HomeMy WebLinkAbout626ORDINANCE NO. 626
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF IRWINDALE,
COUNTY OF LOS ANGELES, CALIFORNIA, APPROVING DEVELOPMENT
AGREEMENT NO. 1-06 AND CERTIFYING THE FINAL ENVIRONMENTAL IMPACT
REPORT TO ALLOW VULCAN MATERIALS COMPANY, INC. TO CONTINUE
MINING AND TO RECLAIM THE DURBIN QUARRY SITE FOR COMMERCIAL/
RECREATIONAL, AND/ OR COMMERCIAL USES UPON COMPLETION OF MINING
AT 13000 EAST LOS ANGELES STREET
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 No. 1-06, which hereinafter is referred to as
"the Development Agreement."
- (iii) Vulcan Materials Company, Inc., hereinafter in this Ordinance referred to
as "VMC", owns real property located at 13000 East Los Angeles Street, legally
described within the Development Agreement, and situated on property in the City of
Irwindale, County of Los Angeles, California, commonly known as the Durbin Quarry, as
described within the Development Agreement (the "Site"). VMC wishes to extend its
existing mining entitlement to 440 feet below ground surface (bgs) or to December 31,
2035, whichever event occurs first. At the conclusion of mining, VMC intends to reclaim
the quarry site for commercial/ recreational, and/ or commercial uses (the "Project").
(iv) The Site is located within the City's M-2 Zone (Heavy Manufacturing) and
A-1 zone (Agricultural) and is designated by the Land Use Element of the General Plan
as Industrial. To accommodate the proposed future commercial recreational and/ or
commercial uses, the City will process appropriate General Plan and Zone Change
amendments within the times set forth in the Development Agreement.
(v) On February 7, 2008, the Planning Commission opened a duly noticed
public hearing, as required by law on the Application, took testimony, and continued the
public hearing to the March 6, 2008 Planning Commission meeting.
(vi) On March 6, 2008, the Planning Commission resumed the public hearing,
took testimony, and continued the public hearing to the April 3, 2008 Planning
Commission meeting.
Ordinance No. 626
Page 1
10
(vii) On April 3, 2008, the Planning Commission resumed the public hearing,
took testimony, and continued the public hearing to the May 1, 2008 Planning
Commission meeting.
(viii) On May 1, 2008 the Planning Commission of the City of Irwindale
conducted a duly noticed public hearing on the Application, Reclamation Plan, Financial
Assurances, and Final Environmental Impact Report (FEIR) and concluded said public
hearing.
(ix) City finds and determines that all actions required of City precedent to
approval of this Agreement by Ordinance No. 626 of the City Council have been duly
and regularly taken.
(x) All legal prerequisites to the adoption of this Ordinance have occurred.
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 no significant impacts after implementation of the recommended Mitigation
Measures. The DEIR, State Clearinghouse Number 2006051107, was circulated for
review and comment from December 6, 2007 to January 21, 2008. The City received
comments on the DEIR from one (1) reviewing agency (the State of California Native
American Heritage Commission). 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.
(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 May 1, 2008, 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. 528(08) recommending that the
City Council certify the FEIR; 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. 626
Page 2
(iv) The proposed project will improve road infrastructure surrounding
the project site, including Los Angeles Street and Ramona Boulevard;
(v) 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.
(vi) 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.
(vii) It is expressly found that the public necessity, general welfare and
good zoning practice require the approval of the Development Agreement.
(viii) This City Council hereby certifies the Final Environmental Impact
(ix) This City Council hereby conditionally approves the Development
Agreement attached hereto as Exhibit "A," subject to its receipt and consideration of
comments on same from the Department of Conservation on the Reclamation Plan.
(x) 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.
(xi) Upon the City Council's final approval of the Ordinance, following
the consideration of any comments from the Department of Conservation, 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.
(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. 626
Page 3
PASSED, APPROVED, and ADOPTED this 24th day of September 2008.
Larry G. Burrola, Mayor
ATTEST:
J. Kijr, M 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. 626 was duly introduced at a regular meeting of the
Irwindale City Council held on the 11 th day of June 2008, and was duly approved and
adopted on second reading at its regular meeting held on the 24th day of September
2008, by the following vote of the Council:
AYES: Councilmembers: Breceda, Ortiz, Mayor Burrola
NOES: Councilmembers: None
ABSENT: Councilmembers: Fuentes, Garcia
ABSTAIN: Councilmembers: None
a J. Ki br , MMC
Deputy City Clerk
AFFIDAVIT OF POSTING
I, Linda J. Kimbro, Deputy City Clerk, certify that I caused a copy of Ordinance No. 626 adopted by the City Council of the
City of Irwindale at its regular meeting held June 11th , 2008, to be posted at the City Hall, Library, and Post Office on September
25, 008.
Lid . Kimbro, M Dated: September 25, 2008
De ty City Clerk
Ordinance No. 626
Page 4
EXHIBIT "A"
DEVELOPMENT AGREEMENT NO. 1-06
Ordinance No. 626
Page 5
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. 646 was duly introduced and adopted at a regular
meeting of the Irwindale City Council held on the 22nd day of September 2010, by the
following vote of the Council:
AYES: Councilmembers: Breceda, Burrola, Garcia, Fuentes, Mayor Ortiz
NOES: Councilmembers: None
ABSENT: Councilmembers: None
ABSTAIN: Councilmembers: None
r
U
'T J. Kimbr M
Dy City Clerk
AFFIDAVIT OF POSTING
e ut
I, Linda J. Kimbro, Deputy City Clerk, certify that I caused a copy of Ordinance No 646 adopted by the City Council of the
City of Irwindale at its regular meeting held September 22, 2010, to be posted at the City Hall, Library, and Post Office on
Se tember 23, 2010. 1
V
in J. Kimbro, Dated: September 23, 2010
D ty City Clerk
W
Ordinance No. 646
Page 4
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TITLE(S): AGREEMENTLEADSHEET
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THIS FORM IS NOT TO BE DUPLICATED
12731
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DATE y G
SIGNED-----.
RECORDING REQUESTED BY
AND WHEN RECORDED, MAIL TO:
IRW INDAIX
Irwindale Public Works/Engineering
5050 N. Irwindale Ave.
Irwindale, CA 91706
502 -\/lei
12/02/2008
IA01
.20 821182
(Space above this line for recorder's use only)
DEVELOPMENT AGREEMENT FOR DURBIN QUARRY
between
THE CITY OF IRWINDALE
and
CALMAT CO., dba VULCAN MATERIALS COMPANY, WESTERN DIVISION
5,172.14
502-V u
DEVELOPMENT AGREEMENT FOR DURBIN QUARRY
THIS DEVELOPMENT AGREEMENT FOR DURBIN QUARRY ("Development
Agreement" or "Agreement") is entered into on September 24, 2008, by and between the CITY
OF IRWINDALE, a municipal corporation (the "City"), and CALMAT CO., a Delaware
corporation, dba VULCAN MATERIALS COMPANY, WESTERN DIVISION ("Vulcan").
The City and Vulcan may be referred to collectively as the "Parties" and individually as a
"Party."
RECITALS:
A. Vulcan Properties. Vulcan owns and operates two active mining quarries,
Reliance I (formerly known as "Azusa Largo") and Durbin Quarries and one landfill site,
Reliance II Landfill in the City of Irwindale, California, of which the Durbin Quarry is the only
parcel that is the subject of this Agreement. Vulcan also formerly owned another landfill site
known as the Triangle Parcel, which was previously donated by Vulcan to the City.
Concurrently herewith, the City and Vulcan are entering into a separate Development Agreement
addressing the Reliance I Quarry and Reliance II Landfill. The "Site" for the purpose of this
Agreement consists solely of the Durbin Quarry of approximately 334.6 acres, as shown in the
"Site Map" attached hereto as Exhibit A and incorporated herein by this reference.
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. Purpose of Agreement. Vulcan wishes to obtain an entitlement to continue its
mining operations at the Durbin Quarry to the Maximum Safe Depth (t 440 feet below ground
surface), which is estimated to take until the year 2035. The City is prepared to grant such
additional entitlement, provided that Vulcan agrees (1) to reclaim the Durbin Quarry in the
manner set forth herein and in the approved Reclamation Plan; (2) to post adequate financial
assurances in compliance with SMARA by posting bonds in the amount set forth herein and
participating in the alternative financial assurances mechanism established by the Irwindale
Reclamation Authority; (3) to develop uses on the Site in accordance with the City's proposed
General Plan Update and zoning; (4) to fund the cost for all mitigation measures as identified in
the EIR, and (5) to waive claims and challenges to various taxes and regulatory ordinances
previously adopted by the City.
D. Public Hearings; Findings. On May 1, 2008 the City's Planning Commission,
after a duly noticed public hearing, adopted Resolution No. 528(08) recommending City Council
certification of the EIR, City Council approval of the Conditional Use Permit, the Reclamation
/^ Plan, Financial Assurances and this Agreement. On May 27, 2008, the City Council, after
making appropriate findings at a duly noticed public hearing, adopted Resolution No. 2008-28-
Ftr)lum,"
oY icJ�
2300 certifying the EIR and conditionally approving the Conditional Use Permit, Reclamation
Plan, Financial Assurances, SMARA Transfer Agreement, and this Agreement, subject to
comment from the California Department of Conservation, and on September 24, 2008, after
considering all comments from the Department of Conservation, adopted Ordinance No. 622
approving this Agreement. These actions included the approval of Conditional Use Permit and
this Agreement for the continued mining of the Site and amended Reclamation Plan and
Financial Assurances for the Site, along with appropriate environmental, grading and/or
backfilling permits and documents for the mining and reclamation 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.
Vulcan owns and operates three non-contiguous mining quarries totaling approximately
547.8 acres in the City and described as follows: (a) the 334.6 acre Durbin Quarry, where
mining commenced in approximately 1900 and active mining and concurrent reclamation
operations continue, located at 13000 East Los Angeles Street, lying adjacent and contiguous to
the 605 Freeway and Los Angeles Street; (b) the 124.2 acre Reliance I Quarry, where mining
commenced in approximately 1900 and active mining and concurrent reclamation operations ^�
continue, located at 16001 Foothill Boulevard, at the northernmost portion of Irwindale Avenue, #
and (c) the approximately 89 acre Reliance II Landfill where mining commenced in 1972 and
ceased in 1986/87 and reclamation continues, located at 15990 Foothill Boulevard. This
Agreement encompasses the Durbin Quarry only. Where the term "Site" is used in this
Agreement, it shall be construed to apply to the Durbin Quarry only. The Parties intend that the
Site be ultimately developed for future retail -commercial and open space -recreational uses in
accordance with the terms of this Agreement, both of which are envisioned to occur after the
completion of the mining and reclamation of the Project described herein. The parties further
intend that Vulcan's transfer of any portions of the Site for development shall include a Water
Supply Assessment, and an assurance that sufficient water supply will be available, which may
include a reservation or transfer of water, so that the Site may be fully developable, as
contemplated by this Agreement. 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
developments are 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 Summ�of Development PIDevelopment Plan.
Vulcan.proposes development of the Site as generally described in Section 1. 1, this
Section 1.2 and as further set forth in Exhibit `B" hereto, which proposed developments shall be
further refined and shall be the subject of development applications submitted by Vulcan 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 Exhibit C. The Site is currently being mined and reclaimed
concurrently, with mining operations occurring counterclockwise in phases (as such phases are
described in Section 5 of Exhibit B), beginning in the southeast portion of the parcel and
proceeding northeast to northwest to southwest, as depicted at Exhibit B-1 attached hereto.
Vulcan currently operates the Processing Plant at the central portion of the Site. Vulcan will
continue concurrent mining and reclamation following the approval of this Agreement and in the
manner set forth in Exhibit B attached hereto. Within the time set forth in the Schedule of
Performance, Vulcan shall create a Site Development Fill pad for a new Processing Plant in the
southeast quadrant at an elevation of between 280 mean sea level ("msl") to natural ground
surface. Vulcan shall relocate the Processing Plant with the commencement of Phase 2 (as
described in Section 5 of Exhibit B) mining operations, in approximately 2016, but with market
condition variability as to specific date. Mining operations may continue until Maximum Safe
Depth is reached, which is nominally 440 feet below ground surface ("bgs") to a level pit floor at
Elevation -120 below msl. Throughout the mining operation, Vulcan shall continue reclamation
and Site Development Fill activities in accordance with the Schedule of Performance. The new
Processing Plant shall be removed before the end of the Term, as defined in Section 3.1 below.
All mining shall terminate by 2035. Within 18 to 24 months thereafter, the Processing Plant will
be removed and, Vulcan shall continue backfilling with Site Development Fill to create an
approximate (minimum) 110 acre Development Parcel adjacent to the City of Baldwin Park
pursuant to the Guidelines. When the 110 acre parcel is geotechnically capable of supporting
retail -commercial uses, Vulcan shall develop the 110 acres for said uses. The remaining
approximately (maximum) 224.6 acre portion of the Site between the 605 Freeway and the Los
Angeles Department of Water and Power ("DWP") Easement ("View Parcel") shall be an open
space - recreational development to provide an aesthetic feature to the retail -commercial
development on the adjacent 110 acres. Vulcan shall install all infrastructure and security
measures as may be necessary and provided in the Reclamation Plan to protect any exposed
groundwater therein. Vulcan retains the right to further reclaim the View Parcel with Site
Development Fill pursuant to the terms of this Agreement.
1.3 Interest and Representation of Vulcan.
"Vulcan" is Ca1Mat Co., a Delaware corporation, dba Vulcan Materials Company,
Western Division, and its permitted successors and assigns, with its principal offices at 3200 San
Fernando Road, Los Angeles, CA 90065. Vulcan warrants and represents to City that:
(a) Vulcan is a Delaware corporation duly organized and existing under the
laws of the State of Delaware;
(b) By proper action of Vulcan, Vulcan's signatories have been duly
authorized to execute and deliver this Agreement, acting by and through its duly
authorized officers;
(c) Vulcan 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 r.�
Agreement; i
(d) The entering into this Agreement by Vulcan does not violate any provision
of any other agreement to which Vulcan is a party;
(e) Except as may be specifically set forth in this Agreement, no approvals or
consents not heretofore obtained by Vulcan are necessary in connection with the
execution of this Agreement by Vulcan or with the performance by Vulcan of its
obligations hereunder;
(f) Neither Vulcan, nor the principals of Vulcan, 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 Vulcan 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;
(h) Vulcan 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; and
(i) Vulcan 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 Vulcan's right to maintain and operate
the Site or any development thereon approved under this Agreement.
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 Los Angeles Street, more particularly
depicted in the Site Map ("Public Parcel") and incorporated herein at Exhibit A. The Public
Parcel shall be the benefited parcel for the obligations on Vulcan herein, and the Site shall be the
burdened parcel.
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 related to the Durbin Quarry shall be
superseded by this Agreement and shall be of no further force and effect, unless such approvals 1 ")
El
I
and agreements are described and listed herein as the Continuing Mining Agreements. The
Superseded Mining Agreements include the following:
(a) Mining Depth. Vulcan is currently entitled to excavate the Site to a depth
of 120 feet above msl or nominally 200 feet bgs pursuant to Resolution 90-17-1190
approved on June 28, 1990.
(b) Existing Reclamation Plan. A Reclamation Plan was previously approved
by City for the Durbin Quarry by way of the 1988 Durbin Mining and Reclamation Plan,
as amended per the 1990 Amendment to Plan for Reclamation: Durbin, which
amendment was adopted on June 28, 1990 by Resolution No. 90-17-1190 ("Existing
Reclamation Plan"). The Existing Reclamation Plan authorizes reclamation of lands that
are mined to a depth of 200 feet bgs. The Existing Reclamation Plan is superseded by
Reclamation Plan approved concurrently herewith.
(c) Memorandum of Understanding. Vulcan and the City entered into that
certain Memorandum of Understanding, dated September 6a', 2005. This Agreement
supersedes such Memorandum of Understanding with respect to the Site, including any
amendment thereto.
(d) Owner Participation Agreement. The Durbin Quarry is subject to an
Owner Participation Agreement dated October 19, 1977 with subsequent amendments
issued by the City for such Site adopted and approved June 28, 1990 (collectively,
�. "OPA"). This Agreement shall supersede such OPA with respect to the Site.
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 AgencX.
"Agency" means the Community Redevelopment Agency of the City of Irwindale.
2.2 Anticipated High Water Level.
"Anticipated High Water Level" means the anticipated high groundwater level of
approximately 274 feet above mean sea level for the Durbin Quarry, measured in wells located in
Irwindale and vicinity. The California State Regional Water Quality Control Board has analyzed
anticipated groundwater levels along with other data pertaining to and affecting local
groundwater data, and has adopted the concept of "anticipated groundwater levels" as opposed to
using "historic high groundwater levels" for the purpose of planning and regulating projects that
may affect, or be affected by, groundwater.
2.3 Annlications.
L
"Application(s)" shall mean a complete application for the applicable land use approvals
(such as a subdivision map, conditional use permit, etc., but not including building, electrical,
mechanical, grading or similar permits) 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.
2.4 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.
2.5 Authorizing Ordinance.
"Authorizing Ordinance" means Ordinance No. 622 approving this Agreement.
2.6 City.
"City" means the City of Irwindale, California, a municipal corporation.
2.7 City Council.
"City Council" means the governing body of the City of Irwindale.
2.8 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. Vulcan
has agreed to participate in this process. Accordingly, without the written approval of the City
Manager, Vulcan shall not conduct a Commercial Filling Operation on the Site. A "Commercial
Filling Operation" shall be defined as a filling operation that is prioritized by the City ahead of
Pit No. 1 formerly owned by United, Hanson's 40 acre portion along the 605 freeway, and
United's Pit No. 2. Vulcan understands and acknowledges the contractual obligations of City to
United and Hanson and, as such, also agrees that without the written approval of the City
Manager, it will not post signs on or around the Site advertising the availability of the Site and
directing customers to the Site and derive revenue by published public rates and charges for
those persons bringing fill to the Site. This shall not prevent Vulcan from commencing or
carrying out reclamation through noncommercial filling operations by utilizing fill from its own
internal operations on the Site or from Vulcan's other operations, or from entering into fill
contracts to acquire fill, not otherwise reasonably available to the other mining operators, but not
by general solicitation, advertising or other similar means, if such activities would jeopardize the
City's contractual obligations to United and Hanson.
2.9 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
r�l minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding,
erosion, and other adverse effects from surface mining operations, including adverse surface
effects incidental to underground mines, so that the mined lands are reclaimed to a usable
condition which is readily adaptable for the ultimate development of the Site, as specified in this
Agreement and the Guidelines, 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 and the
Guidelines, stabilization and other measures to make such mined lands readily adaptable to the
ultimate end use of the Site, as specified in this Agreement. It is specifically agreed that this
definition is satisfied only by, among other activities, the use of Engineered Fill in the creation of
the 110 acre Development Parcel in accordance with the Guidelines. Other reclamation activities
include, but are not limited to, the removal of all mining related facilities, final grading and
revegetation of mine slopes, etc.
2.10 Concurrent Mining Approvals.
"Concurrent Mining Approvals" means the approval granted by City concurrent with the
approval of this Development Agreement to mine and reclaim 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.
2.11 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. 2008-28-2300 for
mining and reclamation of the Durbin Quarry.
2.12 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.
2.13 Default.
"Default" refers to any material default, breach, or violation of a provision of this
Agreement as defined in Section 13.0. "City Default' refers to a Default by the City, while
"Vulcan Default" refers to a Default by Vulcan.
2.14 Design Guidelines.
"Design Guidelines" shall mean those general and specific development standards
applicable to the post -reclamation retail -commercial development of the Site relating to lot size,
building square footages, lot coverage, parking, building height, setbacks, landscaping, access,
etc., as they currently exist and as they may be subsequently updated and revised in the sole
discretion of the City.
2.15 Development.
7
"Development" shall have the meaning set forth under the definition of "Project' herein.
2.16 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.
2.17 Development Approvals.
"Development Approvals" means all site-specific (meaning specifically applicable to the
Site only and not generally applicable to some or all other properties within the City) plans,
maps, permits, and entitlements to use of every kind and nature. Development Approvals
include, but are not limited to, permits to mine to specified depths, Reclamation Plan, specific
plans, site plans, tentative and final subdivision maps, variances, zoning designations,
conditional use permits, grading, building, and other similar permits, environmental assessments,
including environmental impact reports and negative declarations, and any amendments,
supplements or modifications to those plans, maps, permits, assessments and entitlements. The
term Development Approvals does not include (i) rules, regulations, policies, and 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.
2.18 Development Parcel.
"Development Parcel" means the minimum 110 -acre portion of the Site adjacent to the
City of Baldwin Park and east of the DWP Easement, which is intended to be developed for
retail -commercial uses, when geotechnically stable, in accordance with the Guidelines and Scope
of Development.
2.19 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.
2.20 Durbin Quarry.
"Durbin Quarry" shall mean that certain real property located at 13000 East Los Angeles
Street, Irwindale, California 91706 lying adjacent and contiguous to the 605 Freeway and Los
Angeles Street in the City of Irwindale, consisting of approximately 334.6 acres, shown on the
Site Map, attached hereto as Exhibit A, and more specifically described in the Legal Description
attached hereto as Exhibit A-1.
2.21 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.
2.22 EIR or "environmental documents".
"EIR" or "environmental documents" means the final Environmental Impact Report or
other environmental documents certified by City Council Resolution No. 2008-28-2300 in
accordance with the requirements of CEQA and processed in accordance with Section 4.6.
2.23 Engineered Fill.
"Engineered Fill" means the use of Site Development Fill for the reclamation of quarry
pits to the following standard:
(a) All fill placed into the natural groundwater (Underwater Fill) at any level
that may exist at the time of fill placement shall comply with all provisions of the
Guidelines for Underwater Fill, as defined in Section 2.30.
(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
Guidelines for Above Water Fill, as defined in "Guidelines" herein.
2.24 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.
2.25 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.
2.26 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 13.2 and 13.3.
2.27 Future Development Approvals.
"Future Development Approvals" means those Development Approvals applicable to the
Site approved by the City after the Effective Date.
2.28 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.
2.29 Future Mining Land Use Regulations.
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"Future Mining Land Use Regulations" means those Mining Land Use Regulations
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approved by the City after the Effective Date.
2.30 Guidelines.
(a) "Guidelines" shall be the collective term used to refer to the following
standards applicable in the City for reclamation and maintenance of mining quarries,
developed by the Irwindale Technical Committees, as approved December 20, 2005 by
Resolution No. 2005-89-2106 of the City Council, and specifically includes any and all
duly approved revisions, updates, amendments and modifications of such Guidelines:
(b) "Guidelines for Above Water Fill" shall mean the November 23, 2005
Guidelines for Above Water Backfilling of Open -Pit Mines, Irwindale, California.
(c) "Guidelines for Erosion Control" shall mean the July 6, 2004 Guidelines
For Drainage And Erosion Control for Open -Pit Mines, Irwindale, California.
(d) "Guidelines for Underwater Fill" shall mean the May 20, 2005 Guidelines
for Underwater Backfilling of Open -Pit Mines, Irwindale, California.
(e) "Guidelines for Slope Stability" shall mean the December 24, 2003
Guidelines for Slope Stability Analysis of Open Pit Mine Slopes, Irwindale, California.
2.31 Inert Materials.
"Inert Materials" shall have the meaning as provided in the Guidelines.
2.32 Land Use Regulations.
"Land Use Regulations" means those ordinances, laws, statutes, rules, regulations,
initiatives, policies, requirements, guidelines, constraints, codes or other actions of the City, as
may be amended from time -to -time, which affect, govern, or apply to the Site or the
implementation of the Development Plan as pertaining to "land use". 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 or
building and improvements standards, mitigation measures required in order to lessen or
compensate for the adverse impacts of land use 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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2.33 Maximum Safe Depth.
"Maximum Safe Depth" shall have the meaning set forth at Exhibit B, Section 4 herein
which shall provide for the maximum safe yield of aggregate reserves in accordance with the
Guidelines.
2.34 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.
2.35 Mining Land Use Regulations.
"Mining Land Use Regulations" means those Project related 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 the Site.
2.36 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.
2.37 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.
2.38 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.
2.39 Project Improvements.
"Project Improvements" means those improvements required by Section 4.10 of this
Agreement to be constructed or installed by Vulcan in conjunction with the post -reclamation
development of the Site. The parties acknowledge that such Project Improvements do not
constitute a comprehensive list of improvements that may be required and that the City reserves
the right to require additional improvements at the time it considers the post -reclamation
development of the Site.
2.40 ProcessingPlant.
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"Processing Plant" means the plant operating at the Site as of the Effective Date, used for
processing and crushing of materials mined from the Site, production of ready mixed concrete
('RMC") asphalt products, crushed miscellaneous base ("CMB") and other related ancillary
activities, which facilities include every accessory structure and activity pertaining thereto,
including storage, transportation, conveyor, dredge, maintenance servicing, mechanical and
administration -related facilities; provided such authorized activities to be conducted in relation to
the use of the Processing Plant are those that are necessary for the sale of mined materials from
the Site or placement of Site Development Fill at the Site. The Processing Plant shall not be
authorized for use as a stand-alone recycling plant, although incidental recycling necessary to
process materials not suitable for Site Development Fill is authorized.
2.41 Project.
"Project" means the excavation, reclamation, and placement of Site Development Fill for
rough -grade pads at the Site for retail -commercial and open space -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 Conditional Use
Permit or Reclamation Plan, whether located within or outside the Site, but not the construction
of structures and buildings, infrastructure, public facilities or installation of landscaping for the
ultimate end use. Development construction shall be subject to Future Development Approvals
to be secured by Vulcan from the City after the Effective Date.
2.42 Reclamation Plan.
"Reclamation Plan" shall mean the September 10, 2008 Reclamation Plan prepared by
RGP Planning & Development Services for the Durbin Quarry and approved concurrently
herewith by the City as part of this Development Agreement.
2.43 Reliance I Ouarry.
"Reliance I Quarry" means that certain real property located at 16001 Foothill Avenue,
Irwindale, California 91706 lying north of the intersection of Foothill Boulevard and Irwindale
Avenue and which is comprised of a 122.1 acre (active mining and reclamation) parcel and a 2.1
acre parcel that is adjacent to and at the grade level with Foothill Boulevard.
2.44 Reliance II Landfill
`Reliance II Landfill' means that certain real property located at 15990 Foothill Avenue.
Irwindale, California 91706 lying adjacent and contiguous to the 210 Freeway to the south, the
LAMTA railroad and Irwindale Avenue to the east and Foothill Boulevard to the north,
consisting of approximately 89 acres (a portion of which underlays Foothill Boulevard), which is
intended to be developed for retail uses consistent with the then existing commercial, regional
zone, in accordance with the Guidelines and Scope of Development.
2.45 Reservations of Authority.
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"Reservations of Authority" shall have the meaning set forth in Section 9.0 of this
Agreement.
2.46 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.
2.47 Scope of Development.
"Scope of Development" means the development of the Site as described at Exhibit B
2.48 Site.
"Site" means the Durbin Quarry shown on the Site Map, attached hereto as Exhibit A,
and more specifically described in the Legal Description attached hereto as Exhibit A-1.
2.49 Site Development Fill.
"Site Development Fill" shall mean silt fill and Inert Materials used for the filling of the
Site, subject to the requirements of Section 7.1 below.
?01�' 2.50 SMARA Conveyance Agreement.
"SMARA Conveyance Agreement" shall mean that certain agreement entitled the
"SMARA Operation Rights Transfer and Conveyance Agreement," which addresses Vulcan's
financial assurance obligations for the Project, as approved by the parties concurrently with this
Agreement.
2.51 Superseded Mining Agreements.
"Superseded Mining Agreements" shall have the meaning set forth in Section 1.5 of this
Agreement.
2.52 Term.
"Term" means that period of time during which this Agreement shall be in effect and
bind the Parties, as defined in Section 3.1.
2.53 Triangle Parcel.
"Triangle Parcel" shall mean that certain real property bearing APN 8532-001-004.
formerly owned by Vulcan and previously donated by Vulcan to the City.
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2.54 Uniform Codes.
"Uniform Codes" means the California codes that are based on recommendations of a
multi -state professional organization, as adopted by City, such as, but not limited to, the
California Building, Electrical, Plumbing, Mechanical, Fire, or Abatement of Dangerous
Building Codes and includes the City's Grading ordinance "Appendix J Grading."
2.55 View Parcel.
"View Parcel" shall have the meaning set forth at Section 1.2 herein.
2.56 Water Supply Assessment.
"Water Supply Assessment" shall mean an analysis conducted by the water utility
purveyor in compliance with the California Water Code. The cost of said analysis shall be borne
by Vulcan. The Water Supply Assessment shall at a minimum: (1) Provide information on the
City of Irwindale's water supplies consistent with Water Code Sections 10620 et. seq. (the Urban
Water Management Act) and 10910 et. seq. (Water Supply Planning to Support Existing and
Planned Future Uses); (2) provide information on current water demands and projected water
demands based on the City of Irwindale's General Plan and specific project proposals; (3)
compare water supplies and water demands for the normal, single -dry and multiple -dry years; (4)
provide the data to make the sufficiency findings required by the California Environmental
Quality Act (CEQA); and (5) identify water supply and infrastructure mitigation measures
required by the proposed project and analyze the cumulative impacts of said mitigation
measures.
3.0 TERM.
3.1 Term.
The term of this Agreement (the "Term") shall commence on the Effective Date and shall
continue until December 31, 2037, when final reclamation (December 31, 2035), and removal of
the Processing Plant (18 — 24 months thereafter, or by December 31, 2037) shall be
accomplished for the Site. However, mining operations authorized by this Agreement and
Conditional Use Permit and reclamation authorized by this Agreement and the Reclamation Plan
shall be conducted during the times set forth in the Schedule of Performance. In the event
Vulcan 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 Vulcan secures Future Development Approvals
for development of the retail -commercial and open space — recreational improvements consistent
with the ultimate end uses identified for the Site.
3.2 Force Majeure.
Vulcan agrees that the time within which it shall be required to perform any act under this
Agreement shall not be extended, provided that (i) the delay is not caused by any excess delay
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(including, without limitation, restrictions on priority, initiative or referendum, or moratoria) by
the City, in which case, Vulcan shall provide written notice to the City specifically describing the
nature and extent of the delay and Vulcan's detailed efforts to avoid such delay, which references
this Section and deliver such notice either within 30 days of discovering such delay or along with
the annual mining reports provided to the City, and Vulcan's obligations shall be extended for
such time as the City deems reasonable as a result of the delay if and only if Vulcan provides
such written notice to the City within such time; and (ii) the time within which Vulcan shall be
required to perform any act under this Development Agreement shall be extended by a period of
time equal to the number of days during which performance of such act is delayed due to 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 beyond the control of Vulcan or without the fault of Vulcan. An extension of time for
any such cause shall be for the period of the enforced delay and shall commence to run from the
time of the commencement of the cause, if written notice by Vulcan claiming such extension is
sent to the City within thirty (30) days of knowledge of the commencement of the cause;
provided, however, that any extension of time shall be for a maximum of one hundred eighty
(180) days; except for delays caused by a proportional shortfall in the actual accumulated import
fill in comparison to the minimum of 500,000 cubic yards per year. Any extension granted
herein shall not amend the Term as to reclamation if Vulcan is able to make up the fill shortfall
in future years of the Term. An extension of time due to the shortfall of fill shall only apply to
the reclamation phase of any portion of the Site, and not to the mining phase of any portion of
the Site. To the extent the creation of the Development Parcel is so delayed, its total area of 110
acres may be reduced and/or reconfigured to comply with the Reclamation completion date of
December 31, 2037, or such date shall be extended as necessary to complete the intended Parcel.
4.0 DEVELOPMENT OF THE SITE.
4.1 Right to Develop.
During the Term, Vulcan 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, as may be amended, the Development Plan as related to the
Project shall exclusively control the mining, reclamation and development of the Site.
4.2 Later Enacted Measures.
Vulcan 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 below.
4.3 Superseded Mining Agreements.
Over a number of years Vulcan and City have had disagreements regarding the extent to
which the Site should be excavated, the application of mining taxes, regulatory standards
P, affecting mining, the timing and plans for reclamation, and the ultimate land uses to be
developed. City and Vulcan wish to resolve these disputes with respect to the Site through this
15
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 Vulcan 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, with respect to the Site only, all of
the Superseded Mining Agreements. With respect to the Site, the Superseded Mining
Agreements are hereby expressly repealed and superseded by the provisions hereof. The
Superseded Mining Agreements related to the Site are therefore not applicable to the Project and
are excluded from the definitions of Land Use Regulations or Development Approvals, with
respect to the Site. Vulcan voluntarily foregoes these rights in consideration of the rights granted
hereunder and waives any claims against City whatsoever therefor.
4.4 Priorityogulations and Approvals.
Notwithstanding anything in this Agreement to the contrary, this Section shall govern the
application of Land Use Regulations to the land use components of the 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 Land Use Regulations may be applicable to the Site and no Future Development
Approvals may be granted if they are inconsistent with this Agreement or the Concurrent Mining
Approvals, except with the written consent of Vulcan. Any alleged inconsistency shall be
resolved pursuant to Section 4.5 and Article 9 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 Article 9 below.
If any of the Existing Development Approvals are now or hereafter found to be in conflict with
or inconsistent with any of the Future Development Approvals, such conflicting or inconsistent
provisions contained in the Existing Development Approvals shall be deemed deleted or
modified in order to conform same to the Future Development Approvals.
4.6 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:
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001 (a) The City shall review and process new environmental documents for this
Agreement, the Conditional Use Permit and the Reclamation Plan for mining and
reclaiming the Site.
(b) City has selected HCG, LLC to serve as its environmental consultant in
the preparation of the new environmental documents.
(c) Vulcan shall pay the cost of preparing the new environmental documents.
(d) As of the date of this Agreement, Vulcan has deposited with the City the
sum of $248,620 as a deposit against the total estimated cost for the preparation of the
new environmental documents (for Durbin and Reliance). Should the actual costs
required to complete the environmental documents exceed this estimated total cost,
Vulcan acknowledges that it is responsible for paying such difference.
(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 Vulcan with the City under subsection 4.6(d) above
and the City funds, as described therein. Should the funds deposited by Vulcan with City
be depleted, Vulcan 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
,P" environmental consultant, the City shall return to Vulcan any unused funds deposited by
Vulcan with the City hereunder. No interest shall be paid or credited to Vulcan on such
deposit.
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, Vulcan 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 shall defend,
indemnify and hold harmless the City for any award of damages, costs, attorney's fees,
undertakings, or any other liability which may be assigned to the City.
The City will promptly notify Vulcan of any such claim, action or proceeding against the
City and Vulcan will either undertake defense of the matter and pay the City's associated legal
costs or will advance funds to pay for the defense of the matter by the City Attorney. The City
may retain other counsel, but only with the consent of Vulcan, and such consent shall not be
unreasonably withheld. The City shall cooperate fully in the defense of any such action. If the
City fails to notify Vulcan in a timely manner of any such claim, action or proceeding, so that the
City's and/or Vulcan's rights are prejudiced, Vulcan shall not, thereafter, be responsible to
defend, indemnify or hold harmless the City. Notwithstanding the foregoing, the City retains the
right to settle or abandon the matter without Vulcan's consent as to the City's liabilities or rights
only, so long as the City's actions do not affect Vulcan's material entitlements under the
17
Agreement, and even with those entitlements that are not material, the City will enter into good
faith discussions with Vulcan prior to settling or abandoning the matter. Should the City settle or
abandon the matter, the City shall waive the indemnification herein, except, the City's decision
to settle or abandon the matter following an adverse judgment or failure to appeal shall not cause
a waiver of the indemnification rights herein. At the time of the execution of this Agreement, the
City has no actual knowledge of any pending or threatened claim which would result in
indemnification under this condition.
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
Vulcan. Such representatives of the City shall be those who are so identified by the City
Manager. Each such representative of the City shall identify himself or herself at the job site
office upon his or her entrance to the Site. City inspectors or designees must be accompanied by
Vulcan personnel at all times per Federal MSHA. The City's inspectors shall behave in a
manner so as to not interfere with Vulcan's operations or usage of the Site, subject to Vulcan's
safety requirements pursuant to Vulcan'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 Sections 1.2 and 7.0 and the Scope of Development (Exhibit B)
and within the times set forth in the Schedule of Performance (Exhibit Q. Vulcan understands
and acknowledges that the development of the Site shall require separate discretionary and
administrative approvals, as applicable, from the City. Vulcan further understands that the City
may amend the allowable 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
Vulcan'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 retail -
commercial and the fill was being placed to permit such development, the City could change the
use to commercial -professional, but not open space. The current regulations concerning mining
and reclamation are specified in this Section. Vulcan 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
Vulcan in conjunction with the post -reclamation development of the Site in accordance with the
approvals granted by the City at the time.
(a) Drainage.
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�.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 Vulcan until ownership is transferred to the Los
Angeles County Department of Public Works. Vulcan shall ensure the storm drain system is
constructed in accordance with Los Angeles County specifications, and the City and Vulcan shall
cooperate to affect the transfer of the storm drain system to the County. It is expressly
understood that for those portions of the Site not reclaimed to street level, the stone drain system
may incorporate retention basins, overflow facilities, and pumping capacity to insure protection
of public safety, all to be developed and maintained by Vulcan or the County, if such
improvements are accepted by the County. It is understood that Vulcan may transfer all of its
obligations under this Section 4.10(a) pursuant to Section 14.1 of this Agreement.
(b) Streets.
(1) For improvements to Los Angeles Street and Ramona Boulevard,
Vulcan shall pay Eight Hundred Forty Thousand and 00/100 Dollars ($840,000.00).
Such payments shall be made as follows:
(i) The first payment of Three Hundred Sixty Thousand
($360,000) shall be made sixty (60) days after the effective date of this
Agreement.
(ii) The second payment of Two Hundred Forty Thousand
($240,000) shall be made twelve (12) months after the effective date of this
Agreement.
(iii) The third payment of Two Hundred Forty Thousand
($240,000) shall be made twenty four (24) months after the effective date of this
Agreement.
(2) In the event the City increases the Mining Tax within fifteen (15)
years of the effective date of the Agreement, the sum of the above payments shall be
credited against such increase in the Mining Tax attributable to Vulcan up to the amount
in (1) above.
(c) Walls, Fences and Landscaping.
Vulcan will construct and at all times maintain walls, fences, berms and landscaping both
during Mining Operations and any subsequent development of the Site, as provided in the
Development Plan and/or the approved Reclamation Plan, to screen the Site and present an
attractive appearance to the community. Continued maintenance may be assured through
recorded covenant agreements enforceable by City as provided herein. However, such walls and
fences may be removed and/or modified in accordance with Future Development Approvals
affecting the Site.
(d) Undergrounding of Utilities.
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Vulcan, at its expense, shall underground all utility lines directly adjacent to the
Development Parcel along Los Angeles Street in conjunction with the post- reclamation
development of the Site.
(e) Other Infrastructure Requirements.
Vulcan, at its expense, shall install all necessary infrastructures as identified in the EIR
and any subsequent environmental documentation prepared before development for post -
reclamation development of the Site.
5.0 TIME FOR CONSTR UCTIONAND COMPLETION OF PROJECT.
5.1 Schedule of Performance.
Vulcan understands that the Development and any further developments for the ultimate
end use of the Site shall be considered Future Development Approvals, subject to separate
discretionary and administrative approvals, as applicable, by the City, as described in Sections
4.9, 5.2 and 6.2 of this Agreement. Vulcan 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 Site where such developments are contemplated to take place
under this Agreement. Upon the City's approval of any Future Development Approval, Vulcan
shall commence and complete development in accordance with the Schedule of Performance.
Subject to the terms of this Agreement, failure to adhere to the dates set forth in the Schedule of
Performance shall be deemed a Default hereunder.
5.2 Right of Vulcan to Control Timing of Development.
Vulcan may conduct the post -reclamation development of the Site or may convey the
Site, or a portion thereof, to a development entity. The excavation and reclamation of the Site as
allowed under this Agreement shall be accomplished in accordance with the Schedule of
Performance. However, given that the earliest portion of the Site available for such development
will not occur for approximately twenty-seven (27) years or more, as provided in Scope of
Development and Schedule of Performance, it is impractical to precisely regulate the timing,
phasing, or sequencing in which the development will occur. Such decisions depend upon
numerous factors of construction, the state of the general economy and the geotechnical
condition of the fill. The parties shall develop a precise phasing plan within a period of 1-3 years
prior to completion of reclamation. Moreover, Vulcan agrees that no later than one (1) year
before completion of reclamation of any portion of the Development Parcel, Vulcan shall submit
an amendment to the Development Plan as applicable to such parcel, including subdivision maps
for the City's approval through its then applicable approval process. Within three (3) years
following completion of reclamation of any portion of the Development Parcel that is not subject
to the active uses of the Project, Vulcan will file application(s) for development. Such
development shall be accomplished within either five (5) years of commencement or in
accordance with any phasing plan approved by the City of the reclaimed portion of the
Development Parcel, which phasing plan shall be based on a schedule of development supported
by a market study describing the optimum timing for development of such Parcel, which market
study shall be performed by Vulcan at its expense and reviewed and approved by the City within
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the aforementioned three (3) -year timeline. Should Vulcan identify a proposed development
concept or opportunity before the time described in this schedule, Vulcan 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 post -reclamation Future Development Approvals to require Vulcan 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 post -reclamation development or be of benefit to same; and
(b) The timing of the Exaction should be reasonably related to the
infrastructure needs of the phasing of the post -reclamation development per the Scope of
Development, including infrastructure improvements needed before the commencement
of such development, and said public improvements shall be phased to be commensurate
with the logical progression of the post -reclamation activities and development as well as
the reasonable needs of the public.
eo�l When Vulcan 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, Vulcan 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 REQ UESTS AND APPLICATIONS; OTHER GOVERNMENT
PERMITS.
6.1 Standards.
In reviewing Mining Development Approvals after the Effective Date that are
discretionary, the City may impose only those conditions, exactions, and restrictions which are
allowed by the Development Plan and this Agreement, including, but not limited to, the
Conditions of Approval. All other Future Development Approvals shall be subject to conditions,
exactions, and restrictions consistent with the then existing land use regulations of City,
whatever they may be.
6.2 Processing.
Upon satisfactory completion by Vulcan of (i) all required preliminary actions and
meetings, (ii) submittal of required information, and (iii) payment of appropriate processing fees,
if any, the City shall promptly commence and diligently proceed to complete all required steps
necessary for the processing of this Agreement. In this regard, Vulcan, in a timely manner, shall
provide City with all documents, applications, plans and other information necessary for the City
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to cant' out its obligations hereunder and shall cause Vulcan'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 Site, or any further developments for the ultimate end use of
the Site. The City will undertake all acts necessary to rezone the Site to permit the retail -
commercial and open space — recreational end uses proposed in this Agreement. In the interim, a
Quarry Overlay Zone, including any duly approved amendments, will prescribe standards for
mining operations at the Site; provided, however, nothing herein shall prohibit Vulcan from
pursuing its legal rights to challenge such Quarry Overlay Zone. In the case of any material
inconsistencies between this Development Agreement and standards prescribed for a Quarry
Overlay Zone, this Agreement shall govern, as to Vulcan's entitlements to (i) mining quantities,
(ii) mine to the Maximum Safe Depth, (iii) reclamation quantities, and (iv) the end uses.
Notwithstanding the foregoing, nothing contained herein shall be construed to require City to
process Vulcan'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
Vulcan elects, in its sole discretion, to request the City to incur overtime or additional consulting
services to receive expedited processing by the City, Vulcan 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. 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
and the City's goal to have developable land. Any changes to the Reclamation Plan may be
approved by the City by Resolution consistent with Section 9.4, without requiring an amendment
to this Agreement, unless such change would create a specific inconsistency with the provisions
of this Agreement. If required pursuant to SMARA, any reclamation plan amendment created
pursuant to the CUP or this Agreement shall be submitted to the Director of the Department of
Conservation for review, consistent with Public Resources Code Section 2774(c), as may be
amended from time to time and shall be compliant with the requirements of SMARA. In no
event may the City make changes to the Reclamation Plan, which will (i) have a significant
adverse economic impact on Vulcan, (ii) interfere with Vulcan's ability to satisfy its obligations
hereunder, or (iii) be inconsistent with the provisions of Section 10.1(b).
6.4 Phased Final Maps.
Vulcan may file as many phased final maps for the Project as it deems appropriate and
consistent with this Agreement.
6.5 Other Governmental Permits.
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Vulcan 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 Vulcan
in its efforts to obtain such permits and approvals.
6.6 Public Agency Coordination.
The City and Vulcan 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 Vulcan 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 RECLAMATION INCENTIVES LIMITATIONS AND OBLIGATIONS.
The parties contemplate that, unless the provisions of Section 7.3 below apply, beginning
on the Commencement Date, as defined in Section 7.2 below, Vulcan will fill the Development
Parcel with Engineered Fill within the times set forth in the Schedule of Performance, subject to
the following:
7.1 Fill Requirements and Specifications.
All Site Development Fill used for the Development Parcel shall meet the requirements
of this Section 7.1 and the Scope of Development and be completed within the times set forth in
the Schedule of Performance, except as may be delayed by geotechnical conditions of the fill.
The determination of fill being above water or underwater for the purpose of distinguishing the
type of allowable Site Development Fill to be placed at any given location of the Development
Parcel shall be based on the location of the groundwater table at the time of fill placement, in
accordance with the Guidelines. All Site Development Fill placed into the natural groundwater
(Underwater Fill) at any level that exists at the time of fill placement, or such higher level
required under the Guidelines, shall comply with all provisions of the Guidelines for Underwater
Fill. All Site Development Fill placed above the natural groundwater (Above Water Fill) at any
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level that it may exist at the time of fill placement, or such lower level required under the
Guidelines, shall comply with the provisions of the Guidelines for Above Water Fill. Further,
reclamation for the Durbin Quarry shall be in accordance with the Reclamation Plan and the
provisions of the Guidelines, as further set forth in the Scope of Development at Exhibit B.
7.2 Commencement Date/Prioritization of Fill.
Vulcan shall not commence Commercial Filling Operations at the Durbin Quarry until
such time as fill operations at (i) Pit -1, formerly owned by United Rock Products Corporation
("United"), now owned by J.H. Holdings as of the date of this Agreement, bearing APN 8532-
001-002 and located at 1270 East Arrow Highway, Irwindale ("Pit -1"), (ii) a 40 acre portion
along the 605 Freeway of the Hanson mining operation, bearing APN 8532-004-024, and (iii)
United's Pit -2, bearing APN 8533-002-001, APN 8534-017-004, APN 8534-017-005, APN
8534-017-006, and APN 8534-017-007 and located northwest of the intersection of Arrow
Highway and Avenida Barbosa (collectively "Priority Quarries") are concluded or until such
time as the City, in its discretion, authorizes in writing commencement of Commercial Filling
Operations ("Commencement Date"). The parties expressly acknowledge that the City is
attempting to prioritize filling of mining pits and, as such, the Commencement Date of any
Commercial Filling Operations at the Site shall be deferred until the Priority Quarries have been
reclaimed; subject to the provisions of Section 3.2 above. Reclamation operations shall
commence within 180 days after Vulcan's receipt of the City's authorization to commence the
Commercial Filling Operations and other required permits and authorizations. At such time,
Vulcan shall obtain all required permits for the reclamation backfill of the Site and shall
immediately commence backfilling the same as provided in the Scope of Development, at
Exhibit B and further set forth in the Reclamation Plan adopted concurrent herewith. Failure to
commence within such time shall cause Vulcan to lose its position on the priority list for
Commercial Filling Operations. Notwithstanding the foregoing, nothing herein shall prevent
Vulcan from operating a filling operation that is not a Commercial Filling Operation at any time,
provided Vulcan secures all necessary permits therefor.
7.3 Free -Market Filling Operation.
Should the City and the owners of the Priority Quarries, or their successors or assigns,
amend the requirements establishing the Priority Quarries under entitlements granted to United
and Hanson, so that any quarry operator in the City may compete in the marketplace for fill
materials, the provisions of this Section 7.2 shall not apply with respect to the prioritization of
any quarry in the City.
8.0 FEES, TAXES AND ASSESSMENTS.
8.1 General.
During the term of this Agreement, the City shall not, without the prior written consent of
Vulcan, impose any additional fees, taxes or assessments on all or any portion of the Project or
the Site, except such fees, taxes and assessments as are described in or required by this
Development Agreement and/or the Development Plan pursuant to development of the site for
I
the ultimate end uses. This Development Agreement shall not prohibit the application of fees,
taxes or assessments as follows:
(a) Vulcan shall be obligated to pay those fees, taxes or City assessments
which exist as of the Effective Date or are included in the Development Plan, as stated
above, or Concurrent Mining Approvals approved concurrently herewith and any
increases in same, as provided herein;
(b) Vulcan shall be obligated to pay any fees or taxes, and increases thereof,
imposed on a City-wide basis for activities such as business license fees or taxes, sales or
use taxes, utility taxes, and mining taxes;
(c) Vulcan shall be obligated to pay all fees applicable to a permit application
as charged by City at the time such application is filed by Vulcan;
(d) Vulcan 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 Vulcan. Vulcan reserves
its right to protest the establishment or amount of any such fees or assessments through
the method prescribed by law;
(e) Vulcan shall be obligated to pay any fees imposed pursuant to any
assessment district established within the Project otherwise proposed or consented to by
Vulcan;
(f) Vulcan 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) Vulcan shall be obligated to pay any fees imposed pursuant to any
Uniform Code; and
(h) Vulcan 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.
8.2 Mining Tax.
With respect to the City's mining and processing tax pursuant to Irwindale Municipal
Code § 3.18.030 and the existing special mining tax pursuant to Irwindale Municipal Code §
3.18.040, and in exchange for the benefits provided herein, Vulcan shall not contest the existing
mining taxes imposed by the City or the use of the special mining tax permitted under such
ordinance. Vulcan also shall not contest the adjustment to the mining and processing tax or the
special mining tax presently provided for in Irwindale Municipal Code § 3.18.030 and 3.18.040,
respectively, as the same may be subsequently amended. If the City imposes a new tax, nothing
25
in this Agreement shall prejudice Vulcan from challenging the new tax. Notwithstanding the
foregoing, Vulcan 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.
8.3 Agreement Costs.
In addition to the amounts deposited by Vulcan pursuant to Section 4.6(d) above, City
acknowledges receipt of seventy-five thousand dollars ($75,000) from Vulcan to cover the costs
and expenses for the preparation of this Agreement, including attorneys fees.
8.4 Accord and Satisfaction.
No payment by Vulcan 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.
8.5 Payment Made by City on Behalf of Vulcan.
In the event that:
(a) Vulcan 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 Vulcan, Vulcan
having been given the opportunity to cure pursuant to Section 13.5, and
(c) City incurs the expense thereof on behalf of Vulcan,
then Vulcan shall reimburse the City for all such costs and expenses. If the City is not
reimbursed for such costs by Vulcan 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 13.8 until paid. Any and all delinquent amounts, together with said interest, costs and
reasonable attorney's fees shall be a personal obligation of the Vulcan as well as a lien and
charge, with power of sale, upon that portion of the Site upon which Vulcan 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.
9.0 AMENDMENT OF DEVELOPMENT AGREEMENT.
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9.1 Initiation of Amendment.
_�Zq
Either Party may propose an amendment to this Agreement.
9.2 Procedure.
Except as set forth in Section 9.4 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.
9.3 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.
9.4 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
Development Plan agreed to by both Vulcan and City, which are found by the City
Manager to be non -substantive and procedural consistent with the terms of this Section
9.4 shall not require modification of this Agreement, but, instead, may be approved
administratively by the City Manager in writing.
(b) A modification will be presumed non -substantive and/or procedural if it
does not result in more than a ten percent (10%) change in fees, cost, density, volumes,
time, intensity of use, permitted uses, the maximum height and size of buildings, the
reservation or dedication of land for public purposes, or the improvement and
specifications for the Project.
(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.
9.5 Effect of Amendment to Development Agreement.
The Parties agree that except as expressly set forth in any such amendment, an
amendment to this Agreement will not alter, affect, impair, modify, waive, or otherwise impact
any other rights, duties, or obligations of either Party under this Agreement.
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10.0 RESERVATIONSOFAUTHORITY.
10.1 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.
(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
17
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�,. an economic hardship substantially affecting Vulcan's operations nor Vulcan's
ability to perform its obligations hereunder; provided nothing herein shall limit
the City's right to implement Future Mining Land Use Regulations, which are
equally applicable to other mining operators in the City.
(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.
10.2 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; provided, however,
that, in the case of any material inconsistencies between this Development Agreement and
standards prescribed for a such area -wide or multi jurisdictional codes, this Agreement shall
govern as to Vulcan's entitlements to (i) mining quantities, (ii) mine to the Maximum Safe
Depth, (iii) reclamation quantities, and (iv) the end uses.
10.3 Obiections to Regulation.
In evaluating the reservation of authority to the City and applying the standards described
P"` above, in the event Vulcan believes that such Future Mining Land Use Regulation does not
satisfy such standards, Vulcan shall give written notice of its objections and the grounds therefor
to City, City shall duly consider Vulcan'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 Vulcan's position is supported by
clear and convincing evidence.
10.4 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.
11.0 ANNUAL REVIEW.
11.1 Annual Monitoring _Review.
City and Vulcan 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 Vulcan's financial assurances. The cost of the annual
monitoring review shall be home by Vulcan, 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 (3 0) days after each anniversary of the
we
Effective Date of this Agreement, Vulcan shall deliver to City the amount of the annual fee, as
determined by the City's Director of Finance, as well as all information reasonably requested by
City (i) regarding Vulcan's performance under this Agreement demonstrating that Vulcan 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 Vulcan has substantially complied with the terms
and conditions of this Agreement, the review shall be concluded. If the City finds and
determines that Vulcan has not substantially complied with the terms and conditions of this
Agreement for the period under review, the City may declare a Default by Vulcan in accordance
with Section 13.0.
11.2 Estoppel Compliance.
If at the conclusion of an annual monitoring review the City finds that Vulcan is in
substantial compliance with this Agreement, the City shall, upon request by Vulcan, issue an
Estoppel Certificate pursuant to Section 16.3.
11.3 Failure to Conduct Annual Review.
The failure of the City to conduct an annual monitoring review shall not be a Vulcan
Default, provided Vulcan initiates annual monitoring review in accordance with Section 10.1.
12.0 GENERAL OBLIGATIONS.
12.1 Fill Provided to City.
f
City owns various pits within its boundaries, which need appropriate inert debris (as
described below) to accomplish the reclamation levels desired by the City. Vulcan, through its
mining operations, will generate inert debris which Vulcan hereby agrees to provide to City,
subject to the provisions of this Section 12.2. Inert debris provided to the City shall be of such
material as prescribed in the definition of "Acceptable Materials" in Section 6.3.1 of the City of
Irwindale's Guidelines for Underwater Backfilling of Open -Pit Mines, or as prescribed in the list
of acceptable fill materials in Section 6.1 of the City of Irwindale's Guidelines for Above Water
Backfilling of Open -Pit Mines, as applicable. Vulcan will make available to the City in a form
that can be readily loaded onto trucks provided by the City's contractors, a minimum of 300,000
tons of inert debris per year for a maximum of 4,000,000 tons. The City shall load and transport
the inert debris at its cost. The parties shall meet and confer regarding the schedule by which the
inert debris will be made available to the City. The provisions of fill to the City hereunder, shall
be subject to the following adjustments:
(a) If an unexpected condition arises preventing the delivery of inert debris as
required in this Section 12.2 (such as due to the unexpected unavailability of inert debris
from Vulcan, or the unexpected unavailability of pits owned by the City to accept fill
debris), either party may suspend the delivery of the inert debris to the City; provided the
party experiencing the unexpected condition provides notice to the other party as soon as
possible after discovering such condition. The parties shall meet and confer within 30
days to resolve the suspension of the delivery. If the unexpected condition is determined
to be beyond the control of the party requiring the suspension, the obligation may be ^?
extended for an aggregate period of not more than 2 years.
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(b) If Vulcan is unable to provide 4,000,000 tons of inert materials to the City
for any reason, the City will excuse Vulcan's requirement if the parties can negotiate a
mutually satisfactory financial concession to the City of equal value.
13.0 DEFAULT REMEDIESAND TERMINATION.
13.1 Security for Performance.
No later than the Effective Date, Vulcan shall provide a performance bond in the amount
of Five Millions Dollars ($5,000,000) representing the estimate of the security required to assure
Vulcan's faithful performance of all obligations hereunder. The performance bond shall apply to
all obligations hereunder, regardless of whether additional security for the performance of any
obligation as to any or all portions of the Site is provided elsewhere in this Agreement. The
performance bond shall be issued in favor of the City in case of breach of any obligation by
Vulcan hereunder (following the notice and cure provisions of Section 13.5 herein) to guarantee
compensation for any costs and damages incurred by the City in performing Vulcan's obligations
hereunder.
13.2 Financial Assurance Bonds.
Within the time required under the Conditional Use Permit approved concurrently
herewith, Vulcan shall post financial assurance bonds or other security meeting the requirements
of SMARA Regulations, at Section 3803 in the amount required under the Conditional Use
Permit.
13.3 Transfer and Conveyance of SMARA Operation Rights.
(a) Concurrently with this Agreement, Vulcan shall execute the SMARA
Operation Rights Transfer and Conveyance Agreement ("SMARA Transfer
Agreement"), pursuant to which Vulcan shall participate in the alternative financial
assurances mechanism established by the Irwindale Reclamation Authority ("JPA").
Specifically, for purposes of complying with Sections 3803 and 3806 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 that shall accrue to Vulcan in conducting the operations of the
Durbin Quarry shall be counted toward the financial assurance obligations for each of the
Site, Vulcan shall transfer to the JPA its rights to operate the Durbin Quarry 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 Vulcan its actual operating rights to the mining and reclamation operations for
the Durbin Quarry.
(c) The operating rights transferred to the JPA under the SMARA Transfer
,r"" 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 Vulcan. The actual operating rights to the Durbin
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Quarry conveyed under the SMARA Transfer Agreement to Vulcan of any nature
whatsoever shall remain with Vulcan until and unless Vulcan defaults in its obligations
(i) to reclaim the Durbin Quarry 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 Durbin Quarry to cure
defaults in reclamation and exercise all other rights under the SMARA Transfer
Agreement, including the right to receive fill revenues pursuant thereto.
13.4 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 13.5
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 Parry seeking relief
("Nondefaulting Party") shall comply with the notice and cure provisions of Section 13.5.
13.5 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
Parry") to perform any material duty or obligation of said Defaulting Party under the terms of
this Agreement ("Default"). However, the Non -Defaulting Party must provide written notice to
the Defaulting Party setting forth the nature of the Default and the actions, if any, required by
Defaulting Party to cure such Default. The Defaulting Party shall be deemed in default under
this Agreement if the Defaulting Party has failed to completely cure such Default within thirty
(30) 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 (30) 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
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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.
13.6 Waiver of Breach.
By recordation of a final map on all or any portion of the Vulcan's Site, Vulcan 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.
13.7 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. Vulcan specifically
acknowledges and agrees that the City's remedies under the performance bond described at
Section 13.1 are cumulative to other remedies available to City hereunder.
13.8 Interest.
In the event Vulcan fails to perform any monetary obligation under this Agreement,
Vulcan 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.
13.9 Rivhts 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.
14.0 RESTRICTIONS ON TRANSFER.
14.1 General.
Neither Party shall assign or transfer 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.
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Vulcan shall not transfer this Agreement or any of Vulcan'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
grant approval to any transfer by Vulcan, 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 Vulcan'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 14.1 and, furthermore, the City's consent to a transfer shall not be
deemed to release Vulcan 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 the Durbin Quarry or Vulcan to any entity controlling,
controlled by or under common control with Vulcan Material Company, a New Jersey
corporation.
(e) A sale or transfer of Vulcan to another publicly -traded company, so long
as the purchaser entity executes an assumption agreement assuming all of Vulcan's duties
and obligations hereunder.
14.2 Subject to Terms of Agreement.
Following any such assignment or transfer of any of the rights and interests of Vulcan
under this Agreement, in accordance with Section 14.1 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 Vulcan.
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14.3 Release of Vulcan.
Upon the written consent of the City to the complete assignment of this Agreement and
the express written assumption of the assigned obligations of Vulcan under this Agreement by
the assignee, Vulcan shall be relieved of its legal duty to perform the assigned obligations under
this Agreement, except to the extent Vulcan is in default under the terms of this Agreement prior
to said transfer.
14.4 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 Vulcan'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 Vulcan's financing
arrangements with third party lenders.
15.0 INSURANCE, INDEMNIFICATIONN, WAIVERS.
15.1 Insurance.
(a) Types of Insurance.
(1) Public Liability Insurance. Beginning on the Effective Date hereof
and until completion of construction by Vulcan on the Site, Vulcan shall at its
sole cost and expense keep or cause to be kept in force for the mutual benefit of
the City and Vulcan 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, Vulcan 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. Vulcan shall also furnish or cause to be
P"` furnished to the City evidence reasonably satisfactory to it that any contractor
with whom Vulcan has contracted for the performance of any work for which
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4 -
Vulcan
is responsible hereunder carries workers' compensation insurance as
required by law.
(4) Other Insurance. Vulcan 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 Vulcan.
(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, Vulcan 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 Vulcan shall have the right to appeal a determination
of increased coverage by the Risk Manager to the City Council of City within ten
(10) days of receipt of notice from the Risk Manager. All such policies shall be
non -assessable and shall contain language, to the extent obtainable, to the effect
that (i) any loss shall be payable notwithstanding any act of negligence of the City
or Vulcan 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 15.1; (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. Vulcan 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.
Vulcan 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 (30) days after the
Effective Date.
(2) For any renewal or replacement of a policy already in existence, at
least ten (10) days before expiration or termination of the existing policy.
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�,.. If Vulcan 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.
15.2 Indemnification.
(a) General.
Vulcan shall defend, indemnify and hold harmless the City, its agents, officers,
consultants and employees from any claim, action or proceeding against the City or its
agents, officers, consultants or employees to attack, set aside, void or annul any approval
of the City, its legislative body, Planning Commission, or other advisory agencies, or
administrative officers concerning this Agreement, the Conditional Use Permit,
Reclamation Plan, and related approvals, or for any damage to persons or property,
losses, costs, penalties, obligations, or liabilities arising out of or in connection with
Vulcan's acts or omission on the Site, whether or not such act or omission resulted or was
undertaken pursuant to this Agreement, the Conditional Use Permit, Reclamation Plan,
and related approvals. The City will promptly notify Vulcan of any such claim, action or
proceeding against the City and Vulcan will either undertake defense of the matter and
pay the City's associated legal costs or will advance funds to pay for the defense of the
matter by the City Attorney. The City may retain other counsel, but only with the
consent of Vulcan, and such consent shall not be unreasonably withheld. The City shall
cooperate fully in the defense of any such action. If the City fails to notify Vulcan in a
timely manner of any such claim, action or proceeding, so that the City's and/or Vulcan's
rights are prejudiced, Vulcan shall not, thereafter, be responsible to defend, indemnify or
hold harmless the City. Notwithstanding the foregoing, the City retains the right to settle
or abandon the matter without Vulcan's consent as to the City's liabilities or rights only,
so long as the City's actions do not affect Vulcan's material entitlements under the
Agreement, and even with those entitlements that are not material, the City will enter into
good faith discussions with Vulcan prior to settling or abandoning the matter. Should the
City settle or abandon the matter, the City shall waive the indemnification herein, except,
the City's decision to settle or abandon the matter following an adverse judgment or
failure to appeal shall not cause a waiver of the indemnification rights herein. At the time
of the execution of this Agreement, the City has no actual knowledge of any pending or
threatened claim which would result in indemnification under this condition.
(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;
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(2) Any accident or other occurrence in or on the Site causing injury to
any person or property whatsoever;
(3) Any failure of Vulcan to comply with performance of all of the
provisions of this Agreement;
(4) Vulcan's failure to prevent any employee or any invitee or any
other person from entering upon or remaining in any place upon the Site which is
not safe and does not comply with all laws pertaining thereto as they may now or
hereafter exist; or
(5) Any harm, delays, injuries or other damages incurred by any party
as a result of any subsurface conditions on the site, 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 Vulcan or of others
located on the Site, nor for the loss of or damage to any property of Vulcan 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 15.2 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.
15.3 Waiver of Subrogation.
Vulcan 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 Vulcan or to any person or property,
except as specifically provided hereunder and Vulcan 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.
16.0 EFFECT OF AGREEMENT ON TITLE.
16.1 Covenants Run with the Land.
Subject to the provisions of Sections 14.0 and 17.0:
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t^ (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.
16.2 Estoppel Certificate.
Either Party (or a lender approved by City under Section 14.4) 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.
17.0 OPTION TO PROPERTYAND PRESCRIPTIVE WATER RIGHTS: TRANSFER AND
RIGHT OF FIRST NOTICE
17.1 Prescriptive Water Rights.
(a) Sale of Development Parcel.
As to any Parcel intended for future development, before transfer of such Parcel
to any third party purchaser, Vulcan shall, at its sole expense, have a Water Supply
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Assessment prepared; assessing the water needs for the proposed development of such AA
- Parcel, which Water Supply Assessment shall be subject to the review and written
approval of the City Engineer. Vulcan shall not transfer any such Parcel, without
assuring Vulcan will provide the necessary Water Supply Assessment information
necessary to complete the development of such Parcel, and in the event the transferee of
such Parcel is unable to obtain a water supply sufficient to meet the requirements of the
proposed development, Vulcan will assure that the water supply needs of such Parcel can
be met, which may include a reservation or transfer by Vulcan of such water rights.
(b) Notification of Sale and Opportunity to Purchase.
At any time during the Term of this Agreement, Vulcan may sell or otherwise
transfer the balance of any of its prescriptive water rights, and not required by the future
development of any portion of the Site pursuant to Section 17.1(a) (`Balance of Water
Rights"); provided Vulcan complies with the provisions of this Section 17.1(b). Should
Vulcan desire to sell or otherwise transfer any portion of the Balance of Water Rights,
Vulcan shall notify the City at least ten (10) days before any offer to a third party.
Within such time, City may offer to purchase, lease or otherwise acquire such Balance of
Water Rights, or portion thereof, and Vulcan shall negotiate in good faith with City
regarding such sale or transfer, provided that Vulcan shall have no obligation to sell the
Balance of Water Rights. City shall have the right, as a contingency to its acquisition, if
any, to conduct due diligence regarding any environmental conditions and fair market
valuation related to such Balance of Water Rights.
(c) City of Azusa Right of First Refusal.
Should Vulcan decide to sell or otherwise transfer any portion of the Balance of
Water Rights during the period starting on the Effective Date and ending five (5) years
from such date ("Azusa ROFR Period"), the City of Azusa shall have a first right of
refusal to lease the Balance of Water Rights in accordance with the terms of the City
Council of the City of Azusa, Resolution No. 99-C75, dated June 7, 1999, provided such
Resolution applies to the Balance of Water Rights for Durbin. If Azusa's rights so apply,
and Vulcan makes or receives an offer to transfer any portion of the Balance of Water
Rights during the Azusa ROFR Period, Vulcan shall have no obligation to negotiate or
make an offer to the City of Irwindale regarding the transfer of such Balance of Water
Rights. However, Vulcan shall notify the City of Irwindale of any sale or other transfer
of any portion of Balance of Water Rights during the Azusa ROFR Period.
17.2 Notice of Sale of Site.
Vulcan shall notify the City in writing, on the first occasion that Vulcan determines that
Vulcan shall commence the marketing of any property it owns in the City, including but not
limited to the Site portions thereof ("Sale Property") for sale to third parties ("Vulcan Notice").
If the City notifies Vulcan in writing within thirty (30) days ("City Notice") after receiving the
Vulcan Notice that it is interested in purchasing the Sale Property, Vulcan agrees to meet with
the City to discuss terms regarding a possible sale of the Sale Property to the City, provided that
(i) in no event shall Vulcan be obligated to sell the Sale Property to the City or enter into any
M
�. other arrangement with the City with respect to the Sale Property, and (ii) Vulcan shall remain
free to enter into an agreement with any other party regarding the sale or transfer of any interest
in the Sale Property to such party on terms acceptable to Vulcan; provided, however, that if City
timely delivers the City Notice, Vulcan shall first provide City sixty (60) days to appraise and
inspect the Sale Property to develop any offer the City deems appropriate. After the expiration
of that time period, Vulcan is free to sell or transfer the Sale Property to any entity it so desires.
Any purchase and sale agreement between Vulcan and the City will only be entered into by
Vulcan if it decides, in its sole and absolute discretion, that such a purchase and sale agreement
is on terms and conditions acceptable to Vulcan, in its sole and absolute discretion.
18.0 GENERAL.
18.1 Non -liability of City Officers and Employees.
No official, agent, contractor, or employee of the City shall be personally liable to
Vulcan, 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 Vulcan or to its successor, or for breach of any obligation of
the terms of this Agreement.
18.2 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.
18.3 Covenant Against Discrimination.
Vulcan 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. Vulcan 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.
18.4 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.
18.5 Severability.
If any covenant, term, condition, or provision of this Agreement shall, to any extent, be
jow'' invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the
fullest extent permitted by law unless that covenant, tern, condition, or provision declared to be
41
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.
18.6 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.
18.7 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 Vulcan and City as set forth in this Agreement.
18.8 Waiver.
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.
18.9 No Third Party Beneficiaries.
The only parties to this Agreement are Vulcan 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.
18.10 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.
18.11 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.
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18.12 Authority to Execute.
The persons executing this Agreement on behalf of the parties hereto warrant that (i) such
Parry 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.
18.13 Notices Demands and Communications Between the Parties.
Notices, demands, submission of documents, and communications between City and
Vulcan 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, 4400
Irvine, CA 92612
Telecopier No. (949) 223-1180
Attn: Fred Galante, Esq.
DEVELOPER: CALMAT CO., dba
VULCAN MATERIALS CO., WESTERN DIVISION
3200 San Fernando Road
Los Angeles, California 90065
Telecopier No. (323) 258-1583
Attn: David B. Pasley
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: Joel D. Deutsch, 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.
18.14 Further Actions and Instruments.
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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.
18.15 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.
18.16 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.
18.17 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,
covenants, and conditions contained in this Agreement. The only relationship between the City
and Vulcan is that of a government entity regulating the development of private property and the
owner of such private property.
18.18 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, the
production records and tax payment information of Vulcan which pertain to the Project. The
parties agree that Vulcan'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.
18.19 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 Vulcan 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.
rte. , 19.0 EXHIBITS.
The following are the Exhibits to this Agreement:
Exhibit A:
Site Map
Exhibit A-1
Legal Description of Site
Exhibit B:
Scope of Development
Exhibit B-1
Manner of Reclamation
Exhibit B-2
Typical Slope Cross Sections
Exhibit C:
Schedule of Performance
Exhibit D:
Durbin Reclamation Plan Drawings
[SIGNATURE PAGE FOLLOWS]
W1
IN WITNESS WHEREOF, the City and Vulcan have executed this Development
Agreement on the date first above written.
i5 est:
p{ Ci Clerk
Approved as to form:
ALESHI$ & DER, LLP
Fred Galante, City Attorney
"CITY"
CITY OF IRWINDALE, a municipal
corporation
Mayor
"DEVELOPER"
CALMAT CO., a Delaware corporation, dba
VULCAN MATERIALS COMPANY,
WESTERN
®IDIVISION
By:
Name: S .
Title: c
By: �✓ /i6n. �/ ®�
Name: /3,e/n�v w-
Title: k. AsST- She,
[END OF SIGNATURES / NOTARY JURAT(S) FOLLOW]
0
ACKNOWLEDGMENT
State of California )
) ss
County of Los Angeles )
On October 24, 2008 before me, Karen Shields Clark, Notary Public, personally
appeared Brian W. Ferris and Alan D. Wessel who 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 acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Si nature of Notary
My Commission Number is 1771106.
My Commission Expires October 28, 2011.
ACKNOWLEDGMENT
State of California }
County of Los Angeles}
1)
On November 19, 2008 before me, Armando Hegdahl, Notary Public, personally appeared Larry Guillen
Burrola, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that
by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct
WITNESS my hand and official seal.
Signatu
-------------------
ARMANDO NEGOANC`
Commission M 1771016
;WNotary Public • California
Los AnpN*s County
WCQ caapi 0 1
OPTIONAL INFORMATION
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: Development Agreement for Durbin Quarry
Document Date: September 24, 2008
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer—Title(s): _
❑ Partner- ❑Limited [-]General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing:
RIGHT THUMBPRINT
OF SIGNER
Signer's Name:
❑ Individual
❑ Corporate Officer—Title(s): _
❑ Partner- ❑Limited ❑General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing:
EXHIBIT "A"
SITE MAP
[See Attached]
A-1
eo^
EXHIBIT A-1
LEGAL DESCRIPTION OF SITE
[Include Durbin Parcel]
A-1-1
LEGAL DESCRIPTION
Vulcan Materials Durbin Facilitv
Those portions of land lying within the City of Irwindale, County of Los Angeles, State of
California, being all of Parcel 1 of Parcel Map 20709, as per map filed in book 232, pages 75
through 77 of Parcel Maps, in the office of the County Recorder of said County; along with all
of Parcel 22 of Parcel Map 16600, as per map filed in book 184, pages 83 through 91 of Parcel
Maps, in the office of the County Recorder of said County; along with a portion of Parcel 23 of
last said Parcel Map, all of which are described as a whole as follows:
Beginning at the northeast comer of Parcel 2, of Parcel Map 25253, as per map filed in book
286, pages 54 through 56 of Parcel Maps in the office of the County Recorder of said County;
thence, along the lines of the aforementioned Parcel 23, the following courses:
N.00°17'09"W., 3,664.31 feet;
thence, S.88°58'53"W., 1,928.92 feet;
thence, 5.58°01'01"W., 174.92 feet;
thence, 5.85°09'57"W., 150.33 feet;
thence, S.50°19'14"W., 64.03 feet;
thence, S.84°29'29"W., 255.52 feet;
thence, S.39°25'26"W., 331.48 feet;
thence, 5.57°14'50"W., 150.55 feet;
thence, 5.47°58'53"W., 392.58 feet;
thence, S.32°52'00"W., 242.71 feet;
thence, 5.36°18'38"W., 194.26 feet;
thence, S.41°26'31"W., 147.89 feet;
thence, 5.48°01'03"W., 102.12 feet;
thence, S.28°32'47"W., 293.46 feet;
thence, 5.39°07'37"W., 150.00 feet;
thence, 5.29°30'34"W., 98.36 feet to a point on a non -tangent curve, concave southeasterly,
having a radius of 7,075.00 feet, a radial of said curve to said point bears N.63°48'07"W.;
N
r;
LEGAL DESCRIPTION — Vulcan Materials Durbin Facility
Page 2
thence, southwesterly along said curve through a central angle of 15°44'50", an are distance
of 1,944.50 feet;
thence, S.80°03'59"E., 2,388.45 feet to a point on a non -tangent curve concave southeasterly,
having a radius of 382.96 feet, a radial of said curve to said point bears N.71°13'45"W.;
thence, southwesterly along said curve through a central angle of 34°08'30", an arc distance of
228.20 feet; to the northwesterly line of the 120 foot wide transmission line easement of the
Los Angeles Department of Water and Power per book 20101, page 29, Official Records of
said County, said line also being a westerly line of a portion of the above said Parcel 23, all
as shown on said Parcel Map 16600;
thence, southwesterly along said line, S.18'46'15 "W., 181.82 feet to the northwesterly right of
way line of Ramona Boulevard as shown on said Parcel Map 16600;
thence, N.74°37'45"E., 208.13 feet along said right of way line to a point at the beginning of a
tangent curve, concave northeasterly, having a radius of 25.00 feet, said point also being a
point in the southerly boundary of Parcel 1, of the aforedescribed Parcel Map 25253;
thence, along the exterior boundary of last said Parcel Map, the following courses; westerly
and northwesterly along last said curve through a central angle of 90°00'00", an arc distance
of 39.27 feet;
thence, N. 15'22'15"W., 31.14 feet to a point on a tangent curve, concave southwesterly,
having a radius of 111.24 feet;
thence, northwesterly along said curve through a central angle of 25°05'42" an arc distance of
48.72 feet to a point of reverse curvature with a curve concave northeasterly having a radius
of 111.24 feet;
thence, northwesterly along said curve through a central angle of 25°05'42", an are distance of
48.72 feet;
thence, N.15'22'15 "W., 5.57 feet to a point on a tangent curve concave easterly having a
radius of 270.00 feet;
LEGAL DESCRIPTION — Vulcan Materials Durbin Facility
Page 3
thence, northwesterly along said curve through a central angle of 4'28'12", an are distance of
21.06 feet;
thence, N.74°37'45"E., a distance of 2,170.77 feet to the POINT OF BEGINNING.
Includes any and all reversionary rights to adjoining portions of Los Angeles Street and
Ramona Boulevard as may have been previously attached to the above described Parcel 23.
Subject to Covenants, Conditions, Reservations, Restrictions, Rights of Way and Easements of
record, if any.
Containing 334.56 acres, more or less.
Prepared by me or under my direction
this 29th day of November, 2004.
A.
No. 4"
LS 4 15 * . 6.30-10�
rFOF. EXPrat \E/
�'
EXHIBIT B
SCOPE OF DEVELOPMENT
EXHIBIT B
SCOPE OF DEVELOPMENT
Vulcan shall mine the Site in accordance with the Conditional Use Permit and this Agreement
and reclaim and develop the Site in accordance with the Reclamation Plan and this Agreement
and in the manner described below, as further depicted in Exhibit D.
1. Existing Operations. Before the Effective Date of this Agreement, Vulcan has conducted
mining operations at the Site consistent with its permitted, mining depth of 200 feet bgs
concurrent with reclamation operations. Vulcan has conducted such concurrent mining and
reclamation operations counterclockwise in phases, beginning in the southeast portion of the
Site, east of the DWP Easement, and proceeding northeast to northwest to southwest, as depicted
at Exhibit D attached hereto. As of the approval of this Agreement, reclamation has commenced
along an area within the Development Parcel, which encompasses approximately 20+/- acres
from the southeasterly boundary of the Site, between the DWP Easement and the easterly
property line, to approximately 30 feet north of the southeasterly boundary line, as such area is
depicted at Exhibit D ("Reclaimed Area"). Vulcan operates the Processing Plant at the center of
the Site, west of the DWP Easement, as depicted at Exhibit D ("Plant Site").
2. Release of Mining Rights. In exchange for the approvals provided herein, no further
excavation or mining activity shall be permitted in the Reclaimed Area, as defined in paragraph 1
above. In entering into this Agreement, Vulcan forever waives, releases and relinquishes all
right whatsoever to mine the Reclaimed Area 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. However, the Reclaimed Area shall still be a portion of the Project and
subject to the provisions of the CUP, Reclamation Plan and SMARA.
3. General Approvals. Following the approval of the Conditional Use Permit, Reclamation
Plan and this Agreement, Vulcan shall continue concurrent mining and reclamation in the same
counterclockwise direction proceeding further northeast to the northernmost portion of the
quarry along Los Angeles Street and then west along the entire area between the boundary of the
quarry at the Site along Los Angeles Street and the DWP Easement and then southwest along the
View Parcel, as depicted at Exhibit D. Within the time set forth in the Schedule of Performance,
Vulcan shall create a Site Development Fill pad for a new Processing Plant in the Reclaimed
Area at an elevation of between 280 msl to natural ground surface. Upon the commencement of
Phase 2 mining operations, in approximately 2016, but with market condition variability as to
specific date, Vulcan will relocate the Processing Plant from the present plant site to access and
mine and process materials under the existing Processing Plant. Mining operations shall
continue until Maximum Safe Depth is reached, which is nominally 440 feet bgs, as further
described below in paragraph 4(a). Throughout the mining operation, Vulcan shall continue
reclamation and Site Development Fill activities in accordance with the Schedule of
Performance. All mining shall terminate by 2035. Within 18 to 24 months thereafter, the
Processing Plant shall be completely removed from the Site. Within the time set forth in the
Schedule of Performance, the approximately 110 acre Development Parcel adjacent to the City
of Baldwin Park and east of the DWP Easement shall be developed for retail -commercial uses
M.
when geotechnically conducive for such development. The approximately 224.6 acre View
Parcel shall be developed for open space -recreational to provide an aesthetic feature to the retail -
commercial development on the adjacent 110 acres. Vulcan shall install all infrastructure and
security measures as may be necessary to protect any exposed groundwater therein. Vulcan
retains the right to further reclaim the View Parcel should it find it economic to do so; provided
Vulcan processes an appropriate amendment to the Reclamation Plan and secures from the City
the approval to implement such amendment, including, but not limited to, any required
environmental approvals.
4. Specific Approvals and Operational Assumptions:
(a) Maximum Safe Depth. The "Maximum Safe Depth" approved under the
Conditional Use Permit and this Agreement means the nominal depth of 440 feet
bgs to a maximum level bottom at elevation -120 (below) msl to which the Site
may be excavated to achieve the maximum safe yield of aggregate reserves,
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 for Slope Stability, 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-2 to the Conditional Use
Permit.
(b) Material Mined. To reach the Maximum Safe Depth, Vulcan may sell a total of
approximately 85,635,000 net tons of material mined from the Site.
(c) Material For Site Development Fill. To accomplish full reclamation as
contemplated in, and pursuant to the terms of, this Agreement and the
Reclamation Plan, Vulcan will use volumes of silt fill of approximately
13,200,000 cubic yards ("CY") from the Site and import Inert Materials of
approximately 9,000,000 CY, which amounts will vary based on groundwater
level fluctuations and availability of import Inert Materials. Nevertheless, the
combined volume of 22.2 million CY is approximately correct with respect to the
appropriate planning levels of accuracy, assuming an average groundwater level.
(d) Rate of Mining. Vulcan will mine at a rate of approximately 3 million net tons
per year (based on materials sold in 2005) and varying thereafter based on market
conditions.
(e) Rate of Reclamation and Site Development Fill: The rate of Site Development
Fill resulting from operation silt fill will generally be as produced on an annual
basis. The import inert material will be as required to maintain the fill at least
above the groundwater surface in the area being worked and is estimated to be a
minimum of approximately 500,000 CY/yr of Underwater Fill, if the groundwater
remained at its mean elevation. Notwithstanding the foregoing, the ultimate fill
elevation is defined at paragraph 6(b) below.
(f) Years to completion of Mining: 27 years (2035).
Im.
(g) Years to completion of Reclamation: Reclamation of the Site will be completed
- within 18 to 24 months of completion of mining. Years to completion of the 110
acre Development Parcel will be December 31, 2037. Within 12 -months
thereafter, Vulcan shall complete the installation and proper establishment periods
for vegetation coverage, as required in the Reclamation Plan.
5. Description of Mining. Reclamation and Site Development Fill Phases.
(a) Phased Mining. Vulcan will mine counterclockwise in phases from southeast to
northeast to northwest to southwest, as depicted at Exhibit D. To yield an
efficient transition between phases, Phase 2 may commence before the
completion of Phase 1 and Phase 3 may commence at the end of Phase 1 or during
Phase 2. All mining shall be in accordance with the terms of this Agreement and
the Conditional Use Permit, including any mitigation measures identified in the
EIR.
(b) Slopes. Slopes from the bottom of the Site to the surrounding grade and
Development Parcel shall be no steeper than 1:1 above the Anticipated High
Water Level, and 2:1 below Anticipated High Water Level (Maximum Safe Yield
Slopes), as shown in the Typical Cross Section attached as Exhibit B-2, in
accordance with the Guidelines for Slope Stability.
(c) Concurrent Reclamation. Concurrently with the mining operations, Vulcan will
commence reclamation and Site Development Fill in accordance with the '..�►}
schedule immediately below and as depicted at Exhibit D. Vulcan will create a
new Site Development Fill pad for a new Processing Plant in the Reclaimed Area
at an elevation of between 280 msl to ground surface. Vulcan shall relocate the
current Processing Plant with the commencement of Phase 2 mining operations, in
approximately 2016, but with market condition variability as to specific date. All
reclamation will be conducted in accordance with Section 7.1 of this Agreement.
(d) Phases:
Material
Net Tons
Mined & Material
Phase Sold Backfill CY Time Completion
1 Mining to 285' depth i.e.
Elev. 35 - 34,795,000 11 yrs 2018
2 Mine Plant Site to 285'
depth i.e. to Elev. 35 - 37,150,000 12 yrs 2030
3 Mine to 440' depth, i.e.
to Elev. negative 120 - 13,690,000 4 yrs 2035
Complete Reclamation/ Apx. 22.2 18-24 2037 10�
Site Development Fill - million CY mos
�e
6. Description of End Condition:
(a) Time for completion. Vulcan shall remove the Processing Plant and complete
reclamation by the time set forth in paragraph 4(g) above.
(b) Development Parcel. The 110 acre Development Parcel shall be filled to a
minimum elevation between 280 msl up to natural ground surface. Additional
filling, if economical as a stand-alone business venture, and at Vulcan's option,
may be continued by Vulcan to create a developable area in addition to the 110
acres; provided that at least 1 year before the completion of the 110 acre
Development Parcel, Vulcan shall give City written notice of Vulcan's intent to
reclaim additional areas for development. Thereafter, the parties shall meet to
discuss the details of the proposed development and timing, which development
shall be subject to separate discretionary and administrative approvals, as
applicable, as provided in Sections 4.9, 5.2 and 6.2. Vulcan will release portions
of the Development Parcel for development on a phased basis, as soon as possible
after completion of the fill pads thereon; provided the pads are geotechnically
conducive for the intended end use and the release doesn't interfere with Vulcan's
mining or fill activities, as reasonably demonstrated by Vulcan to the City.
(c) Access Points: The Site shall be accessed through Los Angeles Street and
Ramona Boulevard in the City of Irwindale and Palm Avenue in the City of
Baldwin Park.
(d) View Parcel: Vulcan shall not be required to fill the View Parcel. Instead, the
View Parcel shall remain at the mining depth obtained by Vulcan's mining
operations, with slopes consistent with the Reclamation Plan. Vulcan 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. Vulcan will operate the View Parcel at its cost or may sell the
View Parcel in whole in or parts, subject to the Transfer provisions of Section
14.1 of this Agreement. Vulcan shall permit immediate and continuous
nonexclusive public use of a designated portion of the View Parcel upon
completion of mining operations subject to the following conditions: (i) use shall
be consistent with continued reclamation, including extended reclamation
pursuant to paragraph 6(b) above, 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) Vulcan
shall indemnify the City for all loss or damage resulting from public use; and (v)
Vulcan shall provide necessary access.
(e) End Use: The Development Parcel shall be developed with retail -commercial
uses, and the View Parcel shall be developed with open -space — recreational uses
as authorized in the Zone change effected by the City within the time set forth in
10M,� the Schedule of Performance. The retail -commercial uses thereon, including any
expanded areas of the Development Parcel, as described in paragraph 6(c) above,
shall take advantage of the Site's visibility from the 605 Freeway. The
development shall adequately buffer adjacent residential uses. The use of any
remaining groundwater lake area shall be open space -recreational and
complement the Development Parcel as a view corridor.
RK,
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