAL BANK 245,000 3.30% 09/14/22 03/13/26 235,726 FDIC Insured PONCE BANK 245,000 3.35% 09/14/22 09/14/27 232,095 FDIC Insured FIRST NATIONAL BANK 245,000 3.45 % 09/19/22 09/20/27 233148 FDIC Insured Sub-Total Certificates of Deposit: $ 4,900,000 $ 4,730,944 Total City of Irwindale Investments (Pooled Funds): $ 95,262,420 $ 91,658,650 HOUSING AUTHORITY {Funds 11 & 12)
BANK OF THE WEST GENERAL ACCOUNT $ 1,652,086 0.36% $ 1,652,086 LOCAL AGENCY INVESTMENT FUND {lAIF} 5,659,136 2.07% 5 589 017 $ 7,311,222 $ 7,241,103
SUCCESSOR AGENCY {Funds 50-66)
BANK OF THE WEST MONEY MARKET ACCOUNT $ 462,357 0.36% $ 462,357 LOCAL AGENCY INVESTMENT FUND {lAIF) 5,292,662 2.07% 5,190,836 $ 5,755,019 $ 5,653,193
GRANO TOTAL OF INVESTMENTS $108,328,681 $ 104,552,946
This investment portfolio is in conformity with the City of lrwindale's Investment Policy which was approved by City Council on June 8, 2022.
The City Treasurer's cash management program and cash flow analysis indicates that sufficient liquidity ls on hand to meet estimated future expenditures for a period of six months. The weighted average of maturity of the City's pooled investment portfolio is 1.22 years, and the weighted average yield of the City's pooled investments at cost is 1.29%. Market prices of securities are obtained directly through Bank Statements. Due to timing, Bank of the West General Account balances are pre-reconciled and yield rates are based on the prior month's account analysis statement.
Appmvedby /~ ~ • Kam biz Borhani, Finance Director I City Treasurer IZICity Council
DSuccessor Agency
D Housing Authority
D Reclamation Authority
DJoint Powers Authority
Date: January 25, 2023
Cityo/
IRWINDALE
AGENDA REPORT
To:
From:
Honorable Mayor and Members of the City Council
Julian A. Miranda, City Manager
Issue: Rejection of Claim: Natalie Diaz vs. City of Irwindale.
City Manager's Recommendation:
CC Item 10
Staff recommends City Council (1) Reject the claim of Natalie Diaz vs. City of Irwindale; and (2) Direct staff to send a letter of rejection.
Administrative Action:
Prepared I Submitted by:
Laura Nieto, Chief Deputy City Clerk
Reviewed by:
Adrian R. Guerra, City Attorney Electronically Approved Kambiz Borhani, Finance Director I City Treasurer
Approved by:
Julian A. Miranda, City Manager
Background and Analysis:
On December 22, 2022, the City received a claim for damages from claimant Natalie Diaz. Claimant Diaz alleges that she was a passenger in a vehicle that ran off Interstate 210 westbound 0.15 miles east of Monterey Avenue where no guardrail was in place, and sustained injuries and damages as a result.
The claim was reviewed by the City's claims adjuster, Carl Warren & Co., who has recommended the rejection of the claim on the basis that the location is outside of the City's jurisdiction and is not controlled or maintained by the City of Irwindale. Accordingly, staff is recommending that the City Council reject the claim. Alternatively, the City Council may direct the City Manager to negotiate resolution of the claim.
Fiscal Impact:
None.
Attachment:
Claim for Damages received December 22, 2022
Page2
Rejection of Claim
Diaz, Natalie vs. City of Irwindale
INSTRUCTIONS
CITY OF IRWINDALE
CLAIM FOR DAMAGES
TO PERSON OR PROPERTY
1. Claims for death, Injury to person or to personal property must be flied not later than 6 months after the occurrence.
2. Claims for damages to real property must be filed not later than 1 year after occurrence.
RECEIVED
3. Read entire DEC 2 2 2022 claim before fifing,
4. See page 2 for diagram upon which to locate place of accident. 5, This ctarm for must be signed on page 2 at bottom.
6. Attach separate sheets If nece.ssary to give full details. Sign each sheet.
7. Fiie with City Clerk, 5050 N. Irwindale Ave., Irwindale, CA 91706 To: City of Irwindale
Name of Claimant
NA TALIB MARIE DIAZ
Home Address of Claimant
Business Address of Claimant
-
I rrY OF IRWINDALE
ITY CLJlB.KS lilliln'.
Flllng Stamp
Claimanfs Date of Birth
Claimant's Occupation
Home Telephone Number
Business Telephone Number
Name and address to which you desire notices or communications to be sent regarding this claim:
Gavrilov & Brooks, c/o Bryan C. Nettels, 2315 Capitol Avenue, Sacramento, CA 95816 When did DAMAGE or INJURY occur? Names of any City employees Involved in INJURY or DAMAGE Date: 07/07/2022 Time: 4:40p.m.
If claim Is for Equitable Indemnity, give date
claimant served with complaint:
Where did DAMAGE or INJURY occur? Describe In full detail and locate on diagram on page 2. Where appropriate, give street names, addresses, and measurements from landmarks:
Interstate 210 westbound 0.15 miles east of Monterey Avenue Describe in detail how the DAMAGE or INJURY occurred.
Claimant was a passenger in a vehicle that ran off Interstate 210, which had no guardrail at the incident location describe above, and crashed into a tree on a steep embankment appurtenant to Interstate 210.
Why do you claim the City of Irwindale Is responsible?
The City of Irwindale negligently designed, constructed, and/or maintained the part of Interstate 210 in which the incident occurred, thereby creating a dangerous condition, or, in the alternative, had actual and/or constructive notice that said part of Interstate 210 was a dangerous condition a sufficient time prior to the incident to protect against said condition. The dangerous condition existing at the time of the incident created a reasonably foreseeable risk of the injuries Claimant sustained and was the proximate cause thereof.
What DAMAGE or INJURIES do you claim resulted? Give full extent of Injuries or damage claimed.
Claimant has sustained personal, general, and economic injuries and/or losses, including, but not limited to: left open femur fracture; fracture of right medial orbital wall and floor; nasal fracture; closed head injuries and injuries to head; facial lacerations; left knee avulsJon right ann abrasion; and cuts to the hands.
Page3
Rejection of Claim
Diaz, Natalie vs. City of Irwindale
Claimant's Name:
NATALIE MARIE DIAZ
State the amount which you are claiming as of the date of presentation of this cla!m. Give basis of computation. unlimited civil case
Give estimated amount of future losses due to INJURY or DAMAGE:
Was damage and/or Injury investigated by the police? ~Y~ES~ __ If yes, what City? MONROVIA PD/CHP Were paramedics or ambulance called? _Y_ES ___ lf yes, name Clty or ambulance __ cA_RE_AM_B_U_L_A_N_C_E ____ _ If Injured, give name and address of your doctor and the date and time of your first visit:
HUNTINGTON HOSPITAL, 100 W. CALIFORNIA BL VD., PASADENA, CA 91105 ON JULY 7, 2022 Doctors and Hospitals:
Doctor Address __________ Oate Hospitalized ______ _
Hospital _________ _ Address ___________ bate Hospitalized ______ _ Hospital _________ _ Address ___________ Date Hospitalized ______ _ Witnesses to DAMAGE or INJURY: Ust all persons and addresses of persons known to have information:
Name DANIELLEBRITTANYVAFA Address
Name JAMES KEVORKIAN Address
READ CAREFULLY
For all accident claims, Indicate on the diagram street names, Including North, East, South, and West. Indicate place of accident with an "X". Indicate house numbers or distances to street corners.
If a City vehicle was Involved, designate with an "An the location of the City vehicle when you flr$t saw It, and with ''B" the location of your$elf or your vehicle when you first saw the City vehicle. Indicate location of City vehicle at the time of accident by "A-1 n and location of yourself or your vehicle at the time of the accident by "B-1 ". Mark the point of impact with an nxn. Note:
If diagram below does not fit the situation, attach a proper diagram sfgned by claimant. __J \
~
'"~:~n LJ
Inter$fate 210
7/\\ II II
Signature o Claimant (if other than claimant, indicate relationship) Typed Name Date Claimant's Attorney 1211512022 Bryan C. Nettels
Note: Clalms must be filed with the City Clerk. Presentation of a false claim Is a felony {Penal Code Section 72) Page4
Rejection of Claim
Diaz, Natalie vs. City of liwindale
i:;g City Council
DSuccessor Agency
D Housing Authority
D Reclamation Authority
DJoint Powers Authority
Date: January 25, 2023
lYtyq/
IRWINDALE
AGENDA REPORT
To:
From:
Honorable Mayor and Members of the City Council
Julian A Miranda, City Manager
CC Item 1E
Issue: Approval of Plans and Specifications for the 2022-2023 Resurfacing Program:
Residential Resurfacing Project - Phase II; P-1043
City Manager's Recommendation:
That the City Council (1) approve the plans and specifications for the 2022-2023 Resurfacing Program: Residential Resurfacing Project - Phase II; and (2) authorize staff to solicit bids for construction of the project.
Administrative Action:
Submitted by:
Arsanious Hanna,
Director of Engineering I Building Official
Prepared by:
Luis Pimentel, Assistant Engineer
(626) 430-2259
Reviewed by:
Adrian R. Guerra, City Attorney
Kambiz Borhani,
Finance Director I City Treasurer
Approved by:
Julian A Miranda, City Manager
01005.00061754145.1
W-+A~~-1
~--
Electronically Approved
.J
Background and Analysis:
The 2022-2023 Resurfacing Program: Residential Resurfacing Project - Phase II ("Project") is identified in the City's Capital Improvement Program to provide the required maintenance of the City's street system.
The Project extends the life of city streets and min1m1zes costly repairs, such as street reconstruction. This year's project includes the resurfacing of Martinez Street, Baca Avenue, Sabre Lane, Calle Del Sur, Calle Breceda, Fraijo Avenue, Calle Burrola and Nora Avenue as well as minor concrete repairs of sidewalk panels if needed.
Public Works Engineering staff has prepared the design plans and specifications for the Project, which includes a necessary bid package to advertise and solicit bids per Section
3.44.110 of the City's Municipal Code and applicable sections of the California Public Works Contract Code. The scope of work for the Project is comprised of cold milling the existing asphalt, resurfacing with conventional asphalt, re-striping, traffic signal loop installation, adjusting utility manholes and removing and reconstructing speed humps and minor concrete repairs of sidewalk panels if needed.
A set of the Project plans and specifications is available for review in the Public Works Engineering Office.
Upon approval by the City Council, the Project will be advertised in February 2023, with an expected award of contract scheduled for City Council consideration in March or April 2023.
This Project is categorically exempt from CEQA as it consists of repair and maintenance of "existing highways and streets, sidewalks, gutters", pursuant to Section 15301 (c) of CCR, Title 14, Division 6, Chapter 3 "Guidelines for Implementation of the California Environmental Quality Act".
Fiscal Impact:
Funding for this Project is budgeted in the FY 2022/2023 CIP Budget as the Residential Resurfacing Project- Phase II in the amount of $600,000. The Project is funded by the Mining Impact Fund, Gas Tax, Prop C, TOA, Measure Rand Measure M funds, and accounted for in the Capital Projects Fund 48 (Account Number 48-80-800-45300-8355).
[)<;]City Council
DSuccessor Agency
D Housing Authority
D Reclamation Authority
DJoint Powers Authority
Date: January 25, 2023
Cityq/
IRWINDALE
AGENDA REPORT
To:
From:
Honorable Mayor and Members of the City Council
Julian A. Miranda, City Manager
CC Item 2A
Issue: Direction Regarding United Rock Products Request to Submit an Application to Modify the Development Agreement for the Olive Pit City Manager's Recommendation:
Staff recommends City Council discuss and authorize the City Manager to sign the application for the modification of the Development Agreement for the Olive Pit, located at 4407 Azusa Canyon Road.
Administrative Action:
Submitted by:
Marilyn Simpson, Community Development Director
626-430-2209
Prepared by:
Lisa Chou, Associate Planner
Reviewed by:
Adrian R. Guerra, City Attorney
Kambiz Borhani, Finance Director I City Treasurer
Approved by:
Julian A. Miranda, City Manager
Electronically Approved
Background and Analysis:
On December 3, 2014, the City Council approved entering into a Development Agreement with United Rock Products (URP) to allow construction of a new on-site access road and relocation of the on-site access point, phase extraction of mineral resources (Phase I and II) and site reclamation (Phase I and II) at the Olive Pit, located at 4407 Azusa Canyon Road.
On January 6, 2015, the City of Baldwin Park challenged the City's approval and Certification of the EIR for the site. On August 19, 2015, the Cities of Irwindale and Baldwin Park and URP entered into a Settlement Agreement to resolve the legal challenge by Baldwin Park of the EIR and related approvals.
On December 9, 2015, City formally entered into the Development Agreement (DA) No. 01-2014 with URP (Attachment A) for the Olive Pit to extract construction aggregate resources in a phased manner while also reclaiming the site for future beneficial uses.
On March 14, 2017, the City and URP entered into Amendment No. 1 to DA No. 01-2014 (Amendment B) which allowed an increase in the average annual rate of mining from 1 million to 1.5 million tons per year for both Phase I and Phase II, as approved per the certified EIR. This amendment reduced the overall timeline of mining and reclamation of the Site by approximately ten (10) years from approximately thirty-two (32) year to between twenty-two (22) and twenty-three (23) years.
On September 14, 2022, the City Council approved the request from URP to extend the hours of operation for transportation of excavated aggregates from the Olive Pit to United Rock Products Pit (URP) No. 2 uhtil December 31, 2022. The extended hours of 7 a.m. to 3 p.m. from Monday through Friday and 7 a.m. to 5 p.m. on Saturday on the 2nd and 4th Saturdays of each month only. On December 14, 2022, the extended hours of operation was continued from December 31, 2022 to March 31, 2023. Per DA No. 01- 2014, the hours of operation for transportation of excavated aggregates to URP No. 2 are Monday through Saturday from 7 a.m. to 5 p.m. The difference in hours of operation from the current and what the DA allows is due to the lack of a new traffic signal to allow safe ingress and egress to the site.
On November 16, 2022, Jeff Cameron, Environmental Manager, from URP submitted an entitlement application letter (Attachment C) requesting that the City Council authorize the City Manager to sign the application to amend the Olive Pit Development Agreement.
Since the City owns the Olive Pit, URP is requesting that the City, as property owner, approve the signing of the application submittal.
URP is requesting an amendment to DA No. 01-2014 with the following:
Exhibit B, Section A.2.a "Mining Phase/"
• Increase the annual tonnage from an average of 1.5 million tons per year to a maximum of 2.0 million tons per year.
Exhibit B, Section A.2.b "Mining Phase II"
• Increase the annual tonnage from an average of 1.5 million tons per year to a maximum of 2.0 million tons per year.
Exhibit B, Section A. 1 "Access Road Relocation"
• Modify the entrance of the site from Los Angeles Street to allow for trucks to enter off of Azusa Canyon Road by the Los Angeles County Flood Control gate.
This request is for the City to approve the signing of the application as the Property Owner. This request does not grant URP the approval of a project but would allow URP to submit an application to the City for the modification of current land use entitlements, including but not limited to the Development Agreement, License Agreement, Reclamation Plan, and the Environmental Impact Report.
Recommendation:
It is therefore recommended that the City Council discuss, and authorize the City Manager to sign the application for the modification of DA Mo. 01-2014 for the Olive Pit Fiscal Impact:
The entire cost for the development will be covered by the Applicant/Operator. There will be no cost to the City's budget to submit the application.
The royalty payment paid to the City for the first 12.5 million tons of aggregates excavated is $1.00 per ton. Therefore, the proposed 0.5 million tons per year can equate to a maximum of $500,000 in added revenue.
Attachment:
A Development Agreement No. 01-2014
B. Amendment No. 1 to the DA No. 01-2014
C. United Rock Products Letter dated November 16, 2022
Page3
RECORDING REQUESTED BY
AND ·wHEN RECORDED, MAIL TO:
CITY OF IRWINDALE
5050N. IRWINDALE AVE.
IRWINDALE, CA 91706
ATTN: CITYCLERK
ATTACHMENT "A"
(Space above this line for recordei·)s use onJy)
Exe1npt from Recording Fees per Gov't. Code Sec. 6103
DEVELOPMENT AGREEMENT FOR OLIVE PIT
between
THE CITY OF IRWINDALE
and
UNITED ROCK PRODUCTS CORPORATION
I
'
t
I!
' ;,
TABLE OF CONTEJ\'TS
1.0 }JUTUAL BENEFITS AND ASSURANCES ............................................. ... 2
1.1 Project Description ....................................................................................... 3
1.2 Summary of Development Plan .................................................................. .3
1.3 Interest and Representations of Developer .................................................. 3
1.4 Binding Effect of Agreement. ...................................................................... 4
1.5 Superseded Mining Agreements ....... , ........ , ..... , ........................................... 4
2.0 DEFINII'IONS ................................................................................ .5
2.1 Anticipated High Water Level, ................................................................... .5
2.2 Applicable Law ........................................................................................... .5 2 .3 Assignment .................................................................................................. 5
2.4 Authorizing Ordinance ................................................................................ .5
2.5 Ci:ty ............................................................................................................... 5
2.6 City Council. ................................................................................................ 5
2.7 Commercial Filling Operations ................................................................... .5
2.8 Completion ofReclamation ......................................................................... 6
2.9 Concurrent Mining Approvals ..................................................................... 6
2.10 Conditions of Approval. ............................................................................... 6
2.11 Default.. ........................................................................................................ 7
2.12 Development. ............................................................................................... 7
2.13 Development Agreement Statute ................................................................. 7
2.14 Development Approvals .............................................................................. 7
2.15 Development Parcel. .................................................................................... 7
2.16 DevelopmentPlan ........................................................................................ 7
2.17 Effective Date .............................................................................................. 8
2.18 EIR or "environmental documents" ....... , ..................................................... 8
2.19 Engineered Fill ............................................................................................. 8
2.20 Existing Development Approvals .................................. : ............................. 8
2.21 Financial Assurances ................................................................................... 8
2.22 Future Development Approvals ................................................................... 8
2.23 Futul'e Mining Land Use Regulations .......................................................... 8
2.24 Guidelines .................................................................................................... 9
2.25 Inert Materials .............................................................................................. 9
2.26 License ......................................................................................................... 9
2.27 Maximum Depth .......................................................................................... 9
2.28 Mining Development Approvals .................................................................. 9
2.29 Mining Land Use Regulations ................................................................... 10
2.30 Mining Tax ................................................................................................. 10
2.31 Project Improvements ................................................................................ 1 o
2.32 Project. ....................................................................................................... 10
2.33 Reclamation Plan ....................................................................................... ! O
2.34 Reservations of Authority .......................................................................... 10
2.35 Schedule of Performance ........................................................................... 11
2.36 Scope of Development ............................................................................... 11
2.37 Site ............................................................................................................. 11
2.38 Site Development Fill. ............................................................................... 11
2.39 Superseded Mining Agreements ................................................................ ] I
2.40 Term ........................................................................................................... 11
2.41 Uniform Codes ........................................................................................... l l
2.42 Zone Amendment.. ..................................................................................... 11
3.0 TERM ................................................... ....................................... 11
3.1 Terrn ........................................................................................................... 11
3.2 Completion ofProject. ............................................................................... 12
3.3 Force Majeure ............................................................................................ 12
4.0 OPERATION OF THE PROJECT AND DEVELOPMENT OF THE SITE ...... ... 13
4.1 Right to Undertake Project... ...................................................................... 13
4.2 Later Enacted Measures ............................................................................. 13
4.3 Inconsistencies ........................................................................................... 13
4.4 CEQA. ........................................................................................................ 14
4.5 Project Challenges ..................................................................................... 14
4.6 Rigl1ts of Access ........................................................................................ 15
4.7 Mining, Reclamation and Development of the Site ................................... 15
4.8 Project Imptovements ................................................................................ 15
4.9 Environmental Control Systems ................................................................ 16
4.10 Community Benefits .................................................................................. 16
4.11 Performance Responsibilities ..................................................................... 16
4.12 Liquidated Damages .................................................................................. 18
5.0 SCHEDULE OF PERFORMANCE: TIME FOR OPERATION AND COMPLETION OF PROJECT ............................................................................................. 19
6.0 PROCESSING OF REQUESTS AND APPLICATIONS; OTHE:R GOVERNMENT PER..VITS ...... ....................................................................................... .19
6.1 Standards .................................................................................................... 19
6.2 Reclamation Plan ....................................................................................... 19
6.3 Other Governmental Permits ..................................................................... 19
6.4 Public Agency Coordination ...................................................................... 20
7.0 RECLAMATION LIMITATIONS AND OBLIGATIONS ............................. ... 20
7.1 Fill Requirements and Specifications ........................................................ 20
7.2 Consultant Engineer; Site Certification ..................................................... 21
7.3 Commencement Date/Prioritization of Fill. ............................................... 21 7 .4 Free-Market Filling Operation ................................................................... 22
8.0 FEES, TAXESANDASSESSMENTS ..................................................... .22
8.1 General. ...................................................................................................... 22
8.2 Mining Tax ................................................................................................. 23 S.3 Tipping Fees ............................................................................................... 24
8.4 Accord and Satisfaction ............................................................................. 24
8.5 Payment Made by City on BehalfofDeveloper ........................................ 24
9.0 AMENDMENT OF DEVELOPll!fENTAGREEMENT .................................. 25
9.1 Initiation of Amendment. ........................................................................... 25 9 .2 Procedure .................................................................................................. .25 9 .3 Consent. ..................................................................................................... 25
9.4 .M:inor Modifications .................................................................................. 26
9.5 Effect of Amendment to Development Agreement. .................................. 26
10.0 RESERVATIONS OF AUTHORITY ...................................................... . 26
10.1 Limitations, Reservations and Exceptions ................................................. 26
10.2 Objections to Regulation ............................................................................ 28
10.3 Regulation by Other Public Agencies ........................................................ 28
11.0 ANNUAL REVIEW ..................................................................... ..... .28
11.1 Annual Monitoring Review ....................................................................... 28
11.2 Estoppel Compliance ................................................................................. 29
11.3 Failure to Conduct Annual Review ............................................................ 29
12.0 DEFAULT, REMEDIES, TERMINATION AND FINANCIAL ASSURANCES ..... 29
12.1 Security for Performance ........................................................................... 29
12.2 Financial Assurance Bonds ........................................................................ 30
12.3 Rights ofNon-Defaulting Party after Default ............................................ 30
12.4 Notice and Opportunity to Cure ................................................................. 30
12. 5 Remedies Cumulative ................................................................................ 31
12.6 Interest... .................................................................................................... .31
12.7 Rights and Duties Following Termiuation ................................................. 31
13.0 RESTRICTIONS ONTl?AlVSFER ... ...................................................... 31 13 .1 General. ..................................................................................................... .31
13.2 Subject to Tenns of Agreement ............................................................... .32
13.3 Release of Developer ................................................................................. 33
14.0 INSURANCE, INDEMNIFICATION, WAIVERS .................................... .... 33
14. l fusura11ce .................................................................................................... 33
14.2 Indemnification .......................................................................................... 35
14.3 Waiver of Subrogation ............................................................................... 38
15.0 EFFECT OF AGREEMENT ON TITLE .................................................. 38
15.1 Covenants Run ·with the Land .................................................................... 38
15.2 Estoppel Certificate .................................................................................... 39
16.0 GENERAL ............................................................................. ....... 39
16.1 Non-liability of City Officers and Employees .......................................... .39
16.2 Conflict ofinterest .................................................................................... 39
16.3 Covenant Against Discrimination .............................................................. 39
16.4 Construction of Agreement. ...................................................................... .40
16.5 Severability ............................................................................................... .40
16.6 Attorney's Fees ..................................................................................... ,, . ..40
16. 7 Time of Essence ........................................... , ...... ,,, ........................ ,, ... ,,., ,,.40
16.8 Waiver ....... , ......... ,, ...... ,,,.,,,,,,,,, ... , ............. ,,, ................................. ,,, ..... ,,,, .40
16.9 No Third Party Beneficiaries ...................... ,, ..... ,,,,,,, ,,,, ... ,,,, ,,,,,,, .. , ,, ....... ,,.4 I
16.10 Mutual Covenants ........ ,,,,,,.,,,,,,,,,, ... ,,,.,,,,,,,,, ..... ,,,, .... ,, ........ ,,.,,,,.,,, ,,,,,,,,,,.4 I
16.11 Counterparts ...... ,, .......................................... ,,,,.,,,,, ........ ,,,,,,,,,,.,,,,,,,,,,.,,,, .41
16.12 Authority to Execute ..................................... , ............. ,, ................. , .......... .41 · 16.13 ·Notices, Demands and Communications Between the Parties ............... ,,.41
16.14 Further Actions and Instruments .............................................................. ..42 16 .15 Recitals .................................................................................................... ,, .42
16.16 Recording ....... ,, ........................ ,, ................ ,, .............. ,, .... ,, ....................... .42
16.17 Relationship of Parties ................................... ,, ,,,,,, ,,,,,,,,,, ... ,,,, ................... 43
16.18 Inspection of Books and Records ........ ,,,, ... ,,,,,, ... ,,,, ................................ ..43
16.19 Integration Clause ......... ,, .... ,, ........................................................... ,, ........ 43
16.20 Disputes ......... ,,.,,, ... ,, .. ,,,, .. ,,,, .................................................................... ..43
17.0 EXHIBITS .................................................................... , .... , ........ ..43
DEVELOPMENT AGREEMENT FOR OLIVE PIT
THIS DEVELOPMENT AGREEMENT FOR OLIVE PIT ("Development Agreement" or "Agreement") is entered into on December 9, 2015, by and between the CITY OI" IRWINDALE, a municipal corporation (the "City''.), and Ul'{!TED ROCK PRODUCTS CORPORATION, a Delaware corporation ("Developer''). The City and Developer may be referred to collectively as the "Parties" and individually as a "Party." A. Developer Pronertv. The City owns and maintains fill inactive mining site known as the Olive Pit and identified as APN 8415"001-906 ("Site"). The Site is a 189.74 acre inactive sand and gravel quarry, as shown in the "Site Map" attached hereto as Exh.ibit A and incorporated herein by this reference.
B. Legislation Authorizing Development Agreements. To strengthen the public planning process, encoutage private participation in comprehensive planning and reduce the economic risk of development, the legislature of the State of California adopted the Development Agreement Statute, Section 65864 et seq. of the Government Code, authorizing the City to enter into an agreement with any person having a legal or equitable interest in real property providing for the development of such property and establishing certain development rights therein.
C. CEQA. The activities contemplated under this Agreement qualify as a project under State law, are not exempt under the provisions of the California Environmental Quality Act, at California Public Resources Code Section 21000 et seq. and regulations promulgated pursuant thereto ("CEQA"), and, as such has been reviewed by City fur its potential environmental impacts pmsuant to that certain Environmental Impact Report ("EIR") certified by City concurrently with the approval of this Agreement.
D. Purpose of Agreement.
To address the on-going costs and liability of owning and maintaining the inactive mining site due to factors such as slope stability concerns threatening neighboring properties, erosion, and illegal dumping, the City issued a Request for Qualifications ("RFQ") in January, 2013 to evaluate options for the effective re-use of the Site. On or about January 22, 2013, in response to the RFP, the City received 2 proposals, including a proposal from Developer, to excayate and reclaim portions of the Site ("Project"). The City Council considered proposed te1ms to license the Site to Developer for such purposes and approved that certain Mernorandmn of Understanding ("MOU") on August 14, 2013 with Developer, finding that the proposal from Developer best suits the needs of the City, as further described herein. City and Developer enter into this Agreement pursuant to Government Code sections 65864 et seq. for the implementation of the Project. Additionally, the parties intend to enter into a license agreement ("License") concurrently with the approval of this Agreement, to provide access to Developer to the Site and provide for Developer's payment of applicable royalties to City. The effectiveness of this Agreement shall be contingent on the City's approval and continued effectiveness of the License.
LA ll338609vJ2.
The Planning Commission and City Council have determined that the development and operation of the Project is consistent with the City's General Plan, current policies and the Califomia Surface Mining And Reclamation Act of 1975, as amended ("SMARA"), and implementing regulations of the State Mining and Geology Board ("SMARA Regulations") designating the area that includes the Site as a Regionally Significant Construction Aggregate Resource Area in the Orange County-Temescal Valley and San Gabriel Valley ProductionConsumption Regions (SMARA Regulations §3550.5). Said SMARA provisions prohibit the City from abandoning the existing significant construction reserves or otherwise reclaiming the Site so as to prevent the ability to extract such reserves, without making certain findings that are not likely feasible to establish as to the Site (SMARA Section 2763), Developer has submitted to City an application for development and operation of the Project at the Site. The City is prepared to grant such entitlement, provided that Developer agrees (1) to enter into the License concurt·ently with this Agreement providing Developer with rights to access the Site and describing Developer's obligations to pay City royalties; (2) to mine the Site in accordance with the tetms of this Agreement; (3) 1D reclaim the Site in the manner set forth herein and in the approved Reclamation Plan; (4) to provide the secmity requited in this Agreement in addition to the City's pledge ofrevenue as financial assurances in compliance with SMARA; and (5) to fund the cost for all mitigation measures as identified in the BIR, except as may be expressly provided at Article 9.0.
E. Public Hearings; Findings, On November 19, 2014 the City's Planning Commission, after a duly noticed public hearing, adopted Resolution No. 637(14) recommending City Council certification of the BIR, Resolution No. 641(14) recommending City Council approval of Zone Change, Resolution No. 640(14) recommending City Council approval of the Reclamation Plan and Financial Assurances and Resolution No. 639(14) recommending City Council approval of this Agreement On December 3, 2014, the City Council, after making appropriate findings at a duly noticed public hearing, adopted Resolution No. 2014-51-2711 certifying the BIR, introducing Zone Change by Ordinance No. 686, conditionally approving and certifying the Reclamation Plan and Financial Assurances by Resolution No. 2014-55-2715, subject to comment from the Califomia Department of Conservation, and approving this Agreement by introducing Ordinance No. 684, and on December 10, 2014, after considering all comments from the Department of Conservation, adopted Ordinance No. 684 approving this Agreement and Ordinance No, 686 approving the Zone Change.
F. Writ of Mandate and Settlement. On January 6, 2015, the City of Baldwin Park ("Baldwin Park") challenged the BIR by way of it's Petition for Writ of Mandate, Los Angeles Snperior Comt Case No. BS152919 (''Writ"). On 01· about August 19, 2015, the parties reached an out of court settlement of that action requiring the City to pay Baldwin Park a sum of money and agree to bnild a wall along the western boundary of the Site in exchange for a full settlement of the Writ The Project was thus delayed as a result of the Writ and resulting settlement.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and having detennined that the foregoing recitals are ttue and correct and should be and hereby are incorporated into this Agreement, the parties agree as follows:
1.0 MUTUAL BENEFITS AND ASSURANCES.
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1.1 Project Description.
Developer intends to mine useable aggregates from t11e Site, utilizing both dry and underwater mining processes. The parties desire to have Developer construct a new on-site access road and relocated driveway entrance to the Site on the south side of the Site, mine the easterly area of the Site in the initial phase of the Project so as to allow reclamation of the easterly area comprising approximately 3 J.2 acres to co1mnence as soon as possible, and mine the balance of the Site. All such mining and reclamation activities shall strictly follow the City's Guidelines, as defined below as well as Appendix J of the City's Building Code. Developer intends to accomplish the Project utilizing environmental control systems aimed at mitigating the impact of the Project on surrounding residences, businesses and roadways.
Developer rn1derstands and acknowledges that the City intends to nltimaiely develop the
31.2 acre portion of the Site for futme commercial or industrial development in accordance with the tem1s of this Agi-eement and the remainder for long-term use as a storm water retention area, both of which are envisioned to occur after the completion of the mining and reclamation of the Project described herein. This Article LO outlines the parties' general intent as to the timeframe and sequence for the development of the Site. The intended mining, reclamation and development are more specifically described in the "Scope of Development" attached hereto as Exhibit Band incorporated herein by this reference. In addition, the timeframes are established in the "Schednle of Perfonnance" attached hereto as Exhibit C and incorporated herein by this reference.
1.2 Slm1111ary of Development Plan.
As finther described in the Scope of Development at Exhibit B, Developer will extract economically available construction aggregate resources from the Site in compliance witll State and City regulations. Developer will extract the resources in a phased marmer while also reclaiming the Site for future beneficial uses. The first phase will include mining the eastem portion oft11e Site, followed by reclamation of this area to create ar1 approximate 31.2-acre pad suitable for development. Reclamation will involve filling t11e extraction void with inert fill materials. The second phase will include mining the remainder of the Site utilizing both dry and underwater mining processes.
1.3 Interest and Representations of Developer.
"Developer" is United Rock Products Corporation, a Delaware corporation, and its pennitted successors and assigns, with its principal offices at 13 5 South State College Boulevard, Snite 400, Brea, California 92821. Developer warrants and represents to City that:
(a) Developer is a Delaware corporation duly organized and existing under the laws of the State of Delaware;
(b)
authorized
By proper action of Developer, Developer's signatories have been duly to execute and deliver this Agreement, acting by and through its dlily authorized officers;
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(c) Developer is duly qualified to do business in good standing under the laws of the State of California and has all requisite power and authority to carry out its business as now and whenever conducted and to enter into and perfonn its obligations under this Agreement;
(d) Entering intc this Agreement by Developer does not violate any provision of any other agreement to which Developer is a party;
( e) Except as may be specifically set forth in this Agreement, no approvals or consents not heretofore obtained by Developer are necessary in connection with the execution of this Agreement by Developer or with the performance by Developer of its obligations hereunder;
(f) Neither Developer, nor the principals of Developer, have filed or been the subject of any filing of a petition under the Federal Bankruptcy Law or any insolvency laws, or any laws for the discharge of indebtedness or for the reorganization of debtors; (g) No representation, warranty, or covenant of Developer in this Agreement, or in any document or certificate furnished or to be furnished to the City pursuant to this Agreement, contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary to make the statements contained herein or therein not misleading; provided that the foregoing representation does not apply to the present condition of 1he Site inasmuch as the City is the owner of this property; (h) Developer has not paid or given to, and will not pay or give to, the City or any official or agent of the City any money or oilier consideration for obtaining this Agreement, except as expressly provided herein; and
(i) Developer is legally entitled to enter into the License with City to secure the right of possession to the Site and operate any of the activities thereon approved under this Agreement.
G) Developer has inspected the Site pursuant to the authorization provided by City under the MOU and perfonned sufficient testing in its discretion and to its satisfaction to verify and, as a result of such access and testing, has verified that 1he Site contains recoverable (i.e. useable) reserves of a minimum of30 million tons and that such reserves meet the quality standards of applicable Califomia governmental agencies for construction.
1.4 Binding Effect of Agreement
The mutual burdens and benefits of this Agreement inure to and shall be binding upon the successors in interest of the Parties. City represents and warrants that it is the owner of the Site.
1.5 Superseded Mining Agreements.
Prior to this Agreement, the Site was subject to approvals by the County of Los Angeles ·(collectively, the "Superseded Mining Agreements"). Upon the Effective Date of this LA 1133B609vl2
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Agreement, all of the Superseded Mining Agreements related to the Site shall be superseded by this Agreement and shall be of no forther force and effect. The Superseded Mining Agreements shall also include the MOU between Developer and the City, dated August 14, 2013.
2.0 DEFINITIONS.
The following words and phrases are used as defined terms throughout this Agreement.
Each defined term shall have the meaning set forth below. Any capitalized tem1s not defined in this Section shall have fue meaning otherwise assigned to them in this Agreement or apparent :from the context in which they are used.
2.1 Anticipated High Water Level.
"Anticipated High Water Level" means the anticipated high groundwater level of approximately ±285' ams!. The California State Regional Water Quality Control Board has analyzed anticipated groundwater levels along with other data pertaining to and affecting local groundwater data, and has adopted the concept of "anticipated groundwater levels" as opposed to using "historic high groundwater levels" for the purpose of planning and regulating projects that may affect, or be affected by, groundwater.
2.2 Applicable Law.
"Applicable Law" means all statutes, mies, regulations, guidelines, actions, determinations, Permits, orders, or requirements of ihe United States, State, Comity, City and local and regional govermnent authorities and agencies having applicable jurisdiction, that apply to or govern the Site or ihe performance of the Parties' respective obligations hereunder, including any of the foregoing which concern health, safety, fire, environmental protection, labor relations, mitigation monitoring plans, building codes, zoning, non-discrimination, and prevailing wages if applicable.
2.3 Assignment.
All forms of use of the verb "assign" and the nouns "assignment" and "assignee" shall include all contexts ofhypothecations, conveyances, transfers, leases, and assignments.
2.4 Authorizing Ordinance.
"Authorizing Ordinance" means Ordinance No. 684 approving this Agreement.
2.5 Citv.
"City" means the City of Irwindale, California, a municipal corporation.
2.6 Citv Council.
"City Council" means the governing body of the City of Irwindale.
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Commercial Filling Operations.
5 "Commercial Filling Operations" shall refer to the following: The City has established a phased reclamation proc,ess to concentrate fill materials in prioritized mining pits so that the pits can be fully reclaimed as quickly as possible and made available for the end uses, and. Developer has agreed to participate in this process, Accordingly, without the written approval of the City Manager, Developer shall not conduct a Commercial Filling Operation on the Site, A "Commercial Filling Operation" shall be defined as a filHng operation that is prioritized by the City ahead of Pit No, 1 formerly owned by Developer and now by Irwindale Partners, LLC ("IP"), Hanson Aggregate's 40 acre portion along the 605 freeway, Developer's Pit No, 2 and Vulcan Materials' Durbin and Reliance quanies. Developer understands and acknowledges the contractu_al obligations of City to IP, Hanson, Developer (by separate agreement) and Vulcan and, as such, also agrees that without the written approval of the City Manager, it will not post signs on or around the Site advertising the availability of the Site and directing customers to the Site and derive revenue by published public rates and charges for those persons bringing fill to the Site, This shall not prevent Developer from commencing or carrying out reclamation through noncommercial filling operations by utilizing fill from its own internal operations on the Site or from Developer's other operations, or from entering into fill contracts to acquire fill, not otherwise reasonably available to the other mining operators, but not by general solicitation, advertising or other similar means, if such activities would jeopardize the City's contractual obligations to IP, Hanson, Developer (by separate agreement), and Vulcan, 2,8 Completion of Reclamation.
"Completion of Reclamation" means, consistent with the definition under the California Surface Mining and Reclamation Act of 1975, the completed process of land treatment which minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding, erosion, and other adverse effects from surface mining operations, including adverse surface effects incidental to underground mines, so that the mined lands are reclaimed to a usable condition which is readily adaptable for the ultimate development and other uses of the Site, as specified in this Agreement and the Guidelines, and creates no danger to public health or safety, The process shall require backfilling, grading, resoiling, revegetatiou, soil compaction to those standards specified in this Agreement and the Guidelines, stabilization and other measures to make such mined lands readily adaptable to the ultimate end use of ihe Site, as specified in this Agreement It is specifically agreed that this definition is satisfied only by, among other activities, the use of Engineered Fill in the creation of the approximately 31,2 acre Development Parcel in accordance with the Guidelines, Other reclamation activities include, but are not limited to, the removal of all mining related fucilities, final grading and revegetation of mine slopes, etc.
2,9 Concurrent Mining Approvals.
"Concun·ent Mining Approvals" means the approval granted by City conmment with the approval of this Development Agreement to mine and reclaim the Site, namely the Reclamation Plan, BIR and approvals addressing Financial Assurance obligations. 2, I 0 Conditions of Approval.
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"Conditions of Approval" means those conditions regulating the mining and reclamation activities authorized by this Agreement and attached as Exhibit B hereto.
2. 11 Default.
"Default" refern to any material defuult, breach, or violation of a provision of this Agreement as defined in Section 12.0. "City Default" refers to a Default by the City, while "Developer Default" refers to a Default by Developer.
2.12 Development.
"Development" shall have the meaning set forth under the definition of ''Project" herein.
2.13 Development Agreement Statute.
"Development Agreement Statute" means Sections 65864 tlrrough 65869.5 of the California Government Code as tl1ey exist on the Effective Date or as may be amended from tin1e-to-th11e.
2.14 Development Approvals.
"Development Approvals" means all site-specific (meaning specifically applicable to the Site only and not generally applicable to some or all other properties within the City) plans, maps, permits, and entitlements to use of every kind and nature. Development Approvals include, but are not limited to, permits to mine to specified depths, Reclamation Plan, specific plans, site plans, tentative and final subdivision maps, variances, zoning designations, conditional use permits, grading, building, and other similar permits, environmental assessments, including environmental impact reports and negative declarations, and any amendments, supplements or modifications to those plans, maps, permits, assessments and entitlements. The term Development Approvals does not include (i) rules, regulations, policies, and otlrnr enactments of general application within the City, (ii) any of the Superseded Mining Agreements, (iii) any matter where City has reserved authority under Article 10.0.
2.15 Development Parcel.
"Development Parcel" means the 31.2-acre portion of the Site comprising the easterlymost portion of the Site, which is intended to be developed for commercial and industrial uses, when geoteclm.ically stable, in accordance with the Gnidelines and Scope of Development.
Developer shall reclaim such 31.2-acre portion pursuant to the terms of this Agreement and Reclan1ation Plan to street level with a 2: 1 slope along the western margin of the Site, which will require more than 8 million cubic yards of fill.
2.16 Development Plan.
"Development Plan'' means the Existing Development Approvals, Future Development Approvals, Mining Land Use Regulations and pennitted Future Mining Land Use Regulations per Article 10.0.
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2.17 Effective Date.
"Effective Date" means the date the Agreement becomes effective, which shall be the date thilty (30) days after the adoption of the Authodzing Ordinance; provided the paities approve the License on or before such date. Otherwise, Effective Date shall be the date that this Agreement is fully executed ai1d delivered by the paities and shall coincide with the Effective Date of the License being entered into by the parties hereto.
2.18 EIR or "environmental documents".
"EIR" or "environmental documents" means the filial Environmental Impact Report or other environmental documents certified by City Council Resolution No. 2014-51-2711 in accordance with the requirements of CEQA and processed in accordance with Section 4.4.
2.19 Engineered Fill.
"Engineered Fill" means the use of Site Development Fill for the reclamation of quany pits to the followi11g standard:
(a) All fill placed into the natural groundwater (Underwater Fill) at any level that may exist at the time of fill placement shall comply with all provisions of the Guidelines for Underwater Fill, as defined in Section 2.24. (b) All fill placed above the natural gro1mdwater (Above Water Fill) at any level that may exist at the time of fill placement shall comply with all provisions of the Guidelines for Above Water Fill, as defined in "Guidelines" herein. 2 .20 Existing Development Approvals.
''Existing Development Approvals'' means those Development Apprnvals which are in effect on the Effective Date, but does not include the Superseded Mining Agreements.
2.21 Financial Assurances.
"Finru1cial Assurances" shall meai1 the financial assurances required by City pursuant to the Surface Mining and Reclaination Act of 1975 ("SMARA") to assme the reclamatio11 of the Site, as established pursuant to Sections 12.2.
2.22 Future Development Approvals.
"Future Development Approvals" means those Developme11t Approvals applicable to the Site approved by the City after the Effective Date.
2.23 Future Mining Land Use Regµlations.
"Future Mining Land Use Regulations" means those Mining Land Use Regulations approved by the City after the Effective Date.
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2.24 Guidelines.
a. "Guidelines" shall be the collective term used to refer to the following standards applicable in the City for reclamation and maintenance of mining quarries, developed by the Irwindale Technical Committees, as approved December 20, 2005 by Resolution No. 2005-89-2106 of the City Council, and specifically includes any and all duly approved revisions, updates, amendments and modifications of such Guidelines; provided, however, that any changes to the existing guidelines which would result in a material increase in cost to the Developer shall be the subject of fillther negotiations between the parties. The parties contemplate that the City shall inspect and approve on a monthly basis any filling operation perfommd by the Developer in order to assure that the parties are in agreement that reclamation has been properly performed.
b. "Guidelines for Above Water Fill" shall mean the November 23, 2005 Guidelines for Above Water Backfilling of Open-Pit Mines, lrwindale, California. c. "Guidelines for Erosion Control" shall mean the July 6, 2004 Guidelines For Drainage And Erosion Control for Opett-Pit Mines, l!windale, California. d. "Guidelines for Unde1water Fill" shall mean the May 20, 2005 Guidelines for Underwater Backfilling of Open-Pit Mines, I1windale, California e. "Guidelines for Slope Stability" shall mean the December 24, 2003 Guidelines for Slope Stability Analysis of Open Pit Mine Slopes, Irwindale, California.
2.25 Inert Materials.
"Inert Materials" shall have the meaning as provided in the Guidelines. 226 License
"License" shall have the meaning set forth at Recital D above and approval of the License shall be a precondition to the effectiveness of this Agreement pursuant to Section 3.l below.
2.27 Maxinmm Depth.
"Maximum Depth" shall have the meaning set forth at Exhibit B, Section A (1) (a) and (b) herein which shall provide for the maximum depth Developer shall be authorized to excavate pursuant to this Agreement.
2.28 Mining Development Approvals.
"Mining Development Approvals" means those City approvals including this Agreement for mining and reclamation of the Site. Mining Development Approvals include the authority to mine to specified depths, Reclamation Plan, md financial assurances concerning mining, mining envirorunental assessments, and any amendments or modifications thereto.
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2.29 Mining Land Use Regulations.
"Mining Land Use Regulations" means those Project related Development Approvals and Land Use Regnlations including all zoning ordinances (including IMC Section 17.60 (Quarry Zone) and IMC Section 17.63 (Surface Mining and Reclamation Plans)), as they may be amended from time-to-time and other ordinances and regulations governing the conduct of mining and reclamation activities within the Site.
2.30 Mining Tax.
"Mining Tax" means the tax enacted by the voters pursuant to Sections 3.18.030 and
3.18.040 of the Irwindale Municipal Code, as it may be amended from time to time.
2.31 Project Improvements.
"Project Improvements" means those improvements required by Section 4.8 of this Agreement to be constructed or installed by Developer in coajunction with tbe post-reclamation development of the Site. The parties acknowledge that such Project Improvements do not constitute a comprehensive list of improvements that may be required and that the City reserves the right to require additional improvements at the time it considers the post-reclamation development of the Site; provided that Developer shall not be respon&ible for post-reclamation development of the Site and any improvements would be at the City's expense.
2.32 Project.
"Project" means the excavation, reclamation, and placement of Site Development Fill for rough-grade pads at the Site for commercial and industrial uses and open space-flood control, storm water retention and/or ground water recharge basin uses pursuant to this Agreement. "Development" means the improvement of the Site for purposes of constructing the structures, improvements and facilities consistent with the uses identified for the Project including, without limitation: grading, the construction of infrastructure and public facilities related to the Project identified in this Agreement, the Reclamation Plan, whether located within or outside the Site, but not the construction of structures and buildings, infrastructure, public facilities or installation of landscaping for the ultimate end use. This Agreement does not encompass any such construction for the ultimate end use of the Development Parcel insofar as those will be accomplished by the City, in its sole discretion, following the completion of Developer's activities per this Agreement.
2.33 Reclamation Plan.
"Reclamation Plan" shall mean the October, 2014 Reclamation Plan prepared by Envlromnine, Inc. for the Olive Pit and approved concurrently herewith by the City as part of this Development Agreement.
2.34 Reservations of Authority.
"Reservations of Authorily" shall have the meaning set forth in Section 10 of this Agreement.
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2.35 Schedule of Performance.
"Schedule of Performance" means that certain Schedule of Performance attached hereto as Exhibit C specifying the time limits by which the various obligations under this Agreement must be performed.
2.36 Scope of Development,
"Scope of Development" means the development oftl1e Site as described at Exhibit B hereto.
2.37 Site.
"Site" means the property commonly referred to as the 0 live Pit shown on the Site Map, attached hereto as Exhibit A, and more specifically described in the Legal Description attached hereto as Exhibit A-1.
2.38 Site Development Fill.
"Site Development Fill" shall mean silt fill and Inert Materials used for the filling of the Site, subject to the requirements of Section 7 .1 below.
2.39 p.!!]erseded Mining Agreements.
"Superseded Mining Agreements" shall have tlie meaning set forth in Section 1.5 of this Agreement.
2.40 Term.
"Term" means that period of time during which this Agreement shall be in effect and bind the Parties, as defmed in Section 3 .1.
2.41 :Uniform Codes.
''Uniform Codes" means the California codes that are based on recommendations of a multi-state professional organization, as adopted by City, such as, but not limited to, the California Building, Electrical, Plumbing, Mechanical, Fire, or Abatement of Dangerous Building Codes and includes the City's Grading ordinance "Appendix J Grading."
2.42 Zone Amendment.
"Zone Amendment" means the amendment to the Irwindale Zoning Code, at Chapter
17.63 authorizing the entitlements granted herein by development agreement and the inclusion of the Site within the Quarry Zone pursuant to Irwindale Zoning Code, at Chapter 17 .60.
3.0 TERM.
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Term.
11 Provided the parties duly approve the License on or before the Effective Date, the term of tlris Agreement (the "Tenn") shall commence on the Effective Date and shall continue until no later than December 31, 2050, when final reclamation shall be accomplished for the Site, in accordance with Article 7.0. The parties agree that this Agreement shall not be effective and shall be void if the License is 11ot approved by the parties and remains in effect throughout the Term. However, mining operations and reclamation authorized by this Agreement and the Reclamation Plan shall be conducted during the times set forth in the Schedule of Performance.
In the event Developer has not completed its performance hereunder upon expiration of the te1m, the City Council may extend the Tenn in its reasonable discretion and seek specific performance in lieu of accepting termination but this right shall not preclude City from exercising any other rights hereunder for such violation. Additionally, based on Developer's access and inspection of the available aggregate reserves at the Site before the Effective Date, should the patties desire to have Developer continue to mine beyond the permitted depth to secure the additional reserves at the Site, this Agreement may be amended, subject to the mutual agreement of the parties, separate negotiation of the extension and amendment to the License, subject to compliance with CEQA. Notwithstanding the foregoing, this Agreement shall terminate when reclamation, as described in this Agreement and the Reclatllation Plan, as may be duly amended by the parties, is complete.
3.2 Completion of Project.
Developer shall undertake the Project in accordance v1ith this Agreement and the License. When Developer believes the Project is complete, it shall so inform the City Engineer and Consultant Engineer (as such tenn is defined in Section 7.2 below) in writing and the Consultant Engineer shall within ten (10) days provide a written response confinning same.
Should Consultant Engineer disagree, Consultant Engineer shall prepare a list of outstanding items for Developer to perform, which Developer shall perform within the time set forth in the Schedule of Performance, unless otherwise agreed to by the Parties and memorialized in wdting in accordance with the Schedule of Performance. The Project shall be deemed complete upon the issuance of a final report by the Consultant Engineer, and the filling of the Site completely (collectively "Completion Notice")
3 .3 Force Majeure.
Developer agrees that the time within which it shall be required to perform any act under this Agreement shall not be extended, provided that (i) the delay is not caused by any excess delay (lncluding, without limitation, restrictions on priority, initiative or referendum, or moratoria) by the City, in which case, Developer shall provide written notice to the City specifically describing the nature and extent of the delay and Developer's detailed efforts to avoid such delay, which references this Section and deliver such notice within 45 days of discovering such delay, and Developer's obligations shall be extended for such time as the City deems reasonable as a result of the delay if and only if Developer provides such written notice to the City within such time; and (ii) the time within which Developer shall be required to perfonn any act under this Development Agreement shall be extended by a period of time equal to the number of days during which performance of such act is delayed due to wru', insurrection, stdkes, lock-outs, riots, floods, earthquakes, fires, casualties, natural disasters, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, prncessing with any LA 1:!338609v12
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governmental agencies, intervening and unforeseeable governmental regulations or other governmental actions that cause a demonstrable and substantial impact upon a material aspect of Developer's operations of the Project, unusually severe weathe1~ or any other similar causes beyond the control of Developer or without the fault of Developer. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if written notice by Developer claiming such extension is sent to the City within 45 days of knowledge ofthe commencement of the cause. Any extension granted herein shall not amend the Tenn as to reclamation if Developer is able to make up the fill shmtfall in fnlure years of the Term. An extension of time due to the shortfall of fill shall only apply to the reclamation phase of any pmtion of the Site, and not to the mining phase of any pmtion of the Site.
4.0 OPBRATJONOFTHEPROJECTANDDEVELOPMENTOFTHESJTE.
4.1 Right to Undertake Proiect.
This Agreement is approved by the City plll'suant to Irwindale Municipal Code Section
17.63 and is intended to serve as the entitlement for Developer to operate and accomplish the Project at the Site. Accordingly, during the Term, Developer shall have the right 1D operate and accomplish the Project at the Site (subject to Section 5.0 below) to the full extent pem1itted by this Agreement. Th.is Agreement, License and Reclamation Plan shall exclusively control the mining and reclamation and other components encompassing the Project at the Site.
Additionally, at its cost, Developer shall be solely responsible for securing all other applicable permits, entitlements and authorizations (collectively, "Permits'') to perform the Project from agencies having jurisdiction over the Project, including but not limited to, approvals from the SCAQMD and RWQCB, if applicable. Developer further warrants that it is familiar with securing such Permits and understands that the Agency is relying on Developer's experience a11d expertise in securing all Permits. Developer and its authorized consultants may access the Sile to perform a Phase I soil report and, if warranted, a Phase II soil rep01t of the Site before commendng operations; provided that Developer shall be solely responsible for the cost of such inspections and reports and shall provide City a copy of any such reports within five (5) days of its receipt of same. City shall provide Developer or its authorized consultant access to the Site to accomplish such inspection(s) upon at least 24 hours' prior notice 1D City, which access shall be subject to Developer's indemnification obligations under Section 14.2. 4 .2 Later Enacted Measures.
Developer acknowledges and agrees that tlus Agreement shall not supersede any initiative, measll1'C, moratorium, statnte, ordinance or other limitation enacted after the Effective Date in accordance with the manner described in Section 10 below.
4.3 Inconsistencies.
It is expressly agreed that in the event of any inconsistency between the provisions or conditions of the Development Approvals and the provisions of this Agreement, the provisions of this Agreement shall govem. The conditions of such Development Approvals shall be interpreted insofar as possible to prevent such inconsistency, and in the event this Agreement is LA ll33.86fl9v12 01005_0020/173395.15 13
silent concerning an issue, the conditions of the Development Approvals shall govern. Any question concerning inconsistency shall be pursued by the process established in Article 10 below. If any of the Existing Development Approvals are now or hereafter found to be in conflict with or inconsistent with any of the Future Development Approvals, such conflicting or inconsistent provisions contained in the Existing Development Approvals shall be deemed deleted or modified in order to conform same to the Future Development Approvals.
4.4 CEQA.
The City shall be responsible for any and all processing required under CEQA in connection with this Project. As to the CEQA requirements hereunder, the parties agree as follows:
(a) The City has reviewed and processed the EIR for this Agreement and the Reclamation Plan for mining and reclaiming the Site.
(b) City selected HMCG, LLC to serve as its environmental consultant in the preparation of the EIR.
(c) As of the date of this Agreement, Developer has deposited with the City the sum of $190,000.00, which includes the deposit against fifty percent (50%) of the total estimated cost for the preparation of the new environmental documents. City shall be solely responsible to pay for the next Fifty Thousand ru1d 00/l 00 Dollars ($50,000.00) for costs in preparing the expenses i11curred by the environmental consultant in the prepru·ation of the environmental documents. Any amounts beyond such additional $50,000 paid by the City shall be split equally between the City and Developer up to a total contribution by Developer of two hundred ninety thousand dollars ($290,000) in connection with the approvals of this Agreement. Should an ame11dment be processed pursuant to Section 9.1, any expenses in connection witl1 such a111endment shall be addressed plll'suant to Section 9.1. Notwithstanding the foregoing, Developer shall be solely responsible for the cost for the preparation oftl1e Reclamation Pla11, securing any permits or other authorizations to conduct the Project, and any other costs related to secusing the approvals under this Agreement, including any amendments thereto. (d) City shall pay the environmental consultant selected under subsection 4.4 (b) above pursuant to the environmental services contract between City and such consultant, using funds deposited by Developer with the City under the MOU and the City funds, as described therein. Should the funds deposited by Developer with City be depleted, Developer shall promptly, within fifteen (15) days of the request therefor, deposit additional funds necessary to pay the additional costs estimated to be paid to the environmental co11sultant until such time as the environmental consultant is fully paid for its services subject to subsection 4.4 (c) above. Within fifteen (15) days after the City's payment of the last invoice to the environmental consultant, the City shall return to Developer any unused fm1ds deposited by Developer with the City hereunder. No interest shall be paid or credited to Developer on such deposit.
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Project Challenges.
14 In the event of any legal challenge to the City's determinations under CEQA, or to any other City or City Council determination in connection with the Project by any third party, the cost of the defense of any lawsuit, including all litigation costs thereof, including, but not limited to costs, attomey's fees, and expert witness fees, award of damages, costs, attorney's fees, undertakings, or any other liability shall be paid by Developer up to a maximum amount of two h1mdred fifty thousand dollars ($250,000) and, any additional expenses thereafter, paid by City.
The City will promptly notify Developer of any such claim, action or proceeding against the City and pay the associated legal costs or will advance funds to pay for the defense of the matter by the City Attorney per Section 14.2(a). The City may retain otlier counsel, but only with the consent of Developer, and such consent shall not be mn·easonablywithheld. The parties shall cooperate fully in the defense of any such action. Notwithstanding the foregoing, the City retains the right to settle or abandon the matter without Developer's consent as to the City's liabilities or rights only, so long as the City's actions do not affect Developer's material entitlements under the Agreement, and even with those entitlements that are not material, the City will enter into good faith discussions with Developer prior to settling or abandoning the matter.
4.6 Rights of Access.
Representatives of the City shall have the reasonable right of access 1D the Site without charges or fees, at any time during the period of excavation, reclamation and development, for the purpose of assuring compliance with this Agreement, including but not limited to the inspection of excavation, reclamation and development work being performed by or on behalf of Developer. Such representatives of the City shall be those who are so identified by the City Manager. Each such representative of the City shall identify himself or herself at the job site office upon his or her entrance to the Site. City inspectors or designees must be accompanied by Developer personnel at all times per Federal MSHA. The City's inspectors shall behave in a manner so as to not interfere with Developer's operations or usage of the Site, subject to Developer's safety requirements pmsuant to Developer's policy, California OSHA requirements and Federal MSHA requirements.
4. 7 Mining, Reclamation and Development of the Site.
The Site shall be mined, reclaimed and developed in accordance with this Agreement, as more specifically described in Sections 1.2 and 7.0, the Scope of Development (Exhibit B) and Reclamation Plan and within the times set forth in the Schedule of Performance (Exhibit C).
Developer understands and acknowledges that the development of the Site shall be within the sole authority of City to consider and is outside the scope of this Agreement. The current regulations concerning mining and reclamation are specified in this Section. Developer agrees that the City may amend the regulations applicable to mining and reclamation, provided such amendments are in accordance with Article 10 herein.
4.8 Project Improvements.
The Project .Improvements described in this Section, the Scope of Development (Exhibit B) and Reclamation Plan shall be constructed or installed by Developer in conjunction with the LA 113386091'12-
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post-reclamation development of the Site in accordance with the approvals granted by the City at the time.
a. Willis, Fence~ a11d Landscaping.
Developer will at all times maintain walls, fences, berms and landscaping both dnring Mining Operations and any subsequent development of the Site, as provided in the Development Plan and/or the approved Reclamation Plan, to screen the Site and present an attractive appearance to the community. Additionally, at Developer's cost, Developer shall install improvements to the northern bonndru'Y of the Site between fue pit wall and Olive Street so as to create an aesthetic, well landscaped walking park and adequate screening to the border of the pit, Developer's costs will be capped at Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00). Any landscaping condition for other borders of the Site shall be in addition to the aforementioned cap and shall be consistent with conditions typically imposed by the City for such approvals, such as the landscaping requirements imposed for Developer's Pit 2 operations . in 2002. Any significant increases to this landscaping condition shall be subject to fmther negotiations between the parties.
b. Other Infrastructure Requirements.
Developer, at its expense, shall install all necessru'Y infrastructure, as identified in the EIR and the Scope of Development (Exhibit Il).
4.9 Environmental Control Systems.
Developer shall implement the minimum measures to mitigate the impacts from mining and reclamation activities to sUJrounding residents, businesses and roadways, as well as all additional mitigation measures identified in either the BIR or Exhibit R
4. IO Community Benefits.
Throughout the tenn of this Agreement, Developer shall sponsor community events, as specified by City, which sponsorship shall be in an amount of Ten Thousand Dollars ($10,000) per year and payable on the Effective Date of the Development Agreement and on each anniversary of such date. Additionally, if requested by City, Developer shall paiticipate in City, school, or other co1nmunity events as follows: a) Provide display materials for use at Citysponsored events and school presentations, b) Provide promotional items for distribution at commmrity events, c) Annual participation in an educational capacity at school assemblies, and other civic organizations, and d) Participation in an edttcational capacity at community outreach events annually. City will take into consideration preferences which Developer may have as to which events are sponsored with its monies.
4. 11 Performance Responsibilities.
(a) Developer Guarru1tees Against Violations. Developer guai·antees that it shall perform the obligations under this Agreement in a manner so as not to cause violations of the terms of this Agreement or Irwindale Municipal Code. The breach of any performance guarantee (inclnding regulatory agency requirements) will subject LA 11~38609\'12
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Developer to the administrative penalties provided at Section 4.12 below. Complaints substantiated by the Public Works Director or designee of the following conditions shall include, but is not limited to, the following:
(1) Traffic queuing on City streets and/or recurrent failures to meet standards for vehicular circulation onto, through and away from the Site as required by Section this Agreement and any approved traffic circulation plan; (2) Failure to clear dirt and debris attributable to Developer's operations found upon and in the immediate surrounding area near the Site and along immediate access routes, traffic corridors and public rights-of-way or the maintenance of the Site in such a manner as to facilitate a pest infestation; (3) Violations of safety standards required under Applicable Law or by this Agreement;
(4) Odor, air quality, soil or water conditions violating those standards stated in the conditions of approval applicable to the Project and/or the EIR;
(5) Violations of the City's noise ordinance and other noiserelated requirements found in the conditions of approval applicable to the Project, the EIR or Applicable Law;
( 6) Failure to maintain landscaping at the Site in an attractive and professional manner;
(7) Knowingly accepting fill materials that do not qualify as Inert Materials;
(8) Closure of the operations at the Site in violation of this and other Agreements;
(9) Misconduct with respect to scale operations, lmowingly misrepresenting measurements or persistent violations of Applicable Laws governing weights and measures.
Violations listed in this Section 4.11 above, as items (1) through (6) shall be deemed ''minor" in nature, while violations in categories (7) through (9) shall be considered "major." For any minor violation, the liquidated damages provisions of Section 4.12 below sha!l apply. Repeated violations in any minor category during a 12 month period may become major violations for purposes of this Agreement. Should Developer connnit a11y major or repeated minor violations, the City may terminate this Agreement in accordance with the procedures set forth in Article 12.0. If, in its reasonable discretion, City deems necessary, these guarantees will be monitored by requiring Developer to submit rep01ts to City, wherein Developer certifies to City tl1at it has met its performance obligations during the period covered by the report. If Developer cannot so certify, if its complaint log evidences, or if the City notifies Developer it has failed to meet any of its I,A 11338609v12
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~
I
f I
I
I
1:
pe1fonnance obligations and the service failures are not remedied in a satisfactory ot teasonable manner and time frame, then Developer will pay liquidated damages per occurrence pursuant to Section 4.12 below for each of the specified breaches. (b) . City Right to Audit. City may also audit the tonnage, revenues and payments to the City at any time or may perfo1m an additional audit based on the request of complainants, in its sole discretion. If City requests si1ch an audit in addition to the annual audit provided by Developer with payment of the applicable Mining Tax (or Royalty Fee per the License), City will pay for the cost of the tonnage audit unless the audit reflects a discrepancy (negative) greater than three percent (3%) of the Mining Tax (or Royalty Fee per the License) due to the City, in which case Developer shall pay for such audit; provided that any such audit conducted in accordance with any review under Subsection 4.ll(a) above shall be a part of such review and paid for thereunder. In addition, in the event of an audit generated by complaints, if ru1y violations or significant issues are identified, Developer shall reimburse the City for any costs incurred in performing the audit
4.12 Liquidated Drunages.
The City, in its discretion, may elect to declare a default under this Agreement in accordance with the procedures hereinafter set forth for any failure or breach by Developer in its performance of a material dnty or obligation of the terms of this Agreement or Irwindale Municipal Code for issues such as, but not limited to, noise violations, dumping of debris on public-rights-of way, traffic queuing on City streets, operating outside of permitted hours, late payments, and late reports required herein or the License. However, the City must provide written notice to Developer setting forth the nature of the breach or failure and the actions, if any, required by Developer to cure such breach or failure ("Default Notice"). If a Default Notice is issued Md thereafter City concludes, in its reasonable discretion, that a default in fact occurred and continued to exist without timely cure, then liquidated damages may be assessed against Developer (as liquidated damages and not a penalty) by the Public Works Director and/or City Manager designee in the amount of $250 for every day the condition persisted or persists.
The Pa1ties recognize that if Developer causes or allows violations identified at Section
4.11(a) to occur, the City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City and its citizens will suffer. Therefore, the Parties agree that the liquidated damages established herein represent a reasonable estimate of the amount of such damages for such specific violations, considering all of the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of haim to City that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each Party specifically confinns the accuracy of the statements made above and the fact that each Party has had a1nple opportunity to consult with legal counsel and obtain an explanation of these liquidated damage provisions prior to entedng this Agreement.
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City Initi~Q..."6
18 5.0 SCHEDULE OF PERFORlvfANCE: TIME_l!OR OPERATION AND COMPLETION OF PROJECT.
Developer lmderstands that the Development and any further developments for the ultimate end use of the Site shall be considered Future Development Approvals, subject to separate discretionary and administrative approvals, as applicable, by the City, as desciibed in Sections 4.7 and Article l 0.0 of this Agreement, for which the City intends to secure a third party developer to undertake. The Project shall be operated and completed, and the times for performance of the requirements of this Agreement shall be accomplished, in accordance with the Schedule of Performance at Exhibit C, as may be extended in the manner described therein.
Subject to the terms of this Agreement, failure to adhere to the dates set forth in the Schedule of Perfo1mance shall be deemed a Default hereunder.
6.0 PROCESSING OF REOUESTS AND APPLICATIONS: OTHER GOVERNMENT PERMITS.
6.1 Standards.
In reviewing Mining Development Approvals after the Effective Date that are discretionary, the City may impose only those conditions, exactions, and restrictions which are allowed by the Development Plan and this Agreement, including, but not limited to, the Conditions of Approval. All other Future Development Approvals shall be subject to conditions, exactions, and restrictions consistent with the then existing land use regulations of City, whatever they may be.
6.2 Reclamation Plan.
The Reclamation Plan approved concurrently herewith shall be reviewable by the City every five (5) years. The City's review shall be undertaken in accordance with SMARA, the SMARA Regulations, and City's mining ordinance. Any action or inaction on the part of City concerning the review of the Reclamation Plan may be appealed to the State Board pursuant to SMARA. City may propose and approve changes to the Reclamation Plan that are consistent with SMARA, the SMARA Regulations, and City's mining ordinance and which reclaim the mined lands into readily usable altewative land uses consistent wi1h the Development Approvals and fue City's goal to have developable land. Any changes to the Reclamation Plan may be approved by the City by Resolution consistent with Section 9.4, without requiring an amendment to this Agreement, unless such change would create a specific inconsistency wifu the provisions of this Agreement. If required pursuant to SMARA, any reclamation plan amendment created pursuant to the CUP or this Agreement shall be submitted to the Director of the Department of Conservation for review, consistent with Public Resources Code Section 2774(c), as may be amended from time to time and shall be compliant with the requirements of SMARA. In no event may the City make changes to the Reclamation Plan, which will (i) have a significant adverse economic impact on Developer, (ii) interfere with Developer's ability to satisfy its obligations hereunder, or (iii) be inconsistent with the provisions of Section 10.1 (b ).
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Other Governmental Permits.
19 Developer shall apply in a timely manner for such other permits and approvals as may be required from other governmental or quasi-govenunental agencies having jurisdiction over the Project as may be required for the development o:i; or provision of services to, the Project in accordance with the phasing requirements set forth herein. The City shall cooperate with Developer in its efforts to obtain such permits and approvals.
6.4 Public Agency Coordination.
The City and Developer shall cooperate and use reasonable effo1ts in coordinating the implementation of the Development Plan with other public agencies, if any, having jurisdiction over the Site or the Project.
7.0 RECLAMATION LIMITATIONS AND OBLIGATIONS.
The parties contemplate that, unless the provisions of Section 7.3 below apply, beginning on the Conunencement Date, as defined in Section 7.2 below, Developer will fill the Development Parcel with Engineered Fill within the times set forth in the Schedule of Performance, snbject to the following:
7.1 Fill Requirements and Specifications.
Developer hereby acknowledges and represents, which representation is a material consideration in City's decision to enter in to this Agreement, that the fill performed by Developer at the Site will be suitable for development in accordance with the Applicable Building Codes fox residential, industrial or commercial development when the Development Parcel, and any additional t'eclamation that may be required, is completed. Nothing herein is intended or shall be construed as an assumption by Developer of any duty, responsibility, obligation, or liability for the acts, errors, omissions, or debts of any third party who is not the anthorized employee, contractor, agent, or invitee of Developer perfotming the scope of work set forth in this Agreement. Annually during the Term, Developer shall reimburse the City for the cost to prepare a Topographic Survey in a form and by a licensed surveyor approved by the City Engineer, which adequately and comprehensively describes the elevation of the fill materials placed by Developer at the Site.
All Site Development Fill used for the Site shall meet the requirements of this Section 7.1 and the Scope of Development and be completed within the times set fo1th in the Schedule of Performance, except as may be delayed by geotechnical conditions of the fill or other causes beyond the reasonable control of the Developer. The determination of fill being above water or underwater for the purpose of distinguishing the type of allowable Si:te Development Fill to be placed at any given location of the Development Parcel shall be based on the location of the groundwater table at the time of fill placement, in accordance with the Guidelines. All Site Development Fill placed into the natural groundwater (Underwater Fill) at any level that exists at the time of fill placement, or such higher level required under the Guidelines, shall comply with all provisions of the Guidelines for Underwater Fill. All Site Development Fill placed above the natural groundwater (Above Water Fill) at any level that it may exist at the time of fill placement, or such lower level required 1111der the Guidelines, shaJl comply with the provisions of the Guidelines for Above Water Fill and Appendix J of the City's Building Code. Further, J...A.1.1338609"12
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reclamation for the Site shall be in accordance with tl1e Reclamation Plan and the provisions of the Guidelines and Appendix J of the City's Building Code, as further set forth in the Scope of Development at Exhibit B.
7.2 Consultant Engineer; Site Certification.
At Developer's sole cost, which cost to Developer shall not exceed twelve thousand dollars ($12,000) per month for the first five (5) years of reclamation operations (expected to commence 5 years from the Effective Date of this Agreement), which noHo"exceed amount shall increase to fifteen fuousand dollars ($15,000) upon completion of the fifth (51h) year of reclamation operations, City shall retain a licensed geotechnical engineer ("Consultant Engineer") to advise the City on the status of the Project. Throi.1ghout reclamation, Developer shall reimburse City for the Consultant Engineer's cost within fifteen (15) days of receipt of each copy of Consultant Engineer's invoice. The Consultant Engineer shall regulal'ly inspect the Site, based on a schedule approved by the City Engineer. Developer shall cooperate and provide the Consultant Engineer with copies of all materials relevant to the remediation and filling operations at the Site. Developer acknowledges that the Consultant Engineer shall have full and complete access to the Site at all times for the purpose of verifying that fue Project is being performed in accordance wifu fue requirements of this Agreement. Consultant Engineer shall continually inspect the Site, impmt materials and Developer's performance of the Project and provide the City with daily, weekly, monthly, quarterly and annual testing repo1is that can be used as a basis to certify the entire fill in accordance with Applicable Bnilding Codes. These reporting procedures and certifications, shall all bear Consultant Engineer's signature and official seal, and certify fuat the remediation, filling and compaction at fue Site is being performed in accordance witl1 this Agreement, including but not limited to, the requirements of the Guidelines and Applicable Building Codes. Such logs and certifications shall be i11 a form approved by the City Engineer. City and its Consultant Engineer shall only take actions consistent with the purposes of this Agreement, or their responsibilities under law, and shall not otherwise interfere with Developer's remedial work pursuant to this Agreement. Such work will be Developer's sole responsibility, and the City and its Consultant Engineer shall have no right to dfrect or supervise such work. Consi.1ltant Engineer however, shall be the City's field representative and shall advise Developer in writing of any concerns that Consultant Engineer has with Developer's perfotmance under the terms of this Agreement. Consultant Engineer shall keep City informed as to Developer's performance. Any concerns of Consultant Engineer wifu Developer's performance shall first be brought to Developer. Consultant Engineer may confer with the City during the performance of the remedial work Where Consultant Engineer has substantial concerns over Developer's performance, Consultant Engineer shall give Developer the opportunity to co1rnct s11ch deficiencies by giving written notice of the deficiencies to Developer.
If Developer dos not commence cmyection of such deficiencies within two (2) working days of receipt of such notice, then Consulting Engineer, City and Developer shall meet to discuss the deficiencies, wifu forty-eight (48) hams written notice given to all parties of the time and place of the meeting and the deficiencies. Consultant Engineer shall prepare a final report, which includes a certification that the fill materials have been observed, tested, and placed in accordance with the approved plans and specifications under this Agreement.
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Commencement Date/Prioritization of Fill.
21 Developer shall not commence Commercial Filling Operations at the Site ltntil such time as fill operations at (i) Pit-I, formerly owned by Developer, now owned by Irwindale Partners, LLC as of the date of this Agreement, bearing APN 8532-001-002 and located at 1270 East Arrow Highway, Irwindale ("Pit-1 "), (ii) a 40 acre portion along the 605 Freeway of the Hanson mining operation, bearing APN 8532-004-024, (iii) Developer's Pit-2, bearing APN 8533-002- 001, APN 8534-017-004, APN 8534-017-005, APN 8534-017-006, and APN 8534-017-007 and located northwest of the intersection of Arrow Highway and Avenida Barbosa; and the Durbin quarry, bearing APN 8546-002-082; 085; and 089, and Reliance I quarry, 16001 Foothill Boulevard, bearing APN 8605-016-006; 007; 008; 009; 011; 017; 018; 900; 901; 902; 407; and 422, owned by Vulcan Materials (collectively "Priority Quarries") are concluded or until such time as the City, in its discretion, authorizes in writing commencement of Commercial Filling Operations ("Commencement Date"). The City has not yet determined the priority of quarries following Pit l above. The parties expressly acknowledge that the City is attempting to prioritize filling of mining pits and, as such, the Commencement Date of any Commel'cial Filling Operations at the Site shall be deferred until the Priority Quarries have been reclaimed; subject to the provisions of Section 3 .2 above relating to force majeure. Developer shall obtain all l'equired permits for the reclamation back.fill of the Site, using Developer's own fill sources so that the fiJling operations are not operated as Conunercial Fill Operations, and shall immediately commence backfilling the same as prnvided in the Scope of Development, at Exhibit B and further set forth in the Reclamation Plan adopted concurrent herewith.
7.4 Free-Market Filling Operation.
Should the City and the owners of the Priority Quanies, or their successors or assigns, amend the requirements establishing the Priority Quarries under entitlements granted to United, Hanson, and Vulcan so th.at any quarry operator in the City may compete in the marketplace for fill materials, the provisions of this Section 7.2 shall not apply with respect to the prioritization of any quarry in the City.
8.0 FEES. TAXES AND ASSESSMENTS.
8.1 General.
During the term of this Agreement, the City shall not, without the prior written consent of Developer, impose any additional fees, taxes or assessments on all or any portion of the Project or the Site, except such rees, taxes and assessments as are described in or required by this Development Agreement and/or the Development Plan pursuant to development of the site for the ultimate end uses. This Development Agreement shall not prohibit the application of fees, taxes or assessments as follows:
(a) Developer shall be obligated to pay those fees, taxes or City assessments which exist as of the Effective Date or are included in the Development Plan, as stated above, or Concurrent Mining Approvals appl'oved concurrently herewith and any increases in same, as provided herein;
(b) Developer shall be obligated to pay any fees or taxes, and increases thereof, imposed on a City-wide basis for activities such as business license fees or taxes, LA ll33&G09v12
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sales or use taxes, utility taxes, and mining taxes, irrespective and in addition to, any royalties or license fees it pays to Ci1y under the License; ( c) Developer shall be obligated to pay all fees applicable to a pe1mit application as charged by Ci1y at the time such application is filed by Developer; (d) Developer shall be obligated to pay any future fees or assessments imposed on an area-wide basis, (such as landscape and ligl1ting assessments and community services assessments) provided that the fees and assessments levied against the Site do not constitute more than fifty percent (50%) of the total fees or assessment levied within the applicable area, unless otherwise consented to in writing by Developer.
Developer reserves its right to protest the establishment or amount of any sucl1 fees 01· assessments through the method prescribed by law;
( e) Developer shall be obligated to pay any fees imposed pursuant to any assessment district established within the Project otherwise proposed or consented to by Developer;
(f) Developer shall be obligated to pay any future fees or assessments imposed as a condition of a Development Approval, even if such Development Approval or Future Development Approval is processed and approved after the Effective Date; (g) Developer shall be obligated to pay any fees imposed pursuant to any Unifo1m Code; and
(h) Developer shall be obligated to pay any fees, assessments, or taxes imposed by an area-wide or multi-jurisdictional entity of which City is a member, including but not limited to a sewer sanitation district, transportation district, water replenishment district, or similar entities.
(i) Developer shall pay any waste discharge permit fee requirements of the Regional Watet Quali1y Control Board, or County of Los Angeles, as may be applicable, or any other waste discharge-related fees (collectively "Discharge Fee") insofar as "Solid Waste Materials," as that tenn is defined (copied below) in the Los Angeles County Code, section 20.88.020 H, may be imported at fue Site. Solid Waste Materials are defined in Los Angeles Coun1y Code, section 20.88.020 H as: "'Solid Waste' means all putrescible and nonputrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, paper, rnbbish, ashes, industrial wastes, demolition and construction wastes, abandoned vehicles and parts thereof, discarded home and indnstrial appliances, dewatered, treated, or chemically fixed sewage sludge which is not hazardons waste, mannre, vegetable or animal solid and semisolid wastes, and other discarded solid and semisolid wastes." Developer shall have the right to reasonably contest the application of county taxes and fees to its operations on the Site.
8.2 Mining Tax.
With respect to the City's mining and processing tax pursuant to Irwindale Municipal Code § 3 .18. 030 and the existing special mining tax pursuant to Irwindale Mnnicipal Code § LA l133SG09\112
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3.18.040, and in exchange for the benefits provided herein, Developer shall not contest the existing mining taxes imposed by the City or the use of the special mining tax pennitted under such ordinauce. Developer also shall not contest the adjustment to the mining and processing tax or the special mining tax presently provided for in Irwindale Municipal Code § 3.18.030 and
3.18.040, respectively, as the same may be subsequently amended. If the City imposes a new tax, nothing in this Agreement shall prejudice Developer from challenging the new tax.
Notwithstanding the foregoing, Developer shall only be obligated to pay mining and processing taxes, including any tax increases, to the extent all other mining operators are required to pay them and shall receive the benefit of auy mining la.""< reduction given to any other operator, unless such reduction is due to special circumstances applicable solely and exclusively to such other operator.
8.3 Tipping Fees.
No tipping (or filling) fue is intended to apply for the filling of the Development Parcel (which shall include the slope included in the definition of such term), as described in this Agreement. Any filling activities in excess of the Development Parcel as well as a tipping fee shall be negotiated between the parties prior to completion of Phase 2 of mining. Jn calculating the applicable tipping fee, Developer will share its knowledge and costs for filling the Site including market pricing for disposing suitable materials, processing costs, truck haul, filling, compacting permits, administration fees, etc. The tipping fee will be calculated so that the pmi:ies share equally in the profits by subtracting all costs associated with the filling of the Site from the market tipping fee. If the parties cannot come to acceptable terms and conditions, the City reserves the right to negotiate tbe filling of the Site, other than the Development Parcel with a third party; provided the Developer shall reserve a 90 day right to make a matching or better offer on any potential agreement with a third party.
8.4 Accord and Satisfuction.
No payment by either party or receipt by either paii:y of a lesser amount than legally required by such party shall be deemed to be other than a partial payment of the full amount due, nor shall any endorsement or statement on a check or any Jetter accompanying a check or payment be deemed an accord and satisfaction, and either may accept such check or payment without prejudice to such party's right to recover the balance due or pursue auy other remedy herein provided.
8.5 Payment Made by City on Behalf of Developer.
In the event that:
(a) Developer fails to pay any amount due hereunder, whether any fee, cost, or expense, or
(b) City inclli's any other expense to remedy the Default of Developer, Developer having been given the opportunity to cure pw·sum1t to Section 12.4, and (c) City incurs the expense thereof on behalf of Developer, then Developer shall reimburse the City for all such costs and expenses. If the City is not reimbursed for LA 1133&609vI2
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such costs by Developer within fifteen (15) days after giving written notice thereof, the same shall be deemed delinquent, and the amount thereof shall bear interest as stated in Section 12.6 until paid.
9.0 AMENDME!Vl' OF DEVELOPMENT AGREEMENT.
9.1 Initiation of Amendment.
Either Pruty may propose an amendment to this Agreement The City aclmowledges that this Agreement was entered into by the Parties based on an estimate of the average amount of materials to be excavated from the Site. However, should Developer determine in its sole discretion, and be able to document such determination to the City, that commercial production warrants an increase in the avemge rumual excavation rate designated for the Project, Developer shall have the right to apply for an amendment to such average production rate and the City agrees to amend 1J1is Agreement to accomplish such revised average rate, subject to compliance with CEQA and implementation of any required mitigation measures.
City and Developer shall share equally in the cost of the EIR Consultant in processing such amendment, provided that City's contribution toward such costs shall not exceed fifty thousand dollars ($50,000), and Developer shall be required to pay the entirety of any costs in excess of such amount. Notwithstanding fue foregoing, and recognizing that the City is the owner of the Site and will accordingly benefit from the increased aggregate production and resulting property value, as it relates to the entitlements approved under this Agreement, City will pay fifty percent (50%) percent of the cost of any required mitigation measutes in excess of those presently required, as may be required by an amendment contemplated under this Section
9.1. In the event that such an amendment cannot be made to fue average annual excavation rate, notwithstanding the best effmts of the pruties within a year of the Developer's determination (or if earlier prior to the second payment of two million five hundred thousand dollars ($2,500,000) of advanced royalties due under the License), the Pruties agree to meet and confer to determine an approptiate adjustment to such amounts to account for the failure of 1J1e amendment process. The adjus1ment will take into account, among all of the factors, the economic viability of the permitted entitlement togetl1er with the costs of operation of the Developer at the Site and elsewhere. If fue parties cam10t agree on ru1 appropriate adjustment, then Developer shall have tl1e option to turn over the Project to City and shall receive a credit equal to 25 million tons of aggregate materials (provided developer has paid the aforementioned two million five hundted tl10usand dollru'S to lhe City) to be talcen from fue Site and tbe City may re-sell the Project to another operator.
9.2 Proccdme.
Except as set forth in Section 9.4 below, tile procedure for proposing and adopting an amendment to this Agreement shall be the same as the procedure required for entering into fuis Agreement in the first instance.
9.3 LA 1I338609vl2 01005.0020/173395.15
Consent.
25 Except as expressly provided in this Agreement, no amendment to all or any provision of this Agreement shall be effective \lllless set forth in writing, signed by duly authorized representatives of each of the parties hereto and recorded in the Official Records of Los Angeles County.
9.4 Minor Modifications.
(a) Jmplementation of the Project may require minor modifications of the details of the Development Plan and perfonnance of the Patties \lllder this Agreement.
The parties desire to retain a certain degree of flexibility with respect to those items covered in general terms under this Agreement. Therefore, modifications of the Development Plan agreed to by both Developer and City, which are found by the City Manager to be non-substantive and procedural consistent with the terms of this Section 9 .4 shall not require modification of this Agreement, but, instead, may be approved administratively by the City Manager in writing.
(b) A modification will be presumed non-substantive and/or procedmal if it does not result in more than a ten percent (10%) change in fees, cost, density, volumes, time, intensity of use, permitted uses, the m•rn:imum height and size of b11ildings, the reservation or dedication of land for public pmposes, or the improvement and specifications for the Project.
(c) Any modification that the City Mmrnger believes is more than minor, but does not materially change the Development Plan, may be approved by the City Council by Resolution at a public hearing. Material changes to the Development Plan or other terms of this Agreement shall require mnendment of this Agreement. (d) The City will process any material change to this Agreement consistent with State law. The Parties expressly agree nothing herein is intended to deprive any Party or person of due p1'0cess of law.
9.5 Effect of Amendment to Development Agreement.
The Parties agree that except as expressly set forth in any such amendment, an amendment to this Agreement will not alter, affect, impair, modify, waive, or otherwise impact any other rights, duties, or obligations ofeither Party under this Agreement.
10.0 RESERVATIONS OF AUTHORITY.
10.l Limitations. Reservations and Exceptions.
The application of Mining Land Use Regulations to the Project is governed by Sections
4.2, 6.1 and this Article. In addition to the Mining Land Use Regulations, only the following regulations adopted by City hereafter and intended to be applicable to the Site, shall apply to and govern the development of the Site ("Reservation of Authority"):
(a) Future Milting Land Use Regulations. All Future Mining Land Use Regulations shall appl:y if they (i) are reasonably teclmically supported, (ii) are within the LA I133ll609vl2
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City's police power a11d are required to pTOtect public health and safety, and (iii) are equally applicable to all milling companies operating in the City. (b) Adoption of Land Use Regulati{)ns. All zoning ordinances, General Plan amendments and other City policy or regulations or area-wide or multi-jurisdictional codes and which are based on recommendations of a county or multi-jurisdictional organization and become widely applicable, such as the San Gabriel Valley Council of Governments (collectively, "Land Use Regulations") related to the allowable end uses of Site are within the City's police power and may be implemented by the City in its discretion to protect public health and safety and appropriately plan for the future end uses of the Site, or portions thereof; provided such Land Use Regulations do not materially impact the applicable mining or i-eclamation standards required to be met by Developer under this Agreement.
(c) State and Federal Laws and Regulations. Where state or federal laws or regulations enacted after the Effective Date prevent or preclude compliance with one or more provisions of the Agreement, 01· require actions not contemplated by tbis Agreement, those provisions shall be modified, through revision or suspension, to the extent necessary to comply with such state or federal laws or regulations. (d) Public Health and Safe!YfYnifonn Codes.
(1) Adoption Automatic Regarding Uniform Codes. This Agreement shall not prevent the City from adopting Future Mining Land Use Regulations which are Uniform Codes and are based on recommendations of a multi-state professional organization and become applicable throughout the City, such as, but not limited to, the Unifonn Building, Electrical, Pll11nbing, Mechanical, or Fire Codes, or Slope regulations or standards.
(2) Adoption Regarding Public Health and Safeiy/Uniform Codes.
This Agreement shall not prevent the City from adopting Future Mining Land Use Regulations respectmg public health and safety to be applicable throughout the City which result from findmgs by the City that failure to adopt such Future Mining Land Use Regulations would result in a condition injurious or detrimental to the public health and safety and that such Future Mining Land Use Regulations are the most effective means to c01rect or avoid such mjurious or detrimental condition.
(3) Adoption Regarding Environmental Compliance. This Agreement shall not prevent the City from adopting Future Mining Land Use Regulations where the regulation is the most practical means to mitigate a significant adverse environmental condition or hazard and where the cost of implementing the regulation is reasonable relative to public benefit derived and does not constitute an economic hardship substantially affecting Developer's operations nor Developer's ability to perform its obligations hereunder; provided notbing herein shall limit the City's right to in1plement Future Mmmg Land Use Regulations, which are equally applicable to other mining operators in the City.
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( e) Ability to Adopt Fees, Taxes and Assessments pursuant to Section 8. This Agreement shall not prevent the City from adopting fees, taxes and assessments per Section 8. 0.
10.2 Objections to Regulation.
In evaluating the reservation of autho1~ty to the City and applying the standards described above, in the event Developer believes that such Future Mining Land Use Regulation d.oes n-0t satisfy such standards, Developer shall give written notice of its objeotfons and the grnunds therefor to City, City shall duly consider Developer's objections during a noticed public hearing and provide a written response within 30 days after the conclusion of the noticed public hearing.
If City finds the objections well founded, City shall suspend the app Ii cation of the Regulation to the Site. City shall have the obligation to make such findings only if Developer's position is supported by a preponderance of the evidence.
10.3 Regulation by Other Public Agencies.
It is acknowledged by the Parties that other public agencies not within the control of the City possess authority to regulate aspects of the development of the Site separately from or jointly with the City and this Agreement does not limit the authority of such other public agencies.
11.0 ANNUALREVIEW
11. l Annual Monitoring Review.
(a) In accordance with Government Code section § 65865.1, City and Developer shall review the perfo1mance of this Agreement, and performance of the Project, at least once during each twelve (12) month period from the Effective Daie and concurrently with the review of the peiformance guarantee, as described in Section 12.1.
The cost of the annual monitoring review shall be bome by Developer, but in no event shall such reimbmsable costs exceed Five Thousand Dollars ($5,000) per year, escalating by 15% every five years. As part of such annual monitoring review, within thirty (30) days after each anniversary of the Effective Date of this Agreement, Developer shall deliver to City the amount of the alll1ual fee, as determined by the City's Director of Finance, as well as all information reasonably requested by City (i) regarding Developer's perfomiance under this Agreement demonstrating that Developer has complied in good faith with terms in this Agreement and (ii) as required by the Existing Land Use Regulations. If the City determines that Developer has substantially complied with the ienns and conditions of this Agreement, the review shall be concluded. If the City finds and determines that Developer has not substantially complied with the terms and conditions of this Agreement for the period under review, the City may declare a Default by Developer in accordance with Section 12.0. Such review shall be in addition to any mining lead agency monitoring and testing to be condncted by the City pursuant to the requirements of the Irwindale Mllllicipal Code and SMARA. Developer shall fully cooperate with the Director and his staff and consultants conducting the reviews. The Pl1blic Works Director's review will consider, at minimum, the following:
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(1) Any bona fide complaints received by the City about the approved operations, activities and events;
(2) Any negative impacts to the City, as identified by City staff, which have not been resolved with Developer. Negative impacts may also include impacts upon municipal revenue(s); and
(3) Violations of any of the performance standards.
(b) .Following the review, the Public Works Director will notify Developer in writing of any outstanding violations or other issues ("Issues List") related to Developer's compliance with the conditions of the Agreement. Thereafter, within a specified time, Developer will meet with City staff to discnss and develop a plan and schedule of correction ("Con·ection Plan") concerning the issues outlined in the Issues List, which Correction Plan shall be subject to the approval of the Public Works Director. Should there be no resolution of the issues in the Public Works Director's discretion, as outlined in the Correction Plan approved by the Public Works Director or if Developer fails to participate in the development of the Correction Plan, the Public Works Director may set the matter for a duly noticed public hearing before the City Council to consider the Issues List. At such hearing, the City C0tmcil may pursue termination proceedings under the Development Agreement or any other remedy available to it 1hereunder. Failure of the City to perform the statutory annual peiiodic review shall not affect the enforceability of this Agreement.
11.2 Estoppel CompEance.
If at the conclusion of an annual monitoring review the City finds that Developer is in substantial compliance with this Agreement, the City shall, upon request by Developer, issue an Estoppel Certificate pursuant to Section 15.2.
11.3 Failure to Conduct Annual Review.
The failure of the City to conduct an annual monitoring review shall not be a Developer Default, provided Developer initiates annual monitoring review in iu:cordance with Section 11.1.
12.0 PEFAULT, REMEDIES, TERMINATION AND FINANCIAL ASSURANCES.
12.1 Security for Perfonnance.
No later than the date set faith in Section 12.2 below, Dev.eloper shall provide a perfo1mance guarantee in the amount of Three Hundred Ten Thousand Dollars ($310,000) representing the estimate of the security requh'ed to assure Developer's faithful pe1formance of all obligations hereunder. The performance guarantee shall be in the form of surety bonds, irrevocable letter of credif, trust funds or cash deposit with the City, as approved by the City .Finance Director, and shall apply to all obligations hereunder, regardless of whether additional security for the pe1formance of any obligation as to any or all portions of the Site is provided elsewhere in this Agteement The performance guarantee shall be issued in favor of the City in case of breach of any obligation by Developer hereunder (following the notice and cure LA Il333609v12
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provisions of Section 12.4 herein) to guarantee compensation for any costs and damages incurred by the City in performing Developer's obligations hereunder.
12.2 Financial Assurance Bonds.
Before Developer commences the mining operations authorized by this Agreement, the performa11ce guarantee shall be provided. in the amount described in Section 12.1. As mvner of the Site, the City qualifies as a public agency for purposes of complying with Sections 3803, 3 806 and 3806.J of the regulations promulgated by the State Mining and Geology Board ("SMGB") and Irwindale Municipal Code section 17.63.100, allowing greater flexibility to public agencies in providing financial assurance mechanisms for reclamation than to private entities. Additionally, by entering into this Agreement, Developer agrees to provide Inert Fill, processed at Developer's Pit 2 in the City oflrwindale, for reclamation at no cost to the City Pursuant to the aforementioned provisions of the SMGB Regulations and Irwindale Municipal Code, the City is supplementing this fill commitment by Developer by setting aside revenues derived from the Project in the amount of Two Hundred Forty Thousand and 00/l 00 Dollars ($240,000.00) annually for ten (10) years for a total pledge of revenues of Two Million Four Hundred Thousand and 00/100 Dollars ($2,400,000.00). Such amount represents the City's pledge of revenues under SMGB section 3S06.1 ("Pledge of Revenues") to secure the fill and reclamation co=itment by Developer. At all times, City retains exclusive control and discretion as to the use of such Pledge of Revenues. All interest and principal of such funds shall at all times remain the City's sole property and shall be revert to the City's unrestricted use following termination of reclamation, as described in this Agreement. As such, fill revenues from filling activWes at the Site with Inert Fill that accrue in conducting the operations of the Site shall be counted toward the financial assurance obligations for the Site.
12.3 Rights ofNon-Defaulting Party after Default.
The Parties aclmowledge that both Parties shall have hereunder all legal and equitable remedies as provided by law following the occurrence of a Default (as defined in Section 12.4 below) or to enforce any covenant or agreement herein. Before this Agreement may be terminated or action may be taken to obtain judicial relief the Party seeking relief ("Nondefaulting Party") shall comply with the notice and cure provisions of Section 12.4.
12.4 Notice and Opportunitvto Cure.
A Nondefaulting Pruty may elect to declare a default under this Agreement in accordance with the procedures hereinafter set forth for any failure or breach of the other party ("Defaulting Party") to perform any material duty or obligation of said Defaulting Party under the terms of this Agreement or License ("Defuult"). However, the Non-Defaulting Party must provide written notice to the Defaulting Party setting forth the nature of the Default and the actions, if any, required by Defaulting Paity to cure such Default. The Defaulting Party shall be deemed in default under this Agteement if the Defaulting Party has failed to cure such Default within thirty (30) days after the date of such notice or ten (!O) days for monetary Defaults (or such lesser time as may be specifically provided in this Agreement). However, if such non-monetary Default cannot be cured within such thirty (3 0) day period, and as long as the Defaulting Party does each of the following:
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(a) Notifies the Non-Defaulting Party in writing with a reasonable explanation as to the reasons the asserted Default is not curable within the thirty (30) day period; (b) Notifies the Non-Defaulting Party of the Defaulting Party's proposed cause of action to cure the Default, specifying dates by which specific actions will be taken;
(c) Promptly commences to cure the Default within the thirty (30) day period; (d) Makes reports in accordance with the time schedule prnvided to the NonDefaulting Party as to the progress of the program of cure, showing how the proposed dates have been met and establishing any additional needed dates; and (e) Diligently prosecutes such cure to completion, then the Defaulting Paity shall not be deemed in breach of this Agreement. Notwithstanding the foregoing, the Defaulting Party shall be deemed in default under this Agreement if said breach or failure involves the payment of money but the Defaulting Party has failed to completely cure said monetary Default within ten (10) days (or such lesser time as may be specifically provided in this Agreement) after the date of such notice.
12.5 Remedies Cumulative.
Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Developer specifically acknowledges and agrees that the City's remedies under the performance bond described at Section J 2.1 are cumulative to other remedies available to City hereunder.
12.6 Interest.
In the event Developer fails to perform any monetary obligation under this Agreement, Developer shall pay interest thereon at the lesser of: (i) ten percent (10%) per annum, or (ii) the maximum rate pennitted by law, from and after the due date of said monetary obligation until payment is actually l'eceived by City.
12.7 Rights and Duties Following Termination.
Upon the tennination of this Agreement, no Party shall have any further right or obligation hereunder except (i) with respect to any obligations to have been performed prior to said termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to said teimination, mid (ii) with respect to the indemnity obligations set forth herein.
13.0 RESTRICTfONS ON TRANSFER
13.l .General.
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Nei1her Party shall assign or transfer its interests, rights or obligations under this Agreement without 1he prior wriiten consent of 1he other, which consent shall not be unreasonably withheld or delayed.
The tenn "assignmenf' as used in this Agrnement shall include successors-in-interest to the City that may be created by operation of law. Notwithstanding 1he foregoing, the City shall have the right to sell, assign or transfer its interest in any real property dedicated or transfetTed to the City pursuant to the tenns of this Agreement or to another public agency.
Developer shall not transfer this Agreement or any of Developer's rights hereunder, or any interest in the Site per the License or in the improvements thereon, directly or indirectly, voluntarily or by operation of law, except as provided below, without the prior wrrrten approval of the City, and if so purported to be transferred, the same shall be null and void. In considering whether it will grant approval to any transfer by Developer, which transfer requires the City's approval, !he City shall consider factors such as (i) whetl1er the completion of the Project is delayed or jeopardized; (ii) the financial strength and capability of the proposed transferee to perform the City's obligations hereunder; and (iii) the proposed transferee's experience and expertise in the plam1ing, financing, development, O'Wnership, and operation of similar projects.
In addition, no attempted assignment of any of Developer's obligations herennder shall be effective unless and until the successor 1iarty executes and delivers to the City an asswnption agreement in a form approved by the City assuming such obligations. No consent or approval by the City of any transfer requiring the City's approval shall constitute a further waiver of the provision of this Section 13. l and, forthennore, the City's consent to a transfer shall not be deemed to release Developer of liability for performance under this Agreement unless such release is specific and in writing executed by the City.
The foregoing prohibition shall not apply to any of the following:
(a) A sale or transfer resulting from or in connection with a reorganization as contemplated by the provisions of the Internal Revenue Code of 1986, as amended or o!herwise, in which the ownership interests of a corporation are assigned directly or by operation of law to a person or persons, :fmn or corporation which acquires the control of tlie voting capital stock of such corporation or all or substantially all of the assets of such corporation.
(b) A sale or transfer of Developer to any entity controlling, controlled by or under common control with United Rock Products C01poration. (c) A sale or trMsfer of Developer to Mother company reasonably acceptable to the City, so long as the purchaser entity executes an assumption agreement assuming all of Developer's duties and obligations hereunder.
13.2 Subject to Terms of Agreement.
Following any such assignment or transfer of any of the rights and interests of Developer under this Agreement, in accordance with Section 13 .1 above, 1he exercise, use and enjoyment LA 113386-09\<12
01005.0020/173395.15 32
shall continue to be subject to the terms of this Agreement to the same extent as iftl1e assignee or transferee were Developer.
13.3 Release ofDeveloper.
Upon the written consent of the City to 1he complete assignment of this Agreement and the express written assumption of the assigned obligations of Developer under this Agreement by the assignee, Developer shall be relieved of its legal duty to perform the assigned obligations under this Agreement, except to the extent Developer is in default under the terms of this Agreement prior to said transfer.
14.0 INSURANCE, INDEMNIFICA110N, WAIVERS.
14.1 Insurance.
(a) Types oflnsurance.
(1) Public Liabilitv Insurance. Begi1111i11g 011 the Effective Date hereof and until completion of construction by Developer on the Site, Developer shall at lts sole cost and expense keep or cause to be kept in force for the mutual benefit of the City and Developer comprehensive broad form general public liability insurance against claims and liability for personal injury or death arising from the use, occupancy, disuse or condition of the Site, improvements or adjoining areas or ways, affected by such use of the Site or for property damage, providing protection of at least Two Million Dollars ($2,000,000.00) for bodily injury or death to any one person, at least Five Million Dollars ($5,000,000.00) for any one accident or occlllTence, and at least One Million Dollars ($1,000,000.00) for property damage, which limits shall be subject to such increases in amount as the City may reasonably require from time to time.
(2) Builder's Risk Insurance. Before commencement of any construction, Developer shall procure and shall maintain in force until completion and acceptance of the work, "all risks" builder's risk insurance including vandalism and. malicious mischief, coveril1g improvements ill place and all material and equipment at 1110 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 limits in accordance with subsection (1) above.
(3) Worker's Compensation. Developer shall also furnish or cause to be furnished to the City evidence reasonably satisfactory to it that any contractor with whom Developer has contracted for the performance of any work for which Developer is responsible hereunder carries workers' compensation insurance as required by law.
L'\ 11338609v12 01005,0020/173395.15
( 4) Other Insurance. Developer may procure and maintain any insurance not required by this Agreement, but all such insmance shall be subject 33 to all of the provisions hereof pe1taining to insurance and shall be for the benefit of the City and Developer.
(5) Insurance Policy Form, Content and Insurer. All insurance required by express provisions hereof shall be carried only by responsible insurance companies licensed 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 Vlll or better, unless such requirements are waived by the Risk Manager of the City ("Risk Manager") due to unique circumstances. In the event the Risk Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, Developer agrees that the minimum limits of the insurance policies and the performance bond required by this Section may be changed accordingly upon receipt of written notice from the Risk Manager; prnvided that Developer shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within ten (10) days of receipt of notice from the Risk Manager. All such policies shall be non-assessable and shall contain language, to the extent o btaiuable, to the effect that (i) any loss shall be payable notwithstanding any act of negligence of the City or Developer that might otherwise result in the forfeitlll'e of the insurance, (ii) the insUl'er waives the right of subrogation against the City and against the City's agents and representatives, except as provided in this Section 14.1; (iii) the policies are primary and noncontdbuting 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 insmer to the City or the City's designated representative. Developer shall fumish the City with copies of all such policies promptly on receipt of them, or with certificates evidencing the insurance. The City shall be named as an additional insured on all policies of insurance required to be procured by the terms of this Agreement. (b) Failme to Maintain Insurance and Prnof of Compliance.
Developer shall deliver to the City, in the mrumer required for notices, copies of certificates of all insurance policies required hereunder together with evidence satisfactory to the City of payment required for procurement and maintenance of each policy within the following time limits:
(1) For insurance required above, within thirty (30) days after the Effective Date.
(2) For any renewal or replacement of a policy already in existence, at least ten (10) days before expiration or termination of the existing policy.
If Developer fails or refuses to procure or maintain insurance as required hereby or fails or rnfuses to furnish the Ci1y with required proof that the insurance has been procured and is in force and paid for, such failure or referral shall be a default hereunder.
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14.2 Indemnification.
(a) General.
Developer shall defend, indemnify and hold hannless the City, its agents, officers, consultants and employees from any claim, action or proceeding against the City or its agents, officers, consultants or employees to attack, set aside, void or annul any approval of the City, its legislative body, Planuing Commission, or other advisory agencies, or administrative officers concerning this Agreement, Reclamation Plan, and related approvals, or for any dan1age to persons or properly, losses, costs, penalties, obligations, or liabilities arising out of or in C0111lection with Developer's acts or omission on the Site, whether or not such act or omission resulted or was undertaken pursuant to this Agreement, the Reclaniation Plan, and related approvals. The City will promptly notify Developer of any such claim, action or proceeding against the City and Developer will either undeitake defense of the matter and pay the City's associated legal costs or will advance funds to pay for the defense of the matter by the City Attorney. The City may retain other counsel, but only with the consent of Developer, and such consent shall not be unreasonably withheld. The City shall cooperate fully in the defense of any such action. If the City fails to notify Developer in a timely manner of any such claim, action or proceeding, so that the City's and/or Developer's rights are prejudiced, Developer shall not, tllereafter, be responsible to defend, indemnify or hold harmless the City.
Notwithstanding tlle foregoing, the City retains the right to settle or abandon the matter without Developer's consent as to the City's liabilities or rights only, so long as the City's actions do not affect Developer's material entitlements under the Agreement, and even witll tllose entitlements that are not material, the City will enter into good faith discussions with Developer prior to settling or abandoning tlle matter. Should the City settle or abandon tlle matter, the City shall waive the indemnification herein, except, the City's decision to settle or abandon the matter following atl adverse jttdgment or failure to appeal shall not cause a waiver of the indemnification rights herein. At ihe time of the execution of this Agreement, the City has no actual knowledge of any pending or threatened claim which would result in indemnification under this condition including without limitation at1y environmental condition affecting the Site. (b) Exceptions. The foregoing indet111lity shall not inclnde claims or liabilities arising from the sole or gross negligence or willful misconduct of the City, its officers, agents, or mnployees, who are directly responsible to the City.
In addition, the City shall indemnify and hold harmless the Developer and its agents, officers, consultants and employees from any claim, action or proceeding relating to environmental conditions existing on the Site as of tlle date that the Developer takes possession of the Site. The ierms of the indemnity shall work in favor oftlle Developer in ihe same procedure and metl1od as specified above in (a) relating to indemnification in favor of1:he City.
LA 11338609v 12 01005.0020/173395.15
(c) Additional Coverage.
35 Without limiting the generality of the foregoing, said indemnity shall include any liability arisfog by reason of:
(1) Any claim made by any occupant, subtenant, assignee, employee, agent, visitor, invitee, or user of any portion of the Site; (2) Any accident or other occurrence in or on the Site causing iajury to any person or property whatsoever;
(3) Any failure of Developer to comply with performance of all of the provisions of this Agreement;
(4) Developer's failure to prevent any employee or any invitee or any other person from entering upon or remaining in any place upon the Site which is not safe and does not comply with all laws pertaining thereto as they may now or hereafter exist; or
(5) Any harm, delays, injuries or other damages incurred by any party as a result of any subsurface conditions on the Site caused by the Developer, including but not limited to, the presence of buried debris, hazardous materials, hydrocarbons, or any form of soil contamilrntion.
(6) Any Environmental Claims, Environmental Cleanup Liability and Environmental Compliance Costs Concerning Hazardous Materials, demands, judgments, actions, damages, losses, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees and com1 costs) arising from or in com1ection with the petfomiance of any obligation, activity, work or things done, pennitted or suffered by Developer or its authorized parties, employees, invitees, contractors, agents and consultants under the terms of this Agreement or in or about the Site, except to the extent caused by City's negligence or misconduct, or Site conditions, including subsurface conditions, existing prior to the date of this Agreement. For purposes of this Section, the following terms shall have the following meanings:
a. "Envh'onmental Claim" means any claim for personal injury, death and/or property damage made, asserted or prosecuted by or on behalf of any third party, including, without limitation, any governmental entity, relating to the Site or its operations and arising or alleged to arise under any Envirom11ental Law. b. "Environmental Cleanup Liability" means any cost or expense incurred to contain, remove, remedy, clean up, or abate any contamination or any Hazardous Materials on or under all or any part of the Site, including, without limitation, (i) any direct costs or expenses required to comply with orders and directives from federal, state or local government agencies, including costs for investigation, study, assessment, legal representation, cost recovery by governmental agencies, or ongoing monitoring in co1111ection therewith and (ii) any cost, expense, loss or damage incurred with respect to the Site or its operation as a result of actions or measures necessary to implement or effectuate any such containment, removal, remediation, treatment, cleanup or abatement.
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c. "Environmental Compliance Cost" means any cost or expense inc1irred to enable the Site to comply with all applicable Enviromnental Laws in effect. "Environmental Compliance Cost" shall include all costs necessary to demonstrate that the Site is capable of such compliance to the extent directed by governmental agencies.
d. "Envh'omnental Law" means any federal, state or local statute, ordinance, rule, regulation, order, consent decree, judgment or common-law doctrine, and provisions and conditions of permits, licenses and other operating authorizations relating to (i) pollution or protection of the environment, including natural resources, (ii) exposure of persons, including employees, to Hazardous Materials or other products, raw materials, chemicals or other substances, (iii) protection of the public health or welfare from the effects of by-products, wastes, emissions, discharges or releases of chemical substances from industrial or commercial activities, or (iv) regulation of the manufacture, use or introduction into commerce of chemical substances, including, without limitation, their manufacture, formulation, labeling, distribution, transportation, handling, storage and disposal.
e. "Hazardous Material" is defined to include any hazardous or toxic substance, material or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government.
The tenn ".Hazardous Material" includes, without limitation, any material or substance which is: (i) petroleum or oil or gas or any direct or derivate product or byproduct thereof; (ii) defined as a "hazardous waste," "extremely hazardous waste" or "restricted hazardous waste" under Sections 25115, 25117 01· 25122.7, or listed pursuant to Section 25140, of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (iii) defined as a "hazaidous substance" nuder Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley"Timner Hazardous Substance Account Act); (iv) defined as a "hazardous material,'' "hazardous substance," or "hazardous waste" under Sections 255010) and (k) and 25501.l of the California.
Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (v) defined as a "hazardous substance" under Section 25281 of the Califomia Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (vi) "used oil" as defined under Section 25250.1 of the California Health and Safety Code; (vii) asbestos; (viii) listed under Chapter 11 of Division 4.5 of Title 22 of the California Code of Regulations, or defmed as hazardous or extremely hazardous pursuant to Chapter 10 of Division 4.5 of Title 22 of the Califomia Code of Regulations; (ix) defined as waste or a hazardous substance pursuant to the Porter-Cologne Act, Section 13050 of the California Water Code; (x) designated as a "toxic pollutant" pmsuant to the Federal Water Pollution Control Act, 33 U.S.C. § 1317; (xi) defined as a "hazardous waste" pursuant to the Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903); (xii) defined as a "hazardous substance" pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601); l,A 11338609v12
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(xiii) defined as "Hazardous Material" pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq.; or (xiv) defined as such or regulated by any "Superfund" law, or any other federal, state or local law, statute, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning Hazardous Materials and/or underground storage tanks, as now, or at any time hereafter, in effect. ( d) Loss and Damage.
The City shall not be liable for any damage to property ofDevelojJer or of others located on the Site, nor for fue loss of or damage to any )Jroperty of Developer or of others by theft or otherwise. The City shall not be liable for any injury or danrnge to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the Site 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 iu the soil, subsurface or physical condition of the Site, or by any other cause of whatsoever nature.
( e) Period ofindemnification.
The obligations for indemnity under this Section 14.2 shall begin upon the Effective Date and shall tetminate upon termination of this Agreement, provided that indemnification shall apply to all claitns or liabilities arising during that 1ieriod even if asserted at any time thereafter.
14.3 Waiver of Subrogation.
Developer agrees that it shall not make any claim against, or seek to recover from City or its agents, servants, or employees, for any loss or damage to Developer or to any person or property, except as specifically provided hereunder and Developer shall give notice to any insurance carrier of the foregoing waiver of subrogation, and obtain from such carrier, a waiver of right to recovery against City, its agents and employees.
15.0 EFFECT OF AGREEMENT ON TITLE.
15.1 Covenants Run with the Land.
Subject to the provisions of Section 13.0:
(a) All of the provisions, agreements, rights, ]lowers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees, administrators, representatives, lessees, and all other persons acquiring any rights or interests in the Site, or a11y portion thereof, whether by operation of laws or in any marmer whatsoever and shall inlll'e to the benefit offue Parties and their res]Jective heirs, successors (by merger, consolidation or otherwise) and assigns; LA 11J38609vl2 010::15.0020/l73395.15 38
(b) AI! of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with tbe land pursuant to applicable law; and (c)· Each covenant to do or refrain from doing some act on the Site hereunder (i) is for the benefit of and is a burden upon every portion of the Site; (ii) runs with such lands; and (iii) is bindiug upon each party and each successive owner during its ownership of such properties or any portion thereof, and each petson having any interest therein derived iu any manner through any owner of such lands, or any portion thereof, and each other person succeeding to an interest in such lands.
15.2 Estoppel Certificate.
Either Party may at any time deliver written notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate") stating:
(a) The Agreement is in full force and effect and is a binding obligation of the Parties; and
(b) The Agreement has not been amended or modified either orally or in writing or, jf so amended, identifying the amendments.
A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The City Manager may sign Estoppel Certificates on behalf of the City, in a form approved by the City Attomey. An Estoppel Certificate may be relied on by assignees and mo1tgagees. Notwithstanding the foregoing, the Party receiving the request may decline to provide an Estoppel Certificate if that Party has previously given the oilier Party actnal notice of a default or is aware of circumstances which may constitute a defuult If requested to do so by the requesting Party, the Party receiving the request may state in writing the reasons for declining the request.
16.0 GENERAL.
16.1 Non-liability of City Officers and Employees.
No official, agent, contractor, or employee of the City shall be personally liable to Developer, or any successor iu interest, in the event of any default or breach by the City or for any amount which may become due to Developer or to its successor, or for breach of any obligation of the terms of this Agreement.
16.2 Conflict oflnterest.
No officer or employee of the City shall have any fmancial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any state statute or regulation.
16.3 Covenant Against Discrirn.ination.
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01005.0020/173395.15 39
Developer covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. De-veloper shall take affirmative action to insure that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin or ancestry.
16.4 Construction of Agreement.
The language of this Agreement shall be construed as a whole and given its fair meaning.
The captions of the sections and subsections are for convenience only and shall not :influence construction. This Agreement shall be governed by the laws of the State of California. This Agreement shall not be deemed to constitute the surrender or abrogation of the City's governmental powers over the Site.
16.5 Severability.
If any covenant, term, condition, or provision of this Agreement shall, to any extent, be invalid or Ullenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law unless that covenant, tenn, condition, or provision declared to be invalid is so material that its invalidity deprives either party of the basic benefit of their bargain or renders the remainder of this Agreement meaningless.
16.6 Attorney's Fees.
If either Party to this Agreement is required to initiate or defend any action or proceeding, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attomey's fees on any appeal, mediation fees incurred per section 16.20, and in adclition a Party entitled to attorney's fees shall be entitled to all other reasonable costs for in-vestigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on the commencement of such action and shall be enforceable whether or not such action is prosecuted.
16. 7 Time of Essence.
Time is of the essence in:
(a) The performance of the provisions of this Agreement as to which time is an element; and
(b) The resolution of any dispute which may arise concerning the obligations of Developer and City as set forth in this Agreement.
16.8 Waiver.
LA ll'.!33609v12
Ol005.0020fl73395.15 40
Failure by a Party to insist upon the strict perfonnance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict complia11ce by the other Party with the tenns of this Agreement thereafter.
16.9 No Third Party Beneficiaries.
The only parties to this Agreement are Developer and the City. There are no third Party beneficiaries and this Agreement is not intended, and shall not be construed to benefit or be enforceable by any other person whatsoever.
16.10 Mutual Covenants.
The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or snbsequent performance by the Pruty benefited thereby of the covenants to be performed hereunder by such benefited Pruty.
16.11 Counterparts.
TI1is Agreement may be execnted by the parties in counterparts which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.
16.12 Authoritv to Execnte.
1he persons executing this Agreement on behalf of the parties hereto warrant that (i) such Party is duly organized and exisri11g; (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party; (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement; (iv) the entering into of this Agreement does not violate any provision of any other Agreement to which said Party is bound; and (v) there is no litigation or legal proceeding which would prevent the parties from entering into this Agreement.
16.13 Notices, Demands and Communications Between the Parties.
Notices, demands, submission of documents, and com1mmications between City and Developer shall be given either by personal service, delivery by courier, or by mailing in the United States mail, certified mail, postage prepaid, return receipt reqnested, addressed to the addresses provided below.
CITY:
A copy to:
LA ll338609v12 01DD5.00-20/l 73395.15
CITY OF IRWINDALE
5050 Northilwindale Avenue
Irwindale, CA 91706
Telecopier No. (626) 962-4209
Attn: City Manager
ALESHIRE & WYNDER, LLP
18881 Von Karman Avenue, #1700
Irvine, CA 92612
41 DEVELOPER:
A copy to:
Telecopier No. (949) 223-1180
Attn: Fred Galante, Esq.
United Rock Products Corp.
Attention: David Martinez
135 South State College Boulevard, Suite 400
Brea, Califomia 92821
Daniel J. Lafrance, Esq., Assistant General Counsel
Colas Inc.
163 Madison Avenue, Suite 500
Morristown, New Jersey 07960
and
JEFFER, MANGELS, BUTLER & MITCHELL LLP
1900 Avenue of the Stars, Seventh Floor
Los Angeles, CA 90067-501 O
Telecopier No. (310) 203-0567
Attn: William F. Capps, Esq.
Any such notice shall be deemed to have been given upon delivery if personally served or delivered by courier, or upon the expiration of three (3) business days after maiLing if given by certified mail, return receipt requested. Such written notices, demands and communications may be sent in the same manner to such other addresses as a party may from time to time designate by mail.
16.14 Further Actions and Instmments.
Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent necessary to implement this Agreement. Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement.
16. 15 Recitals.
The recitals in this Agreement constitute part of this Agreement and each Party shall be entitled to rely on the truth and accuracy of each recital as an inducement to enter into this Agreement.
16.16 Recording.
The City Clerk shall cause a copy of this Agreement, or a memorandum thereof, to be executed by the City and recorded in the Official Records of Los Angeles County no later than ten (I 0) days after the Effective Date. The recordation of this Agreement is deemed a ministerial LA 11338609vl2
01005.0020/173395.15 42
act and the failure of the City to record the Agreement as required by this Section and the Development Agreement Statute shall not make the Agreement void or ineffective.
16.17 Relationship of Parties.
It is specifically understood and agreed by and between the Parties that the Project is a private development, that neither Party is acting as the agent of ihe other in any respect hereunder, and ihat such Party is an independent contracting entity with respect to the terms, covenants, and conditions contained in this Agreement. The only relationship between the City and Developer is that of a govemment entity regulating the development of private property and the owner of such private property.
16.18 Inspection of Books and Records.
In addition to any other right of inspection otherwise allowed by law, the City shall have the right to inspect, upon not less than seventy-two (72) hours' notice, at a Teasonable time, the production records and tax payment information of Developer which pertain to the Project. The parties agree that Developer's financial statements and financial records not pe1iaining to the Project are confidential and shall not be disclosed to City pursuant to the provisions of this Agreement.
16.19 Integration Clause.
It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this- Agreement supersedes and cancels any and all previous negotiations, arrangements, brochures, agreements, and understandings, if any, between the parties hereto or displayed by the City to Developer with respect to the subject matter thereof, except for the Development Approvals, and none shall be used to interrret or construe this Agreement. This Agreement includes all attaclunents attached hereto, which by this reference are incorporated herein. Said documents shall be interpreted insofar as possible to prevent any inconsistency and to effectuate the terms thereof, without one prevailing over the other.
16.20 Disputes.
Any controversy or claim arising out of, or relating to, this Agreement shall be mediated before a JAMS (or if unavailable, ADR Services) mediator mutually selected by the parties prior to initiation of any legal proceeding. Any cost of such mediation shall be equally shared by the parties. Any legal proceeding following any unsuccessful mediation attempt, despite good faith efforts by the parties, shall be filed in the Superior Court, County of Los Angeles.
17.0 EXHIBITS.
The following are the Exhibits to this Agreement:
Exhibit A: Site Map
ExhibitA-1: Legal Description of Site
ExhibitB: Scope of Development
ExhibitB-1: Manner of Reclamation
Exhibit B-2: Typical Slope Cross Sections
ExhibitB-3: Location ofNew Access Point and Road
LA llS3S609v12
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I
ExhibitC:
ExhibitD:
LA 1133&609t•12
0 ~005,0020/173395.15
Schedule of Performance
Reclamation Plan Drawings
44 IN WITJ'{ESS WHEREOF, the City and Developer have executed this Development Agreement on the date first above written.
Attest: Jli Ma m . niio
Clerk
Fred Galante, City Attomey
·~'CITY~'
CITY OF IRWINDALE, a mtmicipal
corporation
"DEVELOPER"
UNITED ROCK PRODUCTS
[END OF SIGNATURES /NOTARY JURAT(S) FOLLOW]
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the J document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document State of California )
County of La S Att9e-f-eS )
on 1~/Jlf/15 betoreme, laura /If. NiefD; J.Jofary RlbJ(e Date Iii ti Here Insert Name and Title of the Officer
persona11y appeared ----~,.~la~r~K-+A~· ~B~rt?_e_P._'Cl.~4-=-------- Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the personlel) whose name(§) is/a(e subscribed to the within instrument and acknowledged to me that he/sJ;re/t~y executed the same in hislt}lr!thliir authorized capacity0¢), and that by his/hfr/th{ir signaturel$) on the instrument the personpit or the enuty upon behalf of which the person(~ acted, executed the Instrument. -)' o o ·a a o ·a•· o a o en· to
•
LAURA M. NIETO
Commlsslon ii 1984n19 I ~ Notary Public • Call!ornla §
"' Los Angeles Counly :>: J . . ~ , 0 .M1J. SoT111' ;xeir;s ;uJ 1.3, 2~1~( Place Notary Seal Above
I certify under PENAL TY OF PERJURY under the laws
of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
~~~~~~~~~~~~~~~OPTIONAL~~~~~~~~~~~~~~~
Though this section is optional, completing this information can deter alteration of the document or fraudulent reottachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: Document Date: _______ _
Number of Pages: Signer(s) Other Than Named Above: ____________ _ Capaoityfles} Claimed by Signer(s)
Signer's Name: ___________ _ Signer's Name: ___________ _ O Corporate Officer - Title(s): _____ _ 0 Corporate Officer - Ttlle(s): ______ _ 0 Partner - 0 Limited 0 General D Partner - D Limited 0 General D Individual D Attorney in Fact 0 Individual 0 Attorney in Fact D Trustee 0 Guardian or Conservator D Trustee 0 Guardian or Conservator O Other: _____________ _ 0 Other: ______________ _
Signer Is Representing:--------- Signer Is Representing: ________ _ """""""""""""""""'"""'"""""""""""""""""'""'""'""""""""""""""'""'"""""""""'""'""'""'""'""'""""""""'""'"""""""""" ©2014 National Notary Association· www.NationalNotary.org • i-800-US NOTARY (1-800-876-6827) Item #5907 A notary public or other officer completing this
certillcate verifies only the identity of the
individual who signed the document to which this
certillcate is attached, and not the trnthfulness,
"accuracy, orvali_dity o:!.!h.at d_o_c_um_e_n_t. ______ ~
STATE OF CALIFORNIA
COUNTY OF __ o_~_a_ .. _OJV~---
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On \>ue,,.,.,,\:,e,.y \\ 2015, before me, -::S-1_.'-\l,0<, A. N tA'!:vn a Notary Public, personally appeared );-,o:J\d \.g,:coy Mar-h.-.e."'Z-- , who proved to me on the basis of satisfactory evidence to be the personVef whose name(!0' is/are subscribed to the within instrument and acknowledged to me that he/4e/they executed the same in his/her/tHOO authorized capacit,Y(-iel!), and that by his/ller/!OOli' signature'8) on the instrument the person(n, or the entity upon behalf of which the person(n' acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct
WlTNESS my hand and official seal.
Notary in and for the State of California
[SEAL]
JULIA A. NELSON
Commission # 2002765
~ , - Notary Public - C•llfornla ! z Orang• Courtly ~ J. , , .. }~¥ ~ovru· ;xti'ts :ae 2,s1.2~1tl EXHIBIT "A"
SITE MAP
[See Attached]
LA l 133S609vl2 A-1
EXHIBIT A
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Project Location
Site Map
N.T.S.
EXHIBIT A·l
LEGAL DESCRIPTION OF SITE
LA 11338609v12 A-1-1
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EXHIBIT A-1
Legat Description of the Site
Assessor's Parcel No. 8415-001-906
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EXHIBITB
SCOPE OF DEVELOPMENT
Developer shall mine the Site in accordance with this Agreement and reclaim and develop the Site in accordance with the Reclamatio11 Plan and this Agreement and in the manner described below, as farther depicted in Exhibit D.
A. Mining and Reclamation. Developer shall conduct mining and reclamation operations il12 phases as follows:
LA 11333609\•1:2
l. Access Road Relocation: Within forty-five (45) days of the Effective Date, Developer shall commence construction of a new on-site access road and relocated driveway entrance to the Site on the south side of the Site, as further described in Section 4.8 (b) of this Agreement and 3.14 of the Reclaniation Plan.
2. Mining:
a. Mining Phase 1. The maximum depth of excavation during the Phase 1 is anticipated to yield approximately 4 million tons of material at elevation 175 above mean sea which is approximately 100 feet below the existing ground level in the Site. Phase 1 is anticipated to take 3 years, but could be extended depending on the conclusion of the enviromnental analysis, as adopted by the City.
As part of the first phase of mining, access to the Site will be relocated from Olive Street to a new intersection at Los Angeles Street. Developer will construct the new access road wiih a combination of on-site materials and fill materials and ascend from the bottom of the pit along the southern edge of the Site on an 8% grade to the southeastern corner of the Site whern it will exit at Los Angeles Street. The access point will be approximately 700 feet west of the Los Angeles and Azusa Canyon intersection. Developer will ins'lall a signal to allow for safe ingress and egress to the site. Developer will construct ihe new access road with a 45 foot wide road bed. Developer will also create a11 approximate 4-acre pad ("Loading Area") at the southeastern comer of the Site for loading trncks with extracted materials, which Loading Area shall include property leased by City fro111 Los Angeles County and paid for by Developer. Construction of the new access road and loading area will require
1.9-million cubic yards of fill.
Minil1g will begin at ihe toe (bottom) of the existing pit area. The 111axi111um depth of excavation during Phase I is anticipated to reach 175' ams!, or 100 feet below the current su1face level. Phase I will yield apprnximately 4- million tons of material.
B-1
3. LA 1133!1609vl2
Developer shall extract an average of 1 million tons per year during Phase T, but no more than 1he amount approved per the certified EIR, or any duly" approved amendment, addendum or supplement thereto. Assuming 306 (6 day work week with 6 holidays) working days a year this will result in 262 one"way truck trips a day or 131 round trips. Actual production will vary depending on market conditions.
b. Mining Phase II. As stated above, Developer will commence Phase II mining after completing Phase I mining ai1d concun-ently with Phase I reclamation. Phase II consists of1he remaining 137 acres of1he site and will be mined to O' ams! and will yield approximately 28 million tons. Developer will Cl'eate a 5"acre pad at the base of the pit within the southwest corner of the Site, which will require approximately 207,600 cubic yards of fill. The pad will serve as a collection point for aggregates mined in Phase IT. Dming Phase II, Developer will first mine all resources that occur above the watel' table using a front end loader or excavator. When the water table is encountered, Developer will use a dredge or other method adapted fol' underwatel' mining (e.g., dragline or long reach excavator) to extract materials. Phase II mining will yield about 28-million tons. c. Process of Milling. All mining activities will be in compliance with the Guidelines. Material will be extracted through dry mining and, 1hereafter, use of a dredge 01· other methods for material below the water table. At present, the majority of 1he pit bottom is found at or below the high water table elevation (±285' ams!). The water table is known to raise and lowel' dependent upon season and precipitation cycles. As such, all mining activities will fo1m a maximum 2: I cut slope and be in accordance with the Guidelines.
Developer will transport excavated material up the access road to the Loading Area by conveyor or off"road haul tmcks and subsequently placed in overhead hoppers. Over"the-road haul trucks will be loaded at the hoppers through an automated process. As material is extracted and loaded into haul trucks, Devefoper will transport such material to Developer's existing processing facility located at 1245 E. Arrow Highway in Irwindale ("Processing Site").
The proposed route is approximately 3.3 miles and lies entirely within the City of Irwindale. Trncks will reach this location by exiting the site at Los Angeles Street, turning north onto Azusa Canyon, then west on Arrow Highway to the Developer's processing plant. As part of the mining operations, Developer will maintain the existing pit walls per 1he Reclamation Plan. Provided Developer adequately and fully complies with such maintenance obligations, it shall not be responsible for any damage or failm·e of such existing walls due to pre"existing conditions. All other pit walls, improvements and other changes to 1he Site created by Developel' shall be Developer's sole responsibility for which Developer shall indemnify the City pursuant to Section 14 of this Agreement.
Reclamation:
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LA 11338609vl2
a. Phase l Reclamation. Per the approved Reclamation Plan, Developer will begin Phase I reclamation at the conclusion of the first mining phase.
Phase II mining will occur simultaneously with Phase I reclamation.
Reclamation of Phase I will include filling the area according the Guidelines for Above-Water and Underwater Backfilling of Open-Pit Mines. Before commencing fill operations, Developer will remove disturbed and uncertified fill and place compacted fill in a controlled manner. Additionally, Developer shall compact all fills within 40 feet of the final elevation to a minimum of 93 percent, as further described the aforementioned Guidelines. Backfilling of Phase I will be to street level (approximately 420 feet ms!) and proposed to be a minimum of 600 foot wide (east to west) along the entire approximately 1000 foot eastem side of the Site, resulting in an approximately 31.2-acre pad ("Development Parcel") with a 2: 1 slope along the western margin and will require more than 8 million cubic yards of fill. All final fill slopes will be revegetated per the Reclamation Plan.
Backfill material will originate from Developer's processing location where it is collected from various sources throughout the greater urban area, including construction demolition materials from construction projects associated with Developer. Developer's trucks will exit the Site with a load of mined material and return loaded with material to fill the pit. Fill material could also originate from different sources throughout the Los Angeles region.
Depending on the type of construction activity, fill material Sllitable for reclamation at the Site co1J!d originate from projects in which Developerassociated companies are engaged. The availability of this material is anticipated to be random and subject to market conditions.
The additional area to be reclaimed beyond the 600 foot Development Parcel is necessary for fill placement to establish a 2: I final fill slope from the bottom of the pit to the Development Parcel. Backfilling will involve the backhaul of processed material from Developer's Pit 2 processing operations and will insure that the material placement will meet or exceed the Guidelines.
No processing of materials shall occur at the Site. The Development Parcel shall be completed within the time set forth in the Schedule of Performance, as adjusted for delays as described in Section 13 above. Maintenance of the final fill slope for the reclamation area as well as required landscaping will be City's responsibility, as may be assigned by the City to any third party. b. Phase II Reclamaiion. Developer will commence Phase II reclamation at the conclusion of Phase II mining or when the mineable aggregate resources have been exhausted at the Site. Currently, Phase 11 reclamation consists of utilizing the Site for flood control, storm water retention and/or ground water recharge basin. Minimally, reclamation to any of the suggested end uses would involve stabilization of the mined slopes and ensuring public safety through fencing and access restrictions.
c. Reclamation of Additional Areas. Any additional reclamation of the B-3
Site shall be subject to separate future agreement of the parties and dulyapproved amendment to the Development Agreement. Nothing stated herein shall require the parties to reach mutual agreement on such additional reclamation.
d. Prioritization System. Developer has further requested to perform reclamation operations at the Site as an authorized commercial fill operation under the :filling prioritization system applicable to reclamation operations in tl1e City, as such terms and system are fiuther defined in development and settlement agreements between City and other operators, including operations owned and operated by Developer in oilier sites at ille City. Although other operators, including Developer, have the prior rights to operate commercial fill operations in advance of any rights that may be granted by City for the Site, the parties will neverilleless work together to ascertain if the Site may be granted the priority fill designation, provided other affected operators agree.
If such priority designation is infeasible, Developer understands that it will be bound to operate a non-commercial fill operation, utilizing fill from its own sources and has represented that it is able to accomplish reclamation, as intended and described in this Agreement, as adjusted for delays as described in Section 3.
e. Flood Control or Storm Water Collection/Recharge Basin. The City has e::qiressed desire to have areas not reclaimed for future development serve as a future flood control or storm water collection/recharge basin to serve the needs of the City and potentially suITounding cities in their obligation to provide for storm water runoff. The Development Agreement and Reclamation Plan shall include requirements for Developer to reclaim the remaining portions of the Site not slated for future development in such a manner as to accommodate such end use.
4. Offsite Improvements.
pursuant to the City's usual
requirements of Section B below.
Offsite improvements would be provided
development requirements, subject to the
B. Environmental Control Svstems. Developer is committed to implementing the following minimum measures to mitigate the impacts from mining and reclamation activities to surrmmdi11g residents, businesses and roadways, as well as ru1y additional mitigation measures identified through the environmental evaluation of the Project:
LA 11338609v12
1. Transportation. Developer proposes to relocate the access point to the Site to Los Angeles Street in an effort to minimize traffic and noise impacts to residential development to the north and west of the Site. The existing access point is found near the nortl1east comer of the Site, which will be used until alterative access may be completed. Due to the limited setback and steep slopes along the perimeter of tlie Site, the new access road will need to be constructed.
The new access road will require approximately 9 million cubic yards of fill from the existing pit bottom (approximately 270 feet m.s.l.) along the southern edge of B-4
LA 1 B38609v12
the pit. The new access road will be constrncted with a 45 foot road bed at a maximum grade of 7.6%, as further described in the Proposal. Developer shall install signals per the EIR. Any improvements, including but not limited to, the access road, intersection, signal and other improvements shall not exceed $80,000, which maximum amount excludes any mitigation measures required by the EIR to be paid by Developer; pmvided that Developer may object to any such mitigation measures or negotiate witl1 the City the allocation of costs for same as part of the Development Agreement. In accordance with the EIR, all vehicles of Developer, its employees, contractors, agents or invitees, entering and exiting the Site shall utilize the new access road at Los Angeles Street Additionally, all commercial trucks of Developer, its employees, contractors, agents or invitees used for the carrying any type of fill material or materials excavated from the Site shall utilize the following routes exclusively for the import or export of such materials:
Los Angeles Street to Azusa A venue to Arrow Highway to United Rock Pit 2 and returning to the Site
2. H-0urs of Operation. To further limit the impacts to neighboring properties, Developer will only conduct mining activities during nonnal business hours which are:
a. For road construction: Monday through Saturday 7 a.m. to 7 p.m. b. For extraction and reclamation: Monday through Saturday 6 a.m. to 6 p.m.
c. Transportation to the processing plant: Monday through Saturday 7 a.m. to 5 p.m.;
d. Onsite maintenance which does not cause noise, light glare or other potential impact to surrounding uses shall be authorized at other times.
3. Dust Control. Developer will manage dust from operations by paving the entrance to the access road and the use of water trucks for all unpaved surfaces.
Additionally, Developer shall use a street sweeper to patrol the streets on a regular basis to eliminate any spillage that could occur. Developer will conduct all operations in strict compliance with South Coast Afr Quality Management District ("SCAQMD") requirements.
4. Noise Attenuati-0n. Developer's proposed relocation of the access road, as described above is aimed at reducing noise impacts to residents along the no1them boundary of the Site. Additionally, mining activities will occur at approximately 120 feet below ground level and will be WO feet from the edge of the nortl1em property line of the Site. This is augmented by the presence of an approximately 6 foot high block wall that extends along a portion of the n01thern boundary of the Site to further eliminate line-of-sight contact between residential areas and mining activities so as to reduce estimated noise signature to B-5
c.
LA l1338509v!2
approximately 60 dBA. Additionally, all of Developer's mining and reclamation equipment will be late models using state-of-the-ait noise reduction technology.
To reduce noise from over-the-road haul trucks, Developer shall implement the following measures:
a. Hours of operation will be limited to normal business hours, b. All trucks shall be equipped with Diesel Particulate Filters or a resonator to reduce noise by 3 to 6 dBA,
c. No Jake Brakes shall be used.
d. All trucks shall be equipped with a single exhaust, vertical straight stacks and no turndown, and
e. All trucks shall be equipped with automatic transmissions, which eliminate unnecessa1y engine revving.
5. Improvement to Northern Border. Developer and City shall negotiate and implement at Developer's cost, mutually agreed improvements to the northern boundary of the Site between the pit wall and Olive Street so as to c1eate an aesthetic, well landscaped walking park and adequate screening to the border of the pit, Developer's costs will be capped at $250,000. Any landscaping condition for other borders of the Site shall be in addition to the aforementioned cap and shall be consistent with conditions typically imposed by the City for such approvals, such as the landscaping requirements imposed for Developer's Pit 2 operations in 2002. Any significant increases to this landscaping condition shall be subject to negotiations between the parties as part of the Development Agreement.
6. Use of Water. Developer shall procure from the applicable water supplier, and use water in the amounts and manner necessary to control dust at that Site as well as any other prudent operational purpose. Developer shall be solely responsible for paying for and securing the transportation of the water to the Site.
7. Stl'eet Sweeping. Developer, at its sole cost and using a street sweeper shall perform street sweeping upon all streets used by trucks entering and exiting the Site in an area within 500 feet of the Site and at all times during Developer's performance of the Project.
8. Responding to Public Concerns. Developer shall respond to any pub lie complaints or concerns related to the Project within 48 hours of any complaint.
Developer shall make a written record of all complaints or concerns received and present them to the City within the same time required for it to respond to such complaints or concerns.
Pnhlic Works Conditions of App1·ovaL Developer shall conduct all activities B-6
described in this Agreement in accordance with the following Public Works conditions of approval:
LA1133a609v12
I. Applicant shall comply with the City Guidelines for Drainage and Erosion Control for Open-Pit Mines during all phases of mining and reclamation of the Site to address the following:
a. Implement appropriate measures to keep surface water from flowing over the rim of the pits to avoid overtopping-induced erosion. b. Implement appropriate measures to protect pit slopes from incidentprecipitation induced erosion. c. Implement necessary measmes to protect pit slopes that are exposed to groundwater lakes and wave-lap erosion.
d. Applicant shall prepare necessary engineering plans for the implementation of measures stated above, and submit to City for review and approval by fue City Engineer within one hundred twenty (120) days from the approval of this DA.
e. Maintain sidewalks around the entire perimeter of the site clean at all times,
f, Provide a minimum of one street sweeper dming all hours of operation.
Street sweeping shall be extended at least 500 feet beyond property boundaries. Debris left behind due to street sweeping adjacent to catch basins shall be cleaned at all times.
2, Applicant shall ensure that Best Management Practices (BMPs) are used to eliminate risks ofcontamination to the groundwater and ensure the safety of the public with the implementation of the following:
3. Controlled Access.
a. The primary access to the pit during mining and reclamation activities shall be strictly furu the proposed signalized entrance at Los Angeles Street.
Request for alternate access point must be requested by the operator in writing to the City Engineer for its review and approval. b. Restrict Site areas to authorized vehicles and equipment directly related to Applicant's operation.
c. Place continuous security provisions to monitor and safeguard all access point to the Site
d. Secure all access point with locks, except at entrances during business hours.
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LA l l$.3S609vt4
4. Security,
a. Construct and maintain in good, appropriate condition, appropriate benns in accordance with the MSHA requirement for safety bem1. The design and construction of these berms shall meet the City's Drainage and Erosion Control Guidelines if also used to control surface runoff. b. Repair any dan1age to walls, fences, benns and its appurtenances within two days of discovery. Make immediate necessary repairs to ensure public safety.
c. Inspect MSHA berms on a daily basis; ru1d
d. Police Site and remove any deleterious or hazardous materials in accordance with government requirements.
e. Secure the Site with adequate walls and fences per Planning Division requirements.
f. If not being used, the Applicant shall close and secnre fue existing driveway located along Azusa Canyon Road. (g) Access points along Olive Street shall be secured.
5. The Applicant shall, within ninety (90) days of the approval of the Reclamation Plan, prepare and submit an Emergency Plan which includes step by step remedial actions that deal with the handling of contrunination to the Site. If, at any time, contrunination is found to be at or above established action levels, the Applicant shall immediately notified the City and other responsible Agencies and shall take all necessary remedial actions.
6. The Applicant, at its sole cost, shall implement all mitigation measures as described in the final Envirornnental Impact Repo1t. The improvements, as described herein, shall be designed and constructed to City standru·ds and/or other applicable State and County standards pursuant to the schedule approved by the city. All improvements shall be based on construction plans and specifications, prepared by professional consultants retained by the Applicant. The Applicant shall obtain all necessary permits for construction of the required improvements.
7. The Applicant shall complete construction of the two new traffic signals at the intersections of Los Angeles Street and Azusa Canyon Road and at the new access road on Los Angeles Street per fue City approved construction plans and specifications within twelve months of the City's approval of such plans and specifications. The Applicant shall obtain all necessary permits for constmction of the required improvements.
8. The Applicant shall maintain in good condition the striping on the following streets, per the direction of the City Engineer:
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LA ll33360!fvi'l
a. Los Angeles Street from Azusa Canyon Road to City Limits wit11 Baldwin Park(Westerly of Park Avenue).
b. Azusa Canyon Road from Los Angeles Street to Arrow Highway. c. Avenida Barbosa from Arrow Highway to Buena Vista Street
9. Slope Revegetation
a. Applicant shall revegetate the mine slopes in accordance with the approved Reclfilllation Plan for the Site in phases concurrent with ongoing mining operations on the Site.
b. Should any plant material become unhealthy or die, Applicant shall replace same with equivalent materials within the next winter to spring planting season in accordance with the revegetation plan contained ln the approved reclamation plan. Success of revegetation will be judged by compal'ing the quantified measures of vegetative cover, density, and speciesrichness of the reclaimed mined·lands to similar parameters of naturally occurring vegetation in the area. Successful revegetation will be deemed complete when plant cover has been established over 75 percent of the Sire slopes for three consecutive yem·s.
10. Tree and Landscape Maintenance. The AppliCilllt shall maintain all trees and landscaping within the entire property and all trees and landscaping in the public right-of-way adjacent to the entire property.
11. Air Qualitv and Dust Control.
a. Air Quality Mitigation Measures - The following mitigation measures are required as Best MMagement Practices (BMPs) during mining operations, reclamation, and post-reclfillmtion phases of the Proposed Project to rednce tailpipe exhaust emissions of CO, NOx, Sox, PMlO, and fugitive dust. Heavy-duty diesel trucks and other mobile equipment shall be properly tw1ed and maintained to manufacturer's specifications to ensure minimum emissions under normal operations.
b. Applicant shall comply with all requirements of the site's South Coast Air Quality Management District (SCAQMD) permits, including Rule 403 and ll57.
c. Dust shall be controlled pursuant to the requirements of the SCAQMD Rule 403, as may be filllended from time to tinle. A copy of the control plan, as may be amended, prepared in accordance with Rule 403, shall be provided to the City.
d. Applicant shall implement pennanent necessary measures per SCAQMD, as approved by the City Engineer, to minimize the tracking of B-9
LA ll338609vl2
mud and/or dirt to the public right of way. These measures shall be maintained to the satisfaction of the City Engineer.
e. The Applicant shall apply for and maintain all appropriate petmits from theSCAQMD.
12. Water Quality.
a. Applicant shall work with the responsible parties discharging stonn water to the Site to install appropriate protective measures to ensure protection of the groundwater quality from storm water runoff. b. Applicant shall implement necessary measures to protect groundwater quality as stated in the Main San Gabriel Basin Watermaster Resolution No 3-88-57.
c. Applicant shall prepare a Stormwater Pollution Prevention Program (SWPPP) to identify necessary measures to minimize erosion damages and water quality pollution. This SWPPP shall be in accordance with National Pollution Discharge Elimination System (NPDES) requirements and Irwindale Mimicipal Code Chapter 8.28. Applicant shall file a copy of the approved SWPPP with the City Department of Public Works within sixty (60) days of approval.
d. Applicant shall provide to the City Engineer's office a copy of the Regional Water Quality Control Board (RWQCB) issued General Activity Certificate and/or .its Spill Prevention Control and Countermeasure Plan (SPCCP) sixty (60) days after City's approval of the Reclamation Plan.
13. Soils.
a Applicant shall at all times comply with the City's Technical Guidelines during all phases of mining and reclamation at the Site to ensure adequate safety of all mining slopes. "Technical Guidelines" shall be the collective tem1 used to refer to the following standards applicable in the City for reclamation and maintenance of mining quarries, developed by the Irwindale Backfilling Committee, as approved December 20, 2005 by Resolution No. 2005-89-2106 of the City Council, and specifically includes any and all duly approved revisions, updates, amendments and modifications of such Guidelines:
b. "Guidelines for Ahove Water Fill" shall mean the November 23, 2005 Guidelines for Above Water Backfilling of Open-Pit Mines, Irwindale, California.
c. "Guidelines for Erosion Control" shall mean the July 6, 2004 Guidelines For Drainage And Erosion Control for Open-Pit Mines, Irwindale, California.
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LA 11338609v12
d. "Guidelines for Underwater Fill" shall mean the May 20, 2005 Guidelines for Underwater Backfilling of Open-Pit Mines, Irwindale, California.
e. "Guidelines for Slope Stability'' shall mean the December 24, 2003 Guidelines for Slope Stability Analysis of Open Pit Mine Slopes, Irwindale, California.
14. Applicant shall continuously monitor all the pit slopes that are created by ihe mining activiiies of the operator, and the operator is required to monitor wavelap erosion and apply one or more of the following remediation methods as required by the Guidelines:
a. Reduce slope steepness to achieve a slope inclination not subject to wave lap erosion.
b. Armor the slope to prevent wave lap erosion.
c. Implement other procedures approved by the City Engineer's office.
15. Reclamation.
a. Mine reclamation backfills shall be required to obtain a special grading pennit for mine reclamation backfill from the City, and/or other State and County permits that may be applicable based on the various type of backfill material used for reclamation.
b. Applicant shall comply with the approved Reclamation Plan for the reclamation of the Site. The reclamation phasing and time line shall not be altered without the approval by the City and, if required, the approval of the State of California Department of Conservationo
c. Applicant shall be responsible for City's cost to monitor the reclamation activities of the Site. The Applicant shall deposit sufficient funds based on an annual cost estimate prepared by the City Engineer's office to cover the actual monitoring cost The Applicant shall deposit these funds to the City on or before July 10th of each year. Deposits in excess of actual City cost will be refunded to Applicant. To the extent the City obtains aerial photographs, gronnd based photogtaphs, topographic/Hydrographic maps or reports from outside consultants as part of its monitoring activities, the City shall provide copies of such documents to the Applicant. To the extent possible, copies of aetial photographs and topographic/hydrographic maps shall be provided in AutoCAD compatible electronic form as well. d. City shall have the right, after providing at least 48 hom-s notice to Applicant, to independently inspect and monitor the imported inert deblis fill loads (for mine reclamation backfill) for the presence of any Hazardous Materials using a consultant retained by the City. The reasonable costs for B-11
such tests shall be paid by Applicant if performed no more than quarterly.
Any material that is hazardous shall be removed and disposed of properly in accordance with applicable State law.
e. Applicant shall not conduct any waste trash recycling operations at the Site, except as allowed under the Development Agreement. f, No permanent waste disposal locations or tailings ponds are permitted to remain as tailings ponds upon the site after completion of mining and reclamation.
g. The remediation of the slopes shall be in accordance with the approved Reclamation Plan. Slope remediation plans and a construction schedule for this work shall be submitted and approved by the City Engineer prior to starting of the remediation. The slope remediation work shall commence immediately after the plans are approved.
h. All equipment, structures, and other facilities associated with the milling operations shall be dismantled and completely removed from the Site upon termination of mining activities, and within the timeline specified in the approved Reclamation Plan.
D. Planning Division Conditions of Approval. Developer shall conduct all activities described in this Agreement in accordance with the following Planning Division conditions of approval:
L.<\11338609v12
1. All conditions, requirements, ordinances, rules, regulations and/ or policies, as they may be amended from time to time, applied and/or enforced by any local agency, Federal or State agency, the State of California, the County of Los Angeles or any other public or quasi-public entity including the City of Irwindale, and each of its departments and divisions, with jurisdiction over the Site (collectively "Applicable Law") shall be satisfied by the Applicant, and such conformance shall be maintained at all times while the use approved by this Development Agreement ("DA") is in operation.
2. The Applicant shall fully cooperate with the City of ll-windale and any agency or entity with jurisdiction over the Site and uses approved thereon regardiJ.1g the filing of any materials, execution of documents, instruments or similar items and all other acts, actions or undertaking deemed reasonably necessary by the City of Irwindale to further the purposes of this DA. The Applicant's full cooperation shall be at no cost to ihe City. 3, If the use authorized by this Development Agreement has become idle (as defined in SMARA §2727.1 as such provision may be amended from time-totime), Applicant shall, within ninety (90) days thereafter, submit to the Director of Planning fol' review and approval, an interim management plan (IMP), pursuant to §2770 of SMARA, as may be amended. The IlvIP shall be processed in accordance with §17.63.110 of the Irwindale Municipal Code and §2770 of B-12
SMARA, as may be amended.
4. This DA may be revoked for any material violation of or noncompliance with any of the conditions of approval of this DA or Applicable Law.
5. The Applicant shall defend, indemnify and hold harmless the City of Itwindale, its agents, officers, consultants and employees from any claim, action or proceeding against the City or its agents, officers, consultants or employees to attach, set aside, void or annul any approval of the City, its legislative body, Plam1ing Commission, or other adviso1y agencies, or administrative office-rs concerning DA No. 01-2014, including but not limited to the Environmental Impact Report, or for any damage to persons or propeity, losses, costs, penalties, obligations, or liabilities arising out of or in connection with Applicant's acts or omission on the Site, whether or not such act or omission resulted or was unde11aken pursuant to any condition or approval granted under this DA. The City will promptly notify the Applicant of any such claim, action or proceeding against the City and the Applicant will either undertake defense of the matter and pay the City's associated legal costs or will advance funds to pay for the defense of the matter by the City Attorney. The Applicant may elect to retain separate counsel for themselves. The City shall cooperate fully in the defense of any such action. lfthe City fails to promptly notify the Applicant of any such claim, action or proceeding, or fails to cooperate fully in the defense, the Ap]lliCant shall not, thereafter, be responsible to defend, indemnify or hold harmless the City.
Notwithsta11ding the foregoing, the City retai11s the right to settle or abandon the matter without the Applicant's consent as to the City's liabilities or rights only, but shonld it do so, the City shall waive the indemnification herein, except, the City's decision to settle or abandon the matter following an adverse judgment or failure to ap]Jeal, shall not cause a waiver of the indemnification rights herein. At the time of the issuance of this DA, the City has no actual knowledge of any )lending or threatened claim which would result in indemnification under this condition.
6. The Applicant shall at all times maintain the Site-a11d its use and appearance thereof in full compliance with Applicable Law. 7, The Applicant agrees to allow City ins]Jectors and! or designees of the City to reasonably inspect the Site during normal business hours or at any time operations are occurring on site to assure compliance with Applicable Law, provided the City complies with Mine Safety Health Administration (MSHA) regulations. In cases of emergencies, City shall have the right to inspect the Site, whether or not operations are occurring on site, provided City gives prior notice to Applicant as may be reasonably possible. City inspectors or designees must be accompanied by Applicant's perS011llel at all times per MSHA.
8. Any and all fees required to be paid to any public agency shall be paid promptly when due.
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J.A 1 t:l38.609v12
9. Approval of this application shall not excuse compliance with Applicable Law.
10. The Applicant shall maintain the Site at all times free and clear of any accumulation of trash. Applicant shall f\nther maintain the Site in a mam1e1· that shall avoid any dete1mination by tlie City that any condition 011 the Site constitutes a nuisance, pursuant to the City's Municipal Code.
11. Except as in accordance with Applicable Law, the Applicant shall maintain the Site at all times free and clear of and shall not discharge or otherwise release any hazardous substances, hazardous wastes and/or hazardous materials as such tetms are defined in their broadest form tmder any applicable federal, state or local law or regulation, and any other kind of soil, air, or water contamination, and combustible and/ or flanunable materials (except for fuels, lubricants, household waste and other chemicals normally used witl1 the mining and reclamation uses allowed by this DA (collectively, as limited, "Hazardous Materials"). Any Hazardous Materials lawfully used on the Site will be 11andled in accordance with Applicable Law.
12. All graffiti shall be removed within 48 hours after Applicant becomes aware, or the City notifies Applicant, of its application. The graffiti shall be removed by either painting over the evidence of such vandalism with paint, which has been color- matched to tlie surface to which is applied, or the graffiti may be removed with solvents or detergent as appropriate.
13. All plans required by these conditions shall identify the Plant Manager and other persons wl10 have the authority and responsibility to ensure that the intent and purpose of the plans are carried out. Such information shall also be provided on a sign posted at the site office. These employees will be responsible for coordinating, with the City Manager's Office, a response to complaints or concerns expressed by persons affected by the operations on the subject Site.
Applicant must provide a written update to the City of the identification of such Plant Managers within fo1ty-eight (48) hours of any change.
14. In tl1e event that any conflicts in the conditions of approval herein appear to or do exist, the more stringent requirementl or condition shall apply. The conditions herein shall prevail over any conflicting conditions in the Olive Pit Reclamation Plan dated October, 2014, approved by the City concUl'rently herewifu ("Reclaniation Plan").
15. Landscaping( Fencing.
a. The Applicant shall repair and maintain the existing six-foot high concrete block and/or chain link fence with barbed wire extension along the perimiter.
b. All landscaped areas will be kept in a-clean condition and free of weeds and trash. All plant materials shall be kept healthy. In the event such B-14
LA 11338609v12
materials are not kept in such condition, they shall be replaced with similar materials, as required by the landscape plan, within 30 days. Applicant shall revegetate inactive disturbed landscape areas at the Site. A landscape and irrigation plan shall be prepared by a licensed landscape architect for all required landscape areas. Such plan shall be submitted to the City within 120 days of approval of this DA, and shall be subject to the review and approval by the City Engineer and Director of Community Development. c. Landscaping within the site shall be in accordance with revegetation program as stated in the approved Reclamation Plan.
d. The landscape setback along tbe Olive Street frontage shall be planted with native plants, groundcover, and trees. A non-deciduous vine shall be planted that will be trained to grow upon the fence and block wall, both to obscure the site and deter graffiti. The landscape plan shall be subject to the review and approval of the City Engineer and Community Development Director.
e. The landscape setback along the western po1tion of tlie site shall be planted with native plants, groundcover, and trees. The landscape plan shall be subject to the review and approval of the City Engineer and Community Development Director.
f. The existing landscape setback along the eastern and southern portion of the site shall be cleaned up and all trees trimmed where necessary, as dete1mined by the Community Development Director. Any new landscaping along this setback shall be native groundcover, plants, and trees. The setback shall be maintained with a neat and clean appearance on an ongoing basis.
16. Applicant acknowledges that the City of Irwindale may modify its Q zone to create a Quarry Overlay Zone providing mining standards applicable to the Site and other mining sites in the City pursuant to the terms of the Development Agreement.
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LA ll3'.1.8609v12
EXHIBIT "B-1"
MA."l\'NER OF RECLAMATION
B-1-1
EXHIBIT B-1
MANNER OF RECLAMATION, PHASE I
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MANNER OF RECLAMATION, PHASE II
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EXHIBIT "B-2"
TYPICAL SLOPE CROSS SECTIONS
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EXHIBIT B-2
SITE CROSS-SECTIONS
CROSS-SECTION KEY MAP
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SITE CROSS-SECTIONS
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EXHIBIT "B-3"
LOCATION OF NEW ACCESS POINT AND ROAD
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LOCATION OF NEW
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PROPOOEO Mitt 46' ACCESS ROAD
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EXHIBIT "C"
SCHEDULEOFPERFORMANCE
ITEM TO BEPERFORMED TIME FOR PERFORMANCE AGREEMENT
REFERENCE
-·
I. Plmmlng Commission holds November 19, 2014 Recitals
public hearing on this
Agreement, Reclamation
Plan and Financial
Assurances
2. City Com1cil conducts first December 3, 2014 Recitals reading of Ordinance
approving this Agreement
and License Agreement
3. City Council conducts December 10, 2014 Recitals
second reading of Ordinance
approving this Agreement
4. Developer executes the On or before December 9, 2015 L3(b) Reclamation Plan
5. Effective Date of this December 9, 2015 § 2.17
Agreement
6. City records Agreement Within 10 days of execution by § 18.16 all parties, which execution shall
occur by December 9, 2015
7. Developer commences Within 45 days of the Effective ExhlbitB, § A.l construction of relocated Date
road to intersection of
Cypress and Los Angeles
I Streets
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8. · Developer delivers to City January 7, 2016. § 4.ll(b) and first payment of $2,500,000 License Agreement
9. Developer prepares March 8, 2016 (90 days Exhibit B, § C.5 Emergency Plan as following the date at Event No. 6
attachment to Reclamation above).
Plan
C-1
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ITEM TO BE PERFOR.c'\1ED TI¥E FOR PERFORMANCE · AGREEMENT.
REFERENCE
10. Developer prepares plan,s April 7, 2016 (120 days Exhibit B, § C.2 for implementation of following the date at Event No. 4 erosion and drninage above),
1neasures
11. Developer completes Within two (2) years of the ExhibitB, § A.l construction of relocated Effective Date.
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access road at Los Angeles
Street
12. Developer commences Concunently with Event No. 11. Exhibit B, § A.2 mining operations
13. Developer delivers to City January 5, 2017 (12 months §4.lO(b) second payment of following the date at Event No. 8
$2,500,000 above).
14. Developer delivers to City Januaiy 4, 2018 (24 months §4.lO(b) third payment of $2,500,000 following the date at Event No. 8 above).
15. Developer delivers to City No later than December 12 of § 11.1 annual monitoring fee and each year of term, beginning on documentation showing December 12, 2016
good faith compliance with
Agreement
16. City and Developet rnview No later than February l of each § 11.1 performance of parties year of tetm, beginning in 2017
under this Agreement
17. Developer completes Phase No later than four ( 4) years after § 7 .0 & Exhibit B, , I mining Event 12, unless the rate of § 5(c)&(d)
mining is amended to expedite
extraction as contemplated in this
Agreement.
18. Developer delivers to City January 7, 2-019 (36 months §4.lO(b) fourth payment of following the date at Event No. 8
$2,500,000 above).
C-2
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.. AGREEl\llENT ITEM TO BE PER.fORl\llED · TIME FOR PElU'ORMANGE. REFERENCE
19. Developer commences Concurrently with Event No. 17 § 7.0 and Exhibit B, Phase I reclamation and §§ A.2.b and A3.a
Phase Il mining and Reclamation
Plan
20. Developer completes No later than December 31, § 7.0 and Exhibit B, reelamati on of Development 2034, unless the rate of mining is § A.3.aand Parcel amended to expedite extraction Reclamation Plan
as contemplated in this
Agreement.
21. Developer completes mining December 31, 2050, unless the § 7.0 and Exhibit B, Phase II rate of mining is amended to § A.2.b and
expedite extraction as Reclamation Plan
contemplated in this Agreement.
22. Developer completes Phase December 31, 2050, unless the § 7.0 and Exhibit B, II reclamation rate of mining is amended to § A.3.b and expedite extraction as Reclamation Plan
contemplated in this Agreement.
It is understood that the foregoing Schedule of Performance is subject to all of the terms and conditions set forth in the text of the Agreement. The summary of the items of performance in this Schedule of Performance is not intended to supersede or modify the more complete description in the text; in the event of any conflict or inconsistency between this Schedule of Performance and the text of the Agreement, the text shall govem.
The tin1e periods set forth in this Schedule of Performance may be altered or amended only by written agreement signed by both City and Developer. A failure by either party to enforce a breach of any particular time provision shall not be cons1rned as a waiver of any other time provision. The City Manager shall have tlrn authority to approve extensions of time without City Council action not to exceed a cumulative total of 180 days.
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Exhibit "D"
RECLAMATION PLAN DRAWINGS
The following Reclamation Plan drawings provide facility locations and the manner of mining and reclamation including depths, sequencing, tons mined and backfill volume information referred to in Exhibit B "Scope of Development". The Reclamation Plan drawings listed below are provided in reduced 11" x IT' prints hereafter.
Title
Title Sheet
Maximum Mining Extent
Reclamation Sequence Plan
Mine & Reclamation Fill Phasing
Reclamation Revegetation Plan
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ATTACHMENT "B"
AMENDMENT TO DEVELOPMENT AGREEMENT FOR OLIVE PIT
TIDS AMENDMENT TO DEVELOPMENT AGREEMENT FOR OLIVE PIT
("Amendment") is entered into as of March 14th, 2017, by and between the CITY OF IRWINDALE, a municipal corporation (the "City"), and UNITED ROCK PRODUCTS CORPORATION, a Delaware corporation ("Developer"). The City and Developer may be referred to collectively as the "Parties" and individually as a "Party."
RECITALS
WHEREAS, on December 9, 2015, the City and Developer entered into that certain Development Agreement for Olive Pit (the "Development Agreement") to excavate and reclaim the inactive 189.74 acre mining site known as the Olive Pit and identified as APN 8415-001-906, as such Site is further described in the Development Agreement; WHEREAS, Section 9 .1 of the Development Agreement, entitled "Initiation of Amendment," states as follows, " ... should Developer determine in its sole discretion, and be able to document such determination to the City, that commercial production warrants an increase in the average armual excavation rate designated for the Project, Developer shall have the right to apply for an amendment to such average production rate and the City agrees to amend this Agreement to accomplish such revised average rate, subject to compliance with CEQA and implementation of any required mitigation measures;" WHEREAS, on September 27, 2016, Developer submitted a request for an increase in the average annual rate of mining from 1 million to 1.5 million tons per year (the "Application"), which will reduce the overall timeline of mining and reclamation of the Site by approximately ten (10) years, from approximately thirty-two (32) years to between twenty-two (22) and twentythree (23) years; WHEREAS, on December 14, 2016, the City Council received and filed Addendum No. 1 ("Addendum No. l ") to the Certified Final Environmental Impact Report prepared by Harvey Consulting Group, LLC, and reviewed by City staff, which concludes that no further environmental impacts arise from the request to increase the average armual rate of mining at the Site requested in the Application, suQject to some minor revisions to mitigation measures; WHEREAS, Section 9.4 (a) of the Development Agreement further provides that "hnplementation of the Project may require minor modifications of the details of the Development Plan and perfonnance of the Parties under this Agreement. The parties desire to retain a certain degree of flexibility with respect to those items covered in general terms under this Agreement. Therefore, modifications of the Development Plan agreed to by both Developer and City, which are found by the City Manager to be non-substantive and procedural consistent with the terms of this Section 9 .4 shall not require modification of this Agreement, but, instead, may be approved administratively by the City Manager in writing;" WHEREAS, although Section 9.4 (b) provides general guidance of what changes are presumed to be minor modification as those that do not change certain aspects of the Project by 01005.0044/331351.4 .
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more than 10%, in light of the Addendnm' s finding that no enviromnental impacts result triggering the preparation of additional CEQA documentation by the revised annual rate of mining and reduced timeline for the Project sought in the Application, the City Manager has concluded that the Application qualifies as a non-substantive and procedural change consistent witb tbe terms of Section 9.4 (a); and
WHEREAS, tbe Parties wish to enter into this Amendment to amend certain provisions of the Development Agreement.
AMENDMENT
NOW, THEREFORE, tbe City and Developer hereby agree to amend the Development Agreement as follows:
1. Recitals. The parties find that the above recitals are true ru1d con-ect and incorporate them herein.
2. Section 3.1. Section 3.1 of the Development Agreement, entitled "Term," shall be amended by deleting the first sentence and replacing it with the following:
"Provided the parties duly approve the License on or before the Effective Date, the term of this Agreement (tbe "Term") shall commence on the Effective Date and shall continue until no later than December 31, 2041, when fmal reclamation shall be accomplished for tbe Site, in accordance with Article 7.0., when final reclamation shall be accomplished for the Site, in accordance with Article 7. 0. The parties agree tbat tbe effectiveness of this Agreement shall be void if the License approved by the parties terminates for any reason at any time during the Term. Mining operations and reclamation authorized by this Agreement and the Reclamation Plan shall be conducted during the times set forth in tbe Schedule of Performance. In the event Developer has not completed its performance hereunder upon expiration of fue term, the City Council may extend fue Term in its reasonable discretion and seek specific performance in lieu of accepting termination but this right shall not preclude City from exercising any other rights hereunder for such violation. Additionally, based on Developer's access and inspection of the available aggregate reserves at the Site before fue Effective Date, should the parties desire to have Developer continue to mine beyond the permitted depfu to secure the additional reserves at tbe Site, this Agreement may be amended, subject to fue mutual agreement of tbe parties, separate negotiation of the extension and amendment to tbe License, subject to compliance with CEQA. Notwithstandh1g the foregoing, this Agreement shall terminate when reclrunation, as described in this Agreement an.d fue Reclamation Plan, as may be duly amended by tbe parties, is complete. "
3. Exhibit B, Section A.2.a. Section A.2.a. of Exhibit B to the Development Agreement, entitled "Mining Phase 1," shall be amended by deleting the first sentence of the last paragraph and replacing it with tbe following:
01005. 0044/331351.4
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"Developer shall extract an average of one million five hundred thousand (1,500,000) tons per year during Phase I but no more than the total amount approved per the certified EIR, or any duly-approved amendment, addendum or supplement thereto, including but not limited to Addendum No. 1. Developer further agrees to abide by all conditions and mitigation measures in the EIR and Addendum No. l ."
4. Exhibit B, Section A.2.b. Section A.2.b. of EXhibit B to the Development Agreement, entitled "Mining Phase II," shall be amended by adding the following paragraph at the end of the Section:
"Developer shall extract an average of one million five hundred thousand (1,500,000) tons per year during Phase II, but no more than the total amount approved per the certified EIR, or any duly approved amendment, addendum or supplement thereto, including but not limited to Addendum No. 1."
5. Full Force and Effect. Except as expressly modified herein, all other provisions of the Development Agreement shall remain unmodified and in full force and effect.
6. Corpo•·ate Authority. The persons executing this Amendment on behalf of the parties hereto warrant that (I) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment on behalf of said party, (iii) by so executing this Amendment, such party is formally bound to the provisions of this Amendment, and (iv) the entering into this Amendment does not violate any provision of any other agreement to which said party is bound.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
01005,00441331351.4
II
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IN WITNESS WHEREOF, the City and Developer have executed this Amendment on the date first above written.
Attest:
Approved as to form:
Aleshire W der, LLP
01005.0044/331351.4
"CITY"
"DEVELOPER"
UNITED ROCK PRODUCTS CORPORATION, a
Delaware corporation
Br:;s;;··-··-~~····· ·······.
Name: David Martinez
Title: President
[END OF SIGNATURES]
A COLAS COMPANY
November 16, 2022
Marilyn Simpson
United Rock Products
1245 E. Arrow Hwy.
Irwindale, CA 91706
(714) 578-9600 Phone
(626) 357-9508 Fax
www.unitedrock.com
Community Development Director
City of Irwindale
5050 N. Irwindale Ave
Irwindale, CA 91706
RE: United Rock Olive Pit- CA Mine ID #91-19-0052
Approval for Application Submittal
Dear Mrs. Simpson,
ATTACHMENT "C"
United Rock Products (URP) requests the City of lrwindale's (Property Owner) approval to submit an application to modify the Development Agreement (DA) for the Olive Pit. URP seeks to modify the existing conditions of the DA as follows:
Exhibit 8, Section A.2.a "Mining Phase/"
• Increase the annual tonnage from an average of 1.5 million tons per year to a maximum of 2.0 million tons per year.
Exhibit 8, Section A.2.b "Mining Phase II"
• Increase the annual tonnage from an average of 1.5 million tons per year to a maximum of 2.0 million tons per year.
Exhibit 8, Section A.1 "Access Road Relocation"
• Modify the entrance of the site to allow for trucks to enter off of Azusa Canyon Road by the Los Angeles County Flood Control gate.
This request is for the City to approve the signing of the application as the Property Owner.
This request does not grant URP the approval of a project but would allow URP to submit an application to the City to evaluate and conduct the proper environmental review of the proposed modifications to the DA. URP understands that this request would also include the modification of any other land use entitlements related to the site, which may include the Reclamation Plan and Environmental Impact Report (EIR).
If you have any questions or require further information, please let me know.
Sincerely,
United Rock Products
/fvf 2~ Jeff Cameron
Environmental Manager
cc: Julian Miranda, City Manager
Lisa Chou, Associate Planner
Bill Boyd
Mark Pachura
IZJCity Council
O Successor Agency
O Housing Authority
O Reclamation Authority
O Joint Powers Authority
Date: January 25, 2023
Ctty ef
IRVVINDALE
AGENDA REPORT
To:
From:
Honorable Mayor and Members of the City Council
Julian Miranda, City Manager
CC Item 28
Issue: Settlement Agreement between Five Points, LP and City of Irwindale regarding settlement of the lawsuit Five Points, LP vs. City of Irwindale, Los Angeles County Superior Court, Case No. 22STCV01394
City Manager's Recommendation:
1) Approve the Settlement Agreement between the City of Irwindale and Five Points, LP regarding settlement of the lawsuit Five Points, LP vs. City of Irwindale, Los Angeles County Superior Court, Case No. 22STCV01394; 2) Authorize the City Manager to execute the Settlement Agreement subject to City Attorney approval as to form with authorization to the City Manager to approve any non-substantive changes to the agreement prior to execution
Administrative Action:
Prepared and Submitted by:
Adrian Guerra, City Attorney
Electronically Approved
Reviewed by:
Adrian Guerra, City Attorney
Electronically Approved
Approved by:
Julian Miranda, City Manager
Background and Analysis:
This Item was presented to the City Council at its special meeting of January 12, 2023.
By unanimous vote of the City Council, the Item was continued to a date uncertain.
Therefore, this Item is being presented to the City Council for further consideration, and includes modified dates for further consideration of the Revised Project, as set forth herein.
01005.0003/851527.1 Page 1
In November 2015, the City and M&A Gabaee, LLC (predecessor to Five Points, LP as developer) entered into a Purchase and Sale and Development Agreement for the property located at 5175 Vincent Avenue. The agreement provided for the sale of the property by the City as Successor Agency to the Irwindale Community Redevelopment Agency to Five Points for future development of the property for light industrial and/or commercial facilities.
Five Points, LP ("Five Points") as the developer of the property submitted applications to the City for the development and construction of a single-story ±545,735 square-foot speculative concrete tilt-up building located at 5175 Vincent Avenue. The developer submitted an Environmental Impact Report (SCH #2018121056) for approval by the City Council and applied for (1) Site Plan and Design Review to approve the proposed site plan, which includes site configuration, design, location, and impact of the proposed use, and the compliance of the Project with the established Zoning Code standard and the "City of Irwindale Commercial and Industrial Design Guidelines"; (2) a General Plan Amendment to approve the change of the current General Plan designation from "Residential" to "Industrial/Business Park"; and (3) Approval of the Lot Line Adjustment.
On October 13, 2021 , the City Council held a public hearing on the same, and denied the permit applications with a finding that the benefits did not outweigh the significant unavoidable environmental impacts on air quality identified in the Environmental Impact Report, and declined to adopt a Statement of Overriding Considerations.
On November 19, 2021 , Five Points submitted a claim for damages to the City for $20 million, alleging claims for (1) breach of contract, (2) breach of implied-in-fact contract; (3) breach of the covenant of good faith and fair dealing; (4) promissory estoppel based on the purchase and sale agreement. On December 8, 2021, the City Council denied the claim.
On January 12, 2022, Five Points filed suit against the City in Los Angeles County Superior Court, Case No. 22STCV01394, alleging (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) promissory estoppel, declaratory relief, and (4) taking of property without just compensation in violation of the 5th & 14th Amendments of the U.S. Constitution, claiming that the City breached its contractual obligations and harmed Five Points by refusing to certify the Final Environmental Impact Report ("FEIR"), and approve the site plan and design review for the proposed Project.
Five Points is claiming approximately $20 million in damages resulting from the City's denial.
Five Points filed a First Amended Complaint on June 22, 2022. On August 8, 2022, the City filed a demurrer to Five Points' First Amended Complaint, which was set for hearing on January 11 , 2022 at 8:30 a.m. In order to facilitate the Parties' drafting and approval of the settlement agreement, the City filed a Notice of Withdrawal of Hearing Reservation Date and Continuance of Hearing Date, withdrawing the January 11, 2023 demurrer date and continuing it to March 27, 2023.