MEMORANDUM OF UNDERSTANDING
Land Use Entitlement Processing and SMARA and CEQA Lead Agency Responsibilities This Memorandum of Understanding (“MOU”) is entered into the last day listed below (“Effective Date”), between San Bernardino County (“County”), City of San Bernardino (“City”), and Vulcan Materials Company – Western Division (“Vulcan”). The County, City, and Vulcan are collectively referred to herein as the “Parties” or referred to individually as “Party.”
RECITALS
A.Vulcan operates two separate and adjacent surface mining and processing operations in the City and County. The existing Cajon Creek Quarry is located in the City. The existing Area Q Quarry is located in the County.
B.Vulcan is proposing certain changes to operational characteristics under its existing City and County entitlements. This includes certain amendments to both the City and County- issued entitlements, as well as consolidation of the two separate surface mining and processing operations under a single reclamation plan pursuant to the Surface Mining and Reclamation Act of 1975 (Pub. Resources Code, § 2710 et seq. [“SMARA”]) (“Project”). The Project site is depicted in Exhibit A attached hereto and incorporated herein by reference.
C.State law provides that whenever a proposed or existing surface mining operation is within the jurisdiction of two or more public agencies, is a permitted use within the agencies, and is not separated by a natural or manmade barrier coinciding with the boundary of the agencies, the evaluation of the proposed or existing operation shall be made by the Lead Agency. A Lead Agency, under SMARA, is a public agency that has principal responsibility for reclamation plan and financial assurance review and approval, mine inspection, and enforcement. If a question arises as to which public agency is the Lead Agency, any affected public agency or the mine operator may submit the matter to the State Mining and Geology Board (“SMGB”) to determine which public agency has principal SMARA responsibility.
D.Rather than submit the matter to the SMGB to determine whether the City or County shall act as SMARA Lead Agency, the Parties agree and concur that the County shall act as the SMARA Lead Agency for the Project.
E.When two or more public agencies with a substantial claim to be the Lead Agency under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq. [“CEQA”]), state law further provides that the public agencies may by agreement designate an agency as the CEQA Lead Agency. The Parties agree that the County will act as the sole CEQA Lead Agency for environmental review of the Project and will have all discretion to fulfill the obligation of a CEQA Lead Agency in connection with processing the Project. The City will use the CEQA document in its role as responsible agency.
F.Both the City and County will benefit from the consolidation of the surface mining and processing operations, in the event the Project is approved.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:
1. INCORPORATION OF RECITALS
The recitals set forth above are true and correct and incorporated herein by reference.
2. LAND USE AUTHORITY AND APPROVALS
(a)City and County agree that the County will be the sole SMARA Lead Agency for the Project, if approved. As Lead Agency, the County shall have the principal responsibility for review and approval of a reclamation plan and financial assurances, mine inspection, and SMARA enforcement.
(b)City and County further agree that the County is the sole CEQA Lead Agency in connection with processing the Project under CEQA, and that the City shall be a responsible agency in connection with processing the Project under CEQA. (c)The Parties agree that nothing in the MOU precludes the City and County from the proper exercise of its land use or police powers, or constitute a waiver of any lawful discretion under any law regarding the City and the County’s future determination on Vulcan’s request for Project approvals or permits from the respective jurisdictions. (d)The City and County will provide each other with a minimum of ten (10) days’ notice before any public hearing on land use matters and before any discretionary approvals associated with the Project.
3. INDEMNIFICATION
Vulcan hereby agrees to defend, indemnify, and hold harmless the City and County, its City Council and/or Board of Supervisors, commissions, officers, employees and agents, from and against any and all claims, suits, actions, liability, loss, damage, expense, cost (including, without limitation, attorneys’ fees, and costs and fees of litigation) of every nature, kind, or description, which may be brought by a third party against, or suffered or sustained by, the City and/or County, or its City Council and/or Board of Supervisors, commissions, officers, employees and agents, from and against any and all claims, suits, or actions to challenge or void this MOU.
4. GOVERNING LAW AND VENUE
This MOU shall be governed by the laws of the State of California. The venue for any dispute arising from or related to this MOU, its performance, and its interpretation shall be the Superior Court of California, County of San Bernardino.
5. MODIFICATIONS
This MOU represents and contains the entire agreement and understanding among the Parties hereto with respect to the subject matter of this MOU, as of the Effective Date, and supersedes any and all prior written and oral agreements and understandings. Any modification of or amendment to this MOU will be effective only if it is signed in writing by all Parties. The Parties shall notify each other at least ten (10) days before making any changes to this MOU and shall cooperate with each other in making any such changes.
6. COUNTERPARTS
This MOU may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute one and the same MOU. The Parties shall be entitled to sign and transmit an electronic signature of this MOU (whether by facsimile, PDF or other mail transmission), which signature shall be binding on the Party whose name is contained therein. Each Party providing an electronic signature agrees to promptly execute and deliver to the other Party an original signed MOU upon request.
7. INTERPRETATION
This MOU shall be construed as a whole according to its fair meaning, and not strictly for or against any Party. The Parties acknowledge that this MOU documents a negotiated agreement and it shall not be construed or interpreted in favor of any Party due to the fact that one of the Party’s attorneys drafted this MOU.
IN WITNESS WHEREOF, the Parties have entered into this Memorandum of Understanding as of the Effective DATE.
[Signatures on following page]
SAN BERNARDINO COUNTY
By:__________________________________
Dawn Rowe, Chair
Board of Supervisors
Dated:
SIGNED AND CERTIFIED THAT A COPY
OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF
THE BOARD OF SUPERVISORS
Lynna Monell
Clerk of the Board of Supervisors
By:__________________________________
(deputy)
Approved as to form:
TOM BUNTON
County Counsel
By:_________________________________
Jason Searles
Supervising Deputy County Counsel
CITY OF SAN BERNARDINO
By:_________________________________
Helen Tran
Its: Mayor
Date:________________________________
ATTEST:
By:__________________________________
Genoveva Rocha, City Clerk
Approved as to form:
By:_________________________________
Sonia R. Carvalho
City Attorney
VULCAN MATERIALS COMPANY –
WESTERN DIVISION
By:_________________________________
Its:_________________________________
Date:
Approved as to form:
By:__________________________________
Mark Reardon
Vulcan Materials Company – Western
Division Counsel