HomeMy WebLinkAbout596ORDINANCE NO. 596
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF IRWINDALE,
COUNTY OF LOS ANGELES, CALIFORNIA, APPROVING A DEVELOPMENT
AGREEMENT TO ALLOW HANSON AGGREGATES WEST, INCORPORATED TO
CONTINUE MINING AND TO RECLAIM THE QUARRY SITE FOR
COMMERCIAL/RECREATIONAL, INDUSTRIAL AND/OR COMMERCIAL USES
UPON COMPLETION OF MINING AT 13550 LIVE OAK AVENUE
A. RECITALS
(i) California Government Code Sections 65864 et seq. ("Development
Agreement Law") authorizes cities to enter into binding development agreements with
persons having a legal or equitable interest in real property for the development of such
property, all for the purpose of strengthening the public planning process, encouraging
private participation and comprehensive planning and identifying the economic costs of
such development.
(ii) Attached to this Ordinance, Marked Exhibit "A" and incorporated herein by
reference, is a Development Agreement, which hereinafter is referred to as "the
Development Agreement."
(iii) Hanson Aggregates West, Incorporated, hereinafter in this Ordinance
referred to as "Hanson", owns real property generally located at 13550 Live Oak
Avenue, legally described within the Development Agreement, and situated on property
in the City of Irwindale, County of Los Angeles, California, commonly known as the
Hanson Quarry, as described within the Development Agreement (the "Site"). Hanson
wishes to extend its existing mining entitlement to 390 feet below grade or to December
31, 2030, whichever event occurs first. At the conclusion of mining, Hanson intends to
reclaim the quarry site for commercial/ recreational, industrial, and/ or commercial uses
(the "Project").
(iv) The Site is located within the City's M-2 Zone (Heavy Manufacturing) and
Q zone (Quarry) and is designated by the Land Use Element of the General Plan as
Industrial.
(v) On December 15, 2005, the Planning Commission of the City, at a duly
noticed public hearing to consider the conditional approval of this Agreement, the
conditional approval of the Conditional Use Permit (CUP 10-05), and related
environmental analysis, adopted Resolution No. 466(05), recommending conditional
approval of this Agreement, conditional approval of the Conditional Use Permit,
certification of the Final Environmental Impact Report (SCH# 2003011084), and
adoption of the Statement of Overriding Considerations to the City Council.
Ordinance No. 596
Page 1
(vi) City finds and determines that all actions required of City precedent to
approval of this Agreement by Ordinance No. 596 of the City Council have been duly
and regularly taken.
(vii) All legal prerequisites to the adoption of this Ordinance have occurred.
B. ORDINANCE
NOW, THEREFORE, the City Council of the City of Irwindale hereby does ordain
as follows:
(i) Pursuant to the authority and criteria contained in the California
Environmental Quality Act of 1970 (CEQA), as amended (Public Resources Code,
Section 2100 et seq.), the State CEQA Guidelines (California Code of Regulations, Title
14, Section 1500 et seq.), and the CEQA Guidelines of the City of Irwindale, the City, as
the Lead Agency, has prepared a Draft Environmental Impact Report (DEIR) and a
Final Environmental Impact Report (FEIR) for the Proposed Project. The DEIR
identified significant impacts after implementation of the recommended Mitigation
Measures related to ozone precursor emissions during the mining and reclamation
phases of the proposed project. In addition, the proposed project was found to result in
cumulatively considerable impacts related to air quality and traffic. Therefore, a
Statement of Overriding Considerations must be adopted. The DEIR, State
Clearinghouse Number 2003011084, was circulated for review and comment from
February 3, 2005 to March 21, 2005. The City received comments on the DEIR from
two (2) reviewing agencies (the South Coast Air Quality Management District and the
State Department of Conservation). Responses to the comments have been prepared
and, together with the comments; have been included in the FEIR. The FEIR has been
made available for review by the public at the City of Irwindale Planning Department
and City of Irwindale Public Library.
(ii) Pursuant to Section 17.60.050 of the IMC, the City Council has final
approval authority for any use permit, including the approval of reclamation plans and
financial assurances, to allow for mining to a depth exceeding one hundred and fifty feet
(150').
(iii) On December 15, 2005, the Planning Commission, at a noticed
public hearing, at which time they received input from staff, the City Attorney, and the
Applicant; heard public testimony; discussed the proposed Project; closed the public
hearing; and, after discussion, approved Resolution No. 466(05) recommending that the
City Council certify the FEIR; adopt the Statement of Overriding Considerations;
conditionally approve this Application; conditionally approve the Conditional Use Permit;
conditionally approve the Reclamation Plan and Financial Assurances; and direct staff to
forward the Reclamation Plan and Financial Assurances to the State Department of
Conservation for their review and comment.
Ordinance No. 596
Page 2
(iv) Statement of Overriding Considerations
The City Council has found that implementation of the proposed project would result in
significant and unavoidable impacts related to ozone precursor emissions during the
mining and reclamation phases of the proposed project. No feasible mitigation
measures are available that would reduce impacts to less than significant levels.
Therefore, these impacts are considered significant and unavoidable. The Planning
Commission finds this significant impact to be acceptable for the reasons set forth in
Section v. of these Findings.
(v) Overriding Considerations
In accordance with CEQA Guidelines Section 15093, the City Council has, in
determining whether or not to approve the project, balanced the economic, social,
technological and other benefits of the proposed project against its unavoidable
environmental risks, and has found that benefits of the proposed project outweigh the
significant adverse environmental effects that are not mitigated to less than significant
levels, for the reasons set forth below. This Statement of Overriding Considerations is
based on the City Council's review of the Final EIR and other information in the
administrative record. The City Council hereby finds that each of the reasons stated
below constitutes a separate and independent basis of justification for the Statement of
Overriding Considerations, and each is able to independently support the Statement of
Overriding Considerations and override the proposed project's significant and
unavoidable environmental effects. In addition, each reason is independently supported
by substantial evidence contained in the administrative record.
a. The proposed project will allow for continued mining of aggregate resources in
the City, to meet the needs of the greater Los Angeles area;
b. The proposed project will allow the continued mining of aggregate resources in
proximity to other such uses, thereby minimizing land use impacts, and will take
advantage of easy access to regional highways;
C. The proposed project will provide an expanded economic base for the City by
generating substantial tax revenue. It is estimated that the mining tax revenue
will be approximately $1,641,070.00 annually through the year 2030. These
revenues will be used to repair damage to the roadways caused by the mining
trucks entering and exiting the Hanson site, and a portion of the funds will also be
deposited into the General Fund;
d. The proposed project will provide continued employment for mine workers;
Ordinance No. 596
Page 3
e. Once the mining entitlement has ended, the site will be restored and reclaimed to
provide for future commercial/ recreational, industrial and/ or commercial
development which will bring sale tax revenues to the City and tax increment
revenues to the Community Redevelopment Agency. By approving the mining
entitlement, the City is able to require the Applicant to replace the existing and
outdated reclamation plan with the new reclamation plan that complies with
SMARA and provides a more meaningful reuse of the Site to useable, productive
end uses, including positive, planned open space uses, all consistent with the
City's goals and General Plan.
(vi) The proposed project will improve road infrastructure surrounding
the project site, including Live Oak Avenue and Arrow Highway;
(vii) The City Council hereby specifically finds and determines that,
having considered the record as a whole, there is no evidence that the Project
contemplated by the Development Agreement, and as conditioned, will have a potential for
an adverse impact on wildlife resources or the habitat upon which the wildlife depends.
Based upon substantial evidence presented in the record before this Council, this Council
rebuts the presumption of adverse effect contained in Subsection 753.5 (d) of Title 14,
California Code of Regulations. Notwithstanding the provisions of this paragraph, the
Applicant shall pay all fees required for the filing of a Notice of Determination and any fees
imposed by the California Department of Fish and Game.
(viii) The City Council has found that this Agreement is in the best public
interest of the City and its residents, adopting this Agreement constitutes a present
exercise of the City's police power, and this Agreement is consistent with the City's
General Plan. This Agreement and the proposed Project will achieve a number of City
objectives including assuring a revenue stream to the City, both in the form of mining taxes
and, after reclamation, in the form of sales tax monies and tax increment revenues.
(ix) It is expressly found that the public necessity, general welfare and
good zoning practice require the approval of the Development Agreement.
(x) This City Council hereby approves the Development Agreement
attached hereto as Exhibit "A."
(xi) The City Council hereby authorizes and directs the Mayor and the
City Clerk to execute the Development Agreement on behalf of the City of Irwindale
forthwith upon adoption of this Ordinance.
(xii) The City Clerk shall certify to the passage of this Ordinance and
shall cause the same to be published and/or posted at the designated locations in the City
of Irwindale.
Ordinance No. 596
Page 4
PASSED, APPROVED, and ADOPTED this 3rd day of January 2006.
Julian A. Miranda, Mayor
ATTEST:
r
nda J. KiAar6, C C
Deputy City Clerk
STATE OF CALIFORNIA }
COUNTY OF LOS ANGELES } ss.
CITY OF IRWINDALE }
I, Linda J. Kimbro, Deputy City Clerk of the City of Irwindale, do hereby certify
that the foregoing Ordinance No. 596 was duly introduced at a regular meeting of the
Irwindale City Council held on the 20th day of December 2005, and was duly approved
and adopted on second reading at its regular meeting held on the 3rd day of January
2006, by the following vote of the Council:
AYES: Councilmembers: Breceda, Fuentes, Tapia, Ortiz, Mayor Miranda
NOES: Councilmembers: None
ABSENT: Councilmembers: None
ABSTAIN: Councilmembers: None
Linda J. Kimbr&;'CMC
Deputy City Clerk
AFFIDAVIT OF POSTING
I, Linda J. Kimbro, Deputy City Clerk, certify that I caused a copy of Ordinance No. 596 adopted by the City Council of the
Pity of Irwindale at its regular meeting held December 20, 2005, to be posted at the City Hall, Library, and Post Office on January 4,
2006.
ly
da J. Ki rq; C Dated: January 6, 2006
City yC
Deputy lerk
Ordinance No. 596
Page 5
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Development Agreement" or "Agreement") is
entered into on January 3, 2006, by and between the CITY OF IRWINDALE, a municipal
corporation (the "City"), and Hanson Aggregates West, Inc., a Delaware corporation ("Hanson").
The City and Hanson may be referred to collectively as the "Parties" and individually as a
"Party."'
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RECITALS:
A. Hanson owns and operates a mining quarry of approximately 492 acres (the
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Site't) located to the west of the 605 Freeway and south of Arrow Highway and the Irwindale
Speedway. The Site consists of the following parcels as shown in the Site Map"attached hereto
as Exhibit A and incorporated herein by this reference: (1) Plant Parcel, approximately 72 acres;
(2) Reclamation Parcel, approximately 40 acres; (3) Green Parcel, approximately 30 acres; (4)
Peck Parcel, approximately 10.7 acres; (5) Southwest Corner Parcel, approximately 9.3 acres;
and (6) Lake Parcel, approximately 330 acres.
B. Legislation Authorizing Development Agreements. To strengthen the public
planning process, encourage private participation in comprehensive planning and reduce the
economic risk of development, the legislature of the State of California adopted the Development
Agreement Statute, Section 65864 et seq. of the Government Code, authorizing the City to enter
into an agreement with any person having a legal or equitable interest in real property providing
for the development of such property and establishing certain development rights therein.
C. PLiMose of Agreement. Hanson wishes to obtain an entitlement to continue its
mining operations to the maximum safe depth, which is estimated to take until the year 2030.
The City is prepared to grant such additional entitlement, provided that Hanson agrees (1) not to
mine the Plant Parcel, the Southwest Corner Parcel, and the Reclamation Parcel; (2) to reclaim
the Reclamation Parcel; (3) to relocate access to the Plant Parcel so that the reclaimed areas are
developable; (4) to dedicate to the City a portion of the Plant Parcel for recreational purposes; (5)
to fund the costs of acquisition and reclamation of the Peck Parcel; (6) to develop uses on the
Site in accordance with the City's proposed General Plan Update and zoning; (7) to associate
with the sale of the property sufficient prescriptive pumping rights to support the development of
the site when the reclamation is completed, which will be used exclusively by City to facilitate
the development of the reclaimed land; (8) to grant City an option to purchase the balance of its
prescriptive pumping rights; and (9) to fund the cost for all mitigation measures as identified in
the EIR, and (10) to waive claims and challenges to various taxes and regulatory ordinances
previously adopted by the City.
D. Public Hearings; Findings. On December 15, 2005 the City's Planning
Commission, after a duly noticed public hearing, adopted Resolution No. 466(05) recommending
City Council certification of the EIR, City Council and approval of the CUP, the Reclamation
Plan, Financial Assurances and this Agreement. On December 20, 2005, the City Council, after
making appropriate findings at a duly noticed public hearing, adopted Resolution No. 2005-87-
2104 certifying the Environmental Impact Report and conditionally approving the CUP,
Reclamation Plan, Financial Assurances and SMARA Transfer Agreement, subject to comment
from the California Department of Conservation, and on January 3, 2006, adopted Ordinance No.
# 19765v.9
596 approving this Agreement. These actions included the approval of a Conditional Use Permit
and this Agreement for the continued mining of the Lake Parcel and Green Parcel and an
amended Reclamation Plan and financial assurances for the Site, along with appropriate
environmental, grading and/or refilling permits and documents for the mining and reclaiming
activities specified in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, and having determined that the foregoing recitals are true and correct and should be
and hereby are incorporated into this Agreement, the parties agree as follows:
1.0 MUTUAL BENEFITS AND ASSURANCES.
1.1 Development of Site in Phases.
Hanson owns and operates a mining quarry of approximately 492 acres in the City that is
divided into six (6) parcels that are shown on the Site Map and are described as follows: (a) the
72 acres supporting processing operations is known as the "Plant Parcel," (b) the 40 acres
adjacent to the 605 Freeway is known as the "Reclamation Parcel," (c) the 30 acres where active
mining continues is known as the "Green Parcel," (d) the 10.7 acre parcel adjacent to Peck Road
is known as the "Peck Parcel," (e) the 9.3 acres, located adjacent to the Peck Parcel, is known as
the "Southwest Corner Parcel", and (f) the 330 acres where active mining continues is known as
.-the "Lake Parcel." Where the term "Site" is used in this Agreement, it shall be construed to
apply to the Plant Parcel, the Reclamation Parcel, the Green Parcel, the Peck Parcel, the
Southwest Corner Parcel and the Lake Parcel collectively. The Parties intend that the Site be
ultimately developed for future hotel, commercial, industrial and recreational uses in accordance
with the terms of this Agreement. The parties further intend that Hanson transfer its prescriptive
water rights along with any parcel intended to be developed herein in a sufficient amount to meet
the needs of such development, as set forth in Section 16.1. This Article 1.0 outlines the parties'
general intent as to the timeframe and sequence for the development of the Site. The intended
mining, reclamation and development is more specifically described in the "Scope of
Development" attached hereto as Exhibit B and incorporated herein by this reference. In
addition, the timeframes are established in the "Schedule of Performance" attached hereto as
Exhibit C and incorporated herein by this reference.
1.2 Summary of Development Plan.
In general, Hanson proposes as follows, which proposal shall be further refined and shall
be the subject of a development application(s) submitted by Hanson to the City and considered
for approval by the City separate from the approvals provided in this Agreement in accordance
with the then applicable regulations and within the times set forth in the Schedule of
Performance:
(a) Plant Parcel. This parcel is currently the location of Hanson's Processing
Plant. Processing operations shall continue until Maximum Safe Depth is reached, or the
end of the Term as defined herein, whichever occurs first. The Processing Plant shall be
removed before the end of the Term, as defined in Section 3.1 below. Hanson shall
surrender all rights, title and interest in mining the Plant Parcel pursuant to this
Development Agreement, as confirmed by Hanson's execution of a Deed of Trust in the
form attached hereto as Exhibit D. Upon removal of the Processing Plant, the ten (10)
acres adjacent to the 605 Freeway shall be developed with the Reclamation Parcel for
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.. hotel and commercial uses; the 35 acres adjacent to the Irwindale Speedway shall be
developed for automotive -oriented industrial or commercial use; the 22 acres (southeast
of such aforementioned 3 5 acre automobile -oriented industrial or commercial use) will be
developed for commercial and/or industrial uses; and the 5 acres adjacent to the Lake
Parcel, along with an approximately 20 acre portion of the Lake Parcel not being mined,
for a total of approximately 25 acres shall be developed for recreation -open space (i.e.
water slide park, equestrian, fishing, boating, etc.) and dedicated to the City with
maintenance provided through assessments on the remainder of the Site, except as
provided herein.
(b) Roadway Construction and Bridge Improvements. Hanson will construct
a roadway to the City's specifications bordering the Irwindale Speedway and extending to
Live Oak Boulevard to provide a new entrance to Live Oak Boulevard and a new
entrance to Hanson's Processing Plant and related facilities (the "Roadway"). The design
and construction of the new roadway shall be performed by Hanson at its sole expense.
The required right of way for this roadway shall be one hundred feet. The general
location of the alignment shall be as shown on the Map of Roadway Alignment (Exhibit
E). The precise location of the alignment shall be set by the City Engineer. The design
details of this roadway shall be in accordance with the "Roadway Design Criteria"
reflected on Exhibit F. In addition to the construction of this new roadway, Hanson
shall, at the time of the development of the Reclamation Parcel, widen the Graham
Access Road bridge from one lane in each direction to two lanes in each direction to
mitigate the traffic increase anticipated with development of the Plant Parcel. At the time
of the development of the Reclamation Parcel, Hanson, at its sole cost, shall acquire the
Graham Road access easement (as shown on Exhibit H, herein, "Graham Road
Easement") from Southern California Edison, or its then current owner, or, if such
negotiations are unsuccessful, the provisions of Article 15.0 shall apply, and dedicate
same to City for public access purposes to serve the Reclamation Parcel.
(c) Reclamation Parcel. Reclaiming operations with offsite fill shall not
commence until such time as fill operations at Quarry No. 1, formerly owned by United
Rock Products Corporation, owned by J.H. Holdings as of the date of this Agreement and
located on East Live Oak Avenue, Irwindale ("Quarry No. I"), are concluded or until
such time as the City, in its discretion, authorizes commencement of a Commercial Fill
Operation.
(d) Green Parcel. Mining operations shall continue to the Maximum Safe
Depth but not later than the conclusion of the term of this Agreement. The mining
operations presently and will continue to preserve an adequate access corridor for the
Roadway. Hanson shall have no obligation to reclaim the Green Parcel.
(e) Peck Parcel. Hanson shall surrender all rights, title and interest in mining
the Peck Parcel pursuant to this Development Agreement. The Parties intend that, within
five (5) years of the date hereof, the City shall accomplish acquisition of the Peck Parcel.
Such acquisition shall be funded entirely by Hanson. Hanson shall endeavor to secure an
access agreement with the present owner of the Peck Parcel to commence reclamation
immediately before such acquisition. Upon commencement of reclamation either after
securing such access rights or ownership of the Peck Parcel, Hanson shall reclaim the
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Peck Parcel with Engineered Fill on a phased basis, as further described in Section 4.4 of
the Scope of Development, at Exhibit B hereto.
(f) Southwest Corner Parcel. Hanson shall forego any mining on this parcel.
Upon termination of mining operations on the Site, Hanson shall complete reclamation of
this 9.3 acre parcel consistent with the reclamation requirements for the 330 acre Lake
Parcel for recreational uses. The reclamation of this Parcel shall be concurrent with the
reclamation of the Lake Parcel.
(g) Lake Parcel. Mining operations shall continue to the Maximum Safe
Depth, but not later than the conclusion of the term of this Agreement. Hanson shall not
be required to fill the 330 acre Lake Parcel. Instead, Hanson shall reclaim the Lake
Parcel to provide the landscaping, access roads, runoff and drainage improvements and
other infrastructure required under the Reclamation Plan. Hanson shall permit immediate
and continuous public use of the portion of the Lake Parcel during mining operations as
provided for herein. Hanson will enter into an agreement within 180 days after City
presents a draft agreement, to permit immediate and continuous public use of a
designated portion of the Lake Parcel owned by Hanson during mining operations subject
to the conditions that (1) the use shall be consistent with continued mining, with
appropriate designation and separation of use areas, (2) the use shall protect public health
and safety, (3) the use shall meet all legal requirements for all public agencies of
appropriate jurisdiction, (4) the City, or appropriate third party approved by the City,
shall accept responsibility and liability for its use consistent with its police powers and
tort immunities, provided Hanson does not contribute to any cause of liability, and (5) the
right to access the lake for operations shall be granted to Hanson. The approximately 20
acre northern portion of the Lake Parcel (identified as Lake Parcel II on Exhibit A
hereto) shall be used along with the 5 acre southern portion of the Plant Parcel (identified
as "Area IV, City Recreational/Open Space" on Exhibit A) for recreation and open space
purposes and dedicated to the City with maintenance provided through assessments on
the remainder of the Site, except as provided herein. Additionally, Hanson, at its sole
expense and cost, shall acquire the portion of the Site owned by Bagg and Cates ("Bagg
and Cates Parcel") and dedicate same to the City for public use consistent with the
provisions described in this section; provided that if such negotiations are unsuccessful,
the provisions of Article 15.0 shall apply. A figure showing Hanson's fee ownership in
the Lake Parcel and Bagg and Cates Parcel within the Lake Parcel is attached hereto as
Exhibit A-2.
1.3 Interest and Representation of Hanson.
"Hanson" is Hanson Aggregates West, Inc., a Delaware corporation, and its permitted
successors and assigns, with its principal offices at 3550 Live Oak Avenue, Irwindale, CA
91706-2075. Hanson warrants and represents to City that:
(a) Hanson is a Delaware corporation duly organized and existing under the
laws of the State of Delaware;
(b) By proper action of Hanson, Hanson's signatories have been duly
authorized to execute and deliver this Agreement, acting by and through its duly
authorized officers;
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-,. (c) Hanson is duly qualified to do business in good standing under the laws of
the State of California and has all requisite power and authority to carry out its business
as now and whenever conducted and to enter into and perform its obligations under this
Agreement;
(d) The entering into this Agreement by Hanson does not violate any
provision of any other agreement to which Hanson is a party;
(e) Except as may be specifically set forth in this Agreement, no approvals or
consents not heretofore obtained by Hanson are necessary in connection with the
execution of this Agreement by Hanson or with the performance by Hanson of its
obligations hereunder;
(f) Neither Hanson, nor the principals of Hanson, have filed or been the
subject of any filing of a petition under the Federal Bankruptcy Law or any insolvency
laws, or any laws for the discharge of indebtedness or for the reorganization of debtors;
(g) No representation, warranty, or covenant of Hanson in this Agreement, or
in any document or certificate furnished or to be furnished to the City pursuant to this
Agreement, contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the statements contained herein or
therein not misleading;
y (h) Hanson has not paid or given to, and will not pay or give to, the City or
any official or agent of the City any money or other consideration for obtaining this
Agreement, except as expressly provided herein;
(i) Except for the Green Parcel and Bagg and Cates Parcel in which Hanson
holds leasehold interests, Hanson is the owner of fee title to the Site and has the right of
possession of the Site, free from any tenant leases, tenancies, licenses, or other similar
occupancy agreements that could reasonably interfere with Hanson's right to maintain
and operate the Site or any development thereon approved under this Agreement; and
0) Hanson is party to that certain lease dated April 25, 2001 by and between
Sunburst Decorative Rock, Inc., a California corporation and Hanson Aggregates West,
Inc., a Delaware corporation, and also is successor -in -interest to Livingston -Graham, a
division of Brown Company, a Delaware corporation, under that certain Lease dated
January 1, 1980 by and between such company and parties including Nancy Bagg
Rogers, United California Bank, Barker T. Cates, Mildred C. Stephens and Mary Edna
Rose, pursuant to which leases Hanson occupies the Green Property and Bagg and Cates
Parcel, respectively.
1.4 Binding Effect of Agreement.
The mutual burdens and benefits of this Agreement inure to and shall be binding upon the
successors in interest of the Parties. City represents and warrants that it is the owner of or holds
public right-of-way interests in property immediately adjacent to the Site, including the public
rights of way over those areas now commonly known as Live Oak, more particularly depicted in
the Site Map ("Public Parcel") and incorporated herein. The Public Parcel shall be the benefited
parcel for the obligations on Hanson herein, and the Site shall be the burdened parcel.
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1.5 Superseded Mining Agreements.
Prior to this Agreement, the Site was subject to several approvals and agreements that
were approved by City's City Council, Planning Commission, and/or Redevelopment Agency
(collectively, the "Superseded Mining Agreements"). Upon the Effective Date of this
Agreement, all of the Superseded Mining Agreements shall be superseded by this Agreement and
shall be of no further force and effect, unless such approvals and agreements are described and
listed herein as the Continuing Mining Agreements. The Superseded Mining Agreements
include the following:
(a) Mining Depth. Hanson is entitled to excavate the Site until December 31,
2005 or to a depth of 150 feet above mean sea level (msl) or 200 feet below surface level
pursuant to Special Use Permit No. 11 approved by Resolution 80-15-945 in 1980.
(b) Existing Reclamation Plans. Reclamation plans were previously approved
by City by way of the City's June 28, 1990 Resolution No. 90-18-1191 Approving
Supplement 1, dated May 16, 1999, to the 1972 Livingston -Graham Reclamation Plan for
the Site (the "Existing Reclamation Plans"). The Existing Reclamation Plans authorize
reclamation of lands that are mined to a depth of 200 feet below surface level (150 feet
msl). Approved concurrently herewith, is the December 2005 Reclamation Plan for the
Site prepared by Lilburn Corporation. The existing Reclamation Plans are superceded by
Reclamation Plan approved concurrently herewith.
(c) Exclusive Agreement to Negotiate. Hanson and the City entered into that
certain Exclusive Agreement to Negotiate dated August 22, 2002. This Agreement
supersedes such Exclusive Agreement to Negotiate.
2.0 DEFINITIONS.
The following words and phrases are used as defined terms throughout this Agreement.
Each defined term shall have the meaning set forth below. Any capitalized terms not defined in
this Section shall have the meaning otherwise assigned to them in this Agreement or apparent
from the context in which they are used.
2.1 Agency.
"Agency" means the Community Redevelopment Agency of the City of Irwindale.
2.2 Applications.
"Application(s)" shall mean a complete application for the applicable land use approvals
(such as a subdivision map, conditional use permit, etc.) meeting all of the current ordinances of
the City provided that any additional or alternate requirements in said ordinances enacted after
the Effective Date which affect the Application shall apply only to the extent permitted by this
Agreement.
2.3 Assignment.
All forms of use of the verb "assign" and the nouns "assignment" and "assignee" shall
include all contexts of hypothecations, sales, conveyances, transfers, leases, and assignments.
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.,4- 2.4 Authoriziniz Ordinance.
"Authorizing Ordinance" means Ordinance No. 596 approving this Agreement.
2.5 City.
"City" means the City of Irwindale, California, a municipal corporation.
2.6 City Council.
"City Council" means the governing body of the City of Irwindale.
2.7 Commercial Filling Operations.
"Commercial Filling Operations" shall refer to the following: The City has established a
phased reclamation process to concentrate fill materials in prioritized mining pits so that the pits
can be fully reclaimed as quickly as possible and made available for the end uses, and the
Hanson has agreed to participate in this process. Accordingly, without the written approval of
the City Manager, Hanson shall not conduct a commercial filling operation on the Site. A
"commercial filling operation" is defined to be one where Hanson or the operator posts signs on
or around the Site advertising the availability of the Site and directing customers to the Site and
where the operator derives revenue by published rates and charges for those persons bringing fill
to the Site. This shall not prevent Hanson from commencing or carrying out reclamation
through noncommercial filling operations but utilizing fill from its own internal operations on
the Site or from Hanson's other operations, or from entering into fill contracts to acquire fill not
otherwise available to the other mining operators.
2.8 Completion of Reclamation.
"Completion of Reclamation" means, consistent with the definition under the California
Surface Mining and Reclamation Act of 1975, the completed process of land treatment which
minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding,
erosion, and other adverse effects from surface mining operations, including adverse surface
effects incidental to underground mines, so that the mined lands, including the Reclamation
Parcel and the Peck Parcel, are reclaimed to a usable condition which is readily adaptable for the
ultimate development of each Parcel, as specified in this Agreement, and creates no danger to
public health or safety. The process may extend to affected lands surrounding the mined lands
and shall require backfilling, grading, resoiling, revegetation, soil compaction to those standards
specified in this Agreement, stabilization and other measures to make such mined lands readily
adaptable to the ultimate development of each Parcel, as specified in this Agreement. It is
specifically agreed that this definition is satisfied only by the use of Engineered Fill.
2.9 Concurrent Mining Approvals.
"Concurrent Mining Approvals" means the approval granted by City concurrent with the
approval of this Development Agreement to mine the Site, namely the Conditional Use Permit,
Reclamation Plan, EIR and agreements addressing Financial Assurance obligations, including,
but not limited to, the SMARA Conveyance Agreement.
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2. 10 Conditional Use Permit.
"Conditional Use Permit" means the conditional use permit approved concurrently with
the approval of this Agreement by the City Council under Resolution No. 2005-87-2104 for
mining and reclamation of the Site.
2.11 Conditions of Approval.
"Conditions of Approval" means those conditions regulating the mining and reclamation
activities authorized by the Conditional Use Permit and attached to the Resolution approving the
Conditional Use Permit as Exhibit A thereto.
2.12 Default.
"Default" refers to any material default, breach, or violation of a provision of this
Agreement as defined in Section 11. "City Default" refers to a Default by the City, while
"Hanson Default" refers to a Default by Hanson.
2.13 Design Guidelines.
"Design Guidelines" shall mean those general and specific development standards
applicable to the Project relating to lot size, building square footages, lot coverage, parking,
building height, setbacks, landscaping, access, etc., as may be approved in the future by City as
applicable to the Site.
2.14 Development Agreement Statute.
"Development Agreement Statute" means Sections 65864 through 65869.5 of the
California Government Code as they exist on the Effective Date or as may be amended from
time -to -time.
2.15 Development Approvals.
"Development Approvals" means all site-specific (meaning specifically applicable to the
Site only and not generally applicable to some or all other properties within the City) plans,
maps, permits, and entitlements to use of every kind and nature. Development Approvals
include, but are not limited to, permits to mine to specified depths, reclamation plans, specific
plans, site plans, tentative and final subdivision maps, design guidelines, variances, zoning
designations, conditional use permits, grading, building, and other similar permits,
environmental assessments, including environmental impact reports and negative declarations,
and any amendments, supplements or modifications to those plans, maps, permits, assessments
and entitlements. The term Development Approvals does not include (i) rules, regulations,
policies, and other enactments of general application within the City, (ii) any of the Superseded
Mining Agreements, (iii) any matter where City has reserved authority under Article 9.0.
2.16 Development Plan.
"Development Plan" means the Existing Development Approvals, Future Development
Approvals, Existing Land Use Regulations, and Future Land Use Regulations and permitted
Future Mining Land Use Regulations.
2.17 Effective Date.
"Effective Date" means the date the Agreement becomes effective, which shall be the
date thirty (30) days after the adoption of the Authorizing Ordinance.
2.18 EIR, Negative Declaration or "environmental documents".
"EIR" or "Negative Declaration" or "environmental documents" means the
Environmental Impact Report, Negative Declaration or other environmental documents certified
by City Council Resolution No. 2005-87-2104 in accordance with the requirements of CEQA
and processed in accordance with Section 4.6.
2.19 Engineered Fill.
"Engineered Fill" means the use of Inert Material for the reclamation of quarry pits to the
following standard:
w (a) All fill placed into the natural groundwater (Underwater Fill) at any level
that may exist at the time of fill placement shall comply with all provisions of the May
20, 2005 "Guidelines for Underwater Backfilling Of Open -Pit Mines, Irwindale,
California" and any and all revisions, updates and modifications of such Guidelines.
(b) All fill placed above the natural groundwater (Above Water Fill) at any
level that may exist at the time of fill placement shall comply with all provisions of the
November 23, 2005 "Guidelines for Above Water Backfilling of Open -Pit Mines,
Irwindale, California" and any and all revisions, updates and modifications of such
Guidelines.
2.20 Existing Development Approvals.
"Existing Development Approvals" means those Development Approvals which are in
effect on the Effective Date, but does not include the Superseded Mining Agreements.
2.21 Existing Land Use Regulations.
"Existing Land Use Regulations" means those certain Land Use Regulations applicable
to the Site in effect on the Effective Date. This term includes all Existing Mining Land Use
Regulations.
2.22 Financial Assurances.
"Financial Assurances" shall mean the financial assurances required by City pursuant to
the Surface Mining and Reclamation Act of 1975 ("SMARA") to assure the reclamation of the
Site, as established pursuant to Sections 11.2 through 11.5.
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2.23 Future Development Approvals.
"Future Development Approvals" means those Development Approvals applicable to the
Site approved by the City after the Effective Date.
2.24 Future Land Use Regulations.
"Future Land Use Regulations" means those certain Land Use Regulations applicable to
the Site approved by the City after the Effective Date, but does not include Future Mining Land
Use Regulations.
2.25 Future Mining Land Use Regulations.
"Future Mining Land Use Regulations" means those Mining Land Use Regulations
approved by the City after the Effective Date.
2.26 Inert Materials.
"Inert Materials" shall have the meaning provided under California Integrated Waste
Management Board regulations (Title 14 of the California Code of Regulations) for Type A Inert
Debris, as such definition may be amended from time -to -time. "Type A Inert Debris" includes,
but is not limited to, concrete (including fiberglass or steel embedded in the concrete), fully
cured asphalt, crushed glass, fiberglass, -asphalt or fiberglass roofing shingles, brick, slag,
ceramics, plaster, clay and clay products. Type A inert debris is waste that does not contain
soluble pollutants at concentrations in excess of water quality objectives and has not been treated
in order to reduce pollutants.
2.27 Land Use Regulations.
The "Land Use Regulations" means those ordinances, laws, statutes, rules, regulations,
initiatives, policies, requirements, guidelines, constraints, codes or other actions of the City
which affect, govern, or apply to the Site or the implementation of the Development Plan. Land
Use Regulations include the ordinances and regulations adopted by the City which govern
permitted uses of land, density and intensity of use and the design of buildings, applicable to the
Site, including, but not limited to, the General Plan, specific plans, zoning ordinances,
development moratoria, implementing growth management and phased development programs,
ordinances establishing development exactions, subdivision and park codes, any other similar or
related codes and building and improvements standards, mitigation measures required in order to
lessen or compensate for the adverse impacts of a project on the environment and other public
interests and concerns or similar matters. The term Land Use Regulations does not include,
however, regulations relating to the conduct of business, professions, and occupations generally;
fees, taxes and assessments; regulations for the control and abatement of nuisances; uniform
codes; utility easements; encroachment and other permits and the conveyances of rights and
interests which provide for the use of or entry upon public property; any exercise of the power of
eminent domain; health and safety regulations; environmental regulations; or similar matters or
any other matter reserved to City pursuant to Article 9. The term "Land Use Regulations" does
not include any of the Superseded Mining Agreements.
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2.27 Maximum Historic Water Level.
"Maximum Historic Water Level" means the maximum recorded groundwater level of
approximately 323 feet above mean sea level for the Site, measured in wells located in Irwindale
and vicinity.
2.28 Maximum Safe Depth.
"Maximum Safe Depth" means the maximum depth to which a particular Parcel may be
excavated, taking into account the permitted slopes and setbacks, water table, slope stability,
slope erosion, plans for reclamation, and other appropriate factors, in accordance with the
guidelines provided in the Slope Study, and as specifically shown in the independent bathometric
study based on a slope profile cross-sectioned at intervals, a copy of which is attached as Exhibit
"B" to the CUP Conditions.
2.29 Mining Development Approvals.
"Mining Development Approvals" means those City approvals including the Conditional
Use Permit for mining and reclamation of the Site. Mining Development Approvals include the
authority to mine to specified depths, Conditional Use Permit for mining, Reclamation Plan, and
financial assurances concerning mining, mining environmental assessments, and any
amendments or modifications thereto.
2.30 Mining Land Use Regulations.
"Mining Land Use Regulations" means those Development Approvals and Land Use
Regulations including all zoning ordinances (including IMC Section 17.60 (Quarry Zone) and
IMC Section 17.63 (Surface Mining and Reclamation Plans)), as they may be amended from
time -to -time and other ordinances and regulations governing the conduct of mining and
reclamation activities within each Parcel.
2.31 Mining Tax.
"Mining Tax" means the tax enacted by the voters pursuant to Sections 3.18.030 and
3.18.040 of the Irwindale Municipal Code, as it may be amended from time to time.
2.32 Mining Study.
"Mining Study" means the City of Irwindale Mining and Reclamation Impact Study,
dated March 1999, analyzing the mining activities within the City's jurisdiction.
2.33 Mortgage.
"Mortgage" means a mortgage, deed of trust, or sale and leaseback arrangement or other
transaction in which all or any portion of or interest in the Site is pledged as security.
"Mortgagee" refers to the holder of a beneficial interest under a Mortgage.
2.34 Parcel.
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"Parcel" or "Parcels" shall individually or collectively, as the case may be, mean the Plant
Parcel, the Reclamation Parcel, the Green Parcel, the Southwest Corner, the Peck Parcel and/or
the Lake Parcel.
2.35 Processing Plant.
"Processing Plant" means the plant existing and operating at the Plant Parcel as of the
Effective Date, used for processing and crushing of materials mined from the separate Parcels.
2.36 Project.
"Project" means the excavation, reclamation, and development of rough -grade pads at the
Site for commercial, industrial and recreational uses pursuant to the Development Plan and this
Agreement. "Development" means the improvement of the Site for purposes of constructing the
structures, improvements and facilities consistent with the uses identified for the Project
including, without limitation: grading, the construction of infrastructure and public facilities
related to the Project identified in this Agreement, the CUP or Reclamation Plan, whether located
within or outside the Site, but not the construction of structures and buildings or installation of
landscaping for the ultimate end use; such construction shall be subject to Future Development
Approvals to be secured by Hanson from the City after the Effective Date.
2.37 Reclamation Plan.
"Reclamation Plan" shall mean the December 2005 Reclamation Plan prepared by Liburn
Corporation for the Site and approved concurrently herewith by the City as part of this
Development Agreement.
2.38 Reservations of Authority.
"Reservations of Authority" shall have the meaning set forth in Section 9.0 of this
Agreement.
2.39 Schedule of Performance.
"Schedule of Performance" means that certain Schedule of Performance attached hereto
as Exhibit C specifying the time limits by which the various obligations under this Agreement
must be performed.
hereto.
2.40 Scope of Development.
"Scope of Development" means the development of the Site as described at Exhibit B
2.41 Site.
"Site" means, collectively, those six (6) Parcels of land referred to herein as the Plant
Parcel, the Reclamation Parcel, the Green Parcel, the Peck Parcel, Southwest Corner, and the
Lake Parcel, generally shown on the Site Map, attached hereto as Exhibit A, and more
specifically described in the Legal Description attached hereto as Exhibit A-1.
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2.42 Slope Study.
"Slope Study" shall mean that certain December 24, 2003 Guidelines for Slope Stability
Analysis of Open Pit Mine Slopes, Irwindale, California, as may be amended with the approval
of the City.
2.43 SMARA Conveyance Agreement
"SMARA Conveyance Agreement" shall mean that certain agreement entitled the
"SMARA Operation Rights Transfer and Conveyance Agreement," which addresses Hanson's
financial assurance obligations for the Project, as approved by the parties concurrently with this
Agreement.
2.44 Superseded Mining Agreements.
The term "Superseded Mining Agreements" shall have the meaning set forth in Section
1.6 of this Agreement.
2.45 Term.
The "Term" means that period of time during which this Development Agreement shall
be in effect and bind the Parties, as defined in Section 3.1.
2.46 Uniform Codes.
The term "Uniform Codes" means the California codes that are based on
recommendations of a multi -state professional organization, as adopted by City, such as, but not
limited to, the California Building, Electrical, Plumbing, Mechanical, Fire, or Abatement of
Dangerous Building Codes.
3.0 TERM.
3.1 Term.
The term of this Agreement (the "Term") shall commence on the Effective Date and shall
continue until the end of the day preceding the twenty-seventh (27th) anniversary of the Effective
Date, however, mining operations authorized by this Agreement and Conditional Use Permit
shall be conducted during only the first twenty-five (25) years of the Term; the remaining two (2)
years shall be reserved for operations related to removal of the Processing Plant and completion
of rough grading of the Parcels consistent with the ultimate end uses identified for the Project,
unless otherwise expressly provided by this Agreement. In the event Hanson has not completed
its performance hereunder upon expiration of the term, the City Council may extend the Term in
its sole discretion and seek specific performance in lieu of accepting termination but this right
shall not preclude City from exercising any other rights hereunder for such violation.
Notwithstanding the foregoing, this Agreement shall terminate with respect to any portion of the
Site for which Hanson secures Future Development Approvals for development of the
improvements consistent with the ultimate end uses identified for the Project.
3.2 Force Majeure.
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Hanson agrees that the time within which it shall be required to perform any act under
this Agreement shall not be extended regardless of whether such delay is outside the control of
Hanson, provided such delay is not caused by any excess delay (including, without limitation,
restrictions on priority, initiative or referendum, or moratoria) by the City, in which case, Hanson
shall provide written notice to the City describing the nature and extent of the delay and deliver
such notice within 30 days of discovering such delay. Hanson's obligations shall be extended for
such time as the City deems reasonable as a result of such delay if and only if Hanson provides
such written notice to the City within such time. Hanson shall not be entitled to delay
performance of this Agreement for any other cause, including, but not limited to, days during
which performance of such act is delayed due to war, insurrection, strikes, lock -outs, riots,
floods, earthquakes, fires, casualties, natural disasters, Acts of God, acts of the public enemy,
epidemics, quarantine restrictions, freight embargoes, processing with any governmental
agencies, unusually severe weather, or any other similar causes, even if beyond the control or
without the fault of Hanson.
4.0 DEVELOPMENT OF THE SITE.
4.1 Right to Develop.
During the Term, Hanson shall have a vested right to develop the Site (subject to Section
5.0 below) to the full extent permitted by the Development Plan and this Agreement. Except as
provided within this Agreement, the Development Plan shall exclusively control the mining,
reclamation and development of the Site.
4.2 Later Enacted Measures.
Hanson acknowledges and agrees that this Agreement shall not supersede any initiative,
measure, moratorium, statute, ordinance or other limitation enacted after the Effective Date in
accordance with the manner described in Section 9.0. Any such enactment which affects,
restricts, impairs, delays, conditions, or otherwise impacts the implementation of the
Development Plan as such Development Plan is specifically set forth herein, or is in any way
contrary to the terms of this Agreement shall not apply to the Project unless otherwise provided
by State law.
4.3 Superseded Mining Agreements.
Over a number of years Hanson and City have had disagreements regarding the extent to
which the Parcels should be excavated, the application of mining taxes, regulatory standards
affecting mining, the timing and plans for reclamation, and the ultimate land uses to be
developed. City and Hanson wish to resolve these disputes with respect to the Site through this
Agreement. Further, the previously envisioned uses for the Site are not the highest and best uses
under anticipated future market conditions and the City's General Plan. Therefore, it is in the
interest of the Hanson to surrender its previous entitlements to obtain the rights set forth in this
Agreement, including the statutory protections granted by the Development Agreement Statute.
The Parties acknowledge that this Agreement shall supersede all of the Superseded Mining
Agreements. The Superseded Mining Agreements are hereby expressly repealed and superseded
by the provisions hereof. The Superseded Mining Agreements are therefore not applicable to the
Project and are excluded from the definitions of Land Use Regulations or Development
Approvals. Hanson voluntarily foregoes these rights in consideration of the rights granted
hereunder and waives any claims against City whatsoever therefor.
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4.4 Priorit of f Regulations and Approvals.
Notwithstanding anything in this Agreement to the contrary, this Section shall govern the
relative priority of Land Use Regulations and Development Approvals. Except as provided in
this Section, nothing in Section 4.2 or any other provision of this Agreement shall limit the
City's ability to adopt Future Land Use Regulations, nor to review and process Future
Development Approvals and regulate and condition such Future Development approvals
consistent with Future Land Use Regulations. However, except as provided in Article 9, no
Future Mining Land Use Regulations may be applicable to the Site and no Future Mining
Development Approvals may be granted if they are inconsistent with this Agreement or the
Concurrent Mining Approvals, except with the written consent of Hanson. Any alleged
inconsistency shall be resolved pursuant to Sections 4.5 and 9.3 below. Nothing herein shall
limit the City's right to adopt Future Mining Land Use Regulations with respect to other mining
operations in the City, nor limit the rights reserved to City pursuant to Article 9.
4.5 Inconsistencies.
It is expressly agreed that in the event of any inconsistency between the provisions or
conditions of the Development Approvals and the provisions of this Agreement, the provisions
of this Agreement shall govern. The conditions of such Development Approvals shall be
interpreted insofar as possible to prevent such inconsistency, and in the event this Agreement is
silent concerning an issue, the conditions of the Development Approvals shall govern. Any
question concerning inconsistency shall be pursued by the process established in Section 9.3. If
any of the Existing Development Approvals are now or hereafter found to be in conflict with or
inconsistent with any of the Future Development Approvals, such conflicting or inconsistent
provisions contained in the Existing Development Approvals shall be deemed deleted or
modified in order to conform same to the Future Development Approvals.
4.6 CEQA.
The City shall be responsible for any and all processing required under CEQA in
connection with this Project. As to the CEQA requirements hereunder, the parties agree as
follows:
(a) The City shall review and process new environmental documents for this
Agreement as well as the Conditional Use Permit for mining the Reclamation Parcel, the
Green Parcel and the Lake Parcel, and the Reclamation Plans for the Quarry.
(b) City has selected Jones & Stokes to serve as its environmental consultant
in the preparation of the new environmental documents.
(c) Hanson shall pay the cost of preparing the new environmental documents.
(d) As of the date of this Agreement, Hanson has deposited with the City the
sum of $121,452.00 as a deposit against the total estimated cost for the preparation of the
new environmental documents. The City has agreed to cover the additional amount to
rt cover the estimated total cost of the environmental documents of $151,172.00. Should
the actual costs required to complete the environmental documents exceed this estimated
total cost, Hanson acknowledges that it is responsible for paying such difference.
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(e) City shall pay the environmental consultant selected under subsection
4.6(b) above pursuant to the environmental services contract between City and such
consultant, using funds deposited by Hanson with the City under subsection 4.6(d) above
and the City funds, as described therein. Should the funds deposited by Hanson with City
be depleted, Hanson shall promptly, within fifteen (15) days of the request therefor,
deposit additional funds necessary to pay the additional costs estimated to be paid to the
environmental consultant until such time as the environmental consultant is fully paid for
its services. Within fifteen (15) days after the City's payment of the last invoice to the
environmental consultant, the City shall return to Hanson any unused funds deposited by
Hanson with the City hereunder.
4.7 Project Challenges.
In the event of any legal challenge to the City's determinations under CEQA, or to any
other City or City Council determination in connection with the Project by any third party,
including any Development Approval or Future Development Approval, Hanson shall be
responsible for the cost of the defense of any lawsuit, including all litigation costs thereof,
including, but not limited to costs, attorney's fees, and expert witness fees, and indemnifying the
City for any award of damages, costs, attorney's fees, undertakings, or any other liability which
may be assigned to the City.
Generally, Hanson may conduct defense itself, selecting counsel of its choosing, but
providing City with copies of all documents and settlement proposals and paying the cost of the
City's legal review of same. However, the City may choose to conduct defense itself at its own
expense. In any event, the City retains the absolute right to propose, evaluate, negotiate, accept,
or reject any settlement offer pertaining to any litigation challenging City action with respect to
the Project or Existing Development Approval or Future Development Approval.
4.8 Rights of Access.
Representatives of the City shall have the reasonable right of access to the Site without
charges or fees, at any time during the period of excavation, reclamation and development, for
the purpose of assuring compliance with this Agreement, including but not limited to the
inspection of excavation, reclamation and development work being performed by or on behalf of
Hanson. Such representatives of the City shall be those who are so identified by the City
Manager. Each such representative of the City shall identify himself or herself at the job site
office upon his or her entrance to the Site, and shall provide Hanson, or the excavation,
reclamation or development superintendent or similar person in charge on the Site, a reasonable
opportunity to have a representative accompany him or her during the inspection. The City's
inspectors shall behave in a manner so as to not interfere with Hanson's operations or usage of
the Site, subject to Hanson's safety requirements pursuant to Hanson's policy, California OSHA
requirements and federal MSHA requirements.
4.9 Mining, Reclamation and Development of the Site.
The Site shall be mined, reclaimed and developed in accordance with this Agreement, as
more specifically described in the Scope of Development (Exhibit B) and within the times set
forth in the Schedule of Performance (Exhibit Q. Hanson understands and acknowledges that
the development of the Site shall require separate discretionary and administrative approvals, as
applicable, from the City. Hanson further understands that the City may amend the allowable
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uses and development regulations affecting the Site from time -to -time, including, but not limited
to, requiring additional infrastructure improvements; provided that the allowable uses and
development regulations applicable to the Site remain consistent with Hanson's investment in the
filling and grading work in preparation for development performed at the Site under this
Agreement. For example, if the end use contemplated herein was industrial and the fill was
being compacted to permit such development, the City could change the use to commercial, but
not open space. The current regulations concerning mining and reclamation are specified in this
Section. Hanson agrees that the City may amend the regulations applicable to mining and
reclamation, provided such amendments are in accordance with Article 9.0 herein.
4.10 Project Improvements.
The "Project Improvements" described in this Section shall be constructed or installed by
Hanson in conjunction with the post -reclamation development of each Parcel in accordance with
the approvals granted by the City at the time.
(a) Drainage.
The design of the storm drain system shall be approved as to design and sizing by the
City's engineer, which approval shall not be unreasonably withheld provided the design and
sizing is consistent with the standards of the County of Los Angeles. The storm drain system
shall be owned, operated, and maintained by the Hanson until ownership is transferred to the Los
Angeles County Department of Public Works. Hanson shall ensure the storm drain system is
constructed in accordance with Los Angeles County specifications, and the City and Hanson
shall cooperate to effect the transfer of the storm drain system to the County. It is expressly
understood that for those parcels not reclaimed to street level, the storm drain system may
incorporate retention basins, overflow facilities, and pumping capacity to insure protection of
public safety, all to be developed and maintained by Hanson or the County, if such
improvements are accepted by the County.
(b) Streets.
Hanson shall construct all streets, alleys, and associated infrastructure in connection with
such streets and alleys, including asphalt paving, curbs, gutters, sidewalks, lighting, signals,
water and sewer facilities, storm drains, utilities, and landscaped median island etc., all as
indicated in the Development Approvals and this Agreement.
(c) Walls and Landscaping.
Hanson will construct and at all times maintain walls, berms and landscaping both during
Mining Operations and subsequent development, as provided in the Development Plan and/or the
approved Reclamation Plan, to screen the Site and present an attractive appearance to the
community. Continued maintenance may be assured through recorded covenant agreements
enforceable by City as provided herein.
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(d) Undergrounding of Utilities.
Hanson, at its expense, shall underground all utility lines located adjacent to the Project.
(e) Sewer and Storm Drain.
Hanson, at its expense, shall install the following:
(1) a storm drain system with sufficient size to handle the storm water runoff from the
Reclamation Parcel and the Plant Parcel. The design of this storm drain system shall be in
accordance with Section 4(a); and
(2) a sanitary sewer system with sufficient size to handle the development needs of the
Reclamation Parcel and the Plant parcel. The design of this sanitary sewer system shall be in
accordance with the Los Angeles County Department of Public Works specifications and the
County Sanitation District specifications applicable at the time of such construction.
(f) Other Infrastructure Requirements.
Hanson, at its expense, shall install all necessary infrastructures as identified in the EIR
for post -reclamation development of the Site.
5.0 TIME FOR CONSTRUCTION AND COMPLETION OF PROJECT.
5.1 Schedule of Performance.
Hanson understands that the Development portion of the Project shall be considered
Future Development Approvals, subject to separate discretionary and administrative approvals,
as applicable, by the City, as described in Sections 4.9, 5.2 and 6.2 below. Hanson shall submit
to the City applications and provide supporting documentation as needed by the City for the
Future Development Approvals upon completion of reclamation on the Parcels within the Site
where Development is contemplated to take place under this Agreement. Upon the City's
approval of any Future Development Approval, Hanson shall commence and complete
Development in accordance with the Schedule of Performance. Failure to adhere to the dates set
forth in the Schedule of Performance shall be deemed a Default hereunder.
5.2 Right of Hanson to Control Timing of Development.
Hanson as a rock quarrying company has no present intention to ultimately develop the
Site, but will convey it to a development entity. Accordingly, the excavation and reclamation of
the Site as allowed under this Agreement shall be accomplished in accordance with the Schedule
of Performance. However, the earliest parcel available for development, the Peck Parcel, will
not be available for approximately eight (8) years and the other Parcels not for at least 25, and it
is therefore impractical to precisely regulate the timing, phasing, or sequencing in which the
development will occur. Such decisions depend upon numerous factors of construction and the
state of the general economy. The parties may develop a precise phasing plan within the period
of 1-3 years prior to completion of reclamation. Moreover, Hanson agrees that no later than
upon completion of reclamation of any Parcel, or in the case of the Plant Parcel, within one (1)
year after removal of the Processing Plant and clearance of the Plant Parcel, Hanson will submit
an amendment to the Development Plan, including subdivision maps for the City's approval
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through its then applicable approval process. Within three (3) years thereafter, Hanson will
commence development, or will sell said Parcels to a qualified developer in accordance with the
transfer provisions of Article 12. Completion of development will be accomplished within five
(5) years of commencement or in accordance with any phasing plan approved by the City in
accordance with the Scope of Development (Exhibit B). Should Hanson identify a proposed
development before the time described in this schedule, Hanson may submit an application to the
City for such development and any necessary amendment to this Agreement to accommodate
such development.
5.3 Public Improvements.
Notwithstanding any provision herein to the contrary, the City shall retain the right to
condition any Future Development Approvals to require Hanson to dedicate necessary land, pay
any required development fees, and/or to construct the required public infrastructure
("Exactions") at such time as City shall determine subject to the following conditions:
(a) The dedication, payment or construction must be to alleviate an impact
caused by the Project or be of benefit to the Project; and
(b) The timing of the Exaction should be reasonably related to the
infrastructure needs of the phasing of the development of the Project, including
infrastructure improvements needed during reclamation and before the commencement of
development, and said public improvements shall be phased to be commensurate with the
logical progression of the reclamation activities and Project development as well as the
reasonable needs of the public.
When Hanson is required by this Agreement and/or the Development Plan to construct
any public works facilities which will be dedicated to the City or any other public agency upon
completion, Hanson shall perform such work in the same manner and subject to the same
construction standards as would be applicable to the City or such other public agency should it
have undertaken such construction work.
6.0 PROCESSING OF REQUESTS AND APPLICATIONS; OTHER GOVERNMENT
PERMITS.
6.1 Standards.
In reviewing Future Mining Development Approvals which are discretionary, the City
may impose only those conditions, exactions, and restrictions which are allowed by the
Development Plan and this Agreement, including, but not limited to, the Conditions of Approval.
All other Future Development Approvals shall be subject to conditions, exactions, and restriction
consistent with the then existing land use regulations of City, whatever they may be.
6.2 Processing.
Upon satisfactory completion by Hanson of all required preliminary actions, meetings,
submittal of required information and payment of appropriate processing fees, if any, the City
shall promptly commence and diligently proceed to complete all required steps necessary for the
implementation of this Agreement. In this regard, Hanson, in a timely manner, shall provide
City with all documents, applications, plans and other information necessary for the City to carry
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out its obligations hereunder and shall cause Hanson's planners, engineers and all other
consultants to submit in a timely manner all required materials and documents therefor. It is the
express intent of this Agreement that the parties cooperate and diligently work to implement any
zoning or other land use, site plan, subdivision, grading, building, reclamation, or other
approvals for development of the Project. Notwithstanding the foregoing, nothing contained
herein shall be construed to require City to process Hanson's applications ahead of other projects
in process in the City and City's obligations hereunder shall be subject to the City's workload
and staffing at any given time. If Hanson elects, in its sole discretion, to request the City to incur
overtime or additional consulting services to receive expedited processing by the City, Hanson
shall pay all such overtime costs, charges or fees incurred by City for such expedited processing.
6.3 Reclamation Plan.
The Reclamation Plan approved concurrently herewith shall be reviewable by the City
every five (5) years. The City's review shall be undertaken in accordance with SMARA, the
SMARA Regulations, and City's mining ordinance. City may revise the Reclamation Plan if it
finds that revisions are necessary due to any of the following factors: (i) changes in the
environmental conditions under which reclamation will be undertaken, (ii) changes in
environmental regulations affecting reclamation, (iii) changes in technical capacity, methods, or
processes for accomplishing reclamation, (iv) changes to adjacent properties that may impact the
reclamation operations, (v) changes in City's specific or general plans concerning the alternative
land uses for which the reclaimed lands may be developed, (vi) other changes to the
environment, adjacent land, methods of reclamations, laws, or other conditions affecting the
Reclamation Plan. Any action or inaction on the part of City concerning the review of the
Reclamation Plan may be appealed to the State Board pursuant to SMARA. City may propose
and approve changes to the Reclamation Plan that are consistent with SMARA, the SMARA
Regulations, and City's mining ordinance and which reclaim the mined lands into readily usable
alternative land uses consistent with the Development Approvals. In no event may City make
changes to the Reclamation Plan which will have a significant adverse economic impact on
Hanson or interfere with Hanson's ability to satisfy its obligations hereunder, as provided in
Section 9.1(b). Any changes to the Reclamation Plans may be approved by the City by
Resolution consistent with Section 8.4, without requiring an amendment to this Agreement,
unless such change would create a specific inconsistency with the provisions of this Agreement.
6.4 Phased Final Maps.
Hanson may file as many phased final maps for the Project as it deems appropriate and
consistent with this Agreement.
6.5 Other Governmental Permits.
Hanson shall apply in a timely manner for such other permits and approvals as may be
required from other governmental or quasi -governmental agencies having jurisdiction over the
Project as may be required for the development of, or provision of services to, the Project in
accordance with the phasing requirements set forth herein. The City shall cooperate with
Hanson in its efforts to obtain such permits and approvals.
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6.6 Public Agency Coordination.
The City and Hanson shall cooperate and use reasonable efforts in coordinating the
implementation of the Development Plan with other public agencies, if any, having jurisdiction
over the Site or the Project.
6.7 Waiver of Permit Streamlining Act.
Sections 65950, et seq., of the Government Code, generally known as the "Permit
Streamlining Act" (the "Act"), requires timely processing of development applications and
provides specified time periods for such processing, which if not met, and subject to notice and
other procedural requirements, may result in the project being deemed approved. The parties
hereby expressly waive the provisions of the Act, and agree that the Project shall be processed in
accordance with the Schedule of Performance and this Agreement. Failure to meet any time
period established in this Agreement or the Act shall not result in the determination that the
Project is "deemed approved." In the event that the time periods provided in this Agreement are
not met, the parties' remedies shall be as otherwise provided herein. In the event this Agreement
is terminated for any reason, then Hanson may submit a new development application, and the
provisions of the Act shall be reinstated and all applicable time provisions for processing shall
commence to run as of the date of the new submittal. Waiver of the requirements of the Act
shall not apply with respect to the processing of applications for matters outside the scope of this
Agreement.
7.0 FEES, TAXES AND ASSESSMENTS.
7.1 General.
During the term of this Agreement, the City shall not, without the prior written consent of
Hanson, impose any additional fees, taxes or assessments on all or any portion of the Project,
except such fees, taxes and assessments as are described in or required by this Development
Agreement and/or the Development Plan. This Development Agreement shall not prohibit the
application of fees, taxes or assessments as follows:
(a) Hanson shall be obligated to pay those fees, taxes or City assessments
which exist as of the Effective Date or are included in the Development Plan or
Concurrent Mining Approvals approved concurrently herewith and any increases in
same, as provided herein;
(b) Hanson shall be obligated to pay any fees or taxes, and increases thereof,
imposed on a City-wide basis activities such as business license fees or taxes, sales or use
taxes, utility taxes, and mining taxes;
(c) Hanson shall be obligated to pay all fees applicable to a permit application
as charged by City at the time such application is filed by Hanson;
(d) Hanson shall be obligated to pay any future fees or assessments imposed
on an area -wide basis, (such as landscape and lighting assessments and community
services assessments) provided that the fees and assessments levied against the Site do
not constitute more than fifty percent (50%) of the total fees or assessment levied within
the applicable area, unless otherwise consented to in writing by Hanson. Hanson reserves
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its right to protest the establishment or amount of any such fees or assessments through
the method prescribed by law;
(e) Hanson shall be obligated to pay any fees imposed pursuant to any
assessment district established within the Project otherwise proposed or consented to by
Hanson;
(f) Hanson shall be obligated to pay any future fees or assessments imposed
as a condition of a Development Approval, even if such Development Approval or Future
Development Approval is processed and approved after the Effective Date;
(g) Hanson shall be obligated to pay any fees imposed pursuant to any
Uniform Code; and
(h) Hanson shall be obligated to pay any fees, assessments, or taxes imposed
by an area -wide or multi jurisdictional entity of which City is a member, including but
not limited to a sewer sanitation district, transportation district, water replenishment
district, or similar entities.
7.2 Mining Tax.
With respect to the City's mining and processing tax pursuant to Irwindale Municipal
Code § 3.18.030 and the existing special mining tax pursuant to Irwindale Municipal Code §
3.18.040, and in exchange for the benefits provided herein, Hanson shall not contest the existing
mining taxes imposed by the City or the use of the special mining tax permitted under such
ordinance. Hanson also shall not contest the adjustment to the mining and processing tax or the
special mining tax presently provided for in Irwindale Municipal Code § 3.18.030 and 3.18.040,
respectively. If the City imposes a new tax, nothing in this Agreement shall prejudice Hanson
from challenging the new tax. Notwithstanding the foregoing, Hanson shall only be obligated to
pay mining taxes, including any tax increases, to the extent all other mining operators are
required to pay them and shall receive the benefit of any mining tax reduction given to any other
operator, unless such reduction is due to special circumstances applicable solely and exclusively
to such other operator.
7.3 Agreement Costs.
In addition to the amounts deposited by Hanson pursuant to Section 4.6(d) above, City
acknowledges receipt of twenty-five thousand dollars ($25,000) from Hanson to cover the costs
and expenses for the preparation of this Agreement, including attorneys fees.
7.4 Accord and Satisfaction.
No payment by Hanson or receipt by City of a lesser amount than established by City
shall be deemed to be other than a partial payment of the full amount due, nor shall any
endorsement or statement on a check or any letter accompanying a check or payment be deemed
an accord and satisfaction, and City may accept such check or payment without prejudice to
City's right to recover the balance due or pursue any other remedy herein provided. --
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7.5 Payment Made by City on Behalf of Hanson.
In the event that:
(a) Hanson fails to pay any amount due hereunder, whether any fee, cost, or
expense, or
(b) City incurs any other expense to remedy the default of Hanson, Hanson
having been given the opportunity to cure pursuant to Section 11.0, and
(c) City incurs the expense thereof on behalf of Hanson,
then Hanson shall reimburse the City for all such costs and expenses. If the City is not
reimbursed for such costs by Hanson within fifteen (15) days after giving written notice thereof,
the same shall be deemed delinquent, and the amount thereof shall bear interest as stated in
Section 11.4 until paid. Any and all delinquent amounts, together with said interest, costs and
reasonable attorney's fees shall be a personal obligation of the Hanson as well as a lien and
charge, with power of sale, upon that portion of the Site upon which Hanson has any interest,
legal or equitable, and the rents, issues and profits of the Site. The City may bring an action at
law against the Site to pay any such sums or foreclose the lien against the Site. Any such lien
may be enforced by sale by the City following recordation of a Notice of Default of Sale given in
the manner and time required by law as in the case of a deed of trust; such sale to be conducted
in accordance with the provisions of Section 2924, 2924(b), and 2924(c) of the California Civil
Code, applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any other
manner permitted by law.
8.0 AMENDMENT OF DEVELOPMENT AGREEMENT.
8.1 Initiation of Amendment.
Either Party may propose an amendment to this Agreement.
8.2 Procedure.
Except as set forth in Section 8.4 below, the procedure for proposing and adopting an
amendment to this Agreement shall be the same as the procedure required for entering into this
Agreement in the first instance.
8.3 Consent.
Except as expressly provided in this Agreement, no amendment to all or any provision of
this Agreement shall be effective unless set forth in writing, signed by duly authorized
representatives of each of the parties hereto and recorded in the Official Records of Los Angeles
County.
8.4 Minor Modifications.
(a) Implementation of the Project may require minor modifications of the
details of the Development Plan and performance of the Parties under this Agreement.
The parties desire to retain a certain degree of flexibility with respect to those items
covered in general terms under this Agreement. Therefore, modifications of the
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Development Plan, which are found by the City Manager to be non -substantive and
procedural consistent with the terms of this Section 8.4 shall not require modification of
this Agreement, but, instead, may be approved administratively by the City Manager in
writing.
(b) A modification will be presumed non -substantive and/or procedural if it
does not result in more than a ten percent (10%) change in fees, cost, density, intensity of
use, permitted uses, the maximum height and size of buildings, the reservation or
dedication of land for public purposes, or the improvement and specifications for the
Proj ect.
(c) Any modification that the City Manager believes is more than minor, but
does not materially change the Development Plan, may be approved by the City Council
by Resolution at a public hearing. Material changes to the Development Plan or other
terms of this Agreement shall require amendment of this Agreement.
(d) The City will process any material change to this Agreement consistent
with State law. The Parties expressly agree nothing herein is intended to deprive any
Party or person of due process of law.
8.5 Effect of Amendment to Development Agreement.
The Parties agree that except as expressly set forth in any such amendment, an
amendment to this Agreement will not alter, affect, impair, modify, waive, or otherwise impact
any other rights, duties, or obligations of either Party under this Agreement.
9.0 RESERVATIONS OF AUTHORITY.
9.1 Limitations, Reservations and Exceptions.
The application of Land Use Regulations to the Project is governed by Sections 4.2, 6.1
and this Article. In addition to the Existing Land Use Regulations, only the following Land Use
Regulations adopted by City hereafter and intended to be applicable to the Site, shall apply to
and govern the development of the Site ("Reservation of Authority"):
(a) Future Land Use Regulations. All Future Land Use Regulations shall
apply, except for (i) Future Mining Land Use Regulations and (ii) approvals of an
amended Development Plan as set forth in Section 5.2.
(b) Future Mining Land Use Regulations. All Future Mining Land Use
Regulations shall apply if they (i) are reasonably technically supported, (ii) are within the
City's police power and are required to protect public health and safety, and (iii) are
equally applicable to all mining companies operating in the City.
(c) State and Federal Laws and Regulations. Where state or federal laws or
regulations enacted after the Effective Date prevent or preclude compliance with one or
more provisions of the Agreement, or require actions not contemplated by this
Agreement, those provisions shall be modified, through revision or suspension, to the
extent necessary to comply with such state or federal laws or regulations.
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— (d) Public Health and Safety/Uniform Codes.
(1) Adoption Automatic Regarding_ Uniform Codes. This Agreement shall
not prevent the City from adopting Future Mining Land Use Regulations or
amending Existing Land Use Regulations which are Uniform Codes and are based
on recommendations of a multi -state professional organization and become
applicable throughout the City, such as, but not limited to, the Uniform Building,
Electrical, Plumbing, Mechanical, or Fire Codes, or Slope regulations or
standards.
(2) Adoption Regarding Public Health and Safety/Uniform Codes. This
Agreement shall not prevent the City from adopting Future Mining Land Use
Regulations respecting public health and safety to be applicable throughout the
City which result from findings by the City that failure to adopt such Future
Mining Land Use Regulations would result in a condition injurious or detrimental
to the public health and safety and that such Future Mining Land Use Regulations
are the most effective means to correct or avoid such injurious or detrimental
condition.
(3) Adoption Regarding Environmental Compliance. This Agreement
shall not prevent the City from adopting Future Mining Land Use Regulations
where the regulation is the most practical means to mitigate a significant adverse
environmental condition or hazard and where the cost of implementing the
regulation is reasonable relative to public benefit derived and does not constitute
an economic hardship substantially affecting Hanson's operations nor Hanson's
ability to perform its obligations hereunder.
(e) Ability to Adopt Fees, Taxes and Assessments pursuant to Section 7. This
Agreement shall not prevent the City from adopting fees, taxes and assessments per
Section 7.0.
9.2 Multi -Jurisdictional Programs.
This Agreement shall not prevent the City from adopting Future Land Use Regulations or
amending Existing Land Use Regulations which are area -wide or multi jurisdictional codes and
are based on recommendations of a county or multi jurisdictional organization and become
widely applicable, such as the San Gabriel Valley Council of Governments.
9.3 Objections to Regulation.
In evaluating the reservation of authority to the City and applying the standards described
above, in the event Hanson believes that such Future Mining Land Use Regulation does not
satisfy such standards, Hanson shall give written notice of its objections and the grounds therefor
to City, City shall duly consider Hanson's objections during a noticed public hearing and provide
a written response within 30 days after the conclusion of the noticed public hearing. If City finds
the objections well founded, City shall suspend the application of the Regulation to the Site.
City shall have the obligation to make such findings only if Hanson's position is supported by
clear and convincing evidence.
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9.4 Regulation by Other Public Agencies.
It is acknowledged by the Parties that other public agencies not within the control of the
City possess authority to regulate aspects of the development of the Site separately from or
jointly with the City and this Agreement does not limit the authority of such other public
agencies.
10.0 ANNUAL REVIEW.
10.1 Annual Monitoring Review.
City and Hanson shall review the performance of this Agreement, and the development of
the Project, at least once during each twelve (12) month period from the Effective Date and
concurrently with the review of Hanson's financial assurances. The cost of the annual
monitoring review shall be borne by Hanson, but in no event shall such reimbursable costs
exceed Fifteen Thousand Dollars ($15,000) per year, escalating by 15% every five years. As
part of such annual monitoring review, within thirty (30) days after each anniversary of the
Effective Date of this Agreement, Hanson shall deliver to City the amount of the annual fee, as
determined by the Director, as well as all information reasonably requested by City (i) regarding
Hanson's performance under this Agreement demonstrating that Hanson has complied in good
faith with terms in this Agreement and (ii) as required by the Existing Land Use Regulations. If
the City determines that Hanson has substantially complied with the terms and conditions of this
Agreement, the review shall be concluded. If the City finds and determines that Hanson has not
substantially complied with the terms and conditions of this Agreement for the period under
review, the City may declare a Default by Hanson in accordance with Section 11.0.
10.2 Estoppel Compliance.
If at the conclusion of an annual monitoring review the City finds that Hanson is in
substantial compliance with this Agreement, the City shall, upon request by Hanson, issue an
Estoppel Certificate pursuant to Section 14.3.
10.3 Failure to Conduct Annual Review.
The failure of the City to conduct an annual monitoring review shall not be a Hanson
Default, provided Hanson initiates annual monitoring review in accordance with Section 10.1.
11.0 DEFAULT, REMEDIES AND TERMINATION.
11.1 Security for Performance.
No later than the Effective Date, Hanson shall execute a Deed of Trust in the form
attached hereto as Exhibit D guaranteeing payment of Fifteen Million Dollars ($15,000,000)
representing the estimate of the security required to assure Hanson's faithful performance of all
obligations hereunder. The Deed of Trust shall be against the Site and apply to all obligations
hereunder, regardless of whether additional security for the performance of any obligation as to
any or all Parcels is provided elsewhere in this Agreement. The executed Deed of Trust shall be
held by and for the benefit of the City as grantee upon the breach of any obligation by Hanson
hereunder (following the notice and cure provisions of Section 11.5 herein) and authorize City to
foreclose on the Deed of Trust for any costs and damages to City of performing Hanson's
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obligations hereunder. At any time during the Term of this Agreement, Hanson may replace
such Deed of Trust with a performance bond in favor of the City, provided the amount of the
performance bond is first approved by the City Engineer.
11.2 Financial Assurance Bonds.
Within the time required under the CUP approved concurrently herewith, Hanson shall
post financial assurance bonds or other security meeting the requirements of SMARA
Regulations, at Section 3 803 in the amount required under the CUP.
11.3 Transfer and Conveyance of SMARA Operation Rights.
(a) Concurrently with this Agreement, Hanson shall execute the SMARA
Operation Rights Transfer and Conveyance Agreement ("SMARA Transfer
Agreement"), pursuant to which Hanson shall participate in the alternative financial
assurances mechanism established by the Irwindale Reclamation Authority ("JPA").
Specifically, for purposes of complying with Sections 3 803 and 3 806 of the regulations
promulgated by the State Mining and Geology Board ("SMGB"), allowing greater
flexibility to public agencies in providing financial assurance mechanisms for
reclamation than to private entities, and to assure that "fill revenues" from filling
activities at the Site with "inert" fill or construction waste that shall accrue to Hanson in
conducting the operations of the Quarries shall be counted toward the financial assurance
obligations for each of the Site, Hanson shall transfer to the JPA its rights to operate the
Quarries pursuant to SMARA, including the right to receive revenues from fill operations
conducted at the Site.
(b) Simultaneously with the transfer specified in (a) above, the JPA will
convey to Hanson its actual operating rights to the mining and reclamation operations for
the Site.
(c) The operating rights transferred to the JPA under the SMARA Transfer
Agreement shall be in the nature of a transfer in trust, and confer no title or interest in or
to any real or personal property of Hanson. The actual operating rights to the Site
conveyed under the SMARA Transfer Agreement to Hanson of any nature whatsoever
shall remain in Hanson until and unless Hanson defaults in its obligations (i) to reclaim
the Site as required in this Agreement, or (ii) under the Reclamation Plan, or (iii) to
maintain financial assurances, as required by this Agreement. In such event, the JPA
shall have the right to enter the Site to cure defaults in reclamation and exercise all other
rights under the SMARA Transfer Agreement, including the right to receive fill revenues
pursuant thereto.
11.4 Reclamation Incentives/Penalties.
The parties contemplate that, unless the provisions of Section 11.4(c) below apply,
beginning on the Commencement Date, as defined in Section 11.4(a) below, Hanson will fill
either Parcel with Engineered Fill at an annual refilling rate of 1,200,000 tons per year or
3,600,000 tons each three years (3,600,000 tons is referred to herein as the "Three Year
Requirement"). Accordingly, the Parties agree as follows:
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(a) Commencement Date. Hanson shall not commence Commercial FillingA
Operations at either the Reclamation Parcel or Peck Parcel until such time as fill
operations at United Rock's Quarry No. 1 are concluded or until such time as the City, in
its discretion, authorizes in writing commencement of Commercial Filling Operations
("Commencement Date"). The parties expressly acknowledge that the City is attempting
to prioritize filling of mining pits and may choose to further defer the Commencement
Date of any Commercial Filling Operations until another quarry (which quarry along with
United Rock's Quarry No. 1 shall be referred to herein as the "Priority Quarry") has been
reclaimed, without liability to Hanson whatsoever; provided in no event shall the
Commencement Date be later than December 31, 2020. Reclamation operations shall
commence within 180 days after Hanson's receipt of the City's authorization to
commence the Commercial Filling Operations. At such time, Hanson shall obtain all
required permits for the reclamation of the Reclamation Parcel or Peck Parcel and shall
immediately commence refilling the Reclamation Parcel or Peck Parcel as provided in the
Scope of Development, at Exhibit B and further set forth in the Reclamation Plan
adopted concurrent herewith.
(b) Rate of Fill. Upon the Commencement Date, Hanson shall have a two
year build-up period for either the Reclamation Parcel or Peck Parcel in which to bring
fill operations up to the following level: on or before the fifth anniversary of the
Commencement Date and every three years thereafter (each three year period is referred
to herein as a "Three Year Cycle"), Hanson shall deposit in either the Reclamation Parcel
or Peck Parcel Engineered Fill of at least 1,200,000 million tons on a cumulative basis,
subject to the provisions of Section 11.4(c) below. If it fails to do so, the City shall be
entitled to use the fund created below in Section 11.4(d) for refilling activities. For any
period of time in which the City halts fill operations in either the Reclamation Parcel or
the Peck Parcel, the amount of tons required to be deposited during such Three Year
Cycle in either the Reclamation Parcel or the Peck Parcel shall be decreased
proportionately.
(c) Free -Market Filling Operation. Should the City and United Rock
Products, Inc., its successors or assigns (collectively "United") amend the requirements
establishing the Priority Quarry under entitlements granted to United, so that any quarry
operator in the City may compete in the marketplace for fill materials, the provisions of
this Section 11.4 shall not apply with respect to the prioritization of any quarry in the
City. In such case, the filling rate described in this Section 11.4 shall be 500,000 tons per
year, averaged to 1,500,000 tons for each Three Year Cycle.
(d) Creation of Fund for Refilling Activities. Upon the Commencement Date,
the City shall select a bank or other financial institution reasonably acceptable to Hanson
and both Parties shall enter into an escrow agreement with such institution reasonably
acceptable to both Parties to create a fund (referred to herein as the "Fund") for deposit of
monies as provided in Section 11.4(e) below.
The terms of such escrow agreement, among other reasonable and customary
terms, shall include: (i) accrual of interest on deposited funds, and (ii) until 2036,
payment from such Fund shall be based upon mutual written instructions, and thereafter
upon unilateral instructions from the City subject to the notice and other provisions of
Section 11.4(e)(5) below.
r:
(e) Deposit of Monies in Fund for Refilling Activities; Refunding of Monies
and Use of Fund.
(1) Annually, Hanson shall present truck weight tickets or other evidence
reasonably acceptable to the City as to the amount of Engineered Fill Hanson has
deposited in the Reclamation Parcel and/or the Peck Parcel, as applicable.
(2) If at each Three Year Cycle Deadline for either Parcel, the amount of
such Engineered Fill shall be less than 3,600,000 tons (taking into account any
excess amount in any prior Three Year Cycle and any lesser filling requirement in
Section 11.4(c) above), then Hanson shall within ten (10) business days thereafter
deposit into the Fund $.50 multiplied by the 3,600,000 tons required in that Three
Year Cycle minus the number of actual tons deposited in the Parcel during such
Three Year Cycle. If the amount in the Fund at any Three Year Cycle deadline is
greater than the amount required to be deposited, on a cumulative basis, then the
excess amount shall be promptly refunded to Hanson except as provided in
subsection 11.4(e)(4) below relating to the time period following thirty (30) years
from commencement of reclamation operations.
Example: If during the second Three Year Cycle, Hanson
deposits 1.6 million tons, then within 10 days of the completion of 6 years
from the Commencement Date, it shall deposit $1 million dollars in the
Fund (3.6 million tons minus 1.6 million tons equals 2 million tons,
multiplied by $.50 equals $1,000,000). If, during the third Three Year
Cycle, Hanson deposits 3.6 million tons plus 2 million tons (such that the
total for the two Three Year Cycles is 7.2 million tons), then no further
deposit in the Fund shall be required at the end of the third Three Year
Cycle and the $1 million and accrued interest shall be returned to Hanson.
If, instead, Hanson deposited only 3.6 million tons plus 1 million tons
during the third Three Year Cycle (such that the total for the two Three
Year Cycles is 6.2 million tons), then, on a cumulative basis, Hanson
would have a shortfall of 1 million tons for the two Three Year Cycles and
$500,000 of the amount in the Fund together with accrued interest will be
promptly refunded to Hanson.
(3) The amount required to be deposited in the Fund pursuant to
subsection 11.4(e)(2) above shall be adjusted annually in January of each year in
accordance with the percentage change in the Producer Price Index for the Los
Angeles/Riverside/Orange County Area for Series Id. PCU144 (sand and gravel)
(the "PPI") since the last adjustment (or, if the PPI ever ceases to be published, in
accordance with such substantially equivalent replacement index as the Parties
shall agree to).
(4) Following thirty (30) years from commencement of reclamation
operations, no amounts will be refunded from the Fund except as provided in
Section 11.4(f) relating to refunding after completion of refilling of the
Reclamation Parcel.
(5) Following thirty (30) years from commencement of reclamation
operations, if Hanson has not deposited permissible fill material into either of the
Reclamation Parcel or the Peck Parcel at an average rate of 1,200,000 tons per
year in accordance with this Agreement, as appropriately adjusted for any lesser
requirement under Section 11.4(c) above, then the City may utilize amounts in the
Fund to assist in completing such refilling of either Parcel. The City shall expend
the Fund for activities that will reasonably assist in the refilling of either Parcel
expeditiously and in an economically prudent manner. Eligible costs under this
paragraph shall include, but not be limited to, the costs of Engineered Fill, if
economically prudent, transportation of same, equipment and labor costs for
reclamation, engineering and consulting fees and all other similar or related costs
and expenses.
At least thirty (30) days before making the initial expenditure from the
Fund, the City shall in writing inform Hanson of how it proposes to utilize
amounts in the Fund and shall meet at least once with Hanson to discuss such
expenditures. No earlier than thirty (30) days following such meeting, City may
make demand on the escrow holder referred to above for delivery of funds and
escrow holder shall comply with such demand notwithstanding contrary
instructions from Hanson. The City shall give Hanson periodic written
accounting of its expenditures from the Fund and shall reasonably consider
suggestions made by Hanson for the economically prudent utilization of the Fund.
(6) Hanson shall at all times maintain ownership and control of the Site
and shall continue the conduct of refilling activity. However, in the event the City
exercises its rights under subsection 11.4 (e)(5) above, Hanson shall give the City,
its contractors and agents access to the Site so that the City may cause additional
filling and reclamation to occur in accordance with this Agreement. Such access
shall be in accordance with Section 4.8 of this Agreement.
(f) Disposition of Fund for Refilling Activities. At any time after both the
Reclamation Parcel and the Peck Parcel have been refilled in accordance with this
Agreement, Hanson may in writing demand refund of any remaining monies in the Fund
which have previously been deposited but not used for refilling activities and if demand
is accompanied by the certificate of an independent engineer, whose selection has been
approved by the City, then escrow holder shall comply with such demand
notwithstanding contrary instructions from the City. The City shall return any such funds
in its possession, if any, with a complete written accounting of all expenditures within
thirty (30) days of Hanson's written demand.
11.5 Rights of Non -Defaulting_ Party after Default.
The Parties acknowledge that both Parties shall have hereunder all legal and equitable
remedies as provided by law following the occurrence of a default (as defined in Section 11.5
below) or to enforce any covenant or agreement herein. Before this Agreement may be
terminated or action may be taken to obtain judicial relief the Party seeking relief
("Nondefaulting Party") shall comply with the notice and cure provisions of this Section 11.0.
11.6 Notice and Opportunity to Cure.
A Nondefaulting Party may elect to declare a default under this Agreement in accordance
with the procedures hereinafter set forth for any failure or breach of the other party ("Defaulting
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Party") to perform any material duty or obligation of said Defaulting Party under the terms of
this Agreement. However, the Non -Defaulting Party must provide written notice to the
Defaulting Party setting forth the nature of the breach or failure and the actions, if any, required
by Defaulting Party to cure such breach or failure. The Defaulting Party shall be deemed in
default under this Agreement if the Defaulting Party has failed to completely cure such default
within thirty (3 0) days after the date of such notice or ten (10) days for monetary defaults (or
such lesser time as may be specifically provided in this Agreement). However, if such non -
monetary default cannot be cured within such thirty (3 0) day period, and as long as the
Defaulting Party does each of the following:
(a) Notifies the Non -Defaulting Party in writing with a reasonable explanation
as to the reasons the asserted default is not curable within the thirty (30) day period;
(b) Notifies the Non -Defaulting Party of the Defaulting Party's proposed
cause of action to cure the default, specifying dates by which specific actions will be
taken;
(c) Promptly commences to cure the default within the thirty (30) day period;
(d) Makes reports in accordance with the time schedule provided to the Non -
Defaulting Party as to the progress of the program of cure, showing how the proposed
dates have been met and establishing any additional needed dates; and
(e) Diligently prosecutes such cure to completion,
then the Defaulting Party shall not be deemed in breach of this Agreement. Notwithstanding the
foregoing, the Defaulting Party shall be deemed in default under this Agreement if said breach or
failure involves the payment of money but the Defaulting Party has failed to completely cure
said monetary default within ten (10) days (or such lesser time as may be specifically provided in
this Agreement) after the date of such notice.
11.7 Waiver of Breach.
By recordation of a final map on all or any portion of the Hanson's Site, Hanson shall be
deemed to have waived any claim that any condition of approval of the map and the
Development Approvals is improper or that the map or the Development Approvals as approved
constitutes a breach of the provisions of this Agreement.
11.8 Remedies Cumulative.
Except as otherwise expressly stated in this Agreement, the rights and remedies of the
parties are cumulative, and the exercise by either party of one or more of its rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same default or any other default by the other party. Hanson specifically
acknowledges and agrees that the City's remedies under the performance bond described at
Section 11.1 are cumulative to other remedies available to City hereunder.
11.9 Monetary Default.
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In the event Hanson fails to perform any monetary obligation under this Agreement,
Hanson shall pay interest thereon at the lesser of. (i) ten percent (10%) per annum, or (ii) the
maximum rate permitted by law, from and after the due date of said monetary obligation until
payment is actually received by City.
11.10 Rights and Duties Following Termination.
Upon the termination of this Agreement, no Party shall have any further right or
obligation hereunder except (i) with respect to any obligations to have been performed prior to
said termination or with respect to any default in the performance of the provisions of this
Agreement which has occurred prior to said termination, and (ii) with respect to the indemnity
obligations set forth herein.
12.0 RESTRICTIONS ON TRANSFER.
12.1 General.
Neither Party shall assign (as hereinafter defined) or transfer (as hereinafter defined) its
interests, rights or obligations under this Agreement without the prior written consent of the
other, which consent shall not be unreasonably withheld or delayed.
The term "assignment" as used in this Agreement shall include successors -in -interest to
the City that may be created by operation of law. Notwithstanding the foregoing, the City shall
have the right to sell, assign or transfer its interest in any real property dedicated or transferred to
the City pursuant to the terms of this Agreement or to another public agency.
As used in this section, the term "transfer" shall include any hypothecation, mortgage,
pledge, or encumbrance of this Agreement or the Site, or the improvements thereon by Hanson.
A transfer shall also include the transfer to any person or group of persons acting in concert of
more than twenty-five percent (25%) of the present equity ownership and/or more than twenty-
five percent (25%) of the voting control of Hanson (jointly and severally referred to herein as the
"Trigger Percentages") or any general partner of Hanson in the aggregate, taking all transfers
into account on a cumulative basis, except transfers of such ownership or control interest
between members of the same immediate family, or transfers to a trust, testamentary or
otherwise, in which the beneficiaries are limited to members of the transferor's immediate
family. A transfer of interests (on a cumulative basis) in the equity ownership and/or voting
control of Hanson in amounts less than Trigger Percentages shall not constitute a transfer subject
to the restrictions set forth herein. In the event Hanson or any general partner comprising
Hanson or its successor is a corporation or trust, such transfer shall refer to the transfer of the
issued and outstanding capital stock of Hanson, or of beneficial interests of such trust; in the
event that Hanson or any general partner comprising Hanson is a limited or general partnership,
such transfer shall refer to the transfer of more than the Trigger Percentages in the limited or
general partnership interest; in the event that Hanson or any general partner is a joint venture,
such transfer shall refer to the transfer of more than the Trigger Percentages of such joint venture
partner, taking all transfers into account on a cumulative basis.
Hanson shall not transfer this Agreement or any of Hanson's rights hereunder, or any
interest in the Site or in the improvements thereon, directly or indirectly, voluntarily or by
operation of law, except as provided below, without the prior written approval of the City, and if
so purported to be transferred, the same shall be null and void. In considering whether it will
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grant approval to any transfer by Hanson, which transfer requires the City's approval, the City
shall consider factors such as (i) whether the completion of the Project is delayed or jeopardized;
(ii) the financial strength and capability of the proposed transferee to perform the City's
obligations hereunder; and (iii) the proposed transferee's experience and expertise in the
planning, financing, development, ownership, and operation of similar projects.
In addition, no attempted assignment of any of Hanson's obligations hereunder shall be
effective unless and until the successor party executes and delivers to the City an assumption
agreement in a form approved by the City assuming such obligations. No consent or approval by
the City of any transfer requiring the City's approval shall constitute a further waiver of the
provision of this Section 12.1 and, furthermore, the City's consent to a transfer shall not be
deemed to release Hanson of liability for performance under this Agreement unless such release
is specific and in writing executed by the City.
The foregoing prohibition shall not apply to any of the following:
(a) Any mortgage, deed of trust, sale/lease-back, or other form of conveyance
for financing and any resulting foreclosure therefrom.
(b) The granting of easements or dedications to any appropriate governmental
agency or utility or permits to facilitate the development of the Site.
(c) A sale or transfer resulting from or in connection with a reorganization as
contemplated by the provisions of the Internal Revenue Code of 1986, as amended or
otherwise, in which the ownership interests of a corporation are assigned directly or by
operation of law to a person or persons, firm or corporation which acquires the control of
the voting capital stock of such corporation or all or substantially all of the assets of such
corporation.
(d) A sale or transfer of less than the Trigger Percentages between members
of the same immediate family, or transfers to a trust, testamentary or otherwise, in which
the beneficiaries consist solely of immediate family members of the trustor or transfers to
a corporation or partnership in which the immediate family members or shareholders of
the transferor who owns at least fifty percent (50%) of the present equity ownership
and/or at least twenty-five percent (25%) of the voting control of Hanson.
(e) A change in the respective percentage ownership interests exclusively of
the general partners comprising Hanson (as of the Effective Date), but this shall not
authorize the transfer of any interest to any person or entity who is not a general partner
comprising Hanson as of the Effective Date.
12.2 Subject to Terms of Agreement.
Following any such assignment or transfer of any of the rights and interests of Hanson
under this Agreement, in accordance with Section 12.1 above, the exercise, use and enjoyment
shall continue to be subject to the terms of this Agreement to the same extent as if the assignee or
transferee were Hanson.
12.3 Release of Hanson.
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Upon the written consent of the City to the complete assignment of this Agreement and
the express written assumption of the assigned obligations of Hanson under this Agreement by
the assignee, Hanson shall be relieved of its legal duty to perform the assigned obligations under
this Agreement, except to the extent Hanson is in default under the terms of this Agreement prior
to said transfer.
12.4 No Approval of Terms of Loan by the City.
Notwithstanding anything to the contrary set forth herein with regards to the approval by
the City of hypothecation, encumbrances or mortgages, the City shall only have the right to
approve the identity of Hanson's lender, which approval will not be unreasonably withheld,
taking into consideration such lender's financial strength, reputation, and other relevant factors.
The City shall not have any right to approve any of the terms or conditions of Hanson's
financing arrangements with third party lenders.
13.0 INSURANCE, INDEMNIFICATION, WAIVERS.
13.1 Insurance.
(a) Types of Insurance.
(1) Public Liability Insurance.
Beginning on the Effective Date hereof and until completion of
construction by Hanson on the Site, Hanson shall at its sole cost and expense keep or cause to be
kept in force for the mutual benefit of the City and Hanson comprehensive broad form general
public liability insurance against claims and liability for personal injury or death arising from the
use, occupancy, disuse or condition of the Site, improvements or adjoining areas or ways,
affected by such use of the Site or for property damage, providing protection of at least Two
Million Dollars ($2,000,000.00) for bodily injury or death to any one person, at least Five
Million Dollars ($5,000,000.00) for any one accident or occurrence, and at least One Million
Dollars ($1,000,000.00) for property damage, which limits shall be subject to such increases in
amount as the City may reasonably require from time to time.
(2) Builder's Risk Insurance.
Before commencement of any construction, Hanson shall procure and
shall maintain in force until completion and acceptance of the work, "all risks" builder's risk
insurance including vandalism and malicious mischief, covering improvements in place and all
material and equipment at the job site furnished under contract, but excluding contractor's,
subcontractor's, and construction manager's tools and equipment and property owned by
contractor's or subcontractor's employees, with limits in accordance with subsection (1) above.
(3) Worker's Compensation.
Hanson shall also furnish or cause to be furnished to the City evidence
reasonably satisfactory to it that any contractor with whom Hanson has contracted for the
performance of any work for which Hanson is responsible hereunder carries workers'
compensation insurance as required by law.
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(4) Other Insurance.
Hanson may procure and maintain any insurance not required by this
Agreement, but all such insurance shall be subject to all of the provisions hereof pertaining to
insurance and shall be for the benefit of the City and Hanson.
(5) Insurance Policy Form, Content and Insurer.
All insurance required by express provisions hereof shall be carried only by responsible
insurance companies licensed to do business by California, rated "A" or better in the most recent
edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they
are of a financial category Class VIII or better, unless such requirements are waived by the Risk
Manager of the City ("Risk Manager") due to unique circumstances. In the event the Risk
Manager determines that the work or services to be performed under this Agreement creates an
increased or decreased risk of loss to the City, Hanson agrees that the minimum limits of the
insurance policies and the performance bond required by this Section may be changed
accordingly upon receipt of written notice from the Risk Manager; provided that Hanson shall
have the right to appeal a determination of increased coverage by the Risk Manager to the City
Council of City within 10 days of receipt of notice from the Risk Manager. All such policies
shall be nonassessable and shall contain language, to the extent obtainable, to the effect that (i)
any loss shall be payable notwithstanding any act of negligence of the City or Hanson that might
otherwise result in the forfeiture of the insurance, (ii) the insurer waives the right of subrogation
against the City and against the City's agents and representatives, except as provided in this
Section 13.1; (iii) the policies are primary and noncontributing with any insurance that may be
carried by City; and (iv) the policies cannot be canceled or materially changed except after thirty
(30) days' written notice by the insurer to the City or the City's designated representative.
Hanson shall furnish the City with copies of all such policies promptly on receipt of them, or
with certificates evidencing the insurance. The City shall be named as an additional insured on
all policies of insurance required to be procured by the terms of this Agreement.
(b) Failure to Maintain Insurance and Proof of Compliance.
Hanson shall deliver to the City, in the manner required for notices, copies of certificates
of all insurance policies required hereunder together with evidence satisfactory to the City of
payment required for procurement and maintenance of each policy within the following time
limits:
(1) For insurance required above, within thirty (3 0) days after the
Effective Date.
(2) For any renewal or replacement of a policy already in existence, at
least ten (10) days before expiration or termination of the existing policy.
If Hanson fails or refuses to procure or maintain insurance as required hereby or fails or
refuses to furnish the City with required proof that the insurance has been procured and is in
force and paid for, such failure or referral shall be a default hereunder.
13.2 Indemnification.
(a) General.
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Hanson shall indemnify the City, its officers, employees, and agents against, and will
hold and save them and each of them harmless from, any and all actions, suits, claims, damages
to persons or property, losses, costs, penalties, obligations, errors, omissions, or liabilities (herein
"claims or liabilities") that may be asserted or claimed by any person, firm, or entity arising out
of or in connection with the work, operations, or activities of Hanson, its agents, employees,
subcontractors, or invitees, hereunder, upon the Site, whether or not there is current passive or
active negligence on the part of the City, its officers, agents, or employees and in connection
therewith:
(1) Hanson will defend any action or actions filed in connection with any
of said claims or liabilities and will pay all costs and expenses, including legal costs and
attorneys, fees incurred in connection therewith;
(2) Hanson will promptly pay any judgment rendered against the City, its
officers, agents, or employees for any such claims or liabilities arising out of or in connection
with such work, operations, or activities of Hanson hereunder; and Hanson agrees to save and
hold the City, its officers, agents, and employees harmless therefrom;
(3) In the event the City, its officers, agents, or employees is made a party
to any action or proceeding filed or prosecuted against for such damages or other claims arising
out of or in connection with the work operation or activities of Hanson hereunder, Hanson agrees
to pay to the City, its officers, agents, or employees any and all costs and expenses incurred by
the City, its officers, agents, or employees in such action or proceeding, including but not limited
to legal costs and attorneys' fees.
(b) Exceptions.
The foregoing indemnity shall not include claims or liabilities arising from the sole or
gross negligence or willful misconduct of the City, its officers, agents, or employees, who are
directly responsible to the City.
(c) Additional Coverage.
Without limiting the generality of the foregoing, said indemnity shall include any liability
arising by reason of:
(1) Any claim made by any occupant, subtenant, assignee, employee,
agent, visitor, invitee, or user of any portion of the Site;
(2) Any accident or other occurrence in or on the Site causing injury to
any person or property whatsoever;
(3) Any failure of Hanson to comply with performance of all of the
provisions of this Agreement;
(4) Hanson's failure to prevent any employee or any invitee or any other
person from entering upon or remaining in any place upon the Site which is not safe and does not
comply with all laws pertaining thereto as they may now or hereafter exist.
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(5) Any harm, delays, injuries or other damages incurred by any party as a
result of any subsurface conditions on the site, including but not limited to, the presence of
buried debris, hazardous materials, hydrocarbons, or any form of soil contamination.
(d) Loss and Damage.
The City shall not be liable for any damage to property of Hanson or of others located on
the Site, nor for the loss of or damage to any property of Hanson or of others by theft or
otherwise. The City shall not be liable for any injury or damage to persons or property resulting
from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the
Site or from the pipes or plumbing, or from the street, or from any environmental or soil
contamination or hazard, or from any other latent or patent defect in the soil, subsurface or
physical condition of the Site, or by any other cause of whatsoever nature.
(e) Period of Indemnification.
The obligations for indemnity under this Section 13.1 shall begin upon the Effective Date
and shall terminate upon termination of Development Agreement, provided that indemnification
shall apply to all claims or liabilities arising during that period even if asserted at any time
thereafter.
13.3 Waiver of Subrogation.
Hanson agrees that it shall not make any claim against, or seek to recover from City or its
agents, servants, or employees, for any loss or damage to Hanson or to any person or property,
except as specifically provided hereunder and Hanson shall give notice to any insurance carrier
of the foregoing waiver of subrogation, and obtain from such carrier, a waiver of right to
recovery against City, its agents and employees.
14.0 EFFECT OF AGREEMENT ON TITLE.
14.1 Covenants, Conditions and Restrictions.
Within the time set forth in the Schedule of Performance, Hanson shall submit a proposed
form of Declaration of Covenants, Conditions and Restrictions to be recorded against the Site
applicable during mining activities ("Mining CC&Rs"). The Mining CC&Rs shall require the
installation, replacement and maintenance of berms and walls and healthy, full and mature
landscaping surrounding the separate Parcels to provide appropriate screening. Upon completion
of mining activities, and within the time set forth in the Schedule of Performance, Hanson shall
submit a proposed form of Declaration of Covenants, Conditions and Restrictions to be recorded
against the Site applicable to the developed Site ("Development CC&Rs"). The Development
CC&Rs shall contain all of the provisions contained in the attached standard City CC&Rs, in
addition to the provisions contained in the Development Approvals.
The Mining and Development CC&Rs shall be subject to approval by the City's
Planning Director and the City Attorney prior to the approval of any final map, and shall be
recorded with the final map. The Mining and Development CC&Rs shall, at a minimum, contain
a detailed map for the overall site, and for each individual lot demonstrating the areas to be
maintained by the Hanson. The City shall be made a party with a right to enforce the Mining and
Development CC&Rs, including the right to lien the property.
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14.2 Covenants Run with the Land.
Subject to the provisions of Sections 12.0 and 16.0:
(a) All of the provisions, agreements, rights, powers, standards, terms,
covenants and obligations contained in this Agreement shall be binding upon the Parties
and their respective heirs, successors (by merger, consolidation, or otherwise) and
assigns, devisees, administrators, representatives, lessees, and all other persons acquiring
any rights or interests in the Site, or any portion thereof, whether by operation of laws or
in any manner whatsoever and shall inure to the benefit of the Parties and their respective
heirs, successors (by merger, consolidation or otherwise) and assigns;
(b) All of the provisions of this Agreement shall be enforceable as equitable
servitudes and constitute covenants running with the land pursuant to applicable law; and
(c) Each covenant to do or refrain from doing some act on the Site hereunder
(i) is for the benefit of and is a burden upon every portion of the Site, (ii) runs with such
lands, and (iii) is binding upon each party and each successive owner during its
ownership of such properties or any portion thereof, and each person having any interest
therein derived in any manner through any owner of such lands, or any portion thereof,
and each other person succeeding to an interest in such lands.
14.3 Estoppel Certificate.
Either Party (or a lender under Section 15.0) may at any time deliver written notice to the
other Party requesting an estoppel certificate (the "Estoppel Certificate") stating:
(a) The Agreement is in full force and effect and is a binding obligation of the
Parties; and
(b) The Agreement has not been amended or modified either orally or in
writing or, if so amended, identifying the amendments.
A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to
the requesting Party within thirty (30) days after receipt of the request. The City Manager may
sign Estoppel Certificates on behalf of the City, in a form approved by the City Attorney. An
Estoppel Certificate may be relied on by assignees and Mortgagees. Notwithstanding the
foregoing, the Party receiving the request may decline to provide an Estoppel Certificate if that
Party has previously given the other Party actual notice of a default or is aware of circumstances
which may constitute a default. If requested to do so by the requesting Party, the Party receiving
the request may state in writing the reasons for declining the request.
15.0 CONDEMNATION
15.1 Negotiated Purchase of the Acquisition Parcels.
The City shall attempt to acquire the Peck Parcel, Graham Road Easement and Bagg and
Cates Parcel (collectively "Acquisition Parcels") from its current owner by negotiated purchase;
provided, however, that nothing in this Agreement shall obligate City to acquire the Acquisition
Parcel for an amount more than the amount City has determined to be the fair market value as
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determined by an appraisal obtained by the City (provided that Hanson may at its option, but
shall not be required to, pay the excess cost, if any, over such fair market value), nor to agree to
any other non-standard terms or conditions except as may be acceptable to City in its sole and
absolute discretion.
15.2 Condemnation.
If, after and despite its best efforts to do so, Hanson or City (as applicable) is unable to
acquire the Acquisition Parcels by negotiated purchase, City shall conduct the necessary analysis
to determine in its sole discretion whether to attempt to acquire each of the Acquisition Parcels
by exercise of its power of eminent domain. City shall have the right to obtain a bona fide
appraisal from an appraiser satisfactory to City. The City has informed Hanson that in
connection with condemnation proceedings, a hearing is held to adopt a Resolution of Necessity.
The City cannot legally commit itself to condemnation of property until after this hearing is held
and the testimony given at the hearing has been considered. Accordingly, Hanson understands
that the City is not obligated by this Development Agreement to actually acquire any of the
Acquisition Parcels, and the members of the City Council are free to exercise their
discretion in any manner they see fit in the event the City considers condemnation.
Nothing in this Agreement shall be deemed a prejudgment or commitment with respect to
condemnation, or a guarantee that such condemnation will be undertaken. In the event City
exercises its power of eminent domain to acquire any or all of the Acquisition Parcels, City shall,
subject to delays outside City's control, exercise reasonable diligence to complete the acquisition
of the Acquisition Parcels, or portions thereof, as soon as practicable after commencement of
eminent domain proceedings. In the event City elects not to condemn any of the Acquisition
Parcels, City shall not have any liability of any kind to Hanson despite the effect of such election
by City on the approvals granted herein.
15.3 Cost Exceeding Fair Market Value.
City will, through its own appraisals, determine the fair market value of the each of the
Acquisition Parcels. However, during the negotiation or condemnation process a price may be
established that exceeds the fair market value as determined by the City. In particular, eminent
domain proceedings could result in an award of just compensation that exceeds the appraisal.
Should this occur, it is possible that there would also be an award of attorneys' fees against the
City. Hanson shall have the right to approve of any purchase price for any of the Acquisition
Parcels which exceed City's appraisals by twenty-five (25%) percent or more and in the event
Hanson disapproves of such increase, Hanson shall have the right to terminate the acquisition of
such Peck Parcel provided Hanson indemnifies City for all costs and/or claims associated with
the terminated acquisition and pay to the City the entire City -appraised fair market value of the
Peck Parcel, plus twenty-five percent (25%) as consideration to the City in lieu of such
acquisition. If Hanson approves of such increased purchase price, Hanson shall pay the excess
cost over such fair market value, and in the event of an award of attorneys' fees against the City,
Hanson shall also pay such attorneys' fees, and City shall proceed with the acquisition of the
Peck Parcel. If Hanson fails to pay the full amount of the final award of just compensation for
the Peck Parcel, at City's option, City may abandon acquisition of the Parcel and Hanson shall
indemnify City for all costs and/or claims associated with the terminated acquisition, or City may
proceed with the acquisition and may recover the full cost of the acquisition against Hanson,
along with attorneys fees and City shall not have further obligations to Hanson with respect to
such parcel.
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16.0 PRESCRIPTIVE WATER RIGHTS: TRANSFER AND RIGHT OF FIRST
REFUSAL
16.1 Sale of Development Parcels.
As to any parcel described in this Agreement intended for future development, including
but not limited to, the Peck Parcel, Plant Parcel and Reclamation Parcel, before transfer of such
parcels to any third party purchaser, Hanson shall, at its sole expense, have a water usage master
plan study ("Water Use Study"), prepared by a qualified engineer, assessing the water needs for
the proposed development of such parcel, which Water Use Study shall be subject to the review
and written approval of the City Engineer. Hanson shall not transfer any parcel referenced in
this Section 16. 1, without transferring the prescriptive water pumping rights, owned by Hanson
as pertaining to the Site, in the amount recommended by the approved Water Use Study, without
the written approval of the City. Any transfer that does not include such water rights, as
approved by the City Engineer in writing or waived by the City in writing shall be void.
16.2 Right of First Refusal
Following the preparation of the Water Use Study, and City Engineer's written approval
of same, Hanson may sell or otherwise transfer the balance of any of its prescriptive water rights
pertaining to the Site, and not required by the future development of the parcels pursuant to
Section 16.1 ("Balance of Water Rights"); provided Hanson comply with the provisions of this
Section 16.2. Should Hanson desire to sell or otherwise transfer any portion of the Balance of
Water Rights, the City hereby reserves and shall have a first right of refusal to purchase the
Balance of Water Rights for an amount equal to the purchase price and according to the terms of
the purchase and sale originally negotiated between Hanson and any third party. City shall have
forty-five (45) days from the time of receiving written notice from Hanson of its intent to sell or
otherwise transfer the Balance of Water Rights to notify Hanson of its intent to exercise this right
of first refusal. Thereafter, City shall have an additional sixty (60) days from the date of its
notice of intent to exercise this right of first refusal to close escrow on the purchase of the
Balance of Water Rights. City shall have the right, as a contingency to its purchase, to conduct
due diligence regarding any environmental conditions and fair market valuation related to such
Balance of Water Rights during such sixty (60) day period, and, in its discretion, may cancel
such escrow and terminate the option provided herein, without penalty payable from City to
Hanson, pursuant to such contingencies. City's failure to timely notify Hanson of its desire to
exercise its option shall be deemed a declination.
17.0 GENERAL.
17.1 Non -liability of City Officers and Employees.
No official, agent, contractor, or employee of the City shall be personally liable to
Hanson, or any successor in interest, in the event of any default or breach by the City or for any
amount which may become due to Hanson or to its successor, or for breach of any obligation of
the terms of this Agreement.
17.2 Conflict of Interest.
No officer or employee of the City shall have any financial interest, direct or indirect, in
this Agreement nor shall any such officer or employee participate in any decision relating to the
Agreement which affects the financial interest of any corporation, partnership or association in
which he is, directly or indirectly, interested, in violation of any state statute or regulation.
17.3 Covenant Against Discrimination.
Hanson covenants that, by and for itself, its heirs, executors, assigns, and all persons
claiming under or through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of race, color, creed, religion, sex, marital status,
national origin, or ancestry in the performance of this Agreement. Hanson shall take affirmative
action to insure that employees are treated during employment without regard to their race, color,
creed religion, sex, marital status, national origin or ancestry.
17.4 Construction of Agreement.
The language of this Agreement shall be construed as a whole and given its fair meaning.
The captions of the sections and subsections are for convenience only and shall not influence
construction. This Agreement shall be governed by the laws of the State of California. This
Agreement shall not be deemed to constitute the surrender or abrogation of the City's
governmental powers over the Site.
17.5 Severability.
If any covenant, term, condition, or provision of this Agreement shall, to any extent, be
ya. invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the
fullest extent permitted by law unless that covenant, term, condition, or provision declared to be
invalid is so material that its invalidity deprives either party of the basic benefit of their bargain
or renders the remainder of this Agreement meaningless.
17.6 Attorney's Fees.
If either Party to this Agreement is required to initiate or defend any action or proceeding,
the prevailing party in such action or proceeding, in addition to any other relief which may be
granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's
fees shall include attorney's fees on any appeal, and in addition a Party entitled to attorney's fees
shall be entitled to all other reasonable costs for investigating such action, taking depositions and
discovery and all other necessary costs the court allows which are incurred in such litigation. All
such fees shall be deemed to have accrued on the commencement of such action and shall be
enforceable whether or not such action is prosecuted.
17.7 Time of Essence.
Time is of the essence in:
(a) The performance of the provisions of this Agreement as to which time is
an element; and
(b) The resolution of any dispute which may arise concerning the obligations
of Hanson and City as set forth in this Agreement.
17.8 Waiver.
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Failure by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of
the other Party, shall not constitute a waiver of such Party's right to insist and demand strict
compliance by the other Party with the terms of this Agreement thereafter.
17.9 No Third Party Beneficiaries.
The only parties to this Agreement are Hanson and the City. There are no third Party
beneficiaries and this Agreement is not intended, and shall not be construed to benefit or be
enforceable by any other person whatsoever.
17.10 Mutual Covenants.
The covenants contained herein are mutual covenants and also constitute conditions to
the concurrent or subsequent performance by the Party benefited thereby of the covenants to be
performed hereunder by such benefited Party.
17.11 Counterparts.
This Agreement may be executed by the parties in counterparts which counterparts shall
be construed together and have the same effect as if all of the parties had executed the same
instrument.
17.12 Authority to Execute.
The persons executing this Agreement on behalf of the parties hereto warrant that (i) such
Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this
Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally
bound to the provisions of this Agreement, (iv) the entering into of this Agreement does not
violate any provision of any other Agreement to which said Party is bound and (v) there is no
litigation or legal proceeding which would prevent the parties from entering into this Agreement.
17.13 Notices Demands and Communications Between the Parties.
Notices, demands, submission of documents, and communications between City and
Hanson shall be given either by personal service, delivery by courier, or by mailing in the United
States mail, certified mail, postage prepaid, return receipt requested, addressed to the addresses
provided below.
CITY: CITY OF IRWINDALE
5050 North Irwindale Avenue
Irwindale, CA 91706
Telecopier No. (626) 962-4209
Attn: City Manager
A copy to: ALESHIRE & WYNDER, LLP
18881 Von Karman Avenue, #400
Irvine, CA 92612
Telecopier No. (949) 223-1180
Attn: Fred Galante, Esq.
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DEVELOPER: HANSON AGGREGATES WEST, INC.
13350 Live Oak Avenue
Irwindale, California 91706-2075
Telecopier No. (626) 962-4420
Attn: David R. Hummel
A copy to: JEFFER, MANGELS, BUTLER & MARMARO LLP
1900 Avenue of the Stars, Seventh Floor
Los Angeles, CA 90067-5010
Telecopier No. (310) 203-0567
Attn: William F. Capps, Esq.
Any such notice shall be deemed to have been given upon delivery if personally served or
delivered by courier, or upon the expiration of three (3) business days after mailing if given by
certified mail, return receipt requested. Such written notices, demands and communications may
be sent in the same manner to such other addresses as a party may from time to time designate by
mail.
17.14 Further Actions and Instruments.
Each of the Parties shall cooperate with and provide reasonable assistance to the other to
the extent necessary to implement this Agreement. Upon the request of either Party at any time,
the other Party shall promptly execute, with acknowledgement or affidavit if reasonably
required, and file or record such required instruments and writings and take any actions as may
be reasonably necessary to implement this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
17.15 Recitals.
The recitals in this Agreement constitute part of this Agreement and each Party shall be
entitled to rely on the truth and accuracy of each recital as an inducement to enter into this
Agreement.
17.16 Recording.
The City Clerk shall cause a copy of this Agreement, or a memorandum thereof, to be
executed by the City and recorded in the Official Records of Los Angeles County no later than
ten (10) days after the Effective Date. The recordation of this Agreement is deemed a ministerial
act and the failure of the City to record the Agreement as required by this Section and the
Development Agreement Statute shall not make the Agreement void or ineffective.
17.17 Relationship of Parties.
It is specifically understood and agreed by and between the Parties that the Project is a
private development, that neither Party is acting as the agent of the other in any respect
hereunder, and that such Party is an independent contracting entity with respect to the terms,
,O covenants, and conditions contained in this Agreement. The only relationship between the City
and Hanson is that of a government entity regulating the development of private property and the
owner of such private property.
43
17.18 Inspection of Books and Records.
In addition to any other right of inspection otherwise allowed by law, the City shall have
the right to inspect, upon not less than seventy-two (72) hours notice, at a reasonable time, those
records of Hanson which pertain to the Project. The parties agree that Hanson's financial
statements and financial records not pertaining to the Project are confidential and shall not be
disclosed to City pursuant to the provisions of this Agreement.
17.19 Integration Clause.
It is understood that there are no oral agreements between the parties hereto affecting this
Agreement and this Agreement supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements, and understandings, if any, between the parties hereto or
displayed by the City to Hanson with respect to the subject matter thereof, except for the
Development Approvals, and none shall be used to interpret or construe this Agreement. This
Agreement includes all attachments attached hereto, which by this reference are incorporated
herein. Said documents shall be interpreted insofar as possible to prevent any inconsistency and
to effectuate the terms thereof, without one prevailing over the other.
18.0 EXHIBITS.
The following are the Exhibits to this Agreement:
Exhibit A:
Site Map
Exhibit A-1
Legal Description of Site
Exhibit A-2
Lake Parcel Map
Exhibit B:
Scope of Development
Exhibit C:
Schedule of Performance
Exhibit D:
Form Deed of Trust
Exhibit E:
Map of Roadway Alignment
Exhibit F:
Roadway Design Criteria
Exhibit G:
Release of Mining Rights
Exhibit H:
Graham Road Easement
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the City and Hanson have executed this Development
Agreement on the date first above written.
AXtest:
D ` C,0 Clerk
Approved q& to form:
ALESHII F& WYN
Fred Galante, City
"CITY"
CITY OF IRWINDALE, a municipal
corporation
L
yor
"DEVELOPER"
HANS AGGREGATES WEST, INC., a
Dela ar corporation
By: David Hummel, President
t- - I
P. -I 44!,
B,
!!� I -
[END OF SIGNATURES / NOTARY JURAT(S) FOLLOW]
45
STATE OF CALIFORNIA )
ef"�") ss.
COUNTY OF ..Df)A Oi r~-3 0 )
On before me,� 6 S f-�-n 0, e�- S , personally appeared
personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s) /are subscribed to the
within instrument and acknowledged to me that h/' sVe/they executed the same in los/ler/their
authorized capacity(ies), and that by s/l &/their signatures(s) on the instrument the person(s) or
the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
No ary Public
PATTY SANDERS
[SEAL] Commission # 1625758
* •�' Notary Public - Ccifornia
San Diego County
MV Comm. Expbw Dec 27,
STATE OF CALIFORNIA
ss.
COUNTY OF U6 rl rf,-t` C.tS
_ On 1=,ebru of u ta pupL, before me, ��, J I'►1t��h�v1 A.ta-T y Piet Tersonally appeared
` personally known to me r-�tee
_.�cdton 6 1'i1i�CXMr- p y (�
Ga4h basic �f *;r��,,*^ p�) to be the person( -4 whose name( -s) is/a asubscribed to the
within instrument and acknowledged to me that he/slethey executed the same in his/he
authorized capacity(.e.&), and that by his/be--'� signatures( on the instrument the person() or
the entity upon behalf of which the person(-s� acted, executed the instrument.
Witness my hand and 9ofcial seal.
f0 y Public`\�
[SEAL] LINDA J. KIMMW
Commission # 10"746
Nchxy Public - C40aft
Lot Mgeles CM*
FI&,ycanm. Expires Now t+4- -Mi
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EXHIBIT "A"
SITE MAP
[SEE FILE 502 -HA]
EXHIBIT A-1
LEGAL DESCRIPTION OF SITE
I •
AREA TO BE MINED
The area to be mined is outlined in Figure 5 parcel map. It includes:
8532-004-024
Baggs and Cates parcels
8532-006-004
Dolly Green (30 acres)
LEGAL DESCRIPTION
Parcel 2 of Parcel Map No. 22741 in the City of Arcadia, County of Los Angeles, State of
California, as per map recorded in Book 258 pages 91 through 94 inclusive of parcel maps, and
portions of land owned by W.A. Church in the San Francisquito Rancho, in the City of
Irwindale, said County and Sate, as per map recorded as R.F. 509, and portions of Chicago Park
tract in the cities of Irwindale and Arcadia, said County and State, as per map recorded in Book
30 page 100 of miscellaneous records, and portions of Tract No. 1888 in the City of Irwindale,
said County and State as per map recorded in Book 21 page 183 of maps, all records in the office
of the County Recorder of said County, described as a whole as follows:
Beginning at the intersection of the centerline of Live Oak Avenue, 100 feet wide, as shown on a
record of survey recorded in Book 81 pages 15 through 23 inclusive of records of survey, with
the approximate position of the easterly line of the Rancho San Francisquito, as recorded in
Book l pages 31 and 32 of patents, and the compromise line described in the deed from Eugene
0. Collison to Edison Securities Company, recorded in Book 30897 page 206 of official records,
and the quitclaim deed from Eugene 0. Collison to Livingston -Graham et. al. recorded May 5,
1964 in Book D2460 page 582 of official records, as shown on said Record of Survey (RS 81/15-
23); thence southwesterly along said easterly line South 29 degrees 55 minutes 18 seconds west
1045.01 feet to a point of intersection with the easterly prolongation of the northerly line of the
lands shown on a licensed surveyor's map, recorded in Book 22 page 4 of Records of Survey
(RS 22-4); thence leaving said easterly line westerly along the easterly prolongation of said
northerly line North 67 degrees 53 minutes 45 seconds west 280.30 feet to the westerly right-of-
way of the lands acquired by the state of California for highway purposes as shown on Caltrans
R/W Map No. F1971-1 Sheet 2, of 7, 07 -LA -605-23.3, said point being the true point of
beginning for this description; thence southerly along said westerly right-of-way south
30 degrees 45 minutes 46 seconds west 17.11 feet to an angle point therein; thence southerly
along said right-of-way the following courses and distances: South 16 degrees 22 minutes
08 seconds west 75.55 feet, south 10 degrees 12 minutes 34 seconds west 179.64 feet, south
29 degrees 11 minutes 25 seconds west 357.12 feet, South 19 degrees 31 minutes 58 seconds
west 217.06 feet, South 7 degrees 35 minutes 41 seconds west 334.06 feet; thence continuing
along said westerly right-of-way south 15 degrees 30 minutes 37 seconds west 116.67 feet, more
or less, to said easterly line of the Rancho San Francisquito as established per said Record of
Survey (RS 81/15-23); thence along said easterly line South 29 degrees 55 minutes 18 seconds
west 1945.44 feet to the northeasterly line of the lands described in degree of condemnation
recorded in Book 46209 page 1 of official records; thence southwesterly along said northeasterly
line the following courses and distances: South 47 deg
outh 52 degrees 46 minutes 15 secondrees 03 minutes 37 seconds west
1292.40 feet and ss west 502.49 feet to an angle point
therein; thence continuing southwesterly along said northeasterly line south 47 degrees
03 minutes 37 seconds west 181.93 feet to the southerly line of the Chicago' Part Tract, as
recorded in Book 30 page 100 of iniscellaneous records; thence westerly along said southerly
line North 67 degrees 47 minutes 43 seconds west 1711.00 feet to a point, said point being the
intersection of said southerly line with the westerly line of Lot 2183 of said Chicago Park Tract,
as said point is established per Record of Survey recorded in Book 175 pages 57 and 58 of
records of survey; thence generally northerly and westerly along the lines established per said
Record of Survey (RS 175/57-58) the following courses and distances: North 22 degrees
07 minutes 02 seconds east 158.41 feet, North 67 degrees 47 minutes 58 seconds west 25.00 feet,
North 22 degrees 07 minutes 02 seconds east 133.40 feet, South 67 degrees 47 minutes 58
seconds east 14.56 feet, North 7 degrees 08 minutes 31 seconds east 51.78 feet, North 67 degrees
47 minutes 58 seconds west 76.18 feet, North 22 degrees 07 minutes 02 seconds.east 133.40 feet,
North 67 degrees 47 minutes 58 seconds west 50.00 feet, North 22 degrees 07 minutes 02
seconds east 133.40 feet, South 67 degrees 47 minutes 58 seconds east 54.79 feet, North 7
degrees 08 minutes 31 seconds east 25.89 feet, South 67 degrees 47 minutes 58 seconds east
51.90 feet, North 22 degrees 07 minutes 02 seconds east 178.00 feet, North 67 degrees 47
minutes 58 seconds west 1225:20 feet, North 22 degrees 07 minutes 02 seconds east 138.81 feet,
north 67 decrees 47 minutes _58 seconds west 325.07 feet to the northwest coiner of Parcel l of
said Parcel Map No. 22741; thence southerly along the westerly line of said Parcel 1 South 22
degrees 07 minutes 02 seconds west 18.70 feet to the northerly line of the land described in the
deed of trust recorded July 28, 1999 as Instrument No. 99-1406660 of official records; thence
southwesterly along said northerly line South 66 degrees 37 minutes 30 seconds west 298.40 feet
to the beginning of a tangent curve, concave northwesterly, and having a radius of 200.00 feet;
thence southwesterly along said curve, through a central angle of 45 degrees 34 minutes 32
seconds, an are length of 159.09 feet to a point of the northerly sideline of Clark Street, 50 feet
wide, as shown on said Record of Survey (RS 81/15-23); thence tangent to last said curve and
along said northerly sideline North 67 degrees 47 minutes 58 seconds west 747.99 feet to the
easterly sideline of Kardashian Street, formerly Myrtle Avenue, 50 feet wide, as shown on said
Record of Survey (RS 81/15-23); thence northerly along said easterly sideline North 22 degrees
07 minutes 02 seconds east 583.60 feet to the southerly line of State Street, 50 feet wide, as
shown on said Record of Survey (RS 81/15-23); thence westerly along said southerly line North
67 degrees 57 minutes 58 seconds wet 50.00 feet to a point, said point being the intersection of
said southerly sideline with the westerly sideline of said Kardashian Street; thence North
67 degrees 09 minutes 32 seconds east 35.33 feet to the centerline intersection of said Myrtle
Avenue and said State Street; thence northeast along the centerline of said Myrtle Avenue North
22 degrees 07 minutes 02 seconds east 370.09 feet to the southerly line of Parcel 3 of said
Record of Survey (RS 81/15-23); thence westerly, northerly and easterly along the lines of said
Parcel 3, North 67 degrees 23 minutes 38 seconds west 1112.43 feet to the most westerly corner
of said Parcel 3, said corner being the beguiling of a non -tangent curve, concave northwesterly,
and having a radius of 1054.50 feet, a radial line of said curve through said point bears south
59 degrees 10 minutes 02 seconds east, and northeasterly along said curve, through a central
angle of 8 degrees 43 minutes 1.0 seconds, an arc length of 160.48 feet, and tangent to last said
curve North 22 degrees 06 minutes 48 seconds east 100.58 feet to the beginning of a tangent
curve, concave southeasterly, and having a radius of 175.00 feet, and northerly and easterly
along said curve, through a central anile of 90 degrees 00 minutes 00 seconds, an arc length of
274.89 feet, and tangent to last said curve South 67 degrees 53 minutes 12 seconds east
213.49 feet, North 22 degrees 06 minutes 48 seconds cast 110.00 feet, South 67 degrees
53 minutes 12 seconds east 1666.50 feet, North 22 degrees 06 minutes 48 seconds east
I400.00 feet; thence continuing southeasterly along the northerly line of said Parcel 3, South
67 degrees 53 minutes 12 seconds east 988.00 feet to the southwest comes- of Parcel 2 of said
Record of Survey (RS 81/15-23); thence northeasterly along the northwesterly Iine of said Parcel
2, North 22 degrees 06 minutes 48 seconds east 1375.06 feet to the northwesterly corner thereof,
said corner being on the southerly line of lands shown on said licensed surveyor's map (RS 22-
4); thence southwesterly along said southerly line south 67 degrees 53 minutes 45 seconds east
3530.83 feet to the tnie point of beginning for this description.
Also Lots 15, 16, 17, 18, 19, 20. and that portion of Lot A of said Tract No. 1888 lying between
the westerly lines of said Lots 15 and 16, and their southerly and northerly prolongations,
respectively, and the easterly lines of said Lots 19 and 20, and their southerly and northerly
prolongations. respectively.
Except that portion of said land described in the deed to the State of California recorded August
13, 1965 as Instrument No. 1084 in Book D3014 page 667 of official records of said County, and
subsequently deeded as Parcel 3 of Director's Deed to Southern California Edison, recorded
February 15, 2000 as Instrument No. 00-0230028, official records of said County.
Leaal Description of Dolle Green Parcel
Lots 15, 16, 17, 18, 19, 20, and that portion of Lot "A" of Tract 1888 in the City of Irwindale,
County of Los Angeles, State of California, as per map recorded in Book 21 page 193 of maps,
in the office of the recorder of said County, lying between the westerly lines of said Lots 15 and
16 and their southerly and northerly prolongations respectively, and the easterly Iines of said
Lots 19 and 20 and their southerly and northerly prolongations respectively.
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EXHIBIT A-2
LAKE PARCEL MAP
[See Attached]
i
R_A
EXHIBIT "B"
SCOPE OF DEVELOPMENT
Hanson shall mine and reclaim the Site in accordance with this Agreement, as more
specifically set forth as follows:
1.0 Plant Parcel.
1.1 General.
The Plant Parcel is the current location of Hanson's processing operations plant and
includes various accessory activities including storage, transportation, mechanical and
administration related facilities. Processing operations shall be permitted until the 30th
anniversary of the Effective Date. Hanson shall remove the Processing Plant before the end of
the Term, as further described in Section 3.1.
1.2 Excavation.
No excavation or mining activity shall be permitted in the Plant Parcel, as depicted on the
maps attached hereto as Exhibit A. In entering into this Agreement, Hanson forever waives,
releases and relinquishes all right whatsoever to mine the Plant Parcel and agrees to waive any
claims against the City for a taking of property, inverse condemnation, impairment of contract or
any other claim as a consequence thereof, and shall concurrently herewith, record in the office of
the County Recorder a "Release of Mining Rights" attached hereto as Exhibit G and
incorporated herein by this reference.
1.3 Slopes.
Slopes from the bottom of the Site to the surrounding grade and fill pads shall be no
steeper than 1:1 above the Maximum Historic Water Level, and 2:1 below Maximum Historic
Water Level, as shown in the attached Typical Cross Section, in accordance with the Slope
Study.
1.4 Construction of Road
Within fifteen (15) years of the Effective Date or such earlier time as requested by the
City but not earlier than five (5) years, based on the surrounding development needs as
determined in the City's reasonable discretion, Hanson, at its expense, will complete
construction and dedicate the Roadway to the City, providing new access to Live Oak and
providing a new entrance to the Plant Parcel, with the general alignment shown in the Site Map,
as follows:
(a) The Roadway shall be constructed to the City's specifications shown at
Exhibit F. except as provided herein.
(b) The City shall acquire all requisite off-site rights of way at its sole cost.
Within one year following the City's acquisition of said rights of way and giving written
notice to Hanson, but not earlier than five (5) years after the effective date, Hanson shall,
50
construct the Roadway and relocate the Plant Site entrance to the Roadway, discontinuing
use of the old roadway and surrendering any easements or access rights.
(c) During mining operations, the Roadway shall be a 2 -lane road to serve
Hanson's mining use, and Hanson shall be responsible for maintaining the Roadway until
the end of the Term. Concurrent with the dismantling of the Plant, Hanson shall improve
the Roadway adequately to serve all uses in existence and anticipated at that time, in
accordance with the City's standards including any necessary repair of the existing road
surface. Hanson's obligations shall be secured by a deed of trust for the Plant Parcel in
an amount approved by the City Engineer and in a form approved by the City Attorney.
Hanson shall further be responsible for all off-site improvements described in Conditions
of Approval.
(d) The City Engineer shall have the right to approve the design, plans and
specifications. Hanson shall cause the Roadway to be constructed in accordance with
the approved plans and specifications. Hanson shall assume appropriate bonding and
insurance and indemnify the City for any liability during construction and until
dedication to and acceptance by the City.
(e) Upon completion of mining operations, Hanson shall dedicate the
Roadway to the City, free and clear of any construction, mechanic's or other liens and
charges.
1.5 Preparation of Pad for Development.
Except as mutually agreed by the Parties, after removal of the Processing Plant, Hanson
shall prepare the Plant Parcel for the development, which development shall be subject to
separate discretionary and administrative approvals, as applicable, as provided in Sections 4.9,
5.2 and 6.2. The ultimate uses contemplated by the Parties are as follows, which uses may
change at the time of development, depending on the development needs at the time
development, subject to the approval the City, provided any change in uses under subsection (a)
immediately below are approved by Hanson:
(a) the ten (10) acres adjacent to the 605 Freeway shall be developed with the
Reclamation Parcel for hotel and commercial uses;
(b) the thirty-five (35) acres adjacent to Irwindale Speedway shall be
developed for automotive -oriented industrial use;
(c) the five (5) acre southern portion of the Plant Parcel along with the
approximately 20 acre northern portion of the Lake Parcel (for a total of approximately
25 acres) shall be developed for recreation -open space (i.e. water slide park, equestrian,
fishing, boating, fields, park, etc.) pursuant to the then applicable regulations for ground
water lakes. At least 180 days before Hanson intends to commence mining along the
edge of the aforementioned approximately 20 acre northern portion of the Lake Parcel
(Lake Parcel II), Hanson and City representatives shall meet and confer to determine the
exact contour of this Lake Parcel II. The ultimate contour of the Lake Parcel II border
bordering Lake Parcel I shall be subject to the approval of the City Engineer. Except as
provided in Section 4.4 below, this portion of the parcel shall be dedicated to the City
with maintenance provided through assessments on the remainder of the property.
51
2.0 Reclamation Parcel.
2.1 Excavation.
No further excavation or mining activity shall be permitted in the Reclamation Parcel. In
entering into this Agreement, Hanson forever waives, releases and relinquishes all right
whatsoever to further mine the Reclamation Parcel and agrees to waive any claims against the
City for a taking of property, inverse condemnation, impairment of contract or any other claim as
a consequence thereof, and shall concurrently herewith, record in the office of the County
Recorder a "Release of Mining Rights" attached hereto as Exhibit D and incorporated herein by
this reference.
2.2 Reclamation.
Commercial Filling Operations shall commence and be completed within the times set
forth in Section 11.4 of this Agreement. The Parties intend that the pad be reclaimed to street
level, so the level of the pad shall be at least three hundred forty (340) feet with final elevation
subject to mutual agreement of the Parties. Hanson shall complete reclamation of the
Reclamation Parcel within thirty (30) years after the date of commencement of reclamation
activities; provided that such timeline for Hanson to reclaim the Reclamation Parcel, shall be
reduced by five (5) years if the City is able to provide four million (4,000,000) tons of Inert
Materials suitable for an Engineered Fill over a period of five (5) years.
2.3 Development.
After reclamation of the Reclamation Parcel is complete, Hanson shall proceed to
develop the Reclamation Parcel for hotel and commercial uses in accordance with this
Agreement and the Scope of Development (Exhibit B), provided Hanson secure separate
entitlements from the City, as may required at the time of development of such uses.
3.0 Green Parcel.
3.1 Excavation.
Mining operations shall be permitted to continue to the Maximum Safe Depth but not
later than the end of the Term. Mining shall preserve an adequate access corridor that meets or
exceeds all applicable standards for construction of the Roadway, as set forth in Section 1.4
above and Exhibit F to this Agreement.
3.2 Reclamation.
Hanson shall not be required to fill the Green Parcel. Hanson shall reclaim the parcel by
installing the landscaping, access roads, runoff and drainage improvements and other
infrastructure required under the Reclamation Plan within the times and in accordance with the
requirements provided in the Reclamation Plan.
4.0 Peck Parcel.
4.1 Excavation.
52
No further excavation or mining activity shall be permitted in the Peck Parcel. In
entering into this Agreement, Hanson forever waives, releases and relinquishes all right
whatsoever to further mine the Peck Parcel subject to approval of the landowner and agrees to
waive any claims against the City for a taking of property, inverse condemnation, impairment of
contract or any other claim as a consequence thereof, and shall concurrently herewith, record in
the office of the County Recorder a "Release of Mining Rights" attached hereto as Exhibit G
and incorporated herein by this reference.
4.2 Acquisition by the City.
The Parties agree that the Peck Parcel shall be acquired and thereafter owned by the City
and Hanson shall fund all costs of the acquisition. The Parties further agree that the City shall
accomplish such acquisition within five (5) years of the Effective Date. The parties' acquisition
obligations shall be subject to the provisions of Article 15.0 of this Agreement.
(a) Sale of the Peck Parcel. If City acquires the Peck Parcel, City may
dispose of the Peck Parcel singly, collectively or a portion thereof, with the Parties
equally splitting the proceeds, or the City will be given all right, title and interest in the
Peck Parcel for recreation purposes in exchange for a reduction in the recreation area in
the Plant Site on a 1:2 basis (Plant/Peck) (For example, for every 2 acres of Peck retained
by the City, the City shall give up 1 acre of the Plant Parcel dedicated to recreational
acreage. If the City retained the entire 10.7 acres of the Peck Parcel, the City would give
up 5.35 acres of the Plant Parcel). If City acquires the Peck Parcel by eminent domain,
City is not agreeing to bear any cost for the acquisition of the Peck Parcel. Accordingly,
all costs of such acquisition including the value of the Peck Parcel, appraisal, legal,
environmental remediation, engineering, consulting and other costs shall be borne by
Hanson (the "Acquisition Expenses"). Hanson shall deposit $50,000 with City
concurrently with the notice provided by Hanson to City under Section 6.1(a) above,
which deposit City shall charge its expenses against (the "Acquisition Deposit"). City
shall provide Hanson with a budget estimate of the Acquisition Expenses, and a schedule
of when additional expenses may be anticipated. Hanson shall supplement the
Acquisition Deposit within fifteen (15) days of City's written request therefor to cover
expenses, and shall be entitled to return of any unexpended portion of the Acquisition
Deposit after acquisition of the Parcel. City shall be responsible for providing Hanson
with an accounting of all sums expended.
(b) Termination. If City is unable to acquire the Peck Parcel by negotiated
purchase and elects not to exercise its power of eminent domain to acquire the Peck
Parcel, the Parties shall have no further obligation regarding the acquisition, development
or maintenance of the Peck Parcel, as provided in this Agreement, provided Hanson pays
City the in -lieu consideration described under Section 15.3 of the Agreement.
4.3 Reclamation.
Upon acquisition of the Peck Parcel by the City or such earlier time as Hanson secures
access rights to reclaim the parcel pursuant to Section 1.2(e) of this Agreement, Hanson shall
commence reclamation of the Peck Parcel with Engineered Fill on a phased basis, as further
described in Section 4.4 immediately below. Commercial Filling Operations shall not
commence until such time as the City, in its sole discretion, authorizes commencement of
53
Commercial Filling Operations and provides Hanson notice pursuant to Section 11.3 of this
Agreement.
4.4 Development.
Within two (2) years of the acquisition date, approximately one million (1,000,000) tons
of Engineered Fill will be deposited, bringing the elevation to 275 - 290 feet for interim use
("Interim Park Use"). Hanson shall secure such material through other than a Commercial
Filling Operation. The Interim Park Use shall be for recreational and water -oriented uses.
Hanson shall develop the Interim Park Use with the City paying half the cost, which, at a
minimum, shall include an accessible bay, dock, beach, picnic, concession and related facilities.
Hanson shall provide nonexclusive surface water use rights at no charge to the City. The Interim
Park Use shall be operated and maintained by the City, with costs and revenues, if any, split
equally between Hanson and the City. Following completion of the development of such Interim
Park Use, Hanson shall deposit with the City an amount estimated by the City to represent 50%
of the cost of operating and maintaining the Peck Parcel for one year. Quarterly, the City shall
provide Hanson with a statement of the costs incurred by the City in the operation and
maintenance of the Peck Parcel. Based on such statement, Hanson shall increase the deposit to
cover any shortfall within 30 days of the City's request therefore, as needed to avoid the
depletion of the fund. Alternatively, the City shall, in its discretion, either apply any excess
amounts deposited by Hanson for use in the following year. The City shall revise the budget
annually, based on past historical costs and anticipated expenditures. Hanson shall deposit with
the City 50% of the amount shown on the budget within 30 days of the anniversary date of the
Interim Park Use operation. Should Hanson fail to contribute its share for operation and
maintenance of the Peck Parcel, Hanson shall forfeit an appropriate portion of its share of the
sale proceeds of the such Peck Parcel, as discussed below in this Subsection 4.9(d)(4). Hanson,
at its cost, shall be entitled to audit the statement of costs after providing City with 30 days prior
notice. If such audit discloses an over reporting of the costs to operate and maintain the Interim
Park Use by 5% or more for any period, City shall reimburse Hanson for the cost of said audit
and refund any overpayment. Conversely, if such audit discloses an under reporting of the costs
to operate and maintain the Interim Park Use for any period, Hanson shall reimburse City for any
such underpayment.
Ultimately, in conjunction with the development of the adjacent parcel operated by
Bubalo (Peck Road Gravel Pit) or following development of the Plant Site recreation area,
Hanson shall complete reclamation of the Peck Parcel to street level or an elevation mutually
agreeable to Hanson and the City within the times and subject to the provisions of Section 11.3.
Upon completion, the developable area of the Peck Parcel shall be at least 10.7 acres. The City
will dispose of the Peck Parcel with the parties equally splitting the proceeds, or in the
alternative, at the option of the City, the City will retain all right, title and interest in the Parcel
for recreation purposes in exchange for a reduction in the recreation area provided by Hanson on
the Plant Parcel on a 1:2 basis (Plant/Peck), as described in Section 4.2(a) of this Exhibit B.
5.0 Lake Parcel.
5.1 Excavation.
Mining operations shall be permitted to continue to the Maximum Safe Depth, but not
later than the end of the Term.
54
5.2 Reclamation.
Hanson shall not be required to fill the Lake Parcel. Hanson shall reclaim the parcel by
installing the landscaping, access roads, runoff and drainage improvements and other
infrastructure required under the Reclamation Plan within the times and in accordance with the
requirements provided in the Reclamation Plan. Partial reclamation is further accomplished by
reclaiming the Reclamation Parcel and Plant Parcel and by not excavating the Plant Site. The
approximately 20 acre northern portion of the Lake Parcel (identified as Lake Parcel II on
Exhibit A hereto) shall be used along with the 5 acre southern portion of the Plant Parcel
(identified as "Area IV, City Recreational/Open Space" on Exhibit A) for recreation and open
space purposes and dedicated to the City, as provided in Section 1.5(c) of this Exhibit B.
5.3 Lake Use.
Hanson will operate the Lake Parcel, at its cost until such time as it transfers the Lake
Parcel, with the City's written approval, to the City or appropriate third party approved by City.
Hanson shall permit immediate and continuous nonexclusive public use of a designated portion
of the Lake Parcel during mining operations subject to the following conditions: (i) use shall be
consistent with continued mining with appropriate designation and separation of use areas, (ii)
use shall protect public health and safety, (iii) use shall meet all legal requirements of all public
agencies of appropriate jurisdiction, (iv) the City shall indemnify Hanson for all loss or damage
resulting from public use unless caused by Hanson and (v) Hanson shall provide necessary
access.
55
EXHIBIT "C"
SCHEDULE OF PERFORMANCE
[TO BE DISCUSSED]
ITEM TO BE PERFORMED
TIME FOR PERFORMANCE
AGREEMENT
REFERENCE
1.
City Council conducts first
December 20, 2005
Recitals
reading of Ordinance
approving the CUP,
Reclamation Plan, Financial
Assurances, and SMARA
Transfer Agreement
2.
City Council conducts
January 3, 2006
Recitals
second reading of Ordinance
approving this Agreement
-3.
Hanson executes this
February 1, 2006
CUP Condition #71
Agreement, CUP,
Reclamation Plan and
SMARA Transfer
Agreement
4.
Effective Date of this
February 1, 2006
§ 2.17
Agreement
5.
Hanson prepares Emergency
January 19, 2006
CUP Condition #50
Plan as attachment to
Reclamation Plan
6.
City records Agreement
Within 10 days of execution by
§ 17.16
all parties
7.
Hanson prepares plans for
February 3, 2006
CUP Condition
implementation of erosion
#53(d)
and drainage measures
8.
Hanson prepares and
February 20, 2006
CUP Condition #48
submits to City Site
Management and Security
Plan
# 19765v.9
ITEM TO BE PERFORMED
TIME FOR PERFORMANCE
AGREEMENT
,REFERENCE
9.
Hanson enters into
Within 180 days of City's
§ 1.2
Agreement with City for
presentation of Access
Public Use of Lake
Agreement
10.
Hanson delivers to City
No later than January 2 of each
§ 10.1
annual monitoring fee and
year of term
documentation showing
good faith compliance with
Agreement
11.
City and Hanson review
No later than February 1 of each
§ 10.1
performance of parties
year of term
under this Agreement
12.
Hanson commences
Within 180 days of notice by
§ 11.4(a) & Exhibit
Commercial Fill Operations
City, but no later than 12/31/20
B, 4.3
13.
Hanson deposits amount to
Within 10 days after conclusion
§ 11.4(e)(2)
cover any shortfall in Filling
of each Three Year Cycle
requirements
following Commencement Date
14.
Hanson prepares Water Use
Before sale of Peck, Plant or
§ 16.1
Study assessing water needs
Reclamation Parcel
for developing Parcels
15.
Hanson notifies City of
Before Hanson offers to sell
§ 16.2
intent to sell the Balance of
Balance of Water Rights to any
Water Rights
third party
16.
City notifies Hanson of any
Within 45 days of City's receipt
§ 16.2
intent to purchase Balance
of the notice from Hanson
of Water Rights
described in Paragraph 15 above
17.
Hanson and City meet and
At least 180 days before Hanson
Exhibit B, 1.5(c)
confer regarding contour of
intends to commence mining
Lake Parcel II
along edge of Parcel Lake II
18.
City closes escrow on
Within 60 days of notice
§ 16.2
purchase of Balance of
provided by City to Hanson
Water Rights
under paragraph 16 above
19.
City acquires Peck Parcel
Within 5 years of Effective Date
Exhibit B, 4.2(a)
# 19765v.9
ITEM TO BE PERFORMED
TIME FOR PERFORMANCE
AGREEMENT
REFERENCE
20.
Hanson commences filling
Upon City's acquisition of Peck
§ 1.2 & Exhibit B,
operations at Peck Parcel
Parcel or Hanson securing permit
4.3
to fill same
21.
Hanson deposits
Within 2 years of date described
Exhibit B, 4.4
approximately 1 M tons of
at paragraph 20 above
engineered fill at Peck
Parcel
22.
Hanson deposits 50% of
Upon completion of requirement
Exhibit B, 4.4
estimated cost of operating
under paragraph 20 above, and
Interim Park Use
within 30 days of each
anniversary of such date
23.
City provides Hanson
Quarterly following completion
Exhibit B, 4.4
Statement of Costs of
of requirement under paragraph
operating Interim Park Use
21 above
24.
Hanson increases amount of
Within 30 days of -City's request
Exhibit B, 4.4
deposit for Interim Peck
Use, if initial deposit is
insufficient
25.
Hanson completes filling of
In conjunction with Bubalo
Exhibit B, 4.4
Peck Parcel to street level
development or following
development of Plant Parcel
Recreation area
26.
Hanson completes
In accordance with times in
Per Reclamation
reclamation of Lake Parcel,
Reclamation Plan
Plan
Green Parcel
27.
Hanson completes
Within 15 years after Effective
Exhibit B § 1.4
construction of Roadway
Date, or such earlier time as
and dedicates same to City
requested by City, but not earlier
than 5 years
28.
Hanson ceases Mining
No later than 25 years after
§ 3.1
operations
Effective Date (2/l/3 1) or when
maximum safe depth reached
# 19765v.9
ITEM TO BE PERFORMED
TIME FOR PERFORMANCE
AGREEMENT
REFERENCE
29.
Hanson removes Processing
No later than 2 years before the
§ 3.1
Plant and completes rough
date described at paragraph 28
grading of Parcels
above
30.
Hanson and City develop
Within 1-3 years before the date
§ 5.2
phasing plan for
described at paragraph 29 above
construction of Parcels
31.
Hanson submits amendment
Concurrently with the date
§ 5.2
to Development Plan,
described at paragraph 29 as to
including subdivision maps
all Parcels, and 1 year thereafter
for the Plant Parcel
32.
Hanson commences
Within 3 years after date
§ 5.2
development of Parcels or
described at paragraph 30 above
sells same to a qualified
developer
33.
Hanson completes
No later than 30 years after
§ 2.2
reclamation of Reclamation
Effective Date, or 25 years if
Parcel
City provides Hanson fill
material per § 2.2
34.
Development of Parcels
Within 5 years of date described
§ 5.2
shall be completed
at paragraph 31 or pursuant to
approved phasing plan
It is understood that the foregoing Schedule of Performance is subject to all of the terms and
conditions set forth in the text of the Agreement. The summary of the items of performance in
this Schedule of Performance is not intended to supersede or modify the more complete
description in the text; in the event of any conflict or inconsistency between this Schedule of
Performance and the text of the Agreement, the text shall govern.
The time periods set forth in this Schedule of Performance may be altered or amended only by
written agreement signed by both City and Hanson. A failure by either party to enforce a breach
of any particular time provision shall not be construed as a waiver of any other time provision.
The City Manager shall have the authority to approve extensions of time without City Council
action not to exceed a cumulative total of 180 days.
4 19765v.9
EXHIBIT "D"
DEED OF TRUST
[see following pages]
# 19765v.9
shall inure to and bind the parties hereto, with respect to the property above described. Said agreements, terms and
provisions contained in said subdivisions A and B, (identical in all counties) are preprinted on the following pages
hereof and are by the within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes
as fully as if set forth at length herein, and Beneficiary may charge for a statement regarding the obligation secured
hereby, provided the charge thereof does not exceed the maximum allowed by laws.
The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to him
at his address hereinbefore set forth
STATE OF CALIFORNIA Signature of Trustor
COUNTY OF } S.S.
Hanson Aggregates West, Inc
On , before me,
a Notary Public in
and for said County and State, personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal
Signature
2
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded in each county in California as
stated in the foregoing Deed of Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set
forth at length therein.
A. To protect the security of this Deed of Trust, Trustor agrees:
(1) To keep said property in good condition and repair; not to remove or demolish any building thereon;
to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged
or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefor; to comply
with all laws affecting said property or requiring any alterations or improvements to be made thereon; not to commit or
permit waste thereof; not to commit, suffer or permit any act upon said property in violation of law; to cultivate, irrigate,
fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably
necessary, the specific enumerations herein not excluding the general.
(2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to
Beneficiary. The amount collected under any fire or other insurance policy may be applied by Beneficiary upon any
indebtedness secured hereby and in such order as Beneficiary may determine, or at option of Beneficiary the entire
amount so collected or any part thereof may be released to Trustor. Such application or release shall not cure or waive
any default or notice of default hereunder or invalidate any act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights
or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's
fees in a reasonable sum, in any action or proceeding in which Beneficiary or Trustee may appear, and in any suit
brought by Beneficiary to foreclose this Deed.
(4) To pay: at least ten days before delinquency all taxes and assessments affecting said property,
including assessments on appurtenant water stock; when due, all encumbrances, charges and liens, with interest, on said
property or any part thereof, which appear to be prior or superior hereto; all costs, fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or
Trustee, but without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor
from any obligation hereof, may, make or do the same in such manner and to such extent as either may deem necessary
to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said properly for such purposes;
appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge, or lien which in the judgement
of either appears to be prior or superior hereto; and, in exercising any such powers, pay necessary expenses, employ
counsel and pay his or her reasonable fees.
(5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with
interest from date of expenditure at the amount allowed by law in effect at the date hereof, and to pay for any statement
provided for by law in effect at the date hereof regarding the obligation secured hereby, any amount demanded by the
Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded.
B. It is mutually agreed:
(1) That any award of damages in connection with any condemnation for public use of or injury to said
property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such moneys
received by him or her in the same manner and with the same effect as above provided for regarding disposition of
proceeds of fire or other insurance.
(2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive
his or her right either to require prompt payment when due of all other sums so secured or to declare default for failure
so to pay.
(3) That at any time or from time to time, without liability therefor and without notice, upon written
request of Beneficiary and presentation of this Deed and said note for endorsement, and without affecting the personal
liability of any person for payment of the indebtedness secured hereby, Trustee may: reconvey any part of said property;
consent to the making of any map or plat thereof; join in granting any easement thereon; or join in any extension
agreement or any agreement subordinating the lien or charge hereof.
(4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and
upon surrender of this Deed and said note to Trustee for cancellation and retention or other disposition as Trustee in its
sole discretion may choose and upon payment of its fees, Trustee shall reconvey, without warranty, the property then
held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness
thereof. The Grantee in such reconveyance may be described as "the person or persons legally entitled thereto."
(5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and
authority, during the continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto
Trustor the right, prior to any default by Trustor in payment of any indebtedness secured hereby or in performance of
any agreement hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon any
such default, Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be appointed by
a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take
possession of said property or any part thereof, in his or her own name sue for or otherwise collect such rents, issues,
and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorney's fees, upon any indebetedness secured hereby, and in such order as
Beneficiary may determine. The entering upon and taking possession of said property, the collection of such rents,
issues and profits and the application thereof as aforesaid, shall not cure or waive any default or notice of default
hereunder or invalidate any act done pursuant to such notice.
(6) That upon default by Trustor in payment of any indebtedness secured hereby or in performance of any
agreement hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to
Trustee of written declaration of default and demand for sale and of written notice of default and of election to cause to
be sold said property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee
this Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of
default, and notice of sale having been given as then required by law. Trustee, without demand on Trustor, shall sell
said property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such
order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable
at time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at such time
and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by
the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without
any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof
of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase
at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of
title in connection with sale, Trustee shall apply the proceeds of sale to payment of. all sums expended under the terms
hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof; all other sums
then secured hereby; and the remainder, if any, to the person or persons legally entitled thereto.
(7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to
time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder,
which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the
county or counties where said property is situated, shall be conclusive proof of proper substitution of such successor
Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights,
powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder,
the book and page where this Deed is recorded and the name and address of the new Trustee.
(8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees,
devisees, administrators, executors, successors, and assigns. The term Beneficiary shall mean the owner and holder,
including pledges, of the note secured hereby, whether or not named as Beneficiary herein. In this Deed, whenever the
context so requires, the masculine gender includes the feminine and/or the neuter, and the singular number includes the
plural.
(9) The Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public
record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other Deed of
Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
4
DO NOT RECORD
REQUEST FOR FULL RECONVEYANCE
TO [TITLE COMPANY]
The undersigned is the legal owner and holder of the note or notes, and of all other indebtedness secured by the
foregoing Deed of Trust. Said note or notes, together with all other indebtedness secured by said Deed of Trust, have
been fully paid and satisfied; and you are hereby requested and directed, on payment to you of any sums owing to you
under the terms of said Deed of Trust, to cancel said note or notes above mentioned, and all other evidence of
indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust, and to
reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by you
under the same.
Dated:
Please mail Deed of Trust, Note of Reconveyance to:
William F. Capps, Esq.
Jeffer, Mangels, Butler & Marmaro, LLP
1900 Avenue of the Stars, 7`'' Floor
Los Angeles, CA 90034
Do not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for
cancellation before reconveyance will be made.
E-I!ibit A to Deed of Trust
Hanson Aggregates site, APN # 8532-004-024, is described as follows:
Pa-=] 1:
Iliat portion of Lot 2 of the Im ds of W.A. Church, in 11-mR-m-richo San Francisquito, in the City of
In 1 .-Jes, Statc of Califomia, as per ra-ap made by E.T. Wrigh�
� Vindale, in. the County of Los -Aunge
County Surveyor, filed June 51, 1. 80, in the offimc of the county recorder of said county, dcscribcd
usfollows:
Begyinni-rig at a point in the Southeasterly fine of Lot 22 ofTrach No. 1888, as per map recorded in
book 21 page 183 of NUps, -in the office of the county recorder of said county- distant thereon
North 6713-0' West '760 fcd from the most Southerly corner of Lot 2*2 of said Tract No. 1888;
thence South 222'30* West 520.00 feet; thence 'South 6730' -East 505,00 feet, thence N-ortli 22'301
.E.a.st 520100 feet to a poiain the Southwest line- of -.said.Lot 2.2; thence alongs-a-ld South line North
67030" West 515,00 f -m-, to the point of beginnin&
Parcel 2,
Lots '21 and 22 orrm, ct No. 1888, in the City of Irwindale", in the County of Las Angeles, State of
California, as per map recorded in book 21 page 183 of Maps, in the office of the co-un-ty recorder
of said county.
Parcel 3,.
The Southwesterly 1900.80 feet of Lot "'A7 of 1*ract No, 1888, in the City of Imindate, in the
Couffty of Los Angeles. State of Calif
brats, asper map mcorded in book 21 gage 183 of IN -laps. in
the -Office of the coUnly recarder of staid county.
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EXHIBIT F
ROADWAY DESIGN CRITERIA
HANSON AGGREGATES - FUTURE ROADWAY
DESIGN CRITERIA: SHALL BE IN ACCORDANCE WITH THE LOS ANGELES
COUNTY DEPARTMENT OF PUBLIC WORKS STREET DESIGN STANDARDS
AND INCLUDE BUT NOT LIMIT TO THE FOLLOWINGS:
- TRAFFIC SIGNAL IN ACCORDANCE WITH CALTRANS TRAFFIC
MANUAL AT LIVE OAK AVENUE
- RIGHT-OF-WAY SHALL BE 100 FEET IN WIDTH
- SURFACED ROADBED SHALL BE 84 FEET IN WIDTH
- SIDEWALK AND PARKWAY SHALL BE 8 FEET IN WIDTH ON BOTH
SIDE OF THE STREET
- A MINIMUM TRAFFIC INDEX OF 11 SHALL BE USED FOR THE
PAVEMENT DESIGN
- SIDEWALK, CURB, AND GUTTER TO BE CONSTRUCTED ON BOTH
SIDE OF THE STREET
- A NEW STORM DRAIN SYSTEM DESIGNED IN ACCORDANCE WITH
LOS ANGELES COUNTY STANDARDS
- A NEW SANITARY SEWER SYSTEM DESIGNED IN ACCORDANCE
WITH LOS ANGELES COUNTY STANDARDS
- STRIPING AND SIGNAGE SHALL BE INSTALLED IN ACCORDANCE
WITH CALTRANS TRAFFIC MANUAL
- STREET LIGHTS DESIGNED IN ACCORDANCE WITH LOS ANGELES
COUNTY STANDARDS
THE CONCEPTUAL ALIGNMENT OF THIS ROADWAY IS ATTACHED HERE
AS REFERENCE. THE FINAL ALIGNMENT OF THIS ROADWAY IS SUBJECT
TO CITY ENGINEER'S APPROVAL.
Exhibit "G"
Release of Mining Rights
[see following pages]
# 19765v.9
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Irwindale
5050 N. Irwindale Ave.
Irwindale, CA 91706
Attn: City Clerk
(Space Above This Line for Recorder's Office Use Only)
(Exempt from Recording Fee per Gov. Code § 6103)
RELEASE OF MINING RIGHTS
THE UNDERSIGNED DECLARES THAT FOR VALUABLE CONSIDERATION, receipt of
which is hereby acknowledged, and subject to the terms and conditions set forth in that certain
DEVELOPMENT AGREEMENT entered into on January 3, 2006, by and between HANSON
AGGREGATES WEST, INC. (herein "Grantor") and the CITY OF IRWINDALE, Grantor hereby
WAIVES, RELEASES AND FOREVER RELINQUISHES, all of Grantor's right, title and interest
to further conduct mine operations on or at specified parcels of real properties located in the City of
Irwindale, County of Los Angeles, State of California, as more particularly described as follows:
Those certain portions of the real property described as the "Site" in the
Development Agreement, as more specifically described at Attachment "1"
hereto, that encompass the parcels described as the Reclamation Parcel, Area I,
Area II, Area III, Area IV, Lake Parcel Area B, Southwest Corner Parcel and
Peck Parcel, as such parcels are depicted in the map attached hereto as
Attachment "2".
IN WITNESS WHEREOF, the Grantor has executed this Release of Mining Rights on February
, 2006.
Its:
3785673v1
Hanson Aggregates West, Inc.
Attachment "1" to Release of Mining Rights
Legal Descriptions
[see following pages]
3785673v1
AREA TO BE MINED
The area to be mined is outlined in Figure 5 parcel map. It includes:
8532-004-024
Baggs and Cates parcels
8532-006-004
Dolly Green (30 acres)
LEGAL DESCRIPTION
Parcel 2 of Parcel Map No. 22741 in the City of Arcadia, County of Los Angeles, State of
California, as per map recorded in Book 258 pages 91 through 94 inclusive of parcel maps, and
portions of land owned by W.A. Church in the San Francisquito Rancho, in the City of
Irwindale, said County and Sate, as per map recorded as R.F. 509, and portions of Chicago Park
tract in the cities of Irwindale and Arcadia, said County and State, as per map recorded in Book
30 page 100 of miscellaneous records, and portions -of Tract No. 1888 in the City of Irwindale,
said County and State as per map recorded in Book 21 page 183 of maps, all records in the office
of the County Recorder of said County, described as a whole as follows:
Beginning at the intersection of the centerline of Live Oak Avenue, 100 feet wide, as shown on a
record of survey recorded in Book 81 pages 15 through 23 inclusive of records of survey, with
the approximate position of the easterly line of the Rancho San Francisquito, as recorded in
Book 1 pages 31 and 32 of patents, and the compromise line described in the deed from Eugene
O. Collison to Edison Securities Company, recorded in Book 30897 page 206 of official records,
and the quitclaim deed from Eugene O. Collison. to Livingston -Graham et. al. recorded May 5,
1964 in Book D2460 page 582 of official records, as shown on said Record of Survey (RS 81/15-
23); thence southwesterly along said easterly line South 29 degrees 55 minutes 18 seconds west
1045.01 feet to a point of intersection with the easterly prolongation of the northerly line of the
lands shown on a licensed surveyor's map, recorded in Book 22 page 4 of Records of Survey
(RS 22-4); thence leaving said easterly line westerly along the easterly prolongation of said
northerly line North 67 degrees 53 minutes 45 seconds west 280.30 feet to the westerly right-of-
way of the lands acquired by the state of California for highway purposes as shown on Caltrans
R/W Map No. F1971-1 Sheet 2' of 7, 07 -LA -605-23.3, said point being the true point of
beginning for this description; thence southerly along said westerly right-of-way south
30 degrees 45 minutes 46 seconds west 17.11 feet to an angle point therein; thence southerly
along said right-of-way the following courses and distances: South 16 degrees 22 minutes
08 seconds west 75.55 feet, south 10 degrees 12 minutes 34 seconds west 179.64 feet, south
29 degrees 11 minutes 25 seconds west 357.12 feet, South 19 degrees 31 minutes 58 seconds
west 217.06 feet, South 7 degrees 35 minutes 41 seconds west 334.06 feet; thence continuing
along said westerly right-of-way south 15 degrees 30 minutes 37 seconds west 116.67 feet, more
or less, to said easterly line of the Rancho San Francisquito as established per said Record of
Survey (RS 81/15-23); thence along said easterly line South 29 degrees 55 minutes 18 seconds
west 1945.44 feet to the northeasterly line of the lands described in degree of condemnation
recorded in Book 46209 page 1 of official records; thence southwesterly along said northeasterly
line the following courses and, distances: South 47 degrees 03 minutes 37 seconds west
1292.40 feet and south 52 degrees 46 minutes 15 seconds west 502.49 feet to an angle point
therein; thence continuing southwesterly along said northeasterly line south 47 degrees
03 minutes 37 seconds west 181.93 feet to the southerly line of the Chicago Part Tract, as
recorded in Book 30 page 100 of miscellaneous records; thence westerly along said southerly
line North 67 degrees 47 minutes 43 seconds west 1711.00 feet to a point, said point being the
intersection of said southerly line with the westerly line of Lot 2183 of said Chicago Park Tract,
as said point is established per Record of Survey recorded in Book 175 pages 57 and 58 of
records of survey; thence generally northerly and westerly along the lines established per said
Record of Survey (RS 175/57-58) the following courses and distances: North 22 degrees
07 minutes 02 seconds east 158.41 feet, North 67 degrees 47 minutes 58 seconds west 25.00 feet,
North 22 degrees 07 minutes 02 seconds east 133.40 feet, South 67 degrees 47 minutes 58
seconds east 14.56 feet, North 7 degrees 08 minutes 31 seconds east 51.78 feet, North 67 degrees
47 minutes 58 seconds west 76.18 feet, North 22 degrees 07 minutes 02 seconds.east 133.40 feet,
North 67 degrees 47 minutes 58 seconds west 50.00 feet, North 22 degrees 07 minutes 02
seconds east 133.40 feet, South 67 degrees 47 minutes 58 seconds east 54.79 feet, North 7
degrees 08 minutes 31 seconds east 25.89 feet, South 67 degrees 47 minutes 58 seconds east
51.90 feet, North 22 degrees 07 minutes 02 seconds east 178.00 feet, North 67 degrees 47
minutes 58 seconds west 1225.'20 feet, North 22 degrees 07 minutes 02 seconds east 138.81 feet,
north 67 degrees 47 minutes 58 seconds west 325.07 feet to the northwest corner of Parcel 1 of
said Parcel Map No. 22741; thence southerly along the westerly line of said Parcel 1 South 22
degrees 07 minutes 02 seconds west 18.70 feet to the northerly line of the land described in the
deed of trust recorded July 28, 1999 as Instnunent No. 99-1406660 of official records; thence
southwesterly along said northerly line South 66 degrees 37 minutes 30 seconds west 298.40 feet
to the beginning of a tangent curve, concave northwesterly, and having a radius of 200.00 feet;
thence southwesterly along said curve, through a central angle of 45 degrees 34 minutes 32
seconds, an arc length of 159.09 feet to a point of the northerly sideline of Clark Street, 50 feet
wide, as shown on said Record of Survey (RS 81/15-23); thence tangent to last said curve and
along said northerly sideline North 67 degrees 47 minutes 58 seconds west 747.99 feet to the
easterly sideline of Kardashian Street, formerly Myrtle Avenue, 50 feet wide, as shown on said
Record of Survey (RS 81/15-23); thence northerly along said easterly sideline North 22 degrees
07 minutes 02 seconds east 583.60 feet to the southerly line of State Street, 50 feet wide, as
shown on said Record of Survey (RS 81/15-23); thence westerly along said southerly line North
67 degrees 57 minutes 58 seconds wet 50.00 feet to a point, said point being the intersection of
said southerly sideline with the westerly sideline of said Kardashian Street; thence North
67 degrees 09 minutes 32 seconds east 35.33 feet to the centerline intersection of said Myrtle
Avenue and said State Street; thence northeast along the centerline of said Myrtle Avenue North
22 degrees 07 minutes 02 seconds east 370.09 feet to the southerly line of Parcel 3 of said
Record of Survey (RS 81/15-23); thence westerly, northerly and easterly along the lines of said
Parcel 3, North 67 degrees 23 minutes 38 seconds west 1112.43 feet to the most westerly corner
of said Parcel 3, said corner being the beginning of a non -tangent curve, concave northwesterly,
and having a radius of 1054.50 feet, a radial line of said curve through said point bears south
59 degrees 10 minutes 02 seconds east, and northeasterly along said curve, through a central
angle of 8 degrees 43 minutes 10 seconds, an are length of 160.48 feet, and tangent to last said
curve North 22 degrees 06 minutes 48 seconds east 100.58 feet to the beginning of a tangent
curve, concave southeasterly, and having a radius of 175.00 feet, and northerly and easterly
along said curve, through a central angle of 90 degrees 00 minutes 00 seconds, an arc length of
274.89 feet, and tangent to last said curve South 67 degrees 53 minutes 12 seconds east
213.49 feet, North 22 degrees 06 minutes 48 seconds east 110.00 feet, South 67 degrees
53 minutes 12 seconds east 1666.50 feet, North 22 degrees 06 minutes 48 seconds east
1400.00 feet; thence continuing southeasterly along the northerly line of said Parcel 3, South
67 degrees 53 minutes 12 seconds east 988.00 feet to the southwest coiner of Parcel 2 of said
Record of Survey (RS 81/15-23); thence northeasterly along the northwesterly line of said Parcel
2, North 22 degrees 06 minutes 48 seconds east 1375.06 feet to the northwesterly corner thereof,
said corner being on the southerly line of lands shown on said licensed surveyor's map (RS 22-
4); thence southwesterly along said southerly line south 67 degrees 53 minutes 45 seconds east
3530.83 feet to the true point of beginning for this description.
Also Lots 15, 16, 17, 18, 19, 20, and that portion of Lot A of said Tract No. 1888 lying between
the westerly lines of said Lots 15 and 16, and their southerly and northerly prolongations,
respectively, and the easterly lines of said Lots 19 and 20, and their southerly and northerly
prolongations, respectively.
Except that portion of said land described in the deed to the State of California recorded August
13, 1965 as Instrument No. 1084 in Book D3014 page 667 of official records of said County, and
subsequently deeded as Parcel 3 of Director's Deed to Southern California Edison, recorded
February 15, 2000 as Instrument No. 00-0230028, official records of said County.
Legal Description of Dolly Green Parcel
Lots 15, 16, 17, 18, 19, 20, and that portion of Lot "A" of Tract 1888 in the City of Irwindale,
County of Los Angeles, State of California, as per map recorded in Book 21 page 183 of maps,
in the office of the recorder of said County, lying between the westerly lines of said Lots 15 and
16 and their southerly and northerly prolongations respectively, and the easterly lines of said
Lots 19 and 20 and their southerly and northerly prolongations respectively.
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Attachment "2" to Release of Mining Rights
Depiction of Parcels
[see following page]
3785673v2
Exhibit "H"
Graham Road Easement
[see following pages]
# 19765v.9
_I