Agenda — Monterey Park City Council, April 19, 2023 (part 2 of 2)

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5.5 TRANSPORTATION AND CIRCULATION (PROPOSED PROJECT AND SMALL-BOX RETAIL ALTERNATE LAND USE PLAN) MM 5-1 During project construction, over-sized transport vehicles used to haul construction materials and/or debris shall be prohibited from using SR-60 without a transportation permit issued by Caltrans. In addition, over-sized truck trips entering and leaving the project site shall avoid the peak commute periods (7 to 9 AM and 4 to 6 PM). The construction contractor shall monitor all over-sized vehicle activities to ensure compliance with these restrictions.

Construction
contractor/Project Applicant
During construction Public Works Department

MM 5-2 Prior to issuance of the first Certificate of Occupancy, the Applicant shall pay the costs of constructing the following mitigation unless otherwise provided for in a Development Agreement with the City or a Disposition and Development Agreement with the Redevelopment Agency, which the City and Redevelopment Agency may or may not provide for alternative funding for mitigation through these agreements in their sole and absolute discretion.
 Markland Drive/Potrero Grande Drive
o Convert the northbound right turn lane to a free right turn lane (no widening of eastbound return lanes required).
 Saturn Street–Greenwood Avenue/Potrero Grande Drive
o Restripe eastbound approach to include a dedicated right turn lane (no widening required).
o Restripe westbound approach to include a dedicated right turn lane (no widening required).

Project Applicant/Public
Works Department

Prior to issuance of the first
certificate of occupancy
Public Works Department

MM 5-3 Modify existing traffic signal to provide overlap right turn phasing for the northbound approach to Wilcox Avenue/Via Campo Intersection.

Project Applicant/Public
Works Department
Prior to issuance of the first
certificate of occupancy
Public Works Department

MM 5-4 Prior to issuance of the first certificate of occupancy, the Applicant shall pay the costs of constructing the following mitigation unless otherwise provided for in a Development Agreement with the City or a Disposition and Development Agreement with the Redevelopment Agency or unless an established fee program is in place to fund such mitigation, in which case the Applicant shall pay the applicable fees or fair share of the cost of such mitigation. The provision for funding of mitigation through a Development Agreement or Disposition and Project Applicant/Public
Works Department

Prior to issuance of the first
certificate of occupancy
Public Works Department

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Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
Development Agreement or through a fee program may or may not be provided for in the City's and Redevelopment Agency's sole and absolute discretion.
 Garfield Avenue/Pomona Boulevard
o Widen northbound approach and add a second (dual) left turn lane.
o Restripe northbound shared left plus through lane to a dedicated through lane.
 Garfield Avenue/Via Campo
o Restripe the second eastbound through lane to a shared through plus right turn lane.
 Wilcox Avenue/Via Campo
o Modify existing traffic signal to provide overlap right turn phasing for the northbound approach.
 Markland Drive–Vail Drive/Via Campo
o Widen eastbound approach and add a dedicated left turn lane, OR convert the inside westbound through return
lane to a left turn lane, which would not require any
roadway widening. Two westbound return lanes are not
required at this intersection.
o Restripe eastbound shared left plus through lane to a dedicated through lane.
 Paramount Boulevard/SR-60 westbound ramps–Market Place Drive
o Widen eastbound approach to have: 1) left turn lane; and 2) two dedicated right turn lanes.
o Provide a second (dual) left turn on the northbound
approach.
o Widen the westbound approach to provide a second
(dual) left turn lane, one through lane, and a dedicated right turn lane.
 Paramount Boulevard/SR-60 eastbound ramps–Town Center Drive

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Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
o Widen eastbound approach to have: 1) left turn lane; 2) shared left plus through lane; 3) shared through plus right turn lane; and 4) dedicated right turn lane.
o Widen the westbound approach to have: 1) left turn lane; 2) shared left plus right turn lane; and 3) dedicated right turn lane.
 Paramount Boulevard/Montebello Boulevard
o Consistent with the mitigation measures in the “Traffic Impact Study: Montebello Hills Specific Plan” (KOA
2009), implement Intelligent Transportation System
measures such as signal coordination with the adjacent
ramp intersections, and provide improved overhead
signage to direct off-ramp traffic.
 Montebello Boulevard/Beverly Boulevard
o Restripe the northbound right turn lane to a shared
through plus right turn lane for a total of three through lanes through the intersection.
o Stripe a third northbound through lane on Montebello
Boulevard that can be tapered back to two lanes before
Victoria Avenue. On-street parking on the east side of
Montebello Boulevard will have to be prohibited, at least during the PM peak hour.

MM 5-5 Prior to issuance of the last certificate of occupancy, the Applicant shall pay the costs of constructing the following mitigation unless otherwise provided for in a Development Agreement with the City or a Disposition and Development Agreement with the Agency, which the City and Agency may or may not provide for alternative funding for mitigation through these agreements in their sole and absolute discretion:
 Wilcox Avenue/Pomona Boulevard
Prohibit on-street parking for 200 feet on the north side of Pomona Boulevard and restripe the parking lane to a dedicated westbound right turn lane.

Project Applicant/Public
Works Department

Prior to issuance of the last
certificate of occupancy
Public Works Department

MM 5-6 Prior to issuance of the last Certificate of Occupancy, the Applicant Project Applicant/Public Prior to issuance of the last Public Works Department

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Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
shall pay the costs of constructing the following mitigation unless otherwise provided for in a Development Agreement with the City or a Disposition and Development Agreement with the Agency or unless an established fee program is in place to fund such mitigation, in which case the Applicant shall pay the applicable fees or fair share of the cost of such mitigation. The provision for funding of mitigation through a Development Agreement or Disposition and Development Agreement or through a fee program may or may not be provided for in the City's and Agency's sole and absolute discretion.  Garfield Avenue/Pomona Boulevard
o Widen northbound approach and add a second (dual) left turn lane.
o Restripe northbound shared left plus through lane to a dedicated through lane.
o Restripe the #2 southbound through lane to a shared
through plus right turn lane.
 Garfield Avenue/Via Campo
o Restripe the second eastbound through lane to a shared through plus right turn lane.
 Markland Drive–Vail Drive/Via Campo
o Restripe southbound approach to include a dedicated
right turn lane (no widening required).
o The project’s fair-share percentage is 17.4 percent (PM peak hour)
 San Gabriel Boulevard–Paramount Boulevard/Hill Drive
o Restripe southbound approach to include a dedicated
right turn lane (no widening required).
 Paramount Boulevard/SR 60 westbound ramps–Market Place Drive
o Widen eastbound approach to have: 1) left turn lane; and 2) two dedicated right turn lanes.
o Provide a second (dual) left turn on the northbound
approach.

Works Department

certificate of occupancy

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Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
o Widen the westbound approach to provide a second
(dual) left turn lane, one through lane, and a dedicated right turn lane.
o Modify signal to provide overlap right turn phasing for the northbound, eastbound, and westbound approaches.
 Paramount Boulevard/SR 60 eastbound ramps–Town Center Drive
o Widen the eastbound (off-ramp) approach and add a
shared through plus right turn lane.
 Paramount Boulevard/Montebello Boulevard
o Consistent with the mitigation measures in the Traffic Impact Study – Montebello Hills Specific Plan (KOA
2009), implement Intelligent Transportation System
measures such as signal coordination with the adjacent
ramp intersections, and provide improved overhead
signage to direct off-ramp traffic.
 Montebello Boulevard/Beverly Boulevard
o Restripe the northbound right turn lane to a shared
through plus right turn lane for a total of three through lanes through the intersection.
o Stripe a third northbound through lane on Montebello
Boulevard that can be tapered back to two lanes before
Victoria Avenue. On-street parking on the east side of
Montebello Boulevard will have to be prohibited, at least during the PM peak hour.

5.6 UTILITIES AND SERVICE SYSTEMS
MM 6-1 The project applicant shall upgrade 1,000 feet of the 8-inch water line in Saturn Street between South Orange Avenue and Potrero Grande Drive to a 16-inch line.

Project applicant Prior to issuance of first
occupancy permit
Public Works Department
MM 6-2 The project applicant shall install automatic sprinkler systems with adequate pressure to irrigate landscaping. The sprinkler system shall have the capacity to be connected to future recycled water distribution systems when they become available and be programmed to operate Project applicant Prior to issuance of first
occupancy permit
Public Works
Department/Community
Development Department

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MM 6-3 The project applicant shall use drought-tolerant, low-water-consuming plant varieties to reduce irrigation water consumption in new landscaped areas. Should recycled water become available for the project site, all planted areas shall be irrigated with recycled water.

Project applicant Prior to issuance of first
occupancy permit
Public Works
Department/Community
Development Department

MM 6-4 Prior to the issuance of first occupancy permit, the project applicant shall demonstrate that efficient irrigation systems have been installed, minimizing runoff and evaporation and maximizing the amount of water that reaches plant roots.

Project applicant Prior to the issuance of first
occupancy permit
Public Works
Department/Community
Development Department

MM 6-5 Prior to the issuance of first occupancy permit, the project applicant shall demonstrate that water-efficient design features, including but not limited to lower-volume water faucets (2 gallon per minute), low- flow toilets (1.28 average gallons per flush), waterless water heaters, waterless urinals, automatic on and off water faucets, and water- efficient appliances, have been installed in new construction.

Project applicant Prior to the issuance of first
occupancy permit
Public Works
Department/Community
Development Department

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Project applicant Prior to the issuance of first
occupancy permit
Public Works Department
MM 6-7 Prior to issuance of the first certificate of occupancy, the project applicant shall upgrade the 1,500 feet of 8-inch water main in Potrero Grande Drive east of Atlas Avenue with a 12-inch water main.

Project applicant Prior to the issuance of first
occupancy permit
Public Works Department
MM 6-8 Prior to issuance of the first certificate of occupancy, the project applicant shall upgrade approximately 500 feet of the 12-inch water main in Greenwood Avenue with a 16-inch water main from Potrero Grande Drive to the terminus of Greenwood Avenue.

Project applicant Prior to the issuance of first
occupancy permit
Public Works Department
MM 6-9 Prior to issuance of the first certificate of occupancy, the project applicant shall replace approximately 300 feet of the 6-inch water main with a 12-inch main between Taylor Drive and the existing 12- inch main in Orange Avenue.

Project applicant Prior to the issuance of first
occupancy permit
Public Works Department
MM 6-10 The City shall continue to collaborate with the San Gabriel Valley Municipal Water District (SGVMWD) to ensure that available water supplies meet anticipated demand in accordance with both the City’s and SGVMWD’s 2010 Urban Water Management Plans.

Public Works
Department/Community
Development Department
Ongoing Public Works
Department/Community
Development Department

MM 6-11 Prior to issuance of first occupancy permits, the project applicant shall prepare a water conservation comparison that demonstrates how the project can reduce water consumption by 5 percent over the 20x2020 requirements, for a 25 percent total reduction when compared to the project’s water demand on Table 5.6-6 of the DEIR. The reduction in water consumption shall be demonstrated through the use of project design features that include, but are not limited to, the features described in Mitigation Measures 6-1 through 6-6 and described in the City’s 2010 mandatory conservation ordinance.

Project applicant Prior to the issuance of first
occupancy permit
Public Works
Department/Community
Development Department

MM 6-12 The project applicant shall install time controlled systems for exterior building lights, parking areas, and outdoor signs to reduce energy consumption. These systems shall be programmed to account for variations in seasonal daylight times.

Project applicant Prior to the issuance of first
occupancy permit
Public Works
Department/Community
Development Department

MM 6-13 The applicant shall use lighter-colored or earth-toned building material and landscaping to reduce energy use, as shown in the Precise Plan.

Project applicant Prior to the issuance of a
building permit
Community Development
Department

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MM 6-14 High-efficiency lamps shall be installed for all street and parking lot lighting to reduce electricity consumption.

Project applicant Prior to the issuance of first
occupancy permit
Public Works Department
MITIGATION MEASURES INCORPORATED FROM THE 2000 MONTEREY PARK TOWNE PLAZA EIR

3.4 GEOLOGY/SEISMICITY
MM 3.4-1 As a precursor to initiation of the Proposed Action, closure of the North Parcel of the OII Landfill must be completed in accordance with USEPA and CIWMB requirements. As part of the Superfund process, the USEPA shall require the applicant to submit additional work plans, predesign, and construction related documents for the proposed project. The USEPA shall conduct detailed technical reviews of the documents, and subject to approval, can authorize commencement of remedial activities which are a prerequisite for development activities.

The applicant shall also include an analysis of the impacts to the project of a catastrophic failure of the South Parcel OII Landfill slope (parallel to and immediately south of the Pomona Freeway) as suggested by the USEPA. Final USEPA approval shall be provided to the City of Monterey Park prior to approval of grading permits for the landfill area of the site.

Project applicant Prior to issuance of grading
permits
Public Works Department
MM 3-4.2 Prior to the issuance of a grading permit for the project, a complete geotechnical report, subject to approval from the City of Monterey Park Building and Safety Division, shall be prepared by a California certified engineering geologist and a California registered geotechnical engineer with experience at landfill sites and previously contaminated sites. In addition to using the available site information the report will require supplemental field investigation, testing, and analysis to provide geotechnical design parameters for all aspects of the project. Included in the report shall be an analysis of the effects of settlement on the development in the closed landfill area of the site, and recommendations for on-going maintenance as needed.

Project applicant Prior to issuance of grading
permits
Public Works Department
MM 3-4.3 The project shall adhere to the recommendations of the RAP and the project geotechnical reports as approved by the Building and Safety Project applicant Prior to issuance of grading
permits
USEPA and Public Works
Department

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MM 3.4-4 The geotechnical report shall require in-grading geologic inspections to locate geologic faults exposed in cut slopes and excavation services. Recommendations shall be made by the geotechnical engineer with regard to the need for measures to prevent negative effects to project structures from seismically induced differential movement across those faults. Similar recommendations shall be made with regard to construction over cut/fill transition zones.

Project applicant Prior to issuance of grading
permits
Public Works Department
MM 3.4-5 The applicant shall complete freeway berm removal work in accordance with an approved work plan detailing the lead-soil excavation, handling and placement. The USEPA and California DTSC shall approve said work plan prior to the issuance of grading permits in the affected areas. Where possible, aerially lead impacted soil shall be disposed of within the final closed North Parcel OII landfill in accordance with the DTSC lead variance. If the lead concentration exceeds the amount allowable under the lead variance, then the lead impacted soil shall be disposed of in a Class I landfill.

Project applicant Prior to issuance of grading
permits
Public Works Department

HAZARDS AND HAZARDOUS MATERIALS
MM 3.5-1 Since the final permeable landfill cap will be penetrated by both gas collection wells and foundation support piles, the cap shall be designed to provide a seal around these penetrations. Cap design around both wells and piles shall be able to maintain its seal as the landfill materials settle, as much as 2.5 feet, plus any appropriate factor of safety. Designs for penetration shall be reviewed by a certified engineering geologist and a certified hydrogeologist prior to being submitted to the USEPA for approval.

Project applicant Prior to issuance of grading
permits
Public Works Department

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For areas of the project site outside the landfill area, risk based remediation shall be considered. It is also possible that passive remediation techniques (natural attenuation, bio-venting, or others) can be applied with regulatory agency approval. Application of these remediation techniques for impacted soils could eliminate the need to excavate and transport contaminated soil to the landfill, and thus reduce the potential for adverse impacts.

Differential settlement of the landfill surface has the potential to rupture lateral collection pipes or sever connections to monitoring probes. Proposed inspection procedures for passive gas collection system must insure proper operation of this system. In addition to risers, the inspection system must insure the structural integrity of collection lateral pipes. Periodic injection and extraction tests should be conducted to determine actual flow continuity and confirm sensor operation.

Project applicant Prior to issuance of grading
permits
Public Works Department

FIRE PROTECTION
MM 3.11-1 The project applicant shall pay the required Public Safety Impact Fee. Project applicant Prior to issuance of a building permit
Community Development
Department

MM 3.11-2 Building permits issued for the project shall be consistent with the most recently adopted Uniform Building Code (UBC) and the City Fire Project applicant Prior to issuance of a
building permit
Community Development
Department

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MM 3.11-3 All structures associated with the proposed project shall be completely installed with sprinklers, with standpipe spacing plans to be reviewed and approved by the Fire Department. Plans and specifications for the sprinkler system shall be submitted to the Fire Department for review and approval prior to construction plan approval.

Project applicant Prior to issuance of a
building permit
Fire Department
MM 3.11-4 Access points for the purpose of rescue shall be provided within all structures associated with the proposed project. The access points shall be reviewed and approved by the Fire Department prior to construction plan approval.

Project applicant Prior to issuance of a
building permit
Fire Department
MM 3.11-5 Fire hydrants shall be placed at approximately 300-foot intervals around the entire project site. Exact fire flow requirements and fire hydrant locations shall be first determined by the Fire Department.

Project applicant Prior to the issuance of first
occupancy permit
Fire Department
MM 3.11-6 Fire resistant construction meeting City requirements shall be incorporated into the building design.

Project applicant Prior to issuance of a
building permit
Community Development
Department

POLICE PROTECTION
MM 3.12-1 The project applicant shall pay the required Public Safety Impact Fee. Project applicant Prior to issuance of a building permit
Community Development
Department

MM 3.12-2 Prior to construction of the proposed project, the MPPD shall be consulted and included in the planning of the following project components:
 Landscaping
 Parking structure lighting
 Placement of security monitors
 Building design
 Restroom design and location
 Parking availability and restrictions surrounding the facility Project applicant Prior to issuance of a
building permit
Police Department
MM 3.12-3 An on-site security system, which includes security guards, alarms, and access limits after hours, shall be provided for the proposed project. The project applicant shall consult with MPPD regarding the features of this system.

Project applicant Prior to the issuance of first
occupancy permit
Police Department
MM 3.12-4 Visually isolated pockets within the development shall be minimized.

Emergency exit doors that have partially enclosing angled walls shall Project applicant Prior to issuance of a
building permit
Police Department

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MM 3.12-5 Project landscaping shall utilize irrigation systems to deter loitering or sleeping in such areas.

Project applicant Prior to issuance of a
building permit
Public Works Department
MM 3.12-6 Street and landscape lighting acceptable to the City Engineer shall be installed along the streets on each side of the development. Such lighting should be designed to minimize illumination impacts to adjacent residents.

Project applicant Prior to the issuance of a
building permit
Public Works Department
MM 3.12-7 The surface parking lot shall be well illuminated. Such lighting should be designed to minimize illumination impacts on adjacent residents.

Project applicant Prior to the issuance of a
building permit
Community Development
Department

MM 3.12-8 Upon completion of the proposed project, the applicant shall provide the MPPD with a site plan of the project. The plan shall include access routes, unit and/or building numbers, and any information that in the judgment of the Police Department might facilitate police response and/or minimize service requirements.

Project applicant Prior to the issuance of first
occupancy permit
Police Department
MM 3.12-9 Clearly identifiable address indicators shall be provided on all buildings.

Project applicant Prior to the issuance of first
occupancy permit
Public Works Department
MM 3.12-10 Project tenants shall discourage loitering of people and vehicles in parking areas.

Project tenants During operation Police Department
MM 3.12-11 The project applicant shall erect appropriate and aesthetically pleasing barriers (i.e. gates, fences, shrubbery) along property boundaries to minimize human intrusion into landscaped buffer areas.

Project applicant Prior to the issuance of first
occupancy permit
Public Works Department

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4. Mitigation Monitoring Reports
Mitigation monitoring reports are required to document compliance with the Mitigation Monitoring Program and to dispute arbitration enforcement resolution. Specific reports include:
 Field Check Report
 Implementation Compliance Report
 Arbitration/Enforcement Report

4.1 FIELD CHECK REPORT
Field check reports are required to record in-field compliance and conditions.

4.2 IMPLEMENTATION COMPLIANCE REPORT
The Implementation Compliance Report (ICR) is prepared to document the implementation of mitigation measures on a phased basis, based on the information in Table 3-1. The report summarizes implementation compliance, including mitigation measures, date completed, and monitor’s signature.

4.3 ARBITRATION/ENFORCEMENT REPORT
The Arbitration/Enforcement Report (AER) is prepared to document the outcome of arbitration committee review and becomes a portion of the ICR.

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5. Report Preparation

5.1 LIST OF PREPARERS
The Planning Center
William Halligan, Esq.

Vice President, Environmental Services

Leah Boyer
Associate Planner
City of Monterey Park
Jim Basham
Development Services Director

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6. Report Preparation

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Appendices

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ATTACHMENT 2
Draft Ordinance - Development Agreement (DA-22-01)
Staff Report
April 19, 2023

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ORDINANCE NO. _____

AN ORDINANCE APPROVING AN AMENDED AND RESTATED

DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MONTEREY

PARK AND MONTEREY PARK RETAIL PARTNERS, LLC TO

FACILITATE THE DEVELOPMENT OF THE MONTEREY PARK

MARKET PLACE

THE CITY COUNCIL DOES ORDAIN AS FOLLOWS:

SECTION 1. Re
citals. The City Council finds and declares as follows:

A. Monterey Park Retail Partners, LLC, a California Limited Liability Company (“Developer”) entered into a development agreement dated January 16, 2013 (the “Development Agreement") with the City of Monterey Park (“City”), in connection with developing a commercial retail shopping center consisting of approximately 500,000 square feet and a minimum of 1,924 parking spaces on the Oil Cleanup/Edison site (the “Property”), as further described in the precise plan and tentative map approved in conjunction with the Development Agreement, known and referred to as the Monterey Park Market Place (the “Approved Project”).

B. Developer and its affiliates propose to amend and restate the Development Agreement (the “Amended and Restated Development Agreement”) in connection with possible revisions to the Approved Project to allow the development of its final phase with retail, auto dealership, last mile distribution, and/or warehouse uses, parking, and related improvements, as further described in the specific plan (“Specific Plan”) being considered in conjunction with the Amended and Restated Development Agreement (the “Project”) . The Amended and Restated Development Agreement is attached to this Ordinance as Exhibit “A,” and incorporated by reference.

C. T he City reviewed the Project’s environmental impacts under the California Environmental Quality Act (Public Resources Code §§ 21000, et seq., “CEQA”) and the regulations promulgated thereunder (14 California Code of Regulations §§ 15000, et seq., the “CEQA Guidelines”).

D. On April 5, 2023, the City Council conducted a duly noticed public hearing to consider the Amended and Restated Development Agreement. Notice of the time, place and purpose of the public hearing was duly provided in accordance with Government Code §§ 65867, 65090 and 65091 and Monterey Park Municipal Code (“MPMC”) § 21.32.070.

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City of Monterey Park
Ordinance No. XXXX

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E. This Ordinance, and its findings, are based upon the entire administrative record considered during the April 5, 2023 public hearing including, without limitation, the staff report and accompanying documents.

SECTION 2. P
lanning Agency. Pursuant to MPMC § 2.56.020(C), the City Council is the Monterey Park Planning Agency for purposes of this Ordinance.

SECTION 3. Fi
ndings. Pursuant to Government Code § 65867.5, the City Council finds the following:

The Amended and Restated Development Agreement is consistent with the General Plan of the City of Monterey Park. The Amended and Restated Development Agreement furthers the goals of the General Plan and is in the interest of the general community welfare in that the Amended and Restated Development Agreement will, among other things, facilitate the development of the Property, which is consistent with the following General Plan policies:

1. Land Use (“LU”) Element Goal 1 [Commercial districts that allow a variety of retail, service, and entertainment uses and that accommodate flexibility over time];

2. LU Goal 2 [Dynamic mix of businesses, uses, and employment that sustains a strong local economy and contributes to a fiscally sustainable tax base];

3. LU Policy 2.1 [Provide flexible and clear development standards to allow commercial, professional, industrial, institutional, and hospitality businesses and uses to expand and thrive economically];

4. LU Goal 12 [High design quality in all new commercial developments and rehabilitation projects];

5. LU Policy 12.1 [Compatibility. Require new, infill, and rehabilitation projects in commercial districts be compatible with existing contexts in terms of site design, scale, building design, materials, and architectural approaches];

6. LU Goal 14 [The Market Place as a regional destination for diverse shopping, dining and entertainment experiences];

7. LU Policy 14.1 [Flexibility. Ensure that zoning regulations applicable to the Market Place properties provide focus for the uses the City looks to attract, while providing ﬂexibility to accommodate emerging new uses and markets over time];

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City of Monterey Park
Ordinance No. XXXX

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8. LU Policy 14.2 [Traffic. Work with property owners and property managers to address and manage traffic associated with the Market Place, so that visitors avoid traveling through adjacent residential neighborhoods]; and

9. LU Policy 14.3 [High Design Quality. Insist upon high design quality and landscape treatments upon establishment and over time].

B. The Amended and Restated Development Agreement is also consistent with Economic Development Goal 7.0 and Policies 7.1 through 7.5.

C. The Development Agreement also provides certainty in planning and construction as well as orderly development, while providing assurance to the Applicant that it may construct the Project.

D. T he Amended and Restated Development Agreement complies with the conditions, requirements, restrictions, and terms of MPMC § 21.44.030, in that it includes all mandatory provisions required by Government Code § 65865.2 and does not include any provisions that are not authorized by the Development Agreement Act (Government Code §§ 65864 - 65869.5).

SECTION 4. E
nvironmental Assessment . Because of the facts set forth above, the Project is consistent with the Supplemental Environmental Impact Report (“ SEIR”) and Statement of Overriding Considerations certified (and adopted) by the City Council on December 19, 2012 via Resolution No. 11548 (State Clearinghouse No. 1999051058).

None of the elements set forth in Public Resources Code § 21166 or CEQA Guidelines § 15162 exists. Accordingly, no subsequent or supplemental Environmental Impact Report, Mitigated Negative Declaration or Addendum is required to be prepared before adopting the Project. The Notice of Consistency is attached as Exhibit “B,” and incorporated by reference. Implementation of mitigation measures identified in the SEIR will be monitored as called for in the Mitigation Monitoring and Reporting Program adopted on December 19, 2012.

SECTION 5. N
otice of Determination. The C ity Manager, or designee, is directed to file a notice of determination in accordance with CEQA §§ 21152, 21167(f); CEQA Guidelines § 15094; and any other applicable law.

SECTION 6. Pu
blic Benefits. The Development Agreement provides for public benefits including, without limitation:

A. The
Project will promote the public convenience, health, interest, safety, or welfare of the City and will not adversely affect the orderly development of property or the preservation of property values. Among other things, the Amended and Restated Development Agreement provides for a high- quality

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City of Monterey Park
Ordinance No. XXXX

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mixed-use development, while preserving the City’s authority to impose health and safety regulations on the Project. The Monterey Park Market Place facilitates the utilization of a key site within the City strategically placed near the 60 Freeway to attract significant national and regional tenants and which is anticipated to attract and generate additional jobs and economic activity in the City, thereby preserving or raising adjacent property values and generating significant additional revenue for the City in the form of additional sales tax and/or property tax.

B. The Project facilitates the development of the Monterey Park Market Place development
on an underutilized site within the City and includes provisions intended to
ensure that such development will be of high-q uality architectural design with successful and high-quality tenants. It also permits construction of a significant commercial/distribution/warehouse project on a site designated in the General Plan for such a project.

C. A public benefits fee of at least $25,000 per year during the term of the Development Agreement (up to $175,000 annually during the term) that may be utilized by the City for any purpose.

SECTION 7. Incorporation of Amended and Restated Development Agreement ; Changes; Execution. In accordance with Government Code §§ 65864, et seq. this Ordinance approves the Amended and Restated Development Agreement in substantially the form attached as Exhibit “ A,” and incorporated into this Ordinance by reference.

A. The Am
ended and Restated Development Agreement may be changed before execution as authorized by the City Council during the public hearings for the Project.

B. The Am
ended and Restated Development Agreement may be changed before execution for minor clarifications and technical, clerical, corrections as approved by the City Attorney including, without limitation, completion of references, status of planning approvals, and completion and conformity of all exhibits to the Amended and Restated Development Agreement.

C. The Ci
ty Council authorizes the Mayor to execute the Amended and Restated Development Agreement on the City’s behalf in a form approved by the City Attorney . The City Manager, or designee, is authorized to execute amendments or operating memoranda as permitted by the Amended and Restated Development Agreement, in a form approved by the City Attorney.

SECTION 8. Construction. This Ordinance must be broadly construed in order to achieve the purposes stated in this Ordinance. It is the City Council’s intent that the provisions of

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City of Monterey Park
Ordinance No. XXXX

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this Ordinance be interpreted or implemented by the City and others in a manner that facilitates the purposes set forth in this Ordinance.

SECTION 9. E
nforceability. Repeal of any provision of the Monterey Park Municipal Code does not affect any penalty, forfeiture, or liability incurred before, or preclude prosecution and imposition of penalties for any violation occurring before this Ordinance’s effective date. Any such repealed part will remain in full force and effect for sustaining action or prosecuting violations occurring before the effective date of this Ordinance.

SECTION 10.

Reliance on Record. Each and every one of the findings and determinations in this Ordinance are based on the competent and substantial evidence, both oral and written, contained in the entire record relating to the matter. The determinations constitute the independent findings and determinations of the City Council in all respects and are fully and completely supported by substantial evidence in the record as a whole.

SECTION 11.

Limitations. The City Council’s analysis and evaluation of the project is based on the best information currently available. It is inevitable that in evaluating a project that absolute and perfect knowledge of all possible aspects of the project will not exist. One of the major limitations on analysis of the project is the City Council’s lack of knowledge of future events. In all instances, best efforts have been made to form accurate assumptions. Somewhat related to this are the limitations on the City's ability to solve what are in effect regional, state, and national problems and issues. The City must work within the political framework within which it exists and with the limitations inherent in that framework.

SECTION 12.

Severability. If any part of this Ordinance or its application is deemed invalid by a court of competent jurisdiction, the City Council intends that such invalidity will not affect the effectiveness of the remaining provisions or applications and, to this end, the provisions of this Ordinance are severable.

SECTION 13.

Electronic Signatures . This Resolution may be executed with electronic signatures in accordance with Government Code §16.5. Such electronic signatures will be treated in all respects as having the same effect as an original signature.

SECTION 14.

Publications. The City Clerk is directed to certify the passage and adoption of this Ordinance; make a note of the passage and adoption in the records of this meeting; and, within 15 days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law.

SECTION 15.

Recording. The City Clerk is directed to certify the passage and adoption of this Ordinance, cause it to be entered into the City of Monterey Park’s book of original ordinances, make a note of the passage and adoption in the records of this meeting, and, within fifteen days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law.

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City of Monterey Park
Ordinance No. XXXX

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SECTION 16. Effective Date. This Ordinance becomes effective on the 30 th day following its passage and adoption.

O
RDINANCE NO. ___ HAD ITS FIRST READING ON APRIL 5, 2023, ITS SECOND READING ON ____, AND WAS DULY PASSED, APPROVED, AND

ADOPTED BY THE CITY COUNCIL OF THE CITY OF MONTEREY PARK AT ITS REGULAR MEETING OF ______.

Jose Sanchez, Mayor
ATTEST:

________________________________
Maychelle Yee, City Clerk

APPROVED AS TO FORM:

________________________________
Karl H. Berger, City Attorney

Exhibit A: Development Agreement 22-01
Exhibit B: Notice of Consistency

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EXHIBIT A

AMENDED AND RESTATED

DEVELOPMENT AGREEMENT
This Amended and Restated Development Agreement (the “Agreement”) is made this ___ day of _______, 2023, by and between the CITY OF MONTEREY PARK, a general law city and municipal corporation (the “City”); MONTEREY PARK RETAIL PARTNERS, LLC, a California limited liability company (“MPRP”); MPRP Tract 1, LLC, a California limited liability company, MPRP Tract 2, LLC California limited liability company; and MPRP Tract 3, LLC, California limited liability company (collectively, “ Developer”). City and Developer may be collectively referred to as the “Parties” and each may be referred to as a “Party.” The Parties agrees as follows:

1. RECITALS. The Parties enter into this Agreement with reference to the following:

A. Government Code § 65864, et seq. and Monterey Park Municipal Code (“MPMC”) Chapter 21.110 (collectively, the “DA Regulations”) authorize City to enter into development agreements with persons having legal or equitable interests in real property for the development of such real property.

B. Developer owns approximately 51.1 acres of real property located in City’s jurisdiction which is legally described in attached Exhibit “A,” and is incorporated by reference (the “Property”).

C. MPRP and City previously entered into a development agreement dated January 16, 2013 (the “2013 Agreement”) which authorizes development of a commercial retail shopping center consisting of approximately 500,000 square feet and a minimum of 1,924 parking spaces on the Property known and referred to as the Monterey Park Market Place (the “Approved Project”). During the term of the 2013 Agreement, MPRP transferred portions of the Property to its three affiliates (the other Parties listed above).

D. The Approved Project is also described in the Final Environmental Impact Report and Supplemental Environmental Impact Report identified by State Clearinghouse Number 1999051058 (collectively, the “EIR”) and prepared pursuant to the requirements of CEQA.

E. Developer constructed approximately ______ square feet of commercial development on the Property. An approximately eight-acre portion of the Property located north of the 60 Freeway and west of Market Place Drive remains undeveloped. Developer proposes to develop this portion of the Property with retail, auto dealership, last mile distribution, warehouse uses, and/or parking, and related improvements, and from time to time renovate, improve, and/or modify the existing commercial development, all as further described in the Monterey Park Market Place Specific Plan (“Specific Plan”) being considered in conjunction with this Agreement (collectively, the “Project”).

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F. Developer and City desire to amend and restate the 2013 Agreement in connection with the adoption of the Specific Plan to allow the development of the Project.

G. Developer filed the following applications with City (the “Project Applications”):

i. An Application for the Specific Plan; and

ii. An application for approval of this Agreement.

H. This Agreement assists with land use planning certainty and provides for the orderly development of the Project in a manner consistent with Applicable Law including, without limitation, the MPMC and the General Plan.

I. All actions taken by City were undertaken in accordance with Applicable Law including the California Environmental Quality Act (Public Resources Code §§ 21000, et. seq.) (“CEQA”), and all of the other requirements of notice, public hearings, findings, votes and other procedural matters.

J. On ________, 2023, the City Council held a public meeting and took the following actions after making appropriate findings:

i. Resolution No. ____ finding that no subsequent or supplemental EIR is required for the Project and that the EIR remains the appropriate CEQA document for the Project;

ii. Introduced and waived first reading of Ordinance No. ____, approving the Specific Plan. Second reading and adoption occurred on ______, 2023.

That Ordinance becomes effective 30 days afterward.

2. DEFINITIONS. Unless the contrary is stated or clearly appears from the context, or is defined elsewhere within this Agreement, the following definitions govern the construction of the words and phrases used in this Agreement. Words and phrases not defined by this Agreement have the meanings stated in the MPMC and any successor statutes or regulations.

"Anniversary Date” means that date each yearly anniversary of the Effective Date.

“Applicable Law ” means all federal, state and local law including, without limitation, the MPMC, uncodified ordinances, resolutions adopted by the City Council, the Specific Plan, and all other regulations affecting the Property in effect on the Effective Date.

“CE
QA” means t he California Environmental Quality Act ( California Public Resources Code §§ 21000, et seq .) and the CEQA Guidelines (California Code of Regulations, title 14, §§ 15000, et seq.), as amended.

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“Conditions of Approval” means those conditions of approval imposed by City in connection with the Specific Plan.

“Development Impact Fees” or “DIF” means all City-adopted fees and monetary exactions that are designed to pay for new or expanded public facilities needed to serve, or to mitigate the adverse effects of, a given development project and that are imposed by City as a condition of approval of discretionary or ministerial permits for, or in connection with the implementation of, that development project.

The term “Development Impact Fees” does not include processing fees and charges as described in this Agreement . The term “Development Impact Fees” also does not include requirements that development be served by a public utility even if that public utility imposes a capital improvement fee or similar charge as a condition of providing service. The estimated DIFs to be paid for the Project are as set forth on attached Exhibit “B,” which is incorporated by reference.

“Director” means the City Manager, or designee. This Agreement anticipates that the Director will ordinarily be City’s Community Development Director.

“Discretionary Action(s)” or “Discretionary Approval(s)” means a City action requiring the exercise of judgment, deliberation or discretion on the part of City, including any board, agency, commission or department and any officer or employee thereof, in the process of approving or disapproving a particular activity, as distinguished from an activity which merely requires City, including any board, commission or department or any officer or employee thereof, to determine whether there has been compliance with Applicable Law.

“Effective Date” means, except as provided below, the date this Agreement which is the same as when the Enacting Ordinance (hereafter defined”) becomes effective.

Execution of this Agreement by the parties does not bind the Project or th e Developer to actually use or develop the Project pursuant to the terms of this Agreement until the Effective Date. Notwithstanding the foregoing, the indemnity obligations of Developer take effect as of the date this Agreement is executed.

“Enacting Ordinance” means Ordinance No. _____, adopted by the City Council on ________, approving this Agreement.

“Exactions” means all exactions, in -lieu fees or payments, dedications or reservation requirements, obligations for on- site or off- site improvements, construction requirements for public improvements, facilities, or services called for in connection with the development of or construction on the Property , whether such requirements constitute subdivision improvements, mitigation measures in connection with environmental review of any project, or impositions made under any applicable ordinance or in order to make a project approval consistent with the anticipated land use policies of the General Plan.

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“General Plan” means the Monterey Park General Plan as of the Effective Date except that the Housing Element to the General Plan may become effective after the Effective Date, and is incorporated into the “General Plan” for purposes of this Agreement upon its certification by the California Department of Housing and Community Development in accordance with Applicable Law.

“Minor Change” means changes, modifications or adjustments which are consistent with the overall intent of the Specific Plan and which do not materially alter the overall nature, scope, or design of the Project including, without limitation, construction or provision of additional parking spaces within any Parking Areas ; relocation of the existing Leachate Treatment Plant ; redevelopment of that parcel; and/or the configuration of internal circulation elements.

“Mortgage” means any mortgage, deed of trust, encumbrance, sale leaseback or other security interest encumbering all or any portion of the Property, given by Developer for the purpose of securing funds to be used for financing the acquisition of the Property or any portion thereof, the construction of improvements thereon and/or any other expenditures reasonably necessary and appropriate to develop and/or operate the Project.

“Mortgagee” means the holder of the beneficial interest under any Mortgage.

“Parking Areas” means the areas dedicated for parking, as set forth in the Specific Plan.

“Permitted Uses” means those uses that are specifically permitted by the Specific Plan or, alternatively, the MPMC.

“Processing Fees” means all processing fees and charges required by the City that are applied uniformly to all construction or development related activity including, without limitation , fees for land use applications ; building permit applications ; building permits; grading permits; shoring and excavation permits; hauling permits; encroachment permits; demolition permits ; subdivision or parcel maps ; lot line adjustments; street vacations; inspections; certificates of occupancy and plan check.

Processing Fees do not mean or include DIFs.

“Project Buildings” means all the buildings permitted under the Specific Plan.

“Project Facilities and Infrastructure” means public and semi- public facilities and infrastructure (including associated grading, engineering, design, construction, and supervision) only to the extent such facilities and infrastructure serve the Project.

“Specific Plan” means that certain specific plan approved for the Project by City Council as part of Ordinance No. ____ on______ , 2023.

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“Uniform Codes” means those Uniform Codes adopted by reference in the MPMC in accordance with Government Code §§ 50022.2, et seq. as required by applicable law including, without limitation, Health and Safety Code § 18944.5 and Title 24 of the California Code of Regulations. The Uniform Codes govern building and construction standards including, without limitation, the building, plumbing, electrical, mechanical, grading, sign, and fire standards.

“Zoning Regulations” means the zoning regulations in the MPMC that are part of the Applicable Law.

3. GENERAL ACKNOWLEDGMENTS. The Parties acknowledge that: (a) City entered into this Agreement pursuant to Applicable Law and City’s police powers under the California Constitution to, in part, address the need for public facilities and infrastructure in connection with the Project and other property in the area; and (b) nothing in this Agreement may be construed to limit or restrict the exercise by City of its police powers including, without limitation, those of eminent domain.

4. APPLICABILITY OF THIS AGREEMENT. This Agreement does not: (a) grant density or intensity exceeding that otherwise established in the Specific Plan; (b) eliminate future City approvals relating to the Project if applications seeking such approvals are initiated and submitted by the Developer after the Effective Date; (c) guarantee that Developer will receive any profits from the Project; (d) prohibit the Project’s participation in any benefit assessment district that is generally applicable to the surrounding properties; or (e) amend the General Plan.

This Agreement has a fixed term. Furthermore, City may apply any law in effect at the time of Developer’s future application for Project approvals.

5. INTEREST OF DEVELOPER. Developer represents to City that, as of the Effective Date, Developer has a legal or equitable interest in the Property subject only to encumbrances, easements, covenants, conditions, restrictions, and other matters of record.

6. DEVELOPMENT OF THE PROJECT. The Parties agree that:

A. General Development. Any development of the Project on the Property must be conducted in accordance with the terms and conditions of this Agreement.

B. Permitted Uses. The permitted uses of the Project, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location of public improvements, and other terms and conditions of development applicable to the Project must be those set forth in Applicable Law including, without limitation, the Specific Plan, Conditions of Approval, and this Agreement.

C. Public Benefits Payments. On or before the first Anniversary Date and each subsequent Anniversary Date during the Term, Developer must make a payment (the “Public Benefit Payment”) equal to the sum of (a) $25,000; (b) $1.00 multiplied by the square feet of net new floor area of any new Project Building

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that was completed following the immediately preceding Anniversary Date (as evidenced by the City’s issuance of a final certificate of occupancy therefor); and (c) ten percent of any rent (as calculated on a triple new basis) actually collected by Developer from the lessee of any new parking lot or parking facility completed on the Property since the immediately preceding Anniversary Date, less any free rent or rent credits granted to such lessee. Notwithstanding the foregoing, (y) the Public Benefit Payment may not exceed $175,000 in any given year, and (z) any Project Building intended for the following uses are exempt from payment of the Public Benefits Payment: sale or provision of retail goods or services including, without limitation, retail warehouse stores and discount clubs; banks; restaurants; grocery stores and supermarkets; department stores; retail eating establishments; art galleries; beauty/ health spas; fitness centers/gyms/health clubs; florist/nurseries; gas stations; Computer / Software / Technology; temporary/seasonal stores and kiosks; indoor amusement/entertainment/arcades; Medical/Professional/Administrative/Service Offices; or automotive uses, all as permitted under the Specific Plan. If a Project Building includes a mix of exempt and non-exempt uses, the Public Benefits Payment for that Project Building is based on the square footage of net new floor area of the non-exempt uses only.

D. Future Approvals. City agrees that land uses set forth in the Specific Plan and Conditions of Approval are approved or will be approved pursuant to the terms of this Agreement and Applicable Law, provided that Developer satisfactorily complies with all preliminary procedures, actions, payments and criteria applicable as of the Effective Date and generally required of developers by City for processing applications for land developments at such time. City agrees to grant and implement the necessary land use, zoning, site plan or subdivision approvals and to grant other approvals and permits, including ministerial approvals, that will accomplish or facilitate development of the Project for the uses and to the density or intensity of development described and shown in the Specific Plan, Conditions of Approval, and/or this Agreement pursuant to Applicable Law. Any future development of the Property not contemplated by this Agreement requires all discretionary approvals required by the Applicable Law (collectively, the “Future Conditions of Approval”).

E. Applicable Law. Subject to the limitations set forth in this Agreement, Developer may develop the Property in accordance with, and to the extent of, the Specific Plan, Conditions of Approval and this Agreement. City may impose reasonable conditions in connection with any subsequent discretionary permit actions, but such conditions and actions must not prevent development of the Project as contemplated by this Agreement, or place burdensome or restrictive measures on Developer in connection with the development of the Project.

F. Amendment to Applicable Law. In the event the MPMC is amended by City in a manner which provides more favorable site development standards than those in effect as of the Effective Date, Developer may notify City in writing of its desire to be subject to the new standards for the remaining term of this Agreement. If

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City agrees, by resolution of the City Council or by the Director’s approval, such new standards will become applicable to the Property.

G. Exception for Uniform Codes. Notwithstanding any part of this Agreement to the contrary, the Project is subject to the City’s enforcement of the “uniform codes” regulating building or construction standards which will apply to the Project at the time the City issues building permits.

H. Approval of Subsequent Tentative and Final Maps. Although the Applicable Law determines the standards for granting or withholding approval of tentative, vesting tentative and final maps and tentative, vesting tentative and final parcel maps, the procedures for processing approval of all such maps must be governed by regulations as may then be applicable.

I. Changes in State and Federal Rules and Regulations. Nothing in this Agreement precludes the application to the Project of changes in Applicable Law, the terms of which are specifically mandated and required by changes in state or federal laws or regulations as provided in Government Code § 65869.5. If City or Developer believes that such a change or addition required by California or federal law or regulation exists, then that Party must provide the other with a copy of such California or federal law or regulation and a statement of the nature of its conflict with the provisions of the Applicable Law and/or of this Agreement.

J. Permitted Fees and Exactions. Except as otherwise provided in this Agreement, and specifically excluding fees set by entities not controlled by City that are collected by City (e.g., schools fees), City may only charge and impose those Development Impact Fees and Exactions including, without limitation, dedications and any other fee or tax (including excise, construction or any other tax) relating to development or the privilege of developing, which are in effect on a Citywide basis as of the Effective Date. This Agreement will not be construed to limit the authority of City to charge processing fees for land use approvals, building permits or other similar permits or entitlements which are in force and effect on a Citywide basis at the time application is made for such permits or entitlements and which are designed to reimburse City’s expenses attributable to such application. Developer takes notice pursuant to Government Code § 66020(d) that City is imposing exactions upon the Project in accordance with the Mitigation Fee Act (Government Code § 66000, et seq.). Developer is informed that it may protest exactions in accordance with Government Code § 66020.

K. Term of Map(s) and Other Conditions of Approval. Pursuant to Government Code §§ 66452.6(a) and 65863.9, the term of any subdivision or parcel map that has been or may in the future be processed on all or any portion of the Property and the term of each of the Conditions of Approval will be extended for a period of time through the scheduled termination date of this Agreement.

L. Interpretation. Except for such changes as may in the future be mutually agreed

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upon between City and Developer or as otherwise provided in this Agreement, Developer intends to develop the Project in accordance with the Specific Plan, Applicable Law, the Conditions of Approval, and the terms and conditions of this Agreement. In the event of any conflict between the provisions in this Agreement, the Specific Plan, and Applicable Law, such conflict will be resolved in the following order of priority: (i) first, the Specific Plan; (ii) then, the Applicable Law; and (iii) finally, this Agreement.

7. OPERATING MEMORANDA.

A. The Parties acknowledge that the provisions of the Agreement require a close degree of cooperation and that new information and future events may demonstrate that changes are appropriate with respect to the details of performance of the Parties under this Agreement. The Parties desire, therefore, to retain a certain degree of flexibility with respect to the details of performance for those items covered in general terms under this Agreement. If and when, from time to time, the Parties find that refinements or adjustments are desirable, such refinements or adjustments will be accomplished through operating memoranda or implementation agreements approved by the Parties which, after execution, will be attached to this Agreement as addenda and become a part hereof.

B. Execution of Memoranda. Operating memoranda or implementation agreements may be executed on behalf of City by the City Manager and the City Attorney. In the event a particular subject requires notice or hearing, such notice or hearing will be appropriately given. Any modification to the terms of performance under this Agreement, other than a Minor Change, will be processed as an amendment of this Agreement in accordance with this Agreement and must be approved by the City Council

8. DEVELOPER’S RIGHTS. Developer has and is vested with the right, during the term of this Agreement, including any extensions, to develop the Project as set forth in the Specific Plan.

9. MATERIAL PROJECT MODIFICATIONS. Developer may apply to City for permits, variances, or other approvals to develop portions of the Project in a manner which may be materially inconsistent with the Specific Plan. In such event, such portions of the Project may be reviewed and approved pursuant to the rules, regulations, and procedures of City in effect at the time Developer makes application to City for such development, and to the extent any such application is inconsistent with this Agreement, such application must include an application to amend this Agreement.

10. NON-APPLICATION OF CHANGES IN APPLICABLE LAW. City’s subsequent adoption of any applicable general or specific plan, zoning, subdivision, or building regulation after the Effective Date of this Agreement, or any change in, or addition to, the Applicable Law (other than changes in Processing Fees as provided in this Agreement) including, without limitation, any changes in the General Plan or zoning regulations (including any regulation relating to the timing, sequencing, or phasing of the Project or construction of all or any part of the Project),

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adopted after the Effective Date of this Agreement including, without limitation, any such change by means of ordinance, initiative, resolution, motion, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by any board, agency, commission or department of City, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Project and which would conflict in any way with or be more restrictive than the Applicable Law or Developer’s entitlements under the Specific Plan, may not be applied to the Project during the term of this Agreement unless such changes constitute a change in Uniform Codes.

11. DISCRETIONARY APPROVALS. City will not require Developer to obtain any approvals or permits for the development of the Project in accordance with this Agreement other than those permits or approvals that are required by the Specific Plan or Applicable Law. However, any subsequent Discretionary Approval initiated by Developer that is not permitted by the Specific Plan or Applicable Law are subject to all applicable law then in effect. Approval of any off-site signs, digital signs, or signs otherwise not permitted pursuant to the MPMC and Applicable Law is not authorized by the Specific Plan and is not considered (for purposes of this Agreement) part of the Project.

12. TIMING OF DEVELOPMENT. To the maximum extent permitted by law, it is the Parties’ express intention that the Project will not be subject to any subsequently enacted initiative or ordinances adopted in response to an initiative which in conflict with the Specific Plan, Conditions of Approval and/or this Agreement including, without limitation, any subsequently enacted initiative or ordinance adopted regarding consistency with the Project and/or Conditions of Approval with the General Plan. Without limiting the foregoing, it is the further intention of the parties that development of the Property be exempt from any subsequently enacted initiative or ordinances adopted in response to an initiative or City Council action that limits the number of building permits which may be issued in any year or otherwise seeks to limit the Developer’s development plan. Because the California Supreme Court held in Pardee Construction Co. v.

City of Camarillo (1984) 37 Cal.3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over the parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that, subject to any infrastructure phasing requirements that may be required by the Conditions of Approval, Developer may (without obligation) develop the Property in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment. Notwithstanding this total exemption of the Property from local ordinances regulating the number of building permits which may be issued per year, if there is a judicial determination as a result of proceedings instituted by anyone not a party to this Agreement that the Property is subject to a subsequently adopted ordinance or initiative regulating the number of building permits which may be issued, then Developer shall be entitled to construct the amount of square feet of Project Buildings specified in the Conditions of Approval. As a material part of this Agreement, City agrees that it will not (except as otherwise specifically authorized herein) determine, or seek to have a judicial determination made, that the Property is subject to any subsequently enacted ordinance or initiative regulating the number of building permits which may be issued in any year. This commitment is necessary and in the best interests of the parties in order to provide the open space, parks, public facilities

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infrastructure necessary to meet the requirements of the Conditions of Approval, if any, and the needs of City.

13. PERMITTED USES. Permitted uses of the Property, the density and intensity of such uses, the maximum heights and sizes of the Project Buildings and improvements to be constructed on the Property, and the reservation and dedication of land for public purposes, if any, required in connection with the development of the Property are as set forth in and consistent with the Specific Plan, and this Agreement does not authorize construction of any building or improvement exceeding the maximum density or building heights set forth in or otherwise required by the Specific Plan, as it may be lawfully amended by Developer from time to time.

14. COVENANTS RUNNING WITH THE LAND. As of the Effective Date for any portion of the Property and continuing for the Term provided in this Agreement, the terms and provisions of this Agreement are enforceable by the Parties as equitable servitudes affecting such portion of the Property, constituting covenants running with such portion pursuant to California law including, without limitation, Civil Code § 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon such portion of the Property, run with such portion, and be binding upon Developer and the successors and assigns of Developer during their respective ownerships of such portion of the Property.

15. 2013 AGREEMENT. Upon full execution of this Agreement by the Parties, the 2013 Agreement is superseded in its entirety and is of no further force or effect.

16. OBLIGATIONS OF CITY. In consideration of Developer entering into this Agreement, City agrees to the following with respect to the development of the Property:

A. Processing. City recognizes that expeditious processing of ministerial permits and approvals and discretionary actions, if any, and any other approvals or actions required for the Project can be helpful to the Project. In recognition of this value, City agrees to reasonably cooperate with Developer to establish time frames for processing and reviewing such ministerial permits and approvals and discretionary actions and to comply with any timeframes established in the Conditions of Approval. Upon satisfactory completion by Developer of all required preliminary actions and payments of appropriate processing fees, if any, City must promptly commence and diligently proceed to complete all required steps necessary for the implementation of this Agreement and the development by Developer of the Property in accordance with the other Conditions of Approval including, without limitation, the following:

i. the holding of all required public hearings; and

ii. the processing and approval of all ministerial approvals and related matters as necessary for the completion of the development of the Project.

In this regard, Developer will, in a timely manner, provide City with all documents, applications, plans and other information necessary for City to carry out its obligations hereunder as required by the Applicable Law and

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must cause Developer’s planners, engineers and all other consultants to submit in a timely manner all required materials and documents therefore as required by the Applicable Law.

iii. Standard of Review. The rules, regulations and policies that apply to any ministerial approvals which must be secured before the construction of any portion of the Project must be the Applicable Law. Any ministerial approval, including without limitation a building permit, must be approved by City within a reasonable period of time after application is made therefor.

iv. Contract Services. If requested by Developer, at Developer’s expense, City must obtain outside contractual services as necessary to ensure prompt processing of all Conditions of Approval.

17. REIMBURSEMENT FOR CITY’S EFFORTS ON BEHALF OF DEVELOPER. To the extent that City, on behalf of (and requested by) Developer, attempts to enter into binding agreements with other entities in order to assure the availability of certain permits and approvals or services necessary for development of the Project as described in this Agreement, Developer must reimburse City for all costs and expenses incurred in connection with seeking and entering into any such agreement. Any fees, assessments or other amounts payable by City pursuant to any such agreement described herein must be borne by Developer, except where Developer has notified City in writing, before City entering into such agreement, that it does not desire for City to process an application from any third-party entity.

18. OTHER GOVERNMENTAL PERMITS. City agrees to cooperate with Developer in Developer’s endeavors to obtain permits and approvals as may be required from other governmental or quasi-governmental agencies having jurisdiction over the Property or portions thereof (such as, for example, without limitation, public utilities or utility districts and agencies having jurisdiction over transportation facilities and air quality issues), so long as the cooperation by City will not require City to incur any cost, liability or expense without adequate indemnity against or right of reimbursement therefor from Developer.

19. SIGN APPROVAL. Developer acknowledges that off-site signs and digital signs are currently prohibited in City and that any amendment to the MPMC prohibiting such signs must be submitted for voter approval. If Developer requests an amendment to the MPMC and the City Council, in its sole and absolute discretion, elects to submit any such measure to City’s electorate which would have the effect of permitting off-site and/or digital signs in City, Developer agrees to pay for any and all City fees and costs related to the potential preparation and election costs related to the ballot measure. In addition, Developer must defend and indemnify City against any legal challenge related to or arising from the proposed ballot measure.

20. TERM OF AGREEMENT. This Agreement is binding upon the Effective Date and, except as otherwise provided, remains in effect for a period of five years commencing from the issuance of the first Certificate of Occupancy for the Property unless terminated earlier by its terms or extended under this Section 20 (the “Term”). Pursuant to MPMC § 21.44.020(E), and except

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otherwise provided, this Agreement will automatically renew twice for an additional two-year Term, not to exceed a total Term of nine years. That automatic renewal will occur on the anniversary of the Effective Date unless either Party opts, in writing, not to renew the Agreement not less than 90 days before that renewal date. Nothing in this Section prevents Developer from applying to extend the Term for an period of time by providing a written extension notice to City within thirty days of the end of the Term, provided that there is no uncured default of any of Developer’s material obligations under this Agreement at the time. Expiration or termination of this Agreement does not invalidate any prior permits or approvals on the Property issued by City before such expiration or termination, nor does such expiration affect any right City may have by reason of Developer’s covenants to dedicate land or provide public improvements in conjunction with any portion of the Property which is under construction at such time.

21. PUBLIC BENEFITS. The Parties acknowledge and agree that Developer’s agreement to perform and abide by the covenants and obligations of Developer set forth herein is material consideration for City’s agreement to perform and abide by the covenants and obligations of City set forth herein, including without limitation the following specific public benefits for this Agreement:

22. MITIGATION MEASURES. Developer must comply with the Mitigation Measure and Reporting Plan (“MMRP”) adopted via Resolution No. XXXX on XXXX, 2022 is incorporated by reference into this Agreement as if fully set forth. Failure to comply with the MMRP constitutes a material breach of this Agreement.

23. GREEN CONSTRUCTION. Developer agrees to analyze the feasibility of incorporating green construction practices, materials and features that are environmentally sustainable into new Project Buildings.

24. NEXUS/REASONABLE RELATIONSHIP CHALLENGES. Developer consents to and waives any rights it may have now or in the future to challenge the legal validity of, the conditions, requirements, policies or programs required by the Applicable Law or this Agreement including, without limitation, any claim that they constitute an abuse of the police power, violate substantive due process, deny equal protection of the laws, effect a taking of property without payment of just compensation, or impose an unlawful tax.

25. OTHER GOVERNMENTAL PERMITS. Developer must apply in a timely manner for such other permits and approvals from other governmental or quasi-governmental agencies having jurisdiction over the Property as may be required for the development of, or provision of services to, the Project.

26. CONSTRUCTION AND FUNDING OF PROJECT FACILITIES AND
INFRASTRUCTURE. Developer must construct or fund the construction of any Project Facilities and Infrastructure at the time such Project Facilities and Infrastructure are needed to satisfy the requirements of the Specific Plan. Except as otherwise provided, Developer has no responsibility for the operation, maintenance, repair or replacement of Project Facilities and Infrastructure.

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27. IMPROVEMENT SECURITY. To the extent any Project Facilities and Infrastructure are not financed by a State agency and are being constructed following approval of the relevant final subdivision map, Developer must provide appropriate improvement security pursuant to Government Code §§ 66499, et seq. Any such improvement security must be released in the manner provided by Government Code § 66499.7. City agrees to use reasonable efforts to ensure the partial release of any improvement security provided by Developer upon the partial performance of the secured act or City’s good faith acceptance of the secured Project Facilities and Infrastructure as completion of such improvements progresses.

28. DEDICATIONS. To the extent that rights-of-way or other interests in real property owned by Developer within the Property are needed for the construction, operation or maintenance of Project Facilities and Infrastructure, Developer must dedicate such right-of-way or other interest in real property to City (or other appropriate entity) at the time such land is actually needed for Project Facilities and Infrastructure. Any public improvements constructed by Developer and dedicated to City, and any right-of-way or other real property dedicated to City, will be dedicated free and clear of any liens unacceptable to the City. City must consider accepting each offer of dedication of the Project Facilities and Infrastructure required by this Agreement or the Specific Plan within 60 days of such offer by Developer, provided that the applicable improvements are completed consistent with the Applicable Law. All other Developer offers of dedication required by this Agreement or the Project Approvals must be accepted by the City within a reasonable time, provided that the applicable improvements are completed consistent with Applicable Law.

29. REVIEW OF COMPLIANCE. City will conduct a review of this Agreement as set forth in the following subsections.

A. A
nnual Review. City must review the extent of good faith compliance by Developer with the terms of this Agreement at least once every 12-month period from the Effective Date of this Agreement.

B. P rocedure. Such annual review must be conducted in accordance with the MPMC.

C. N otice. City must notify Developer in writing of the date of review at least 30 days prior thereto.

D. G ood-faith Compl iance. During each annual review, Developer is required to demonstrate good faith compliance with the material terms of this Agreement.

Developer agrees to furnish reasonable evidence of good faith compliance as City, in the exercise of its reasonable discretion, may require. If requested by Developer, City agrees to provide to Developer, a certificate that Developer, or a duly authorized assignee, transferee or successor in interest, is in compliance with the terms of this Agreement, provided Developer reimburses City for all reasonable and direct costs and fees incurred by City with respect thereto.

E. P
roduction of Documents and Other Evidence. Developer agrees to furnish such reasonable evidence and adequate documentation of good faith compliance as

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City, in the exercise of its reasonable discretion, may require.

F. C ost of Annual Review. The actual and reasonable costs incurred by City in connection with the annual review must be borne by Developer.

G. F ailure to Conduct Annual Review. City’s failure to perform an annual review does not constitute a Developer default.

H. S pecial Reviews. In addition, the City Council may order a special periodic review of Developer’s compliance with this Agreement at any time. The cost of such special reviews will be borne by City, unless such special review demonstrates that Developer is not acting in good faith compliance with the material provisions of this Agreement. In such cases, Developer must reimburse City for all actual and reasonable costs, direct and indirect, incurred in conjunction with the special review.

I. P
rocedure for Review. The Director will conduct the review contemplated by this Section to ascertain whether Developer has reasonably complied in good faith with the material terms and conditions of this Agreement during the period for which the review is conducted. The Director will give Developer notice that any such review has been commenced, and give Developer at least 20 days after Developer’s receipt of such notice to provide the Director such information as Developer deems relevant to such review. In addition, upon the written request of the Director, Developer must furnish such documents or other information as reasonably requested by the Director.

J. F
inding of Compliance . If, following such a review, the Director finds good faith compliance by Developer with the material terms and conditions of this Agreement, the Director will issue to Developer an executed certificate of compliance, certifying Developer’s good faith compliance with the terms and conditions of this Agreement through the period of such review.

K. F
inding of Non-Compliance. If, following such a review, the Director finds that Developer has not complied in good faith with the material terms and conditions of the Agreement, the Director will provide notice to Developer detailing such non-compliance. Upon receipt of such notice, Developer (or a Mortgagee, if any, as provided in Section 30.B) may commence to cure the stated non-compliance in accordance with the terms of this Agreement. If Developer (or a Mortgagee, if any) fails to cure the non-compliance pursuant to the terms of this Agreement, the Director must notify the City Council that the Agreement be terminated.

Developer (or a Mortgagee, if any) may dispute any such claim of non- compliance or failure to cure at a public hearing before such termination.

L. E ffect on Default Procedures. Nothing in this Section may be interpreted to prevent City from providing Developer (and any Mortgagee that has requested such notice pursuant to Section 30.B) with a notice of default hereunder at any

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time, including any time other than during a periodic review under this Section, or from terminating this Agreement pursuant to the provisions of this Agreement.

30. MORTGAGES.

A. M
ortgagee Protec tion. No breach of this Agreement will defeat, render invalid, diminish or impair the lien of any Mortgage and any acquisition or acceptance of title or any right or interest in or with respect to the Property or any portion thereof pursuant to a Mortgage, foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise is subject to all of the terms and conditions contained in this Agreement and entitled to all of its benefits. City may not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement and does not, in City’s sole determination, diminish City’s benefits in this Agreement or the security for those benefits.

B. N
otice of Default to Mortgagee: Right of Mortgagee to Cure . If City receives notice from a Mortgagee requesting a copy of any notice of default given hereunder and specifying the address for service thereof, and the Mortgagee has recorded a copy of such request in the official records of Los Angeles County in the manner required under Civil Code § 2924b with respect to Requests for Notices of Default, then City must deliver to such Mortgagee, concurrently with service thereon to the applicable Party, any notice given to the applicable Party with respect to any claim by such Party that it has not complied in good faith with the material terms of this Agreement or has committed an event of default. Each Mortgagee has the right (but not the obligation) for a period of 90 days after the receipt of such notice from such Party to cure or remedy, or to commence to cure or remedy, the claimed default or act of noncompliance set forth in such Party’s notice. If the default is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession, such Mortgagee may (but is not obligated to) seek to obtain possession with diligence and continuity through foreclosure, a receiver or otherwise, and may (but is not obligated to) thereafter remedy or cure the default or noncompliance within 30 days after obtaining possession. If any such default or noncompliance cannot, with diligence, be remedied or cured within such 30-day period, then such Mortgagee may have such additional time as may be reasonably necessary to remedy or cure such default or noncompliance if such Mortgagee commences cure during such 30 day period, and thereafter diligently pursues and completes such cure.

C. L
iability for Past Defaults and Obligations . Subject to the foregoing, any Mortgagee, including the successful bidder at a foreclosure sale, who comes into possession of the Project or the Property or any part thereof pursuant to foreclosure, eviction or otherwise, will take such property subject to the terms of this Agreement and in no event will any such property be released from any obligations associated with its use and development under the provisions of this Agreement. Nothing prevents City from exercising any remedy it may have for a

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default under this Agreement.

D. B ankruptcy. N otwithstanding the foregoing provisions of this Section 9, if any Mortgagee is prohibited from commencing or prosecuting foreclosure, or other appropriate proceedings in the nature thereof, by any injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Developer, the times specified in Section 30.B for commencing or prosecuting foreclosure or other proceedings will be extended for the period of the prohibition.

31. DEFAULT AND REMEDIES.

A. N otice and Cure . In the event of failure by any Party substantially to perform any material terms, covenant or condition of this Agreement, which is required on its part to be performed, the non-defaulting Party has those rights and remedies provided in this Agreement, provided that such non-defaulting Party has first sent a notice of default, identifying with specificity the nature of the alleged default.

B. T
ime to Cure. In the case of a monetary default by Developer, Developer must promptly commence to cure the identified default and shall complete the cure of such default within 20 business days after receipt by Developer of the notice of default. In the case of a non-monetary default by either Party, the alleged defaulting Party must promptly commence to cure the identified default and complete the cure within 60 days after receipt of the notice of default. The 60-day cure period for a non-monetary default will be extended as is reasonably necessary to remedy such default, provided that the alleged defaulting Party commences such cure promptly after receiving the notice of default and continuously and diligently pursues such remedy at all times until such default is cured.

32. REMEDIES FOR MONETARY DEFAULT. In the event of default by Developer in the performance of any of its monetary obligations under this Agreement which remains uncured 20 business days after receipt by Developer of a notice of default from City and after expiration of Mortgagee’s cure period (if a Mortgagee of Developer has delivered a Request for Notice to City), City has available any right or remedy provided in this Agreement, at law or in equity. All of said remedies are cumulative and not exclusive of one another, and the exercise of any one or more of said remedies does not constitute a waiver or election in respect to any other available remedy.

33. REMEDIES FOR NON-MONETARY DEFAULT. In the event of non-monetary default by either Party hereunder which remains uncured (i) after expiration of all applicable notice, cure periods and other conditions contained in Section 31.B above , and (ii) in the case of a default by Developer, in addition to the foregoing and after the expiration of Mortgagee’s cure period (if a Mortgagee of Developer has delivered a Request for Notice to the City), the non-defaulting Party has available any right or remedy provided in this Agreement, or provided at law or in equity, except as prohibited by this Agreement. All of said remedies are cumulative and not exclusive of

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one another, and the exercise of any one or more of said remedies does not constitute a waiver or election in respect to any other available remedy.

A. City and Developer acknowledge that monetary damages and remedies at law generally are inadequate and that specific performance, including injunctive relief is an appropriate remedy for the enforcement of this Agreement. Therefore, the remedy of specific performance, including injunctive relief, is available to both City and Developer under this Agreement in the event of a non-monetary Default.

B. City does not have the right to sue for monetary damages as a result of a non- monetary default under this Agreement. Developer does not have the right to sue for monetary damages for any default under this Agreement.

34. TERMINATION OF AGREEMENT BY CITY. If City (a) finds and determines, on the basis of substantial evidence, that Developer has not been in good faith compliance with the material terms and conditions of this Agreement, or City finds and determines that there has been a default by Developer of its obligations under this Agreement; and (b) City provided notice and Developer (or a Mortgagee, if applicable) has not cured such default within the applicable cure period, City may commence proceedings to terminate this Agreement. The procedures for termination of this Agreement by City are as follows:

A. City must provide notice to Developer (and to any Mortgagee of Developer which has delivered a Request for Notice to City) of its intention to terminate this Agreement. The notice must contain the time and place of a public hearing to be held by the City Council on the determination of City to proceed with termination or modification of this Agreement. The public hearing may not be held earlier than: (i) 31 days after delivery of the notice to Developer, or (ii) if a Mortgagee has delivered a Request for Notice, the day following the expiration of the Mortgagee’s cure period.

B. If, following the conclusion of the public hearing, the City Council: (i) determines that Developer is in default of its obligations under this Agreement beyond the applicable rights, remedies and cure periods set forth in this Agreement or has not been in good faith compliance with this Agreement, as applicable, beyond the applicable rights, remedies and cure periods set forth therein; and (ii) further determines that Developer (or the Mortgagee, if applicable) has not cured the acts or omissions that constitute the basis of the determination under subsection (i) or, if those acts or omissions could not be reasonably remedied before the public hearing, that Developer (or the Mortgagee) has not in good faith commenced to cure or correct such acts or omissions before the public hearing or is not diligently and continuously proceeding therewith to completion, the City Council may terminate this Agreement.

35. TERMINATION OF AGREEMENT BY DEVELOPER. In the event that (i) City breaches this Agreement and has not cured such default within the applicable cure period, or (ii) as

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otherwise permitted under this Agreement, Developer may terminate this Agreement by providing notice to City. Termination is effective upon City’s receipt of Developer’s notice.

36. REQUIRED ACTIONS OF PARTIES; FURTHER ASSURANCES. City and Developer must execute all such instruments and documents and take in good faith all actions necessary or convenient to consummate the actions herein contemplated.

37. ASSIGNMENT. Developer may transfer or assign its rights under this Agreement in whole or in part to any person acquiring all or any portion of the Property and provide notice of such assignment to City. The terms, covenants, and conditions of this Agreement are binding upon any transferee whether or not such an assignment and assumption agreement is signed by the assignee upon acquiring the Property. Express assumption of Developer’s obligations under this Agreement by any such transferee or assignee releases Developer from the obligations so assigned, and City will look solely to the transferee or assignee for performance of the assigned obligations under this Agreement.

38. NEGATION OF AGENCY. Each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Developer is that of a government entity regulating the development of private property by the owner of such property.

39. CONSIDERATION. City and Developer acknowledge and agree that there is good, sufficient and valuable consideration flowing to City and to Developer pursuant to this Agreement and more particularly set forth in the Recitals of this Agreement. The Parties further acknowledge and agree that the exchanged consideration hereunder is fair, just, and reasonable.

40. RECORDATION. As provided in Government Code § 65868.5, the City Clerk must record a copy of this Agreement with the Registrar-Recorder of the County of Los Angeles within 10 days following execution by both Parties. Developer must reimburse City for all costs of such recording, if any.

41. NOTICES. All notices under this Agreement must be in writing and are effective when personally delivered or upon receipt after deposit in the United States mail as registered or certified mail, postage prepaid, return receipt requested, to the following representatives of the Parties at the addresses indicated below or to such other addresses as one Party may provide to the other from time to time:

If to the City:

City of Monterey Park
320 West Newmark Avenue
Monterey Park, CA 91754
Attention: City Manager
With a copy to:

Burke, Williams & Sorensen, LLP
444 South Flower Street, Suite 2400
Los Angeles, CA 90071-2953
Attention: Karl H. Berger, Esq.

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If to Developer:

Monterey Park Retail Partners, LLC
1260 Stelton Road
Piscataway, NJ 08854
Attn: Jack Morris

and

Monterey Park Retail Partners, LLC
160 Essex Street
Lodi, NJ 07644
Attn: Joseph Marino

With a copy to:

The Weingarten Law Firm, LLC
1260 Stelton Road
Piscataway, NJ 08854
Attn: Sheryl Weingarten, Esq.

42. AMENDMENT OR CANCELLATION.

A. A
mendment by Mutual Consent. This Agreement may be amended from time to time by mutual written consent of the original parties or their successors in interest, with City’s actual and reasonable costs payable by amendment applicants, in accordance with the provisions of Government Code §§ 65867 and 65868 and provided that: (i) any amendment to this Agreement which does not relate to the term, permitted uses, density or intensity of use, height or size of buildings, provisions for reservation and dedication of land, conditions, terms, restrictions and requirements relating to subsequent discretionary actions, monetary contributions by Developer or any conditions or covenants relating to the use of the Property, does not require notice or public hearing before the parties may execute an amendment hereto; and (ii) any other amendment of this Agreement will follow the MPMC.

B. A
mendment Exemptions. It is contemplated by City and Developer that Developer may, from time to time, seek amendments to one or more of the Conditions of Approval and Future Conditions of Approval. Any such amendments are contemplated by City and Developer as being within the scope of this Agreement as long as they are consistent with the Applicable Law and will, upon approval by City, continue to constitute the Conditions of Approval as referenced herein. The parties agree that any such amendments do not constitute an amendment to this Agreement nor require an amendment to this Agreement.

C. A
mendment of Development Permits . Upon the written request of Developer, any Development Approval, including the Vesting Map and the Specific Plan may from time to time be amended or modified in the manner set forth in this

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Agreement, the Applicable Law and applicable State laws.

43. WAIVER. No waiver of any provision of this Agreement is effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought and referring expressly to this Section. No waiver of any right or remedy in respect of any occurrence or event is deemed a waiver of any right or remedy in respect of any other occurrence of event.

44. SUCCESSOR AND ASSIGNS. The provisions of this Agreement are binding upon and inure to the benefit of the Parties, and any subsequent owners of all or any portion of the Property and their respective successors and assigns. Any successors in interest to City are subject to the provisions set forth in Government Code §§ 65865.4 and 65868.5.

45. INTERPRETATION AND GOVERNING STATE LAW. This Agreement and any dispute arising hereunder are governed and interpreted in accordance with the laws of the State of California. This Agreement must be construed as a whole according to its fair language and common meaning to achieve the objective and purposes of the Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party may not be employed in interpreting this Agreement, both Parties having been represented by counsel in the negotiation and preparation hereof. All legal actions brought to enforce the terms of this Agreement must be brought and heard in the Superior Court of the State of California, County of Los Angeles.

46. CONSTRUCTIVE NOTICE AND ACCEPTANCE. Every person who, now or hereafter, owns or acquires any right, title or interest in or to any portion of the Property is conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Property.

47. NO THIRD PARTY BENEFICIARIES. This Agreement is made and entered into for the sole protection and benefit of the Parties and their mortgagee(s), successors and assigns. No other person or entity has any right of action based upon any provision of this Agreement.

48. COUNTERPARTS. This Agreement may be executed in two or more identical counterparts, each of which is deemed to be an original and each of which is deemed to be one and the same instrument when each Party signs each such counterpart.

49. INCORPORATION OF ATTACHMENTS. All recitals and attachments to this Agreement, including all Exhibits referenced herein, and all subparts thereto, are incorporated by this reference.

50. DETERMINATIONS. Whenever in this Agreement the consent or approval of any Party to this Agreement is required, such consent or approval may not be unreasonably withheld, conditioned, or delayed. In addition, unless a contrary standard or right is set forth herein, whenever any Party is granted a right to take action, exercise discretion, or make an allocation,

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judgment or other determination, each Party must act reasonably, in good faith and in accordance with the requirements of this Agreement.

51. HOLD HARMLESS AGREEMENT.

A. Developer hereby agrees to, and must defend, save and hold City and its elected and appointed boards, commissions, officers, agents, and employees harmless from, any and all claims, costs and liability for any damages, personal injury or death, which may arise, directly or indirectly, from Developer’s or Developer’s contractors’, subcontractors’, agents or employees’ operations under this Agreement, whether such negligent operations be by Developer or by any of Developer’s contractors, subcontractors, agents or employees. The foregoing hold harmless provision does not apply to any claims, costs or liability arising from the negligence or willful misconduct of City or City’s contractors, subcontractors, agents or employees.

B. Developer agrees to indemnify and hold City harmless from and against any claim, action, damages, costs (including, without limitation, reasonable attorney’s fees), injuries, or liability, arising from City’s approval of the Project, this Agreement, and all procedures with approving this Agreement (collectively, “Project Approvals”). Should City be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of the Project Approvals, Developer agrees to defend City (at City’s request and with counsel satisfactory to City) and will indemnify City for any judgment rendered against it or any sums paid out in settlement or otherwise. For purposes of this Section “City” includes the City of Monterey Park’s elected officials, appointed officials, officers, and employees. This defense and indemnification obligation specifically excludes any claims arising from City’s negligence or willful actions or omissions and any claims arising from the sole negligence or willful actions or omissions of the Oil Site Custodial Trust (“Trust”) related to existing and ongoing environmental remediation of the Property or actions taken in furtherance of the Trust’s duty to maintain and keep safe the Property before the time that Developer took possession or control of all or a portion of the Property.

C. This indemnification, hold harmless and defense requirement survives termination of this Agreement.

D. Absent a court order, the filing of any lawsuit(s) by a third party (not a Party to this Agreement) after the Effective Date against City and/or Developer relating to this Agreement or to other development issues affecting the Project does not delay or stop City’s processing or issuing any permit or authorization necessary for development of the Project, unless City in good faith determines that such delay is legally required or could potentially subject the City to monetary damages.

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52. ESTOPPEL CERTIFICATE. Either Party may, at any time, and from time to time, (but not more frequently than two times in any calendar year) deliver notice to the other Party requesting such party to certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Parties, (ii) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (iii) the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A Party receiving a request hereunder must execute and return such certificate or give a written detailed response explaining why it will not do so within 30 days following the receipt thereof.

Each Party acknowledges that such a certificate may be relied upon by third parties acting in good faith. A certificate provided by City establishing the status of this Agreement with respect to the Property will be in recordable form and may be recorded with respect to the affected parcels at the expense of the recording Party. Failure to deliver such a certificate or a written denial within the time specified above constitutes a rebuttable presumption against the Party failing to provide the certificate that this Agreement is in full force and effect, without modification, except as may be represented by the requesting Party; and that there are no uncured defaults in the performance of the requesting Party except as may be so represented. All costs incurred in providing the notice(s) anticipated by this Section 52 including reasonable attorney’s fees are borne by the requesting Party.

53. AUTHORIZED DELAYS. Performance by any Party of its obligations hereunder is excused during any period of Excusable Delay, as hereinafter defined, provided that the Party claiming the delay gives notice of the delay to the other Parties within 30 days after the commencement of same has been ascertained. For purposes hereof, “Excusable Delay” means delay that directly affects, and is beyond the reasonable control of, the Party claiming the delay including, without limitation: (a) pandemic, (b) civil commotion or act(s) of terrorism; (c) riot; (d) strike, picketing or other labor dispute; (e) shortage of materials or supplies; (f) damage to work in progress by reason of fire, flood, earthquake or other casualty; (g) failure, delay or inability of City to provide adequate levels of public services, facilities or infrastructure to the Property including, by way of example only, the lack of water to serve any portion of the Property due to drought; (h) delay caused by governmental entities; or (i) litigation brought by a third party attacking the validity of this Agreement, the Specific Plan, or any other action necessary for development of the Project. Except for an Excusable Delay under clause (i) above, the payment of fees or monies by Developer under this Agreement is not excused or delayed during any period of Excusable Delay. The condition of the world, country, state or local economy does not constitute an Excusable Delay.

54. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement and of each and every term and condition.

55. ENFORCEABILITY OF AGREEMENT. City and Developer agree that unless this Agreement is amended or terminated pursuant to the provisions of this Agreement and the Applicable Law, this Agreement is enforceable by any Party hereto notwithstanding any change hereafter in any Applicable Law
adopted by City which change, alter or amend the Applicable Law governing the development of the Property as of the Effective Date, as provided by Government Code §§ 65866 and 65867.5, unless City determines that the failure to apply such

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change would place the residents of City in a condition dangerous to their health or safety, or both. This Agreement does not prevent City from denying or conditionally approving any subsequent development project application by a third party not a successor-in-interest hereto on the basis of such existing or new rules, regulations and policies.

56. SINGULAR AND PLURAL; GENDER. Except where the context requires otherwise, the singular of any word includes the plural and vice versa, and pronouns inferring the masculine gender includes the feminine gender and vice versa.

57. ENFORCEMENT OF COVENANTS. All of the provisions of this Agreement are enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law, including without limitation, Civil Code §1468.

58. ADMINISTRATION OF AGREEMENT. Any decision by City concerning the interpretation and administration of this Agreement and development of the Property in accordance herewith may be appealed by Developer to the City Council in accordance with the MPMC. Developer may not seek judicial review of any administrative decision without first having exhausted its remedies pursuant to this Section.

59. SEVERABILITY. If any article, section, subsection, term or provision of this Agreement, or the application thereof to any party or circumstance, to any extent, is invalid or unenforceable, the remainder of the article, section, subsection, term or provision of this Agreement, or the application of the same to parties or circumstances other than those to which it is held invalid or unenforceable, will not be affected thereby, and each remaining article, section, subsection, term or provision of this Agreement is valid and enforceable to the fullest extent permitted by law.

60. ENTIRE AGREEMENT. This Agreement supersedes any prior understanding or written or oral agreements between the Parties hereto respecting the within subject matter and contains the entire understanding between the Parties with respect thereto.

61. ELECTRONIC SIGNATURES. This Agreement may be executed with electronic signatures in accordance with Government Code §16.5. Such electronic signatures will be treated in all respects as having the same effect as an original signature.

62. AUTHORIZATION. Each person executing this Agreement represents and warrants that he or she is authorized and has the legal capacity to execute and deliver this Agreement on behalf of the Party for which execution has been made.

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CITY

CITY OF MONTEREY PARK,
A municipal corporation
By:_________________________________
Title: _______________________________

DEVELOPER

MONTEREY PARK RETAIL PARTNERS, LLC,
a California limited liability company
By:_________________________________
Title: _______________________________
MPRP TRACT 1, LLC, a California limited
liability company
By:_________________________________
Title: _______________________________

MPRP TRACT 2, LLC California limited
liability company
By:_________________________________
Title: _______________________________

MPRP TRACT 3, LLC, California limited
liability company
By:_________________________________
Title: _______________________________

[NEEDS CAO SIGNATURE LINE]

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EXHIBIT "A"

LEGAL DESCRIPTION OF PROPERTY

(Per Title Report)

Real property in the City of Monterey Park, County of Los Angeles, State of California, described as follows:

[TO BE ADDED]

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EXHIBIT B
Finding of Consistency with the Supplemental Environmental Impact Report for the Market Place Development (State Clearinghouse No. 1999051058)

April 5, 2023

On September 16, 2021, Monterey Park Retail Partners Tract 3, LLC, submitted a request for a conditional use permit (“CUP”) to add a fourth drive through restaurant at the Market Place development that the City Council approved December 19, 2012 (the “Project”).

The Market Place Precise Plan allowed up to three drive-through restaurants be approved ministerially; any subsequent drive- throughs require a CUP. The general layout, uses, parking, and traffic patterns are all the same as originally contemplated by the City Council on December 19, 2012.

The Project is considered a “ project” under the California Environmental Quality Act (“CEQA”). Accordingly, environmental review is required pursuant to CEQA (Public Resources Code §§ 21000, et seq.) and the CEQA Guidelines ( 14 Cal. Code of Regulations §§ 15000, et seq.).

Background

On December 19, 2012, the Monterey Park City Council adopted Resolution No. 11548 certifying the Final Supplemental Environmental Impact Report ( SEIR) for the Market Place project and adopting a Statement of Overriding Considerations (see Final EIR/EIS at State Clearinghouse No. 1999051058 ). Implementation of mitigation measures identified in the SEIR will be monitored as called for in the Mitigation Monitoring and Reporting Program adopted on December 19, 2012.

The circumstances, impacts, and mitigation requirements identified in the SEIR remain applicable to the proposed Project; there are no new issues and the level of environmental impacts identified in the SEIR is static.

Environmental Analysis

CEQA Guidelines § 15168(c)(2) states that if a project is proposed which has been the subject of a prior certified EIR, and “[i]f the [City] finds that pursuant to Section 15162, no new effects could occur or new mitigation measures would be required, the agency can approve the activity as being within the scope of the project covered by the … EIR, and no new environmental document would be required.”

CEQA Guidelines § 15162 defines the conditions under which a subsequent EIR would be required for a project as follows:

(1) Substantial changes are proposed in the project which require major revisions of the EIR due to the involvement of new significant environmental effects or substantial increase in the severity of previously identified significant effects;

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(2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR due to involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and/or (3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was adopted, shows any of the following:

1. The revised project will have one or more significant effects not discussed in the previous EIR;

2. Significant effects previously examined will be substantially more severe than shown in the previous EIR;

3. Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more signific ant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or

4. Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative.

As stated above, the Project will not result in any new environmental effect not already considered in the SEIR.

Findings

Based on the above analysis, the City Council of Monterey Park makes the following findings:

1. On December 19, 2012, the City Council adopted Resolution No. 11548 and certified a Supplemental EIR for the project.

2. The Project will not facilitate the creation of any development beyond that anticipated and accounted for by the certified Supplemental EIR.

3. A pproval of the Project will not result in any new or increased environmental effects, and no new mitigation measures are required.

4. Pursuant to CEQA Guidelines § 15168(c)(2), no new environmental documentation is required for approval of the Project.

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ATTACHMENT 3
City Council Staff Report, dated April 5, 2023 (without attachments) Staff Report
April 19, 2023

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City Council Staff Report
DATE: April 5, 2023
AGENDA ITEM NO:

TO: The Honorable Mayor and City Council
FROM: Jessica Serrano, Interim Director of Community Development SUBJECT: A public hearing to consider the following: 1) Zoning Code Amendment (ZCA-22-02) to adopt the Market Place Specific Plan (SP-22-01); 2) Zone Change (ZA-22-01) to re-zone properties from the Regional Specialty Center (R-S) zone with the Planned Development Overlay (P-D) zone to the Market Place Specific Plan (MPSP) zone; and 3) Development Agreement (DA-22-01) to amend in its entirety a Development Agreement between Monterey Park Retail Partners, LLC and the City of Monterey Park for properties collectively operating as the Monterey Park Market Place, located at 2300 Greenwood Avenue and 2000 -5500 Market Place Drive, also identified by Assessor’s Parcel Numbers 5275-003-024, 025, 027, 029, 030, 031, 037, and 038.

RECOMMENDATION:

It is recommended that the City Council consider:

1. Opening a public hearing and taking testimonial and documentary evidence;

2. After closing the public hearing and considering the evidence submitted during that public hearing:
a. Introducing and waiving first reading of an Ordinance implementing a Zone Change (ZA-22-01) from the Regional Specialty Center (R-S) zone with the Planned Development Overlay (P-D) zone to the Market Place Specific Plan (“MPSP”) zone (Exhibit B);
b. Introducing and waiving first reading of an Ordinance approving a Development Agreement (DA-22-01) for the subject property (Exhibit C); and

3. Taking such additional, related, action that may be desirable.

EXECUTIVE SUMMARY:

The Monterey Park Market Place development was originally approved through a Precise Plan (PP-12-01) that was intended to redevelop a brownfield site to help stimulate the local economy and create jobs while preserving the environment and public safety of the area. Since the creation and implementation of PP-12-01, Phase 1 is complete, but Phases 2 and 3 remains unbuilt. Phase 2 includes the wrap-around road south of the Leachate Treatment Plant (LTP) and Thermal Destruction Facility (TDF), and Phase 3 is the built-out of the area west of the LTP/TDF. In recent years, market forces changed the Public Hearing - 4A

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Staff Report

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April 5, 2023
way in which consumers conduct business: a decreased need for traditional brick-a nd- mortar stores and an increased demand for last mile facilities, warehouses, and auto dealerships emerged since the beginning of the COVID-19 pandemic. The applicant seeks to create flexibility to allow for land uses that help address the changing landscape of the commercial/service sector by providing a framework through the proposed Market Place Specific Plan (“MPSP”) to allow for such uses. No immediate construction or development is proposed at this time.

The Project includes the adoption of the MPSP to address the eventual build-out of the Market Place; it supersedes the existing Precise Plan. The Specific Plan will be identified within the Monterey Park Municipal Code (“MPMC”) and the entire Market Place Project site will be re-zoned from the Regional Specialty Center with Planned Development Overlay, to the MPSP. Further, the amended and restated Development agreement between the City and the Applicant will help ensure that the eventual build-out of the Market Place will provide a public benefit to the community.

CEQA (California Environmental Quality Act):

The Project is consistent with the Supplemental Environmental Impact Report (“SEIR”) and Statement of Overriding Considerations certified (and adopted) by the City Council on December 19, 2012 via Resolution No. 11548 (State Clearinghouse No. 1999051058).

Implementation of mitigation measures identified in the SEIR will be monitored as called for in the Mitigation Monitoring and Reporting Program adopted on December 19, 2012.

TYPE OF ACTION (LEGISLATIVE; QUASI-JUDICIAL; OR ADVISORY) Legislative: The
proposed Ordinances are legislative policy actions that, combined, would allow completion of the Market Place development. For this project, the City Council is the Planning Agency in accordance with MPMC § 2.56.020(c). In considering the proposed actions, the City Council acts in its legislative capacity. For any proposed zone changes, the City Council must make these findings (MPMC § 21.38.050):
• That the proposed zone change is consistent with the goals, policies, and objectives of the General Plan;
• That the proposed zone change will not adversely affect surrounding properties; and
• That the proposed zone change promotes public health, safety, and general welfare and serves the goals and purposes of the MPMC’s zoning regulations.

These findings are included in the draft Ordinances; the facts upon which these findings rely are also included with the draft documents. Approving the proposed Development Agreement is completely within the City Council’s legislative discretion.

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BACKGROUND:

The City Council approved the Market Place development on December 19, 2012 by adopting PP-12-01 to regulate its development. The Market Place property is comprised of 63.68 acres, with a General Plan land use designation of Commercial and zoning of Regional Specialty Center (R-S), with a Planned Development (P-D) overlay. Ten parcels make up the site that includes all current commercial development anchored by Costco and Home Depot, with several other retail and service businesses, and multiple commercial eating establishments or restaurants, some of which include drive-throughs.

The developed areas are accessed from Market Place Drive which is off Potrero Grande Drive in the city and Paramount Boulevard in Montebello. There are also existing Leachate Treatment Plant (LTP) and Thermal Destruction Facility (TDF) facilities (which are not part of the Monterey Park Market Place commercial development), but contained within the subject site and the MPSP. The western portion of the site, west of the LTP/TDF operations, remains vacant (Phase 3). The subject site is surrounded by Southern California Edison facilities to the north, west, and east, and the 60 Freeway to the south (see Figure 1).

Figure 1: Monterey Park Market Place Specific Plan Aerial Zoning Code Amendment
The applicant requests that the City Council approve Zoning Code Amendment (ZCA-22- 02) to adopt the MPSP (SP-22-01). This will establish a Specific Plan Zone in the Municipal Code and include the regulatory document of the Specific Plan, that will govern development within the subject site. The MPSP represents a tool for development to systematically implement the General Plan and the individual development proposals in the Market Place Phase 3 project area.

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Contained within the MPSP are development standards permitted within the subject site, including the additional development of Phase 3 to allow for uses which were not previously permitted or contemplated as part of PP-12-01. As identified in the Specific Plan, the uses listed below for Phase 3 of the project may include:
• Construction of a last mile distribution center of up to 97,000 square feet of floor area;
• Construction of a warehouse of up to 175,000 square feet of floor area; • Construction of an automobile dealership with a collision or service center totaling up to 100,000 square feet of floor area; or
• Construction of up to 150,000 square feet of floor area of retail uses.

When the PP 12-01 was approved, the anticipated build-out of Phase 3 included retail uses, which remains on the list of development options. However, as the commercial and retail market has changed in the last 10 years, the developer’s ability to build out with retail uses has become less easily achieved. The additional uses of a last-mile distribution center, a warehouse, or an automobile dealership are proposed alternate uses. The proposed Specific Plan sets up the framework to allow the above listed uses.

With the additional alternative uses proposed in the Market Place Specific Plan, the applicant has included a Level of Service and Vehicle Miles Traveled Screening Analysis to support an auto dealership which will result in fewer trips generated than the build-out of Phase 3 with retail uses analyzed as part of the FEIR and SEIR for the overall project.

In a case where, a last mile distribution center or warehouse use is proposed, a similar traffic analysis will be necessary to ensure that those developments are not exceeding the traffic that was contemplated in the SEIR.

The proposed Specific Plan is consistent with the applicable General Plan Elements of the Land Use, Circulation, Safety and Community Service, Resource, and housing Goals and Policies as analyzed in the General Plan. Overall, the Specific Plan contains unique development standards and design guidelines to ensure that commercial development will be compatible with the site and existing development around the Specific Plan Area.

This is accomplished through the inclusion of design guidelines addressing the architectural design for the future development at the Market Place.

Zone Change
With the creation of the MPSP Zone and its Specific Plan as described above, it is proposed that the entire site that includes 10 parcels and is 63.68 acres in size be rezoned from its current zoning of Regional Specialty Center (R-S), with a Planned Development (P-D) overlay, to the MPSP Zone (ZA-22-01). This new MPSP Zone is consistent with the General Plan Land Use Designation of Commercial, since the underlying uses permitted within the MPSP are a broad range of retail and service commercial uses. All uses that are currently existing at the site or have been previously approved will remain as permitted uses, with the additional uses listed in the Specific

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April 5, 2023
Plan being permitted as well.

Development Agreement
Chapter 21.44 of the MPMC requires Development Agreements (DA) for large scale projects that require multiple entitlements and long-term commitment of both public and private resources. The original approval of the Market Place included a DA that was approved in 2013. However, with the new scenarios presented in Phase 3 of the project, a new DA (DA-22-01) is proposed to allow for the uses proposed and an updated public benefit payment. While the MPMC generally imposes a term of five years for development agreements – which is intended to facilitate the prompt development of approved projects – the City Council may change the term in its discretion. Here, the draft DA proposes an initial
term of five years with two automatic renewals of two years each; these renewals would
occur unless the DA were terminated not later than 90 days before the anniversary date (Section 20 of the DA). As a result, the applicant would have an extended time within which to construct improvements and the City would receive additional public benefit payments as contemplated by Section 6(c) of the DA. Assuming that the DA were in effect for the full nine-year term and the development was fully built out , the City could receive up to approximately $1.6M in public benefit payments.

FISCAL IMPACT:

Fiscal impacts associated with adopting the DA includes a public benefit payment during the term of the DA which could amount to a total amount of approximately $1.6M.

This public benefit payment is separate from anticipated sales tax revenue generated from development within the Project site. Sales tax revenue generated from the Market Place is shared with the City of Montebello via a Sharing Sales Tax Agreement. Sales tax revenue payments are payable by Monterey Park to Montebello at a rate of 18% from the generated sales tax. There is no sunset to the sharing agreement.

Respectfully submitted by: Prepared by:

Jessica Serrano
Interim Director of Community
Development
Beth Chow, AICP
Senior Planner

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Staff Report

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April 5, 2023
Reviewed by:

Martha Garcia
Director of Finance
Approved by:

Ron Bow
City Manager
Karl Berger
City Attorney
ATTACHMENTS:

1. Zone Change (ZA-22-01) - Adopting Rezoning of the Market Place from Regional Specialty Center with Planned Development Overlay to the Market Place Specific Plan Ordinance

2. Market Place Development Agreement (DA-22-01) Ordinance

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City Council Staff Report
DATE: April 19, 2023
AGENDA ITEM NO:

TO: The Honorable Mayor and City Council
FROM: Shawn Igoe, Director of Public Works
SUBJECT: CIP 96039 Sidewalk Repair Project – Reject All Submitted Bids RECOMMENDATION:

It is recommended that the City Council consider:

1. Rejecting all submitted bids for Capital Improvement Project (CIP) No. 96039 – Sidewalk Repair Project;

2. Taking such additional, related action that may be desirable.

EXECUTIVE SUMMARY
Per Resolution No. 2022-R32, the Public Works Director solicited bids for Capital Improvement Project No. 96039 – Sidewalk Repair Project. The bid opening was held on April 6, 2023. The City received five bids from Kalban, Inc., CT&T Concrete Paving, Inc., Toro Enterprises, Inc., Palp, Inc. dba Excel Paving Company and Onyx Paving Company, Inc. Staff recommends rejection of all bids due to the cost proposals exceeding the City’s budget for this project.

BACKGROUND
On March 15, 2023 City Council adopted Resolution No. 2023-R19, adding the Sidewalk Repair Project to the City’s Capital Improvement Plan as Project No. 96039.The proposed project addresses sidewalk repairs and concrete work identified as a result of field reviews based on GoMPK service requests from residents and phone calls received by City staff.

The scope of work includes replacement of damaged sidewalks, curb and gutters, bus pads, and ADA curb ramps.

Five bids were opened on April 6, 2023, by the City Clerk’s office.

RANK BIDDER BASE BID
AMOUNT
1 Onyx Paving Company, Inc. $1,551,000.00
2 Kalban, Inc. $1,728,802.00
3 CT&T Concrete Paving, Inc. $1,776,414.00
4 Toro Enterprises, Inc. $1,858,318.15
5 Palp, Inc. dba Excel Paving
Company $1,989,477.00
Consent Calendar - 3J

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April 19, 2023

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The apparent low bidder, Onyx Paving Company Inc, did not acknowledge all addenda and is non -responsive. The next lowest responsive bid was submitted by Kalban, Inc.

However, Kalban Inc.’s proposal exceeds the project’s budget. Therefore, staff recommends that the City Council reject all submitted bids and authorize the Public Works Director to issue a new solicitation of bids.

FISCAL IMPACT
There is no fiscal impact associated with rejecting all bids.

Respectfully submitted and prepared by:

Shawn Igoe
Director of Public Works
Approved by: Reviewed by:

Ron Bow
City Manager
Karl H. Berger
City Attorney

ATTACHMENT
None

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City Council Staff Report
DATE: April 19, 2023
AGENDA ITEM NO: Consent Calendar - 3K
TO: The Honorable Mayor and City Council
FROM: Shawn Igoe, Director of Public Works
SUBJECT: Amendment to Agreement 1932-A1 with SA Associates for Centralized Groundwater Treatment System
RECOMMENDATION:

It is recommended that the City Council consider:

1. Authorizing the City Manager to execute an Amendment to Agreement 1932- A1with SA Associates, in a form approved by the City Attorney, for Staffing Augmentation and Construction Management and Inspection Services for an amount not to exceed $497,080;

2. Appropriating $497,080 for the cost of services proposed in the Amendment ($336,000 in city Water Treatment funds and $161,280 in Water Operations funds); and

3. Taking such additional, related, action that may be desirable.

EXECUTIVE SUMMARY:

The State Water Resources Control Board Division of Drinking Water requires that the City’s new Centralized Groundwater Treatment System (CGTS) be managed by an onsite staff person with a State Water Resources Control Board (SWRCB) Water Treatment Operator Grade T4 certification. The Water Division’s Water Utility Manager and Production Supervisor positions will be required to hold this certification but are both currently vacant.

Staff is requesting City Council approve an Amendment to Professional Services Agreement 1932-A1 with SA Associates to provide temporary staffing with the requiredT4 certification during the interim period while the vacant Water Utility Manager and Water Production Supervisor positions are filled. In addition, SA Associates will provide staff augmentation for the Associate Civil Engineer position for water -related projects, and construction management and inspection services to oversee the completion of the Centralized Groundwater Treatment System ( CGTS) construction. The proposed Amendment will be for an amount not to exceed $468,000.

BACKGROUND:

On January 4, 2017, City Council awarded Professional Services Agreement 1932-A1 to SA Associates for construction management/inspections services and plan review of the

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Staff Report

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April 19, 2023
CGTS. SA Associates was selected from four engineering firms that were approved to provide on-call services for the Public Works Department. The City selected SA Associates due to its
experience with water treatment projects and its subcontractor that is an expert in the CGTS’s advanced oxidation/ultraviolet technology.

Construction Management and Inspection Services
The completion of the CGTS with the addition of the perfluoroalkyl substances (PFAS) removal system has been delayed due to challenges related to obtaining the operations permit form the SWRCB. The Project Team estimates that the project will be completed by early fall. The cost for construction management and inspection services for the additional time is estimated to be $55,000.

Staff Augmentation – T4 Certified Water Treatment Operator The State Water Resources Control Board Division of Drinking Water (DDW) requires an on-site staff person that is T4 certified to operate the CGTS. The grades of certification range from T1 to T5: T5 being the highest. Due to the CGTS sophisticated and complex system, DDW requires the second highest grade – T4. The city’s Water Utility Manager and Production Supervisor positions that are currently both vacant, will be required to hold a minimum T4 certification. Until those positions are filled, staff is requesting SA Associates to provide a Water Treatment Operator with that certification. The individual who
SA Associates is proposing is the construction inspector of the CGTS and an integral member of the Project Team. While the recruitment of the Water Utility Manager and Production Supervisor has been underway and the new hires expected to be on board within 6 to 9 months, the proposed term of SA’s temporary staff is one year in order to train the new water staff to operate this new highly sophisticated and complex system.

The cost for this T4 certified operator is $280,800 based on $180/hour for 30 hours per week for the one year.

Staff Augmentation – Engineer
In addition to the Water Treatment Operator, city staff has requested SA Associates to provide a part-time engineer to assist with water-related construction projects such as mainline replacements. The cost for the part-time engineer is $161,280 based on $210
per hour for 24 hours per week for up to eight months.

The total cost for the proposed Amendment with SA Associates is for an amount not to exceed $497,080. A breakdown of the estimated costs is provided in the table below.

Services Timeframe Cost
Construction Management Services 24 weeks $55,000
Water Treatment Operator $180/hr, 30 hrs/week for 1 year $280,800 Engineer $210/hr, 24 hrs/week for 8 months $161,280
Total $497,080

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FISCAL IMPACT:

An appropriation of $497,080 will be required for the proposed staff augmentation and construction management services. Cost related to the treatment plant - $336,000 - will be paid out of the city’s Water Treatment fund (403). The cost for the Engineer - $161,280 - will be paid out of the Water Operations fund (401). The City will seek reimbursement from the Water Quality Association (WQA) for eligible costs.

Respectfully submitted by: Reviewed by:

Shawn Igoe,
Director of Public Works

Martha Garcia
Director of Finance

Approved by:

Reviewed by:

Ron Bow
City Manager
Karl H. Berger
City Attorney

ATTACHMENTS:

1. SA Associates Proposal

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Staff Report
April 19, 2023
ATTACHMENT 1
SA Associates Proposal

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1130 W. Huntington Drive, Unit 12, Arcadia, CA 91007  TEL 626.821.3456  FAX 626.445.1461  www.saassociates.net

April 13, 2023

Shawn Igoe
Director of Public Works
City of Monterey Park
320 W. Newmark Avenue
Monterey Park, CA 1754

Subject: Proposal for Project Management Services

Dear Shawn:

In accordance with your request, we are pleased to submit our proposal to provide the City with a Project Manager while the City recruits a permanent employee to fill this position. We propose Mr. Harvey Gobas for this temporary position to provide the City with additional support with managing some projects.

Mr. Gobas has over 4 8 years of experience. He has worked on a multitude of projects including sewer, storm drain, water, bridge widening, parks, parking structures, street, etc.

Our fee to provide the additional services is $165,000 on a time and materials basis. This is based on Project Management Ser vices @ 30 hours per week for 24 week s (6 months), plus some ad ministrative time. A fee breakdown, along with our Hourly Charge Rate and Expense Reimbu rsement Schedule, is attached.

Thank you for the opportunity to submit our proposal. If you have any questions, please contact me.

Very truly yours,

Shahnawaz Ahmad, P.E.

President
Tel: 626.821.3456
E-Mail: [email protected]

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Fee Estimate
Task PIC PM Sec. Total
Hours $

1. Project Manager 720 720 151,200

2. Administration 36 48 84 12,984
- Direct Costs 816
TOTAL 36 720 48 804 165,000

CITY OF MONTEREY PARK

PROJECT MANAGEMENT SERVICES - HARVEY GOBAS

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CITY OF MONTEREY PARK

PROJECT MANAGEMENT SERVICES

HOURLY CHARGE RATE AND EXPENSE REIMBURSEMENT SCHEDULE

Principal-in-Charge............................................................................................................... $230.00 Project Manager………………............................................................................................. $210.00 Secretary……………............................................................................................................ $ 98.00

Reimbursable In-House Costs:

Photo Copies ....................................................................................................................... $ 0.15/each Blueprints ............................................................................................................................ $ 0.50/S.F.

Delivery Service, Express Mail ........................................................................................... Cost+15%

Vehicle mileage, between engineer's office and project site and/or client offices, will be billed at $0.65 per mile.

NOTE: All rates are effective to December 31, 2023

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Staff Report
April 19, 2023 City Council Staff Report
DATE: April 19, 2023
AGENDA ITEM NO: Consent Calendar - 3L
TO: The Honorable Mayor and City Council
FROM: Shawn Igoe, Director of Public Works
SUBJECT: Free Spirit Bus Rides for Earth Day
RECOM
MENDATION:

It is recommended that the City Council consider:

1. Waiving Spirit Bus fare for riders on Friday, April 21, 2023 in celebration of Earth Day;

2. Taking such additional, related action that may be desirable.

EXECUTIVE SUMMARY
The City is committed to promoting sustainability practices and acknowledges that small actions can contribute to a safer and healthier environment for the community. For this reason, it is recommended that in honor of Earth Day, the City waives fares and offers free Spirit Bus rides on Friday April 21, 2023. Earth Day will be celebrated globally on Saturday April 22, 2023. However, Spirit Bus service is currently offered weekdays Monday through Friday. Free rides on Spirit Bus will encourage people to take public transportation, which helps reduce traffic and carbon footprint through a reduction of greenhouse gas emissions in the City. Additionally, this action supports the City’s Going Green initiative by providing residents opportunities to get involved w ith sustainable programs and activities in the City. Accordingly, waiving the fees in this instance – in addition to being de minimis – is in the public interest.

FISCAL IMPACT
The Spirit Bus fare is $0.25 per passenger. Based on recent ridership data, about 150 passengers use Spirit Bus service on Fridays. The fiscal impact of waiving bus fares in celebration of Earth Day is about $37.50.

Respectfully submitted and prepared by:

Shawn Igoe
Director of Public Works
Approved by: Reviewed by:

Ron Bow
City Manager
Karl H. Berger
City Attorney

ATTACHMENT

None

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City Council Staff Report
DATE: April 19, 2023
AGENDA ITEM NO:

TO: The Honorable Mayor and City Council
FROM: Shawn Igoe, Director of Public Works
SUBJECT: Consideration and possible action to introduce an Ordinance amending Title 13, Chapter 12 of the Monterey Park Municipal Code (“MPMC”) in its entirety to regulate encroachments within the Public Right-of-Way RECOMMENDATION:

It is recommended that the City Council consider:

1. Introducing and waiving first reading of an Ordinance amending Title 13, Chapter 12 of the Monterey Park Municipal Code (“MPMC”) in its entirety regulating encroachments into public streets, easements, and right of ways; and

2. Taking such additional, related, action that may be desirable.

CEQA (California Environmental Quality Act):

This Ordinance was reviewed pursuant to CEQA. Adopting this Ordinance is exempt from further environmental review because it establishes rules and procedures for operation of existing facilities; minor temporary use of land; minor alterations in land use; new construction of small structures; and minor structures accessory to existing commercial facilities. The Ordinance, therefore, is categorically exempt from further environmental review under CEQA Guidelines §§ 15301; 15303, 15304(e); 15305; and 15311. F urther, adopting the ordinance is exempt from environmental review pursuant to CEQA Guidelines § 15061(b)(3) because the ordinance is for general policies and procedure - making. It can be seen with certainty that there is no possibility that the Ordinance m ay have a significant effect on the environment. Individual projects utilizing these regulations will each be separately subject to an environmental assessment. Finally, this Ordinance is exempt from further environmental review pursuant to CEQA Guidelines § 15269(a) because the protection of public and private property is necessary to maintain service essential to the public, health and welfare.

EXECUTIVE SUMMARY:

MPMC Chapter 13.12 regulates encroachments and construction within all public right of ways within the City . The regulations under this chapter were first implemented in the 1980s and are stale in comparison to industry standards. The proposed ordinance updates regulations for excavations and encroachments on, over, and under public rights- of-ways and public service easements.

New Business - 5A

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April 19, 2023
BACKGROUND:

Government Code Section 38775 permits the City to regulate and prohibit encroachments into and obstructions on public property. An encroachment includes, without limitation, the following:
 Any construction work performed within public rights-of-ways or public service easements;
 Any work other than construction work performed within a public right-of-way or public service easement that obstructs, or interferes with the use of, the public right-of-way or public service easement; and
 Any structure or object that is placed or installed within a public right-of-way or within a public service easement in a manner that obstructs or otherwise interferes with the use of the public right-of-way or public service easement.

The proposed ordinance repeals and replaces current provisions and procedures under MPMC Chapter 13.12 and provides new permit requirements, including, exceptions to permits, procedures for permit application process, permit insurance requirements, guidelines for excavation in recently resurfaced public streets, requirements for traffic control plans and procedures for administrative review of permit decisions. The Ordinance also includes an encroachment permit application form and general conditions of approval applicable to all encroachments in the City.

FISCAL IMPACT:

None.

Respectfully prepared & submitted by:

Shawn Igoe
Director of Public Works
Approved by: Reviewed by:

Ron Bow
City Manager
Justin A. Tamayo
Deputy City Attorney
ATTACHMENTS:

1. Draft Ordinance

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ATTACHMENT 1
Draft Ordinance

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LA #4855-4273-9280 v3
08877-0001
ORDINANCE NO.

AN ORDINANCE AMENDING TITLE 13, CHAPTER 12 OF THE

MONTEREY PARK MUNICIPAL CODE TO REPEAL AND REPLACE

PROVISIONS AND PROCEDURES GOVERNING ENCROACHMENTS

INTO PUBLIC STREETS, EASEMENTS, AND RIGHT OF WAYS

The City Council of the City of Monterey Park does ordain as follows:

SECTION 1: Findings. The City Council finds and declares that:

A. Government Code § 38775 permits the City to regulate and prohibit encroachments into an d obstructions on public property and may provide for the removal of any prohibited encroachments;

B. Government Code § 38771 permits general law cities to identify public nuisances by ordinance;

C. The regulations in Chapter 13.12 of the Monterey Park Municipal Code (“MPMC”) are substantially unchanged from the 1980s and do not reflect modern policies and procedures;

D. It is in the public interest for the City to take appropriate actions to protect citizens and their property from conditions that threaten public health, safety, and welfare by adopting modern policies and procedures concerning encroachments into the public right-of-ways; and

E. The City reviewed this Ordinance pursuant to the California Enviro nmental Quality Act (Public Resources Code §§ 21000, et seq., “CEQA”) and the regulations promulgated thereunder (14 Cal. Code of Regulations §§15000, et seq ., the “CEQA Guidelines ”). CEQA and the CEQA Guidelines are collectively referred to as “CEQA Regulations.”

SECTION 2: Chapter 13.12 of the Monterey Park Municipal Code ( “MPMC”) entitled “Encroachments and Obstructions” is amended in its entirety to read as follows:

“Chapter 13.12

ENCROACHMENT IN PUBLIC STREETS, EASEMENTS AND RIGHT-OF-WAYS

13.12.010. Purpose.

This chapter is adopted for the purpose of regulating excavations and encroachments on, over, or under public rights -of-ways or public service easements.

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13.12.020. Definitions.

Unless the contrary is stated or clearly appears from the context, the following definitions will govern the construction of the words and phrases used in this chapter:

A. “Administrator” means the public works director, or designee.

B. “Encroachment” means any construction work performed within public rights-of-ways or public service easements; any work other than construction work performed within a public right-of-way or public service easement that obstructs, or interferes with the use of, the public right-of- way or public service easement; and any structure or object that is placed or installed within a public right-of-way or within a public service easement in a manner that obstructs or otherwise interferes with the use of the public right-of-way or public service easement.

C. “Excavation” means removal of any concrete, asphalt, road, earth, or other, similar, surface materials covering a public right-of-way or public service easement.

D. “Public Right-of-Way” means any city street, sidewalk, pedestrian path, bike path or any other “public way,” as defined by Streets and Highways Code § 18609.

E. “Public Service Easement” means any public sewer easement, public storm drain easement, public utility easement or other “public service easement,” as defined in Streets and Highways Code § 8306.

13.12.030. Permit Required.

A. Permit Required. Unless otherwise provided by applicable law, it is unlawful for any person to make any encroachment or excavation in any public right-of-way or service easement, without first obtaining a permit issued pursuant to this chapter.

B. A permit is not valid until the administrator receives the applicant’s written acceptance in accordance with this chapter.

C. During City business hours, persons must immediately notify the Administrator of emergency encroachment work for all repairs performed on existing infrastructure. Should emergency repair work commence during other than normal City business hours, the person must notify the Administrator of work performed by 9:00 am on the following business day. An encroachment permit application must be submitted to the Administrator within three business days.

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13.12.040. Planting Vegetation.

It is unlawful for any person to place or plant, or cause to be plac ed or planted, any tree, shrub or bush in any public right-of-way or public service easement without obtaining a permit pursuant to this chapter. In addition to all other conditions of this chapter, a permit planting trees will specify the place for planti ng, the distance apart, the kind of trees and such other matters specified by the administrator.

13.12.050. Street Damage by Moving Vehicles.

Except as otherwise provided in this chapter, it is unlawful for any person to drive, drag, propel or move, or cause to be moved upon any public right-of- way or public service easement, any plow, harrow or cutting or scratching instrument or any heavy vehicle or machine liable to break the surface of, or do injury to the public right-of-way or public service easement.

13.12.060. Excavation in Recently Resurfaced Public Streets.

A. Except as otherwise allowed by this chapter, public streets that were resurfaced with an emulsified asphalt “slurry” or asphalt “cape seal” within the previous two years or improved with asphalt/concrete within the previous five years of the proposed excavation may not be excavated for utilities or for other reasons.

B. A permit may be issued to allow a permittee to encroach within a public street to install utility facilities, or for other purposes, if such work can be accomplished by boring under the public street section or by other trenchless technologies. Alternative methods for such work including, without limitation, relocating utility facilities to areas other than the public street (for example, under public sidewalks and/or parkways) will be considered and determined not to be feasible before a permit may be issued pursuant to this chapter. Any additional costs for, without limitation, relocating utility facilities outside of the public street or boring under the public street must be borne by the permittee.

C. Excavation of a public street may be allowed by permit under only the most unusual circumstances if the Administrator determines that relocation or boring is not feasible. Under such circumstances, the Administrator will require a permittee to meet the city’s construction standards for excavating in recently resurfaced streets, pay all costs associated with such excavation, and provide such additional security to ensure the integrity of the recently resurfaced public street as may be reasonable required by the Administrator.

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13.12.070. Exceptions to Permit Requirements.

A permit is not required for the following encroachments or excavations:

A. United States mailboxes;

B. Poles and facilities of public utilities lawfully using the public streets of the city;

C. Portable and usual garbage and rubbish receptacles when conforming to and placed in accordance with the rules and regulations of the City;

D. Work required by a valid public works contract between the city and a contractor;

E. An encroachment made pursuant to a subdivision improvement agreement between the city and a developer;

F. Encroachments or excavations related to filming activities where the person possesses a filming permit issued pursuant to this code;

G. Encroachments or excavations authorized by a permit issued pursuant to this code for parades, athletic events, or public assemblies;

H. An encroachment made by adjoining property owner for installing concrete flat work in a parkway between a public street and sidewalk or for the purpose of installing concrete flat work behind a public sidewalk, provided the concrete flat work does not consist of more than 25-percent hardscape within each parkway area, and has otherwise been approved by the city;

I. An encroachment made by a city officer or employee acting within the course or scope of such officer’s or employee’s duties or employment; and

J. An encroachment made by the owner or lessee of property adjoining a public right-of-way within the central commercial zoning district for a sidewalk café pursuant to a license or permit issued pursuant to this code authorizing the use of the right-of-way for such a purpose.

13.12.080. Administration.

The administrator will administer this chapter, including, without limitation, acting on all applications for a permit required by this chapter, and undertaking any of the enforcement actions allowed by this chapter.

13.12.090. General Application Requirements For Permits.

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Applications for a permit required by this chapter must be filed with the administrator, will be in a form and contain the information prescribed by the administrator and be accompanied by a permit fee in an amount established by city council resolution.

13.12.100. Applicant Qualifications.

Where an application is filed for a permit required by this chapter which would authorize construction or excavation work within a public right-of-way or public service easement, the applicant must establish to the satisfaction of the administrator:

A. That the applicant possesses a valid contractor’s license issued pursuant to Business and Professions Code § 7000, et seq. to perform the kind of work within the public right-of-way or public service easement to be authorized by the permit; or

B. The applicant owns the property adjoining that portion of the public right- of-way or public service easement in which the work to be authorized by the permit will be performed, that such work will consist entirely of repairs to sidewalks, curbs, gutters or driveway, and/or the installation of landscaping within the parkway strips adjoining such public right-of-way, and that the work will be performed either entirely by the applicant or by the applicant in conjunction with unpaid assistants.

13.12.110. Plans and Specifications.

Where an applicant seeks a permit for construction or excavation work within a public right-of-way or public service easement, the application must include plans and specifications indicating the location, n ature, and extent of the work to be performed within the public right -of-way or public service easement and establish that such work will conform to the city ’s design criteria and improvement standards and/or any other applicable laws and regulations.

13.12.120. Action on Permit Applications - Approval.

If an application is complete and there are no grounds for denial, the administrator must approve the application and issue a permit subject to all of the conditions provided for in this chapter upon the applicant providing proof of insurance and paying the permit fee.

13.12.130. Action on Permit Applications - Denial of Application.

A. Grounds for Denial. The administrator must deny an application for a permit required by this chapter if the administrator determines that:

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1. The encroachment or excavation proposed by the application is for the construction or installation of improvements or facilities within a public right-of-way or public service easement than are not an authorized use of a public right-of-way or public service easement;

2. The encroachment or excavation, if implemented in the proposed manner, would unreasonably interfere with use of public or private property adjacent to or contiguous with the public right-of-way or public service easement in which an encroachment or excavation is planned; or

3. The encroachment or excavation, if implemented in the proposed manner, would threaten public health, safety, or welfare.

B. Notice of Denial. When the administrator denies an application, the administrator must promptly serve notice on the applicant. That notice will state the reasons for denial and set forth the applicant’s right to apply for administrative review and appeal in the manner provided by this chapter.

13.12.140. Traffic Control Plan.

As an additional condition for an encroachment permit, the per mittee must undertake and carry out the encroachment or excavation authorized by such permit in accordance with the provisions of the California Manual of Traffic Controls for Con struction and Maintenance Work Zones as published by the California Department of Transpo rtation and/or any additions or modifications adopted by the city.

13.12.150. Insurance; Surety Bond or Other Security.

A. Unless otherwise provided, no encroachment permit may be issued unless and until an applicant obtains comprehensive general liability insurance policy that complies with the city’s insurance requirements as established by city council resolution.

B. Security Requirements. Except as provided by this chapter, a permit cannot be issued pursuant to this chapter unless and until the permittee obtains and provides the city a surety bond or other security guaranteeing permittee’s performance of all duties and obligations under such permit including, in particular, the duty and obligation to restore the construction or work site to the same condition as it was before the work, or such modified condition as approved by the administrator.

C. Amount of Security. The surety bond or other security obtained and provided by a permittee must be in the penalty amount of at least $10,000

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except when the administrator determines that the proposed work is extensive and would result in costs substantially exceeding $10,000 to remedy any breach of the permit requirements. Under such circumstances, the surety bond or other security must be in a penalty amount which the administrator determines is necessary to fully insure the city’s exposure to all such costs.

D. Form of Security. The permittee’s surety bond must be in a form approved by the city attorney and be conditioned upon the duties and obligations contained in the permit and set forth in this chapter. In lieu of a surety bond, a permittee may obtain and provide to the city a cash deposit, certificate of deposit naming the city as the payee thereof or such other kind of security acceptable to the city’s risk manager, provided such alternate security is accompanied by an agreement, in a form approved by the city attorney, stating that the security is being pledged to guarantee performance of the permittee’s duties and obligations under the permit issued to permittee pursuant to this chapter.

E. Where a permit is issued pursuant to this chapter to a property owner adjoining the portion of the public right-of-way or public service easement in which the work is to be performed, the administrator may waive the surety bond or other security requirements of this chapter.

13.12.160. Performance of Construction or Excavation Work.

As a further condition of a permit required by this chapter, all permittees including, without limitation, persons with a franchise issued in accordance with applicable law, must design, undertake and complete such work in the following manner:

A. All public improvements constructed or installed within a public right-of- way pursuant to such permit must be designed, constructed and installed in accordance with the city’s design criteria and improvement standards.

B. Upon commencing work authorized by a permit, the work will be prosecuted with due diligence in a manner that does not unnecessarily obstruct or interfere with a public street, public utilities or other facilities located within a public right-of-way or public service easement. This provision will be strictly construed.

C. Warning lights. It is the duty of any person making any excavation in any public right-of-way or service easement, to place and maintain during the period between sunset of any day and sunrise of the succeeding day, suitable and adequate lights to warn users of the street of the obstructions or excavations until such excavation is entirely refilled.

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D. Location of pipes. It is unlawful for any person to lay any gas or water service pipe, or main pipe, or private sewer or any drain or other conduit in any street or other public place in the city at a distance of less than two feet below the surface of such public place.

E. In accordance with Government Code § 4216.2, including any successor statute thereto, persons excavating in the public right-of-way will comply with the requirements of the Underground Service Alert (“USA”) regarding notification of excavation and marking subsurface facilities. Such person will provide USA with the permit number or other information that may be necessary to properly identify the proposed excavation. All markings must be removed within 24 hours after work is completed.

F. All excavation permittees are required to furnish compaction reports on all backfill if required by the city engineer.

G. Upon completing approved work, the public right-of-way or public services easement in which such work was performed must be restored to the same condition as before the work occurred or such modified condition as expressly approved by the administrator. All surplus soils or waste materials removed from the public right-of-way or public service easement must be deposited or disposed of in a manner that complies with applicable federal, state, and city laws and regulations.

H. At the conclusion of construction or excavation work authorized by such permit, the permittee must file with the administrator such “as-built” plans and specifications as may be required by the administrator depicting any new improvements or facilities or any modifications to existing improvements or facilities which were constructed or installed in the public right-of-way or public service easement pursuant to such permit.

13.12.170. Special Conditions.

When acting on a permit required by this chapter, the administrator may add permit conditions to address any special requirements which the administrator determines are necessary to ensure that the proposed encroachment or excavation is accomplished in a manner that protects the safety of persons or property and does not unreasonably interfere with the use by the city or general public of any public right-of-way or public service easement and/or any public or private property adjoining or in the neighborhood of the public right-of-way or public service easement in which the encroachment or excavation is to be made.

13.12.180. Obstruction of Street; Refilling; Cost.

A. Refilling. All refilling of any excavation will be made by the administrator. If

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the street or place where such excavation is made is graveled, macadamized or has a cement concrete pavement, such pavement will be replaced by the administrator, all costs to be borne by the person, firm, or corporation making the excavation.

B. Determination of cost. The decision of the administrator as to the cost of any work done or repairs made by the City under the provisions of this chapter are final and conclusive as to such cost.

13.12.190. Stop Notice.

A. Whenever the administrator or any law enforcement officer determines that an encroachment or excavation made pursuant to a permit issued by this chapter threatens public safety, unreasonably interferes with the use of such public right-of-way or public service easement or any property adjoining and in the neighborhood thereof, or damages or threatens to damage other facilities located within the public right-of-way or public service easement in a manner not authorized by the permit, the administrator may order such work immediately suspended and, if appropriate, stopped in accordance with this chapter. The administrator or any law enforcement officer may immediately suspend work by a permittee either verbally or in writing if there is an imminent threat to public health, safety or welfare resulting from a permittee’s work. Thereafter, the administrator must comply with this chapter as to stopping work.

B. If stopping the work is, in the administrator’s sole determination, appropriate, the administrator will cause a written notice of the order to be served on the permittee and on any person known to the administrator to be working pursuant to the permit if such person is someone other than the permittee. In addition to setting forth the order of the administrator to stop work, such notice will contain a brief description of the reasons why such work is being ordered stopped and the action, if any, which may be taken in order that the work may be resumed; will contain a statement of the right of the permittee to apply for administrative review of the order and to appeal the order in the manner provided by this chapter, and advise the person upon whom the notice is served that unless authorized by the administrator, any further work performed pursuant to such permit may subject such person to criminal charges.

C. The administrator will also cause a written notice of the order to be posted in a conspicuous place within the public right-of-way or public service easement in which such work is being performed. In addition to setting forth the order of the administrator to stop work, such notice will state that it is a misdemeanor for such person to perform any further work without authorization of the administrator or to remove or deface the posted notice of such order.

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D. It is unlawful for any person served with a notice of the administrator to stop work undertaken or carried out pursuant to a permit issued in the manner provided by this chapter to cause or permit such work to be performed.

13.12.200. Permit Revocation.

A. Whenever the administrator determines that a permittee violated the terms and conditions of the permit or that the permit was issued based on an application or plans and specifications which contained a material misrepresentation of fact, the administrator may revoke the permit in accordance with this chapter.

B. To commence revoking a permit, the administrator will cause written notice of such order to be served on the permittee. In addition to notice regarding the revocation, the notice will contain a brief description of the reasons why the permit is being revoked and will contain a statement that the permittee has the right to apply for administrative review of the order and to appeal the order as provided by this chapter.

C. A permittee served with a notice of revocation will promptly terminate the encroachment or excavation and restore the public right-of-way or public service easement in which such encroachment or excavation was undertaken or carried out to the same condition as before the work commenced.

13.12.210. Removal and Restoration Work.

A. Where the administrator determines that an encroachment or excavation was made in a public right-of-way or public service easement without a permit, in violation or contrary to the terms and conditions of a permit or order issued pursuant to this chapter, or in any manner that endangers the safety of persons or property, the administrator may remove such encroachment, refill such excavation and/or restore such public right-of- way or public service easement to the same or substantially the same condition as it was before such work, all at the permittee’s or responsible person’s cost, after serving any notice required by this chapter.

B. Upon determining to restore a public right-of-way or public service easement, the administrator will cause written notice of such determination to be served on the permittee or other responsible person.

In addition to setting forth the administrator’s decision to perform such work, the notice will include the reasons for restoration and state that the work will be performed at permittee’s cost. Unless the work is needed protect public health, safety, or property, the notice will also allow the

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permittee to immediately undertake restoration work at the permittee’s sole cost and expense, provided the work is completed by the permittee within a reasonable time as determined by the administrator and set forth in the notice.

C. Unless the permittee or other responsible person accomplishes the restoration work themselves, any permittee or other responsible person who caused the condition that requires restoration work will, upon the restoration work being complete, be liable to the city for the full cost thereof. In addition, where a surety bond or other security was provided to the city as a condition of a permit authorizing construction or excavation work within a public right-of-way or public service easement, such surety or other security will be liable to the city for the cost of such work to the full amount of the surety bond or other security.

13.12.220. Right of Administrative Review.

A. Except as otherwise provided, an applicant may request administrative review of the administrator’s decision pursuant to this Chapter.

B. Except as otherwise provided, a request for review must be commenced within five days from the date on which written notice of the administrator’s decision is served on the applicant/permittee.

C. If a request is untimely, the administrator may, nevertheless, extend the time for commencing such review for good cause shown.

D. A request for administrative review will be on a form provided by the administrator and contain the following information:

1. The name, address and telephone number of the person making the request;

2. A description of the decision, determination or order which is the subject of the review, and the date such decision, determination or order was made or issued;

3. A brief description of all grounds for making the request; and

4. Such other information as may be required by the administrator.

E. Upon request for administrative review being filed, the administrator will promptly provide a copy of the notice to the city manager.

F. Upon receiving a request for review from the administrator, the city manager will review the request and, within 10 business days of receiving

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the request notice, provide the appellant with a written notification that:

1. The administrator’s decision is affirmed;

2. The administrator’s decision is modified;

3. The administrator’s decision is reversed and a permit is issued or issued without special conditions.

G. The city manager may, but is not required to, conduct a hearing at a time and place mutually agreeable to the parties. If the parties cannot agree on the time or place, then it will be held the next business day at 4:00 P.M. at the city manager’s office.

H. In addition to other provisions of this chapter, any notification to the requestor must set forth any modifications of the administrator’s decision.

I. The city manager’s decision is final. An applicant does not have any right to appeal that decision to the city council.”

SECTION 3: Environmental Assessment. This Ordinance was reviewed pursuant to CEQA. Adopting this Ordinance is exempt from further environmental review because it establishes rules and procedures for operation of existing facilities; minor temporary use of land; minor alterations in land use; new construction of small structures; and minor structures accessory to existing commercial facilities. The Ordina nce, therefore, is categorically exempt from further CEQA review under CEQA Guidelines §§ 15301; 15303, 15304(e); 15305; and 15311. Further, the adopting the ordinance is also exempt from review under CEQA pursuant to CEQA Guidelines § 15061(b)(3) because the ordinance is for general policies and procedure-making. It can be seen with certainty that there is no possibility that the Ordinance may have a significant effect on the environment.

Individual projects utilizing the se regulations will each be separat ely subject to an environmental assessment. Finally, this Ordinance is exempt from further review pursuant to CEQA Guidelines § 15269(a) because the protection of public and private property is necessary to maintain service essential to the public, health and welfare.

SECTION 4: Construction. This Ordinance must be broadly construed to achieve the purposes stated in this Ordinance. It is the City Council’s intent that the provisions of this Ordinance be interpreted or implemented by the City and others in a manner t hat facilitates the purposes set forth in this Ordinance.

SECTION 5: Enforceability. Repeal of any provision of the MPMC does not affect any penalty, forfeiture, or liability incurred before, or preclude prosecution and imposition of penalties for any violation occu rring before this Ordinance ’s effective date. Any such repealed part will remain in full force and effect for sustaining action or prosecuting violations occurring before the effective date of this Ordinance.

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SECTION 6: Validity of Previous Code Sections . If this en tire Ordinance or its application is deemed invalid by a court of competent jurisdiction, any repeal or amendment of the MPMC or other city ordinance by this Ordinance will be rendered void and cause such previous MPMC provision or other the city ordinance to remain in full force and effect for all purposes.

SECTION 7: Reliance on Record . Each and every one of the findings and determinations in this Ordinance are based on the competent and substantial evidence, both oral and written, contained in the entire record re lating to the project. The findings and determinations constitute the independent findings and determinations of the City Council in all respects and are fully and completely supported by substantial evidence in the record as a whole.

SECTION 8: Limitations. The City Council ’s analysis and evaluation of the project is based on the best information currently available. It is inevitable that in evaluating a project that absolute and perfect knowledge of all possible aspects of the project will not exist. One of the major limitations on analysis of the project is the City Council ’s lack of knowledge of future events. In all instances, best efforts have been made to form accurate assumptions. Somewhat related to this are limitations on the City ’s ability to solve what are in effect regional, state, and National problems and issues. The City must work within the political framework within which it exists and with the limitations inherent in that framework.

SECTION 9: Summaries of Information. All summaries of info rmation in the findings, which precede this section, are based on the substantial evidence in the record. The absence of any particular fact from any such summary is not an indication that a particular finding is not based in part on that fact.

SECTION 10: Severability. If any part of this Ordinance or its application is deemed invalid by a court of competent jurisdiction, the City Council intends that such invalidity will not affect the effectiveness of the remaining provisions or applications and, to this end, the provisions of this Ordinance are severable.

SECTION 11: Recording. The City Clerk, or her duly appointed deputy, is directed to certify the passage and adoption of this Ordinance; cause it to be entered into the City of Monterey Park’s book of original ordinances; make a note of the passage and adoption in the records of this meeting; and, within 15 days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law.

SECTION 12: Electronic Signatures . This Ordinance may be executed with electronic signatures in accordance with Government Code §16.5. Such electronic signatures will be treated in all respects as having the same effect as an original signature.

SECTION 13: Execution. The Mayor, or presiding officer, is hereby authorized t o affix his signature to this Ordinance signifying its adoption by the City Council of the City of Monterey Park, and the City Clerk, or duly appointed deputy, is directed to attest

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thereto.

SECTION 14: Effective Date. This Ordinance becomes effective on the 30th day following its passage and adoption.

PASSED AND ADOPTED this ____ day of ________ , 2023.

Jose Sanchez, Mayor
ATTEST:

Maychelle Yee, City Clerk
APPROVED AS TO FORM:

KARL H. BERGER, CITY ATTORNEY
Justin A. Tamayo, Deputy City Attorney
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ATTACHMENT 1

GENERAL CONDITIONS OF APPROVAL

ENCROACHMENT PERMIT

1. Permittee must schedule a pre-job construction meeting, at the job site, with the Administrator at least one week before the start of work.

2. Before starting work, the Permittee must notify the Administrator not less than 48 hours before the initial start of work. When work has been interrupted for more than five working days, 24-hour notification is required before restarting work.

3. All property owners and occupants affected by this project must be notified in writing at least 72 hours in advance of any work. Letters must be approved by the Administrator before distribution.

4. "No Parking" signs must restrict parking one hour before the start of the regular working hours until the end of the regular working day. Signs must be posted 72 hours in advance and must indicate day, date and time of construction and name of permittee.

5. A construction schedule, which must include the maximum length of time, must be provided by the Permittee and be approved by the Administrator before commencing work.

6. Inspection will be performed by the Administrator. Normal business hours for Public Works Inspection are 7:30 a.m. to 4:00 p.m., Monday through Thursday. Permittee will be billed at the rate established by the master fee schedule that has been adopted by the City Council at the time of inspection.

7. Unless allowed by the Permit, overnight storage of equipment or materials will not be allowed in the public right-of-way without prior approval from the Public is prohibited. If approved, equipment and material will be barricaded each night in accordance with the approved traffic plan.

8. The Permittee must obtain subgrade and form inspection and approval before ordering or pouring concrete or asphalt.

9. Sewers and other pipelines must be inspected by the Administrator and approved before backfilled and the backfill must be compacted to at least 90% relative density.

10. Permittee must notify Underground Service Alert two working days before excavating. (800) 422-4133.

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11. All Asphalt Concrete ("A.C.") repairs must consists of base paved sections one inch thicker than the existing A.C. section with the same thickness base coarse.

a. Restoration finish methods for all vertical street excavations will be done with a two inch grind and cap application not less than 10 feet from edge of gutter plate and not less than full lane width for cuts exceeding 10 feet Page from edge of gutter plate. The restoration limits parallel to curb and gutter must be no less than 10 feet in length and extend no less than one foot outside of all vertical cuts or the width required to repair damaged pavement.

b. A.C. repairs made to streets which have been overlaid with asphalt rubber hot mix must be done with asphalt rubber hot mix.

c. A.C. repairs within 100 feet of any major boulevard intersection must be ground and capped the full width of the boulevard at two inches in depth, one foot beyond the furthest vertical trenched edge up to the prolongation of the intersecting boulevard.

d. All street markings must be replaced in like-kind properties.

12. Saw cut all A.C. in a straight line parallel with curb at the outermost limits of excavation.

In accordance with best management practices in accordance with the current National Pollution Discharge Elimination System (“NPDES”) permitting requirements, Permittee must collect and properly dispose of all residue and water from project sawing operations.

Furthermore, under no circumstances may Permittee allow run-off to enter the storm drain system.

13. Any driveway apron cut during construction must be completely reconstructed in its entirety, unless otherwise approved by the Administrator. Permittee must maintain access to affected properties during construction. In the event access cannot be maintained, Permittee must contact property occupant at least 72 hours before excavation and coordinate the work.

14. The Spandrel area of all cross gutters must be completely reconstructed whenever any cut is made in it.

15. Whenever any curb and gutter crossing measures In excess of three feet in width, adjacent curb and gutter must be removed and reconstructed. All cold joints in curb and gutter must be separated by a distance of not less than 10 feet.

a. All curb and gutter crossings must be backfilled with one sack slurry.

16. Sidewalks must be saw cut to the nearest score line and in no case must a panel be left with any side measuring less than four feet. Any concrete panel cut parallel with curb must be completely reconstructed.

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08877-0001

17. Repair any damaged sprinklers and turf areas within 24 hours.

18. Trenches must not be left open overnight. All work must be backfilled or plated by the end of each workday.

a. Plates utilized on Arterial roadways must be recessed, NO EXCEPTIONS.

b. Plates must not be stored within the public ROW over night, also NO EXCEPTIONS.

19. Unless plated, temporary cuts must be compacted and graded smooth by the end of each day. A minimum of two inches temporary A.C. (cold mix) must be placed on compacted fill to bring temporary cut to final grade.

20. Traffic control must comply with the California Manual on Uniform Traffic Control Devises (“CA MUTCD”), California Temporary Traffic Control Handbook (“CATTCH”), or the Work Area Traffic Control Handbook (“WATCH”).

21. Backfill may be native material when approved by the City Public Works Inspector, and shown to be no less than 95-percent compacted before placement of finished material.

a. All compaction tests must be done by a laboratory approved by the Public Works Director, or designee. Locations must be determined by the City Public Works Inspector (90-percent compaction is required for the subgrade, 95-percent compaction is required for the base grade).

22. All construction work and traffic must be maintained on the proper side of centerline on all streets. On all residential streets Permittee - must maintain a minimum of one, 10 foot, lane in each direction at all times and must maintain two, 10 foot, lanes in each direction at all times on all major streets, unless approved by the Permit. No lane closures on arterial streets before 9:00 a.m. or after 3:30 p.m.

23. Permittee must field check all manhole locations, both for possible conflicts with existing Underground facilities and to ensure minimal impediment to vehicular traffic flow when vault is accessed.

24. Permittee is responsible for restoring any survey monuments which may have been disturbed as a result of this project. It is the responsibility of the permittee to obtain a licensed surveyor before start of work to preserve survey monuments in the work area.

25. Permittee is responsible for restoring all pavement markings and traffic striping through the entire length of the project to match existing conditions.

26. Permittee is responsible for repairs to any damaged traffic control devices, loop detectors or similar devices for the duration of work.

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Encroachment Permit
Created on April 12, 2023
LA #4872-8207-3424 v1
08877-0001

CITY OF MONTEREY PARK

ENCROACHMENT PERMIT

Permit #:

Location:

Permit Issued To: Contact Person:

________________________________________________________________ Expires:

________________________________________________________________

Pursuant to Monterey Park Municipal Code (“ MPMC”) Chapter 13.12, governing work or encroachment into public right of ways, the City of Monterey Park (“City”) grants permission to the Permittee listed above, to encroach into public property at the place and time specified above. In addition to the general terms and conditions contained in the MPMC, the use is subject to the following additional limitations:

1. DESCRIPTION. _____

2. UNOBSTRUCTED ACCESS. Permittee must allow all property owners, pedestrians, and vehicles unobstructed access to businesses, residences, and public property at all times. City’s representatives may right to enter upon the right-of-way upon which the Improvements are located at any time for any purpose. Permittee waives any and all claims for damages to any improvements or the business associated incurred as the result of City’s use of its public property.

3. REIMBURSEMENT FOR DAMAGES. Permittee must reimburse City for any damages inflicted on City-owned facilities by Permittee.

4. GENERAL CONDITIONS/SPECIAL CONDITIONS. The General
Conditions and any Special Conditions attached as Exhibit A to this Permit are incorporated by reference. Permittee must comply with all such conditions.

5. REMOVAL OF IMPROVEMENTS. Permittee must remove the
Improvements at Permittee’s expense upon 30 days written notice from City.

Should Permittee fail to timely remove the Improvements on such notice, Permittee will pay any costs incurred by City in removing the Improvements.

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Encroachment Permit
Created on April 12, 2023
LA #4872-8207-3424 v1
08877-0001

6. NON-TRANSFERABLE. This Permit is not transferable or assignable. Any attempt to transfer the Permit will immediately terminate the Permit.

7. COMPLIANCE WITH LAW. Permittee must perform all work in accordance with City policies, standards and ordinances and obtain all applicable permits needed for construction of the Improvements.

8. UNOBSTRUCTED AREA. A minimum five feet (5’) of unobstructed sidewalk area must be maintained for public pedestrian use.

9. LITTER-FREE. Permittee must keep the area of encroachment clean and free of trash, litter, and other refuse at all times.

10. INDEMNIFICATION. Permittee agrees to indemnify and hold City harmless from and against any claim, action, damages, costs (including, without limitation, attorney’s fees), injuries, or liability, arising from Permittee’s encroachment, except for such loss or damage arising from the City’s sole negligence or willful misconduct. Should the City be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of the Permittee’s encroachment, the Permittee agrees to defend the City (at the City’s request and with counsel satisfactory to the City) and will indemnify the City for any judgment rendered against it or any sums paid out in settlement or otherwise. For purposes of this section, “the City” includes the City of Monterey Park elected officials, appointed officials, officers, and employees.
.

11. INSURANCE.

A. At all times this Permit is effective, Permittee will procure and maintain commercial general liability insurance with a coverage limit of $2,000,000.

B. Commercial general liability insurance will meet or exceed the requirements of the most recent ISO-CGL Form unless City’s Risk Manager determines that ISO-CGL Form No. CG 00 01 11 85 or 88 is requir ed. The amount of insurance set forth above will be a combined single limit per occurrence for bodily injury, personal injury, and property damage for the policy coverage. Liability policies will be endorsed to name City, its officials, and employees as “additional insureds” under said insurance coverage and to state that such insurance will be deemed “primary” such that any other insurance that may be carried by City will be excess thereto. Such insurance will be on an “occurrence,” not a “claims made,” basis and will not be cancelable or subject to reduction except upon thirty (30) days prior written notice to City.

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Encroachment Permit
Created on April 12, 2023
LA #4872-8207-3424 v1
08877-0001

C. Permittee will furnish to City duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement, endorsements as required herein, and such other evidence of insurance or copies of policies as may be reasonably required by City from time to time. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of “A:VII.”

12. ENFORCEMENT. Should City determine it necessary to take legal action to enforce any of the provisions of these conditions, and such legal action is taken, the Permittee will be required to pay any and all costs of such legal action, including reasonable attorney's fees, incurred by City, even if the matter is not prosecuted to a final judgment or is amicably resolved, unless City should otherwise agree with applicant to waive said fees or any part thereof. The foregoing will not apply if the Permittee prevails on every issue in the enforcement proceeding. In such event, Permittee may not recover an amount exceeding City’s own legal costs.

13. SIGNATURE REQUIRED. Permittee, or its representative, must sign and return this original permit to the City of Monterey Park within five business days from receiving this permit. Failure to do so will be deemed a withdrawal of the Permittee’s application.

By issuing this permit, the City of Monterey Park does not assume responsibility of liability for claims, damages, or injuries, of whatever nature, which may arise from this work.

Dated this __ day of ____, 20___.

By: __________________________________________
______

I, __________________________________ the applicant for the encroachments described above, do hereby acknowledge that I have read the terms and conditions of this permit; that the terms and conditions are acceptable and agree to abide by, comply with, and accept full and complete responsibility therefore.

Dated this __ day of _____, 20___.

By: __________________________________________

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Monterey Park City CouncilApril 19, 2023

Monterey Park City Council
April 19, 2023