Loading...
HomeMy WebLinkAbout627ORDINANCE NO. 627 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF IRWINDALE, COUNTY OF LOS ANGELES, CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT NO. 2-06 AND CERTIFYING A FINAL ENVIRONMENTAL IMPACT REPORT TO ALLOW VULCAN MATERIALS COMPANY, INC. TO CONTINUE MINING AND TO RECLAIM THE RELIANCE I QUARRY SITE LOCATED AT 16001 FOOTHILL BOULEVARD FOR INDUSTRIAL AND COMMERCIAL USES UPON COMPLETION OF MINING; AND TO CONTINUE FILLING THE RELIANCE II LANDFILL LOCATED AT 15990 FOOTHILL BOULEVARD FOR RETAIL COMMERCIAL USES UPON COMPLETION OF FILLING A. RECITALS (i) California Government Code Sections 65864 of seq. ("Development Agreement Law") authorizes cities to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and identifying the economic costs of such development. (ii) Attached to this Ordinance, Marked Exhibit "A" and incorporated herein by reference, is a Development Agreement, which hereinafter is referred to as "the Development Agreement." (iii) Vulcan Materials Company, Inc., hereinafter in this Ordinance referred to as "VMC", owns real property located at 16001 Foothill Boulevard, legally described within the Development Agreement, and situated on property in the City of Irwindale, County of Los Angeles, California, commonly known as the Reliance I 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, 2038, 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) Vulcan Materials Company, Inc., hereinafter in this Ordinance referred to as "VMC", owns real property located at 15990 Foothill Boulevard, legally described within the Development Agreement, and situated on property in the City of Irwindale, County of Los Angeles, California, commonly known as the Reliance II Landfill, as described within the Development Agreement (the "Site"). VMC wishes to continue filling the Class "U" Inert Landfill. At the conclusion of filling, VMC intends to reclaim the quarry site for retail commercial uses (the "Project"). (v) Both Sites are located within the City's M-2 Zone (Heavy Manufacturing) and are designated by the Land Use Element of the General Plan as Industrial. To accommodate the proposed commercial uses, the City will process appropriate General Plan and Zone Change amendments within the times set forth in the Development Agreement. Ordinance No. 627 Page 1 10 (vi) 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. (vii) 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. (viii) On April 8, 2008, the Planning Commission resumed the public hearing, took testimony, and continued the public hearing to the May 1, 2008 Planning Commission meeting. (ix) 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. (x) City finds and determines that all actions required of City precedent to approval of this Agreement by Ordinance No. 627 of the City Council have been duly and regularly taken. (xi) 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'). Ordinance No. 627 Page 2 (iii) On February 7, 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. 429(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. (iv) The proposed project will improve road infrastructure surrounding the project site, including Foothill Boulevard and Irwindale Avenue; (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 Report. (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 Ordinance No. 627 Page 3 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. PASSED, APPROVED, and ADOPTED this 24th day of September 2008. L G. Burrola, Mayor AT EST: L' J. Kim , MM 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. 627 was duly introduced at a regular meeting of the Irwindale City Council held on the 11th 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 L'n J. Kimbr M Deputy City Clerk AFFIDAVIT OF POSTING I, Linda J. Kimbro, Deputy City Clerk, certify that I caused a copy of Ordinance No.627 adopted by the City Council of the City of Irwindale at its regular meeting held August 13, 2008, to be posted at the City Hall, Library, and Post Office on September 2 , 2008. 4R d �' Lin la J. Kimbro, M C Dated: September 25, 2008 ty City Cler Ordinance No. 627 Page 4 EXHIBIT "A" DEVELOPMENT AGREEMENT NO. 2-06 Ordinance No. 627 Page 5 body of the community may adopt an ordinance not later than December 31, 1999, to extend the shorter time limits to the maximum allowable time limits; and WHEREAS, the time limits on plan duration and receipt of tax increment applicable to the Redevelopment Plan for the Nora Fraijo Redevelopment Project, which are January 10, 2009 and January 10, 2019, respectively, are shorter than the maximum allowable under AB1290 and A131342, which maximum allowable dates under AB1290 and AB1342 are, respectively, January 10, 2014 (time limit on Plan effectiveness) and January 10, 2024 (time limit on receipt of tax increment); NOW, THEREFORE, the City Council of the City of Irwindale ORDAINS as follows: Section 1. The following time limits pertaining to (i) plan duration and (ii) receipt of property taxes pursuant to Health and Safety Code Section 33670, applicable to the Redevelopment Plan for the Nora Fraijo Redevelopment Project are hereby established, determined, extended in duration, and confirmed, in conformity with the authorization set forth in Health and Safety Code Section 33333.6(f)(2), as follows: a. 'The time limit on effectiveness of the Redevelopment Plan for the Nora Fraijo Redevelopment Project shall be January 10, 2014 (rather than January 10, 2009), pursuant to the authorization set forth in Health and Safety Code Sections 33333.6(b) and 33333.6(f)(2). b. The time limit on receipt of property taxes pursuant to Health and Safety Code Section 33670, applicable to the Redevelopment Plan for the Nora Fraijo Redevelopment Project, shall be January 10, 2024 (rather than January 10, 2019), as January 10, 2024 is the date that is ten (10) years following the time limit on plan effectiveness, pursuant to the authorization set forth in Health and Safety Code Sections 33333.6(c) and 33333.6(f)(2). Section 2. Notwithstanding any other provision of this Ordinance to the contrary, the limitations established in this Ordinance shall not be construed to affect the validity of any bond, indebtedness, or other obligation, including any mitigation agreement entered into pursuant to Health and Safety Code Section 33401, authorized by the City Council or the Agency pursuant to the CRL prior to the date of this Ordinance, nor shall the limitations established in this Ordinance be construed to affect the right of the Agency to receive property taxes pursuant to Health and Safety Code Section 33670 to pay such bond, indebtedness, or other obligation. Section 3. In adopting this Ordinance, neither the City Council nor the Agency is required to comply with Health and Safety Code Section 33354.6 or Article 12 of the CRL (commencing with Health & Safety Code § 33450) or any other provision of the CRL relating to the amendment of redevelopment plans. Section 4. Should any portion or provision of this Ordinance be held by a final judgment of a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Ordinance shall remain in full force and effect. The City Council hereby declares that it would have passed and adopted this Ordinance and each portion and provision hereof, irrespective of the fact any one or more of said portions or provisions be declared invalid or unenforceable. Ordinance No. 546 Page 2 Section 5. In the event of an error in calculating the applicable time limits pursuant to Health and Safety Code Section 33333.6, nothing in this Ordinance shall be construed as setting any time limits other than the maximum time limits permitted by Health and Safety Code Sections 33333.6 as existing on the date of adoption of this Ordinance. Section 6. The Mayor shall sign this Ordinance and the City Clerk shall cause this Ordinance to be published or posted as required by law within fifteen (15) days after its passage. PASSED, APPROVED AND ADOPTED on the 30th day of December 1999. ORIGINAL SIGNED Patricio S. Miranda, Mayor ATTEST: ORIGINAL SIGNED Linda J. Kimbro, 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. 546, was duly introduced at a regular meeting of the City Council held on the 23rd day of December 1999, and was duly approved and adopted at second reading, at its adjourned regular meeting held on the 30th day of December 1999, by the following vote of the Council: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS ABSENT: COUNCILMEMBERS: ABSTAIN: COUNCILMEMBERS: Breceda, Tapia, Castellanos, Mayor Miranda None Almazan None ORIGINAL SIGNED Linda J. Kimbro, Deputy City Clerk Ordinance No. 546 Page 3 rzv�CFWED DEC 19 2008 r p WINDALE O EPARTMENT 5502-V a This page is part of your document - DO NOT DISCARD - "`a" 20082118284 ct,v-w� I IIIIIIII 1111111 II (III III III IIIIIIII (II IIIIII Paes: 0108 Recorded/Filed in Official Records Recorder's Office, Los Angeles County, California 12/02/08 AT 03:37PM FEES: 0.00 TAXES: 0.00 OTHER: 0.00 PAID: 0.00 TITLE(S) : AGREEMENT A I\ LEADSHEET 200812020030090 11111111�11111111�II III II IIIII IIIII IIIII IIIII 111 l IIII 001120358 SEQ: 01 DAR - Counter (Hard Copy) IIIIIIIIIIIIIIIIIIIIIII�IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII Ilill 111111 IIIII NIII III II IIII NIIIII IIII II III IIII ISI 1111111 III I IIIII II I I IIIII 111111 I III I III IIII THIS FORM IS NOT TO BE DUPLICATED 61-0& cr, {�-laJl�w�j 1 Pt:.(;(it I�tOtlrl� E DATE 0 SIGNED A RECORDING REQUESTED BY AND WHEN RECORDED, MAIL TO: IRWINDALE Irwindale Public Works/Engineering 5050 N. Irwindale Ave. Irwindale, CA 91706 (Space above this line for recorder's use only) DEVELOPMENT AGREEMENT FOR 50 2-w IIIIII�H'inbii *20082118284* RELIANCE I QUARRY AND RELIANCE II LANDFILL between THE CITY OF IRWINDALE and CALMAT CO., dba VULCAN MATERIALS COMPANY, WESTERN DIVISION 57536.5 y ig 502-V` 1.1 e"` DEVELOPMENT AGREEMENT FOR RELIANCE I QUARRY AND RELIANCE II LANDFILL THIS DEVELOPMENT AGREEMENT FOR RELIANCE I QUARRY AND RELIANCE II LANDFILL ("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, the Reliance I (formerly known as "Azusa Largo") and Durbin Quarries and one landfill site, the Reliance II Landfill, in the City of Irwindale, California, of which the Reliance I Quarry and Reliance II Landfill are the only parcels that are the subject of this Agreement. Concurrently herewith, the City and Vulcan are entering into a separate Development Agreement addressing the Durbin Quarry. The "Site" or "Sites" for the purpose of this Agreement consists solely of the Reliance I Quarry and Reliance II Landfill (Site or Sites as the case may be)of approximately 124.2 and 91.51 gross acres respectively, as shown in the "Site Map" attached hereto as Exhibit A and incorporated herein by this reference. Further, the Reliance I Quarry is composed of two portions; a 2.1 acre parcel adjacent to and at grade with Foothill Boulevard and not subject to further mining, and a 122.1 acres site which is the current active Reliance I Quarry's mining area. 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 Reliance I Quarry to the Maximum Safe Depth (f 440 feet below ground surface), which is estimated to take until the year 2047. The City is prepared to grant such additional entitlement, provided that Vulcan agrees (1) not to mine the Reliance II Landfill; (2) to reclaim the Site in the manner set forth herein and in the approved Reclamation Plan; (3) 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; (4) to develop uses on the Site in accordance with the City's proposed General Plan Update and zoning; (5) to fund the cost for all mitigation measures as identified in the EIR, and (6) to grant to the City a perpetual easement for storm drain purposes across the entire southern portion of the Reliance II Landfill. D. Public Hearings; Findings. On May 1, 2008 the City's Planning Commission, after a duly noticed public hearing, adopted Resolution No. 529(08) recommending City Council certification of the EIR, City Council approval of the Conditional Use Permit, the Reclamation CC; Fin a,kL- PI LAJu^L 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. 2008-29- 2301 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. 623 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. E. Department of Conservation Comments. The parties acknowledge that the Department of Conservation, Office of Mine Reclamation ("OMR"), by letters dated July 11 and September 17, 2008, commented upon the Reclamation Plan, which comments have been substantially incorporated into the Reclamation Plans approved with this Agreement. Additionally, OMR recommends that the City, pursuant to State Mining and Geology Board Regulation section 3502, require the Reclamation Plan covering the Reliance I Quarry be combined with the reclamation plan concerning that certain quarry immediately east of the Reliance I Quarry, known as the Azusa -Reliance Quarry in the City of Azusa, bearing Mine ID No. 91-19-0018. This comment is based upon OMR's contention that the two sites physically appear to be a single quarry. OMR further suggests that lead agency responsibilities over reclamation in the combined Reliance I and Azusa -Reliance Quarry should be transferred to the City of Irwindale. The parties herein contemplate addressing OMR's comment in this regard pursuant to the terms of this Agreement, at Section 9.5 and Single Reclamation Plan Schedule, at Exhibit E hereto. 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(s) 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 (comprised of 2.1 acre and 122.1 acre parcels), where mining commenced in approximately 1900 and active mining and concurrent reclamation operations continue on the 122.1 acre parcel, located at 16001 Foothill Boulevard, at the northernmost portion of Irwindale Avenue; and (c) the approximately 91.51 gross 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 Reliance I Quarry and Reliance II Landfill only. Where the term "Site" or "Sites" is used in this Agreement, it shall be construed to apply to the Reliance I Quarry 2 ,.. and/or Reliance II Landfill only. The Parties intend that the Sites ultimately be developed for future industrial use (Reliance I Quarry 122.1 acre parcel) and retail -commercial uses (Reliance I Quarry 2.1 acre parcel and the Reliance II Landfill) in accordance with the terms of this Agreement, which is 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 Sites. 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 Summary of Development Plan. Vulcan proposes development of the Sites as generally described in Section 1.1. This Section 1.2 proposes developments, as further set forth in Exhibit B hereto, which 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. (a) Reliance I Quarry The Reliance I Quarry (122.1 acre parcel) is currently being mined and reclaimed concurrently, with mining operations occurring in phases (as such phases are described in Section 5 of Exhibit B), namely in the western portion of the parcel, as depicted in Exhibit B-1 attached hereto. Vulcan currently operates the Processing Plant at the eastern portion of the Site and abutting the City of Azusa jurisdiction line. 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 will mine the Reliance I Quarry in two phases. In Phase 1, Vulcan will mine approximately 28,839,000 tons, which consists of 10,670,000 net tons of previously permitted reserves as of January 1, 2005, and 18,169,000 new net tons of reserves derived directly from Phase I deeper mining. Phase I mining will be substantially completed by the year 2017, with market conditions variability as to date. As part of Phase lmining, Vulcan will create a Site Development Fill pad for the possible future relocation of the Processing Plant to the Phase 1 Development Fill at a minimum Elevation 310 mean sea level ("msl"). Vulcan shall relocate its Processing Plant operations to the Phase 1 Development Fill, or other alternative locations, prior to the commencement of Phase 2 (as described in Section 5 of Exhibit B) mining operations, in approximately 2038, but with market condition variability as to specific date. In the event that Vulcan relocates it Processing Plant operations outside the City of Irwindale, Vulcan shall pay the City an in -lieu fee equal to the Processing Tax due to the City had the Processing Plant remained in the City of Irwindale during such Phase 2 mining operations. Vulcan may continue mining operations during Phase 2 of an additional approximately 20,175,000 tons in the eastern portion of the Reliance I Quarry and under the old Processing Plant location until December 31, 2047, when Maximum Safe Depth is reached, which is nominally 440 feet below ground surface ("bgs") to a level pit floor at Elevation 150 feet msl. Throughout the mining operation, Vulcan shall continue reclamation and Site Development Fill activities in accordance with the Schedule of Performance, except after the Phase 1 Site Development Fill is completed and Phase 2 mining has advanced sufficiently to allow filling of that area (Phase 2 Site Development Fill) to commence. Vulcan shall reclaim and conduct Site Development Fill activities to achieve a depth of no more than 280 feet bgs or minimum Elevation 310 msl. The Processing Plant shall be removed by 2049, in accordance with the Reclamation Plan and as defined in Section 3.1 below, unless otherwise separately approved by the City, in its discretion, for use as a post -mining industrial facility in accordance with the intended end use. All mining shall terminate by 2047. Within 18 to 24 months thereafter (not later than December 31, 2049), the Processing Plant will be removed and, Vulcan shall continue backfilling with Site Development Fill to create a 121.1 acre Reliance I Development Parcel, containing approximately 42 acres (minimum) of "developable building pads". The Reliance I Development Parcel shall be completed by December 31, 2059, or as extended pursuant to this Agreement. The remainder of the 122.1 acre parcel shall be improved with an access road, other infrastructure, reclaimed mine slopes, landscaping and open space, which will provide aesthetic features, to support the Reliance I Development Parcel. The "developable building pads" shall contain approximately 11 acres (Phase 1) and 31 acres (Phase 2) at a depth of not more than 280 ft bgs or a minimum Elevation 310 msl. The Reliance I Quarry 2.1 acre parcel located adjacent to and at grade level with Foothill Boulevard, may be developed by Vulcan in accordance with its intended retail - commercial end use at such time that Vulcan may choose to do so; provided, however, that upon the City's request, Vulcan will meet with the City to discuss potential development opportunities on the 2.1 acre Reliance I Quarry parcel. All Site Development Fill shall be pursuant to the Guidelines. When each portion of the 121.1 acre Reliance I Development Parcel is geotechnically capable of supporting industrial uses, Vulcan shall develop such portion for said uses in accordance with provisions in the Agreement. Vulcan shall install all infrastructure and security measures as may be necessary and provided in the Reclamation Plan to protect any exposed groundwater therein. (b) Reliance II Landfill No further excavation or mining activity -shall be permitted in the Reliance II Landfill; provided that excavation incidental and necessary for reclamation shall be permitted. Vulcan will continue to operate a Class U (Inert Debris Engineered Fill) operation at the Site. Vulcan will fill the Reliance II Landfill to street grade along Foothill Boulevard and in accordance with the Scope of Development (Exhibit B) and Reclamation Plan to create an approximate 89.56 net acre development pad for development of a retail -commercial center in accordance with the City's commercial, regional zone, as may be amended from time to time before entitlements are issued for 11 v development. Vulcan may develop a portion of the site below grade approximately at a low point of Elevation 518 msl (35 ft bsg), as provided for in the Reclamation Plan. Vulcan may develop the Reliance II Landfill with rail access for a distribution center. Site Development Fill will be completed by December 31, 2020. The reclaimed parcel will be developed for a freeway -visible retail center in accordance with the City's then applicable commercial, regional zone. 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 Agreement; (d) The entering into this Agreement by Vulcan does not violate any provision of any other agreement to which Vulcan is a parry; (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 Foothill Boulevard, 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 Site shall be superseded by this Agreement and shall be of no further force and effect, unless such approvals and agreements are described and listed herein as the Continuing Mining Agreements. The Superseded Mining Agreements include the following: ^ (a) Mining Depth. Vulcan is currently entitled to excavate the Reliance I Quarry to a depth of 200 feet bgs; or to a level pit floor at Elevation of 390 and to fill the Reliance II Landfill under the entitlements issued pursuant to CUP No. 70 -1 -CU, approved by Resolutions 70-9-693 and 90-16-1189 approved on June 4, 1970 and June 28, 1990, respectively. (b) Existing Reclamation Plan. A Reclamation Plan was previously approved by City for the Reliance I Quarry and Reliance II Landfill by way of the 1988 Reliance Mining and Reclamation Plan, as amended per the 1990 Amendment to Plan for Reclamation, which amendment was adopted on June 28, 1990 by Resolution No. 90-16- 1189 ("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 the 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 Site 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. 0 2.0 The following words and phrases are used as defined terms throughout this Agreement. Each defined term shall have the meaning set forth below. Any capitalized terms not defined in this Section shall have the meaning otherwise assigned to them in this Agreement or apparent from the context in which they are used. 2.1 Agency. "Agency" means the Community Redevelopment Agency of the City of Irwindale. 2.2 Anticipated High Water Level. "Anticipated High Water Level" means the anticipated high groundwater level of approximately Elevation 295 feet above mean sea level (msl) for the Site, 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 Applications. ,,.. "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. 623 approving this Agreement. 2.6 Azusa -Reliance Quarry. "Azusa -Reliance Quarry" shall have the meaning set forth in Recital E above. 2.7 Azusa Rock Quarry. "Azusa Rock Quarry" means that hard rock quarry located north of the San Gabriel River. 2.8 City. 7 4 "City" means the City of Irwindale, California, a municipal corporation. 2.9 City Council. "City Council" means the governing body of the City of Irwindale. 2.10 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. 2.11 Completion of Reclamation. "Completion of Reclamation" means, consistent with the definition under the California Surface Mining and Reclamation Act of 1975, the completed process of land treatment which minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding, erosion, and other adverse effects from surface mining operations, including adverse surface effects incidental to underground mines, so that the mined lands are reclaimed to a usable condition which is readily adaptable for the ultimate development 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 Reliance I and II development pads 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. 2.12 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. 2.13 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. 2008-29-2301 for mining and reclamation of the Reliance I Quant'. 2.14 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. 2.15 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. 2.16 Design Guidelines. "Design Guidelines" shall mean those general and specific development standards applicable to the post -reclamation industrial and 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. 2.17 Development. "Development" shall have the meaning set forth under the definition of "Project" herein. 2.18 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. 2.19 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. 2.20 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. 2.21 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, which is the subject of the Development Agreement approved by the City concurrently with the approval of this Agreement and is more specifically described therein. 2.22 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. 2.23 EIR or "environmental documents". "EIR" or "environmental documents" means the final Environmental Impact Report or other environmental documents certified by City Council Resolution No. 2008-29-2301 in accordance with the requirements of CEQA and processed in accordance with Section 4.6. 2.24 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 "Guidelines" herein. (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. 2.25 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. 10 Ph 2.26 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. 2.27 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. 2.28 Future Development Approvals. "Future Development Approvals" means those Development Approvals applicable to the Site approved by the City after the Effective Date. 2.29 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. 2.30 Future Mining Land Use Regulations. "Future Mining Land Use Regulations" means those Mining Land Use Regulations approved by the City after the Effective Date. 2.31 Guidelines. "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: (a) "Guidelines for Above Water Fill" shall mean the November 23, 2005 Guidelines for Above Water Backfilling of Open -Pit Mines, Irwindale, California. (b) "Guidelines for Erosion Control" shall mean the July 6, 2004 Guidelines For Drainage And Erosion Control for Open -Pit Mines, Irwindale, California. (c) "Guidelines for Underwater Fill" shall mean the May 20, 2005 Guidelines for Underwater Backfilling of Open -Pit Mines, Irwindale, California. (d) "Guidelines for Slope Stability" shall mean the December 24, 2003 Guidelines for Slope Stability Analysis of Open Pit Mine Slopes, Irwindale, California. 2.32 Inert Materials. 11 1� "Inert Materials" shall have the meaning as provided in the Guidelines. 2.33 Land Use Regulations. The "Land Use Regulations" means those ordinances, laws, statutes, rules, regulations, initiatives, policies, requirements, guidelines, constraints, codes or other actions of the City, 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. 2.34 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. 2.35 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. 2.36 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. 2.37 Mining Tax. 12 r i F W Fh "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. 2.38 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 Public 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 Processing Plant. "Processing Plant" means the plant operating at Reliance I as of the Effective Date, used for processing and crushing of materials mined from Reliance I, production of ready mixed r�l 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 or other underwater mining equipment, 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 Reliance I or placement of Site Development Fill at Reliance I or II. The Processing Plant shall not be authorized for recycling or other uses where the processed materials do not include mined materials from Reliance I or materials to be used for Site Development Fill at Reliance I or 11, 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 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. 13 "Reclamation Plan" shall mean the September 10, 2008 Reclamation Plan prepared by RGP Planning & Development Services for the Reliance I Quarry and Reliance II Landfill and approved concurrently herewith by the City as part of this Development Agreement. 2.43 Reliance I Quarry. "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 I Development Parcel(s). "Reliance I Development Parcel(s)" means either or both (as used in context) the developable building pads (minimum 42 acres) for the Reliance I Quarry 122.1 -acre portion or a maximum of 2.1 acres for the Reliance I Quarry 2.1 acre portion, which are intended to be developed for industrial uses and retail -commercial use, respectively, consistent with the City's then existing manufacturing zones, when geotechnically stable, in accordance with the Guidelines and Scope of Development. 2.45 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 91.51 gross acres (a portion of which underlays Foothill Boulevard), which is intended to be developed for retail -commercial uses consistent with the then existing commercial, regional zone, in accordance with the Guidelines and Scope of Development. 2.46 Reliance II Drainage Easement. The term "Reliance II Drainage Easement" shall have the meaning set forth in Section 12.0 of this Agreement. 2.47 Reservations of Authority. "Reservations of Authority" shall have the meaning set forth in Section 9.0 of this Agreement. 2.48 Schedule of Performance. "Schedule of Performance" means that certain Schedule of Performance attached hereto as Exhibit C specifying the time limits by which the various obligations under this Agreement must be performed. 2.49 Scope of Development. 14 W hereto. �l 1 "Scope of Development" means the development of the Site as described at Exhibit B 2.50 Site(s). "Site(s)" means the Reliance I Quarry and Reliance II Landfill collectively (Site or Sites) and or individually (Site or Sites) as used in context herein and as shown on the Site Map, attached hereto as Exhibit A, and more specifically described in the Legal Description attached hereto as Exhibit A-1. The Reliance I Quarry site is divided into two parcels, one containing 122.1 acres of active mining and reclamation use and one of 2.1 acres adjacent to Foothill Boulevard, and Reliance II Landfill containing 91.51 gross acres, a portion of which underlays Foothill Boulevard. 2.51 Site Development Fill. "Site Development Fill" shall mean silt fill and Inert Materials used for the filling of the Site, subject to the requirements of Section 7.1 below. 2.52 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. 2.53 Sgperseded Mining Agreements. The term "Superseded Mining Agreements" shall have the meaning set forth in Section 1.5 of this Agreement. 2.54 Term. The "Term" means that period of time during which this Agreement shall be in effect and bind the Parties, as defined in Section 3.1. 2.55 Uniform Codes. The term "Uniform Codes" means the California codes that are based on recommendations of a multi -state professional organization, as adopted by City, such as, but not limited to, the California Building, Electrical, Plumbing, Mechanical, Fire, or Abatement of Dangerous Building Codes and includes the City's Grading ordinance "Appendix J Grading." 2.56 Water Supply Assessment. The term "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 15 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 f5nvironmental 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 for the Reliance I Quarry until: (i) December 31, 2047 for all mining of Reliance I Quarry Phase 1 and Phase 2 reserves, (ii) December 31, 2049 for the removal and Processing Plant reclamation unless otherwise extended by City approval in accordance with the intended end use of the Site, (iii) December 31, 2059 for completion of all Reliance I Development Parcel. The Term shall commence on the Effective Date and shall continue for the Reliance II Landfill until: December 31, 2020 if Vulcan's approval from the City of Azusa for mining at Vulcan's Azusa Rock Quarry is obtained by December 31, 2009, or for each year after December 31, 2009 that such approval is delayed, Vulcan shall have an extension of time equal to such delay, but no later than December 31, 2038, if such approval is not obtained. However, mining operations and reclamation authorized by this Agreement, the approved Conditional Use Permit and Reclamation Plan for the Reliance I Quarry and for the Reliance II Landfill 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 as to each respective portion of the Site, 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 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 (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 16 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 of reclamation at the Reliance I Quarry 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 Reliance I Quarry, and not to the mining phase of any portion of the Reliance I Quarry. To the extent the creation of the Reliance I Development Parcel is so delayed, its total area of approximately 42 acres (of developable building pads) may be reduced and/or reconfigured to comply with the reclamation completion date of the Reliance I Quarry of December 31, 2059, 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 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 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, with respect to the Reliance Sites only, all of the Superseded Mining Agreements. With respect to these Sites, the Superseded Mining 17 1P Agreements are hereby expressly repealed and superseded by the provisions hereof The Superseded Mining Agreements related to the Sites are therefore not applicable to the Project and are excluded from the definitions of Land Use Regulations or Development Approvals, with respect to the Sites. Vulcan voluntarily foregoes these rights in consideration of the rights granted hereunder and waives any claims against City whatsoever therefor. 4.4 Priority of Regulations 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 Sections 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 CEOAA. The City shall be responsible for any and all processing required under CEQA in connection with this Project. As to the CEQA requirements hereunder, the parties agree as follows: (a) The City shall review and process new environmental documents for this Agreement, 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. 18 (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 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 Challenees. 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 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 Riehts of Access. 19 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 C). 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 Relocation of ProcessingPlant. Should Vulcan relocate the Processing Plant, or install a replacement or additional processing plant at the Reliance I Quarry or to any site outside of the City of Irwindale, such relocation, replacement or additional processing activities elsewhere shall be revenue neutral to the City such that Vulcan shall continue to pay the City an in -lieu fee equal to the processing tax otherwise applicable to materials processed at the Plant under Chapter 3.18 of the Irwindale Municipal Code as if the Processing Plant were in the City of Irwindale. The parties contemplate that for Phase 1 mining at the Reliance I Quarry, Vulcan shall pay both the applicable mining and processing tax to the City; during any mining operations at the Azusa Rock Quarry when no mining is occurring within the Reliance I Quarry, Vulcan shall pay the processing tax only to the City, and, thereafter, during Phase 2 mining, Vulcan shall pay the applicable mining tax to the City, plus the applicable processing tax or the in -lieu fee equivalent for any processing operations at either the Reliance I Quarry or outside of the City. 4.11 Release of Mining Rights for Reliance II Landfill. 20 /00.1 No further excavation or mining activity -shall be permitted in the Reliance II Landfill; provided that excavation incidental and necessary for reclamation shall be permitted. In entering into this Agreement, Vulcan forever waives, releases and relinquishes all right whatsoever to mine the Reliance II Landfill as set forth above 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. 4.12 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. 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 storm drain system may incorporate retention basins, overflow facilities, and pumping capacity to insure protection of public safety, all to be developed and maintained by 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 4.12(a) pursuant to Section 14.1 of this Agreement. (b) Streets. (1) For improvements to Foothill Boulevard and Irwindale Avenue, Vulcan shall pay Two Million Six Hundred Sixty Thousand and 00/100 Dollars ($2,660,000.00). Such payments shall be made as follows: a. The first payment of One Million One Hundred Forty Thousand ($1,140,000) shall be made sixty (60) days after the effective date of this Agreement. b. The second payment of Seven Hundred Sixty Thousand ($760,000) shall be made twelve (12) months after the effective date of this Agreement. c. The third payment of Seven Hundred Sixty Thousand ($760;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, at its expense, will construct and at all times maintain walls, fences, berms and 21 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. Vulcan, at its expense, shall underground all utility lines located adjacent to the Project along Foothill Boulevard (West of Irwindale Avenue) in conjunction with the post reclamation development of this 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. 4.13 Selection of Developer. The parties will work together for a joint process to select a developer of the Site, which development will be consistent with the terms of this Agreement. Vulcan shall have the ultimate decision on the selection of the developer, but the parties will participate in a joint process for the solicitation and interview of prospective developers. To this end, Vulcan shall provide the City notice of its desire to solicit developers and the list of such prospective developers. Should the City provide Vulcan with any additional suggested developers to consider for solicitation and interview within twenty (20) days of Vulcan's notice, Vulcan shall include such developers in the solicitation. If the City can provide financial incentives for the development, such incentives will be included in the solicitation process, subject to the City's sole discretion on the decision to provide any incentive. Vulcan shall provide City with a copy of the development proposals received in response to the solicitation and meet with City to evaluate same. Thereafter, the parties will schedule a time to interview those developers mutually accepted by the parties. Thereafter, the parties will mutually interview the selected developers and discuss the developer or developers best suited to develop the Site, as contemplated in this Agreement. Should the parties fail to mutually accept a list of developers to be interviewed or selected for development, following the parties' good faith efforts to do so, Vulcan shall have the ultimate decision on such matters. 5.0 TIME FOR CONSTRUCTION AND COMPLETION OF PROJECT. 5.1 Schedule of Performance. Vulcan understands that the Development and any farther 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 22 ., 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 Timin¢ 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 Reliance I Quarry and reclamation of the Reliance II Landfill Sites 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 twelve (12) years, and potentially thirty (3 0) years, 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 for any of the Sites, Vulcan agrees that no later than one (1) year before completion of reclamation of any portion of the Site, 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 Reliance I Development Parcel or Reliance II Landfill 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 Reliance I Development Parcel or Reliance lI Landfill, which phasing plan shall be based on a schedule of development supported by a market study describing the optimum timing for development of such parcels, which market study shall be performed by Vulcan at its expense and reviewed and approved by the City within 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 PIK Ls (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. 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 REQUESTS 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 to carry 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 industrial and retail -commercial 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 24 ,, 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. 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. ems' Sections 65950, et seq., of the Government Code, generally known as the "Permit Streamlining Act" (the "Act"), requires timely processing of development applications and 25 f 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 Site 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 Site shall meet the requirements of this Section 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 Site shall be based on the location of the groundwater table at the time of fill placement, in accordance with the Guidelines. All Site Development Fill placed into the natural groundwater (Underwater Fill) at any level that exists at the time of fill placement, or such higher level required under the Guidelines, shall comply with all provisions of the Guidelines for Underwater Fill. All Site Development Fill placed above the natural groundwater (Above Water Fill) at any level that it may exist at the time of fill placement, or such lower level required under the Guidelines, shall comply with the provisions of the Guidelines for Above Water Fill. 7.2 Commencement Date/Prioritization of Fill. Vulcan shall not commence Commercial Filling Operations at the Reliance I 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 -I"), (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 City acknowledges that the Reliance II Landfill is a 26 �,.. pre-existing fill operation, not subject to the Commercial Filling Operations limitation described in Section 2.10 or this Section 7.2 and that Vulcan remains free to continue its Commercial Filling Operations thereon. As to any filling activities at the Reliance I Quarry, however, 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 thereon shall be deferred until the Priority Quarries have been reclaimed; subject to the provisions of Section 3.2 above. Reclamation operations shall commence at the Reliance I Quarry 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 at the Reliance I Quarry 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 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; 27 (d) Vulcan shall be obligated to pay any future fees or assessments imposed 104) 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 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. K.9 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. 9.1 Initiation of Amendment. 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. 29 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 Amendment to Combine Reliance I and Azusa -Reliance Reclamation Plans. In response to the written comments from OMR, by letters to the City dated July 11 and September 17, 2008, recommending that the City require the Reclamation Plan, as it pertains to the Reliance I Quarry, be combined with the reclamation plan for Azusa -Reliance ("Single Reclamation Plan") pursuant to State Mining and Geology Board Regulation section 3502, the parties contemplate that this Agreement shall be amended by mutual approval of the parties to adopt the Single Reclamation Plan pursuant to the terms of this Section 9.5. Within the times set forth in the Single Reclamation Plan Schedule, at Exhibit E, Vulcan shall initiate the process of requesting the City of Azusa to consent to the creation of the Single Reclamation Plan and transfer lead agency responsibilities over reclamation of Azusa -Reliance thereunder to the City of Irwindale. Upon receipt of a formal response from the City of Azusa, Vulcan and the City will pursue the following: (a) If the City of Azusa is amenable to transferring lead agency responsibilities for the Reliance -Azusa Quarry, Vulcan shall formally request that the City of Azusa approve a resolution approving the transfer to the City of Irwindale within 30 `l. the times set forth in the Single Reclamation Plan Schedule. Thereafter, Vulcan shall prepare an amendment to the Reclamation Plan to include the Azusa -Reliance Quarry and pay for the City's costs to have the City's environmental consultant prepare an appropriate amendment or supplement to the EIR. Thereafter, the City and Vulcan shall cooperate in processing and considering the approval of the Single Reclamation Plan, securing a resolution from the City of Azusa transferring lead agency responsibilities, and effecting such transfer, as required by SMARA and State Mining and Geology Board Regulations to the City of Irwindale, all in accordance with the Single Reclamation Plan Schedule. (b) If the City of Azusa is not amenable to transferring lead agency responsibilities, Vulcan and the City of Irwindale shall so inform OMR. In such case, the City of Irwindale and Vulcan will take no further action, unless the State Mining and Geology Board schedules a hearing on the issue, at which time City of Irwindale will support any transfer of lead agency responsibilities of the Reliance -Azusa pit to the City of Irwindale. The parties understand that the City of Irwindale retains the right to challenge, in any manner within its discretion, any transfer of lead agency responsibilities over the combined quarry to the City of Azusa. If the State Mining and Geology Board transfers lead agency responsibilities to the City of Irwindale, Vulcan and the City shall cooperate in processing the approval of the Single Reclamation Plan in accordance with the Single Reclamation Plan Schedule and beginning with paragraph 9 of such schedule. The parties agree that any extension to the times provided in the Single Reclamation Plan Schedule shall be governed by Section 3.2 or the terms set forth in the Single Reclamation Plan Schedule. 9.6 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. 10.0 RESERVATIONS OF AUTHORITY. 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 ,r^ Regulations shall apply if they (i) are reasonably technically supported, (ii) are within the 31 D 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 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, 32 f,.. 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 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 borne 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 (30) days after each anniversary of the 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. 33 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 16.2. 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 EASEMENT AT RELIANCE II LANDFILL FOR DRAINAGE PURPOSES. Within the times set forth herein and at no cost to the City, Vulcan shall grant to City a perpetual twenty (20) foot wide drainage easement running along and parallel to the southerly property line of the Reliance II Landfill, along with all necessary temporary construction easements (collectively, "Reliance II Drainage Easement") using a Grant of Easement form as set forth at Exhibit D herein. The Reliance II Drainage Easement shall encompass approximately 1.5 acres and is anticipated to be for the purpose of providing future storm water drainage from the City's property known as the North Kincaid Pit and adjacent sites and roadways (collectively, "Kincaid Property"), located east of Irwindale Avenue and adjacent to the north side of the 210 Freeway, as well as for future storm water drainage from the Reliance II Landfill site, and tributaries thereto (when developed in the future for retail -commercial development). The drainage system, within Vulcan's property, is anticipated to be a buried gravity flow pipe of sufficient size and slope to accommodate storm water flows from the Kincaid Property and fixture development upon the Reliance II Landfill. It is anticipated by both City and Vulcan that the storm water drainage from the Kincaid Property and the Reliance II Landfill will extend to the San Gabriel River for final discharge of the drainage flow from these sites. Vulcan shall grant to City the Reliance II Drainage Easement at least twelve (12) months before the City has, based on reasonable estimates, approved all final engineering plans for the construction of the drainage system. At least six (6) months before commencing such engineering design, the City shall notify Vulcan of this schedule. Within four (4) months of Vulcan's receipt of such notice, Vulcan shall provide the City with an assessment of the storm water drainage capacity required for the future development of the Reliance II Landfill, including all tributary flows thereto. These storm water drainage capacities will be the City's and Vulcan's proportional flow components of the total design flow capacity of the drainage system. The City shall then proceed to entitle, permit, design and build the drainage system necessary for the Kincaid Property; provided that Vulcan and the City shall use reasonable best efforts to achieve economies of scale regarding their respective proportional costs for those portions of the drainage system that will be utilized by both the Reliance II Landfill and the Kincaid Property. In either event, the cost of the parts (based on its proportional flow capacity requirements) of the drainage system required for the Reliance II Landfill and its flow tributaries shall be the sole responsibility of Vulcan or developers of the Reliance II Landfill site. 34 In the event the development upon the Reliance II Landfill requires the drainage system before the City requires the system to drain the Kincaid Property, then Vulcan shall notify the City at least eighteen (18) months in advance of such need. Vulcan shall then proceed to entitle, permit, design and build the drainage system necessary for the Reliance II Landfill; provided that Vulcan and the City shall use reasonable best efforts to achieve economies of scale regarding their respective proportional costs for those portions of the drainage system that will be utilized by both the Reliance II Landfill and the Kincaid Property. In either event, the cost of the parts (based on its proportional flow capacity requirements) of the drainage system required for the Kincaid Property and its flow tributaries shall be the sole responsibility of the City or developers of the Kincaid Property; provided that Vulcan shall not charge City any cost for the grant of the Reliance II Drainage Easement. Should City decide that it does not require the Reliance II Drainage Easement for the Kincaid Property, neither party shall have any further obligation under this Section 12.0, and Vulcan shall not be required to build the storm water drainage system to accommodate the added capacity required for the Kincaid Property drainage; provided that the Reliance II Drainage Easement, unless specifically relinquished by action of the City Council, shall remain in place in perpetuity for future needs of the City to drain the Kincaid Property, at which time any costs to accommodate such future needs of the City shall be borne by the City or developer or operator of the Kincaid Property. 13.0 DEFAULT, REMEDIES AND 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"). 35 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 Materials that shall accrue to Vulcan in conducting the operations of the Site shall be counted toward the financial assurance obligations for each of the Site, Vulcan shall transfer to the JPA its rights to operate the Site 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 Site. (c) The operating rights transferred to the JPA under the SMARA Transfer Agreement shall be in the nature of a transfer in trust, and confer no title or interest in or to any real or personal property of Vulcan. The actual operating rights to the Site 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 Site as required in this Agreement, or (ii) under the Reclamation Plan, or (iii) to maintain financial assurances, as required by this Agreement. In such event, the JPA shall have the right to enter the Site to cure defaults in reclamation and exercise all other rights under the SMARA Transfer Agreement, including the right to receive fill revenues pursuant thereto. 13.4 Riehts 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 Party 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 Party") 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: 36 I (a) Notifies the Non -Defaulting Party in writing with a reasonable explanation as to the reasons the asserted Default is not curable within the thirty (30) day period; (b) Notifies the Non -Defaulting Party of the Defaulting Party's proposed cause of action to cure the Default, specifying dates by which specific actions will be taken; (c) Promptly commences to cure the Default within the thirty (30) day period; (d) Makes reports in accordance with the time schedule provided to the Non - Defaulting Party as to the progress of the program of cure, showing how the proposed dates have been met and establishing any additional needed dates; and (e) Diligently prosecutes such cure to completion, then the Defaulting Party shall not be deemed in breach of this Agreement. Notwithstanding the foregoing, the Defaulting Party shall be deemed in default under this Agreement if said breach or failure involves the payment of money but the Defaulting Party has failed to completely cure said monetary Default within ten (10) days (or such lesser time as may be specifically provided in this Agreement) after the date of such notice. 13.6 Waiver of Breach. eo*. 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 Riehts 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 37 0 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. 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 38 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 Site 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. 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, INDEMNIFICATION, 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 e.. 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 39 I/ 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 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 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 40 payment required for procurement and maintenance of each policy within the following time limits: (1) For insurance required above, within thirty (30) days after the Effective Date. (2) For any renewal or replacement of a policy already in existence, at least ten (10) days before expiration or termination of the existing policy. If 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 FIE g The foregoing indemnity shall not include claims or liabilities arising from the sole or gross negligence or willful misconduct of the City, its officers, agents, or! employees, who are directly responsible to the City. (c) Additional Coverage. Without limiting the generality of the foregoing, said indemnity shall include any liability arising by reason of. (1) Any claim made by any occupant, subtenant, assignee, employee, agent, visitor, invitee, or user of any portion of the Site; (2) Any accident or other occurrence in or on the Site causing injury to any person or property whatsoever; (3) Any failure of 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, 42 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: (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 e�l the request may state in writing the reasons for declining the request. 43 J 17.0 OPTION TO PROPERTY AND PRESCRIPTIVE WATER RIGHTS: TRANSFER AND RIGHT OF FIRST NOTICE 17.1 Prescriptive Water Rights. (a) Sale of Any Parcel of the Site. As to any portion of the Site ("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 Assessment prepared; assessing the water needs for the proposed development of such 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. Subject to -Section 17.1(c) below, 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 cading 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. If 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. `o" 1 L� 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 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-liabilityof f City Officers and Employ. 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. 45 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 invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law unless that covenant, term, condition, or provision declared to be invalid is so material that its invalidity deprives either party of the basic benefit of their bargain or renders the remainder of this Agreement meaningless. 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 "rime 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. UK Ph 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. 18.12 Authority to Execute. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such Party is duly organized and existing; (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party; (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement; (iv) the entering into of this Agreement does not violate any provision of any other Agreement to which said Party is bound; and (v) there is no litigation or legal proceeding which would prevent the parties from entering into this Agreement. 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, #400 Irvine, CA 92612 Telecopier No. (949) 223-1180 Attn: Fred Galante, Esq. 47 Vulcan: 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. 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 Fh t""` 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. 19.0 EXHIBITS. The following are the Exhibits to this Agreement: Exhibit A: Site Map Exhibit A-1 Legal Description of Sites 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: Form Easement Deed for Reliance II Drainage Easement Exhibit E: Single Reclamation Plan Schedule Exhibit F: Reliance Reclamation Plan Drawings [SIGNATURE PAGE FOLLOWS] EEO �1 TLP IN WITNESS WHEREOF, the City and Vulcan have executed this Development Agreement on the date first above written. Approved as to form: ALE�71D LP Fred Galante, City Attorney "CITY" CITY OF IRWINDALE, a municipal corporation Mayo "VULCAN" CALMAT CO., a Delaware corporation, dba VULCAN MATERIALS COMPANY, WESTERN DIVISION By: - Name: tit I\ Q5e2t Title: V� 2 5 i Q N By: ,=4, Gr/ �✓"� Name: 1$A1 9oJ W • fE,erzis Title: U. A F /Y+ 57-• 5E.C. [END OF SIGNATURES / NOTARY JURAT(S) FOLLOW] QQ �a 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. Signature of Notary My Commission Number is 1771106. My Commission Expires October 28, 2011. j ►OS COM CommMflon i 1771106 iia . CouMv cromn►m Dams 11 v!� ACKNOWLEDGMENT State of California } County of Los Angeles} 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 rrr ARMANDO HIODAHL WITNESS my han� and official seal. Commiplon r 1771086 IV L166 Notary PuWle • California Signature L" l� Los County mm,iwcmiwJ 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 Reliance I Quarry and Reliance II Landfill Document Date: September 24, 2008 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer—Title(s): ❑ Corporate Officer—Title(s): ❑ Partner- ❑Limited ❑General ❑ Attorney in Fact ❑ Partner- ❑Limited []General ❑ Attorney in Fact ❑ Trustee ❑ Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer is Representing: Signer is Representing: EXHIBIT A SITE MAP [See Attached for Reliance I Quarry and Reliance 11 Landfill parcels] A-1 W 7 EXHIBIT A-1 LEGAL DESCRIPTION OF SITE [Include Reliance I Quarry (two parcels) and Reliance II Landfill parcel] UK r A-1-1 LEGAL DESCRIP'T'ION Vulcan Materials Reliance Plant Site (Within the City of Irwindale) Those portions of Lots 6, 16, 17, 18, 20, 21 and 22, Subdivision No. 2, Azusa Land and Water Co, in the City of Irwindale, County of Los Angeles, State of California, as per map recorded in book 43, page 94 of Miscellaneous Records, in the Office of the County Recorder of Los Angeles County; together with Parcel 6, as shown on Parcel Map 14521, in the City of Irwindale, County of Los Angeles, State of California, filed in Book 149, pages 41 and 42 of Parcel Maps, in the Office of the Recorder of Los Angeles County; all of which are described as a whole as follows: COMMENCING at the intersection of the centerline of Irwindale Avenue with the centerline of Foothill Boulevard as said centerlines and intersection are shown on a Record of Survey filed in Book 184, Pages 4 through 7, of Records of Surveys, in the Office of the County Recorder of said County; thence, N.89°43'32"W., a distance of 51.79 feet to the west line of Lot 22 of the aforedescribed Subdivision No. 2 of the Azusa Land and Water Co., said line being shown on the aforedescribed Parcel Map 14521; thence, N. 00°25'56" W., a distance of 50.00 feet along said line to a point on the northerly right of way line of Foothill Boulevard, as shown on said Parcel Map, said point also being the southwesterly comer of the aforedescribed Parcel 6 of Parcel Map 14521, said point also being the TRUE POINT OF BEGINNING of this description; thence, 5.89°43'32"E., a distance of 72.41 feet along said right of way line to an angle point therein; thence, S.89°43'05"E., a distance of 117.74 feet along said right of way line to the southwest comer of Parcel 5 of last said Parcel Map; thence, N.00°17'49"E., a distance of 199.95 feet along the west line of said Parcel 5 to the northwest corner thereof; LEGAL DESCRIPTION - Vulcan Materials Reliance Plant Site (Within the City of Irwindale) Page 2 of 5 thence, S.89°42'41"E., a distance of 1,129.79 feet along the southerly line of said Parcel 6 of the aforedescribed Parcel Map 14521, to the southeast corner thereof, said corner also being on the common line between Lots 22 and 33 of said Subdivision No. 2 of the Azusa Land and Water Co., and on the City Boundary Line between the Cities of Irwindale and Azusa; thence, N.00°12'55"E., a distance of 664.54 feet along said common line and City Boundary Line to the common corner of Lots 21, 22, 33 and 34 of said Subdivision No. 2 of the Azusa Land and Water Co.; thence, N.00°23'38"W., a distance of 1,321.46 feet along the common line between Lots 21 and 34 of said Subdivision No. 2 of the Azusa Land and Water Co. and the City Boundary Line between the Cities of Irwindale and Azusa, to the common corner of Lots 20, 21, 34 and 35 of said Subdivision No. 2 of the Azusa Land and Water Co.; thence, N.00000'26"E., a distance of 153.78 feet along the common line between Lots 20 and 35 of said Subdivision No. 2 of the Azusa Land and Water Co. and the City Boundary Line between the Cities of Irwindale and Azusa, to the southerly line of the Los Angeles Interurban Railway Co. (Pacific Electric Railway) right of way as described in a document recorded in Book 2763, pages 98 through 103, of Deeds, in the Office of the County Recorder of said County; thence, N.77°31' 19"W., a distance of 1,291.39 feet along the southerly line of said right of way to the west line of the Rancho Azusa de Dalton and the northwesterly line of Lot 20 of said Subdivision No. 2, Azusa land and Water Co.; thence, S.39°01'29"W., a distance of 2,206.11 feet along said Rancho Line and the northwesterly lines of said Lots 20, 18, and 17 of said Subdivision No. 2, Azusa Land and Water Co., to the most northerly corner of Lot 5 of said Subdivision No. 2, Azusa Land and Water Co.; thence, S.00°25'56"E., a distance of 35.85 feet along the east line of said Lot 5 to the southeast corner thereof, LEGAL DESCRIPTION - Vulcan Materials Reliance Plant Site (Within the City of Irwindale) Page 3 of 5 thence, N.89°40'40"W., a distance of 29.20 feet along the south line of said Lot 5 to the southwest corner thereof and the aforedescribed west line of the Rancho Azusa de Dalton, said southwest corner also being common with the northwest corner of Lot 6, of said Subdivision No. 2, Azusa Land and Water Co.; thence, S.39°01'29"W., a distance of 643.58 feet along said Rancho line and the northwesterly line of said Lot 6, to a point on the northeasterly right of way line of Foothill Boulevard, said point being on a line 50.00 feet northeasterly of and concentric with the centerline thereof as said centerline is shown on the aforedescribed Record of Survey filed in Book 184, Pages 4 through 7 of Records of Surveys, said point being on a non -tangent curve, concave to the northeast, having a radius of 1,950.00 feet, a radial of said curve to said point bears S.35°20'52"W.; thence, southeasterly along said right of way line and said concentric curve through a central angle of 14°40'55", an arc distance of 499.69 feet to the east line of the aforedescribed Lot 6 of said Subdivision No. 2, Azusa Land and Water Co.; thence, N.00°25'56"W., a distance of 12.05 feet along said east line to point on the northerly right of way line of Foothill Boulevard, said line being 50.00 feet northerly of and concentric with the "Old" centerline thereof as shown on a map entitled CS 8549 "Map Showing Land to Be Condemned for Foothill Boulevard", dated April, 1923, and on file in the office of the Department of Public Works, County of Los Angeles, said point being on a non -tangent curve, concave to the northeast, having a radius of 1,950.00 feet, a radial of said curve to said point bears S.21°39'31"W.; thence, southeasterly along said right of way line and said concentric curve, through a central angle of 21'23'03", an arc distance of 727.79 feet to a line which is parallel with and 50.00 feet northerly of the centerline of said Foothill Boulevard as shown on last said Record of Survey; thence, S.89°43'32"E., a distance of 619.52 feet along said parallel line to the TRUE POINT OF BEGINNING. LEGAL DESCRIPTION - Vulcan Materials Reliance Plant Site q i (Within the City of Irwindale) n y Page 4 of 5 EXCEPTING THEREFROM a strip of land, 100 feet wide, within Lots 6 and 16 of Subdivision No. 2, Azusa Land and Water Co., in the City of Irwindale, County of Los Angeles, State of California, as per map recorded in book 43, page 94 of Miscellaneous Records, in the Office of the County Recorder of Los Angeles County described in a deed to the Southern Pacific Railroad Company recorded August 25, 1952 as instrument No. 1713 in Book 42540, Page 267 of Official Records in the Office of the County Recorder of Los Angeles County, the southerly and southwesterly line of which is described as follows: COMMENCING at the intersection of the centerline of Irwindale Avenue with the centerline of Foothill Boulevard as said intersection and centerlines are shown on a Record of Survey filed in Book 184, Pages 4 through 7, of Records of Surveys, in the Office of the County Recorder of said County; thence, N.89°43'32"W., a distance of 255.49 feet along the centerline of Foothill Boulevard as shown on said Record of Survey to a point which is 6.31 feet easterly along said centerline from its intersection with a non -tangent curve concave southwesterly, having a radius of 403.594 feet as described in said Deed, said point being on a non -tangent curve concave southwesterly having a radius of 408.594 feet, a radial of said curve to said point bears N.51°54'37"E.; thence, northwesterly along said curve through a central angle of 9°37'33", an are distance of 68.65' to a point on the north right of way line of Foothill Boulevard, 50.00 feet northerly of and parallel with the centerline of said Boulevard as said centerline is shown on last said Record of Survey, a radial of said curve to said point bears N.42°17'04"E., said point being THE TRUE POINT OF BEGINNING OF THIS EXCEPTION; thence, continuing northwesterly along said curve through a central angle of 42°00'36, an arc distance of 299.59 feet to a point on a line which is 155.00 feet northerly of and parallel with the center line and its westerly prolongation of that portion of Foothill Boulevard which bears N.89°43'32"W. on last said Record of Survey; thence, N.89°43'32"W., a distance of 638.09 feet along said parallel line to the beginning of a tangent curve, concave northeasterly, having a radius of 623.14 feet; LEGAL DESCRIPTION - Vulcan Materials Reliance Plant Site (Within the City of Irwindale) Page 5 of 5 thence, northeasterly along said curve through a central angle of 61°33'24", an arc distance of 669.48 feet to the northwesterly line of the said Rancho Azusa de Dalton and the northwesterly line of said Lot 6. The northerly and northeasterly lines of said 100 foot wide strip shall be shortened or lengthened so as to terminate southeasterly in the northerly right of way line of Foothill Boulevard as described above and northwesterly in the northwesterly line of the said Rancho Azusa de Dalton and the northwesterly line of said Lot 6. Includes any and all reversionary rights to adjoining portions of Foothill Boulevard as may have been previously attached to the above described properties. Subject to Covenants, Conditions, Reservations, Restrictions, Rights of Way and Easements of record, if any. Containing a net area of 122.02 acres, more or less. Prepared by me or under my direction this 21st day of March, 2008. fig No. 4215 Frank, CA PLS 4215 t. EXP.630-10 n 6/30/10) a10' LEGAL DESCRIPTION Vulcan Materials - Reliance Landfill Site Those portions of Lots 3, 6, 7, 15, and 16, Subdivision No. 2, Azusa Land and Water Co., in the City of Irwindale, County of Los Angeles, State of California, as shown on a map recorded in Book 43, Page 94 of Miscellaneous Records, in the Office of the County Recorder of said County, described as a whole as follows: Commencing at the intersection of the centerline of Irwindale Avenue with the centerline of Foothill Boulevard as said centerlines and intersection are shown on a Record of Survey filed in Book 184, Pages 4 through 7, of Records of Surveys, in the Office of the County Recorder of said County; thence, N.89°43'32"W., a distance of 261.80 feet along said centerline of Foothill Boulevard to a point on the west line of the land described in the deed to Southern Pacific Railroad Company by document recorded in Book 42540, Page 267, Official Records of said County, said point being on a non -tangent curve, concave southwesterly, having a radius of 403.59 feet, a radial of said curve to said point bears N.49°32'03"E.; thence, southeasterly along said line and said curve through a central angle of 8°49'10", an are length of 62.12 feet to the southerly right of way line of Foothill Boulevard as shown on said Record of Survey, said point being the TRUE POINT OF BEGINNING of this description; thence, N.89°43'32"W., a distance of 478.33 feet along said right of way line to the beginning of a tangent curve on said right of way line, concave northerly, having a radius of 2,050.00 feet; thence, westerly and northwesterly along said curve through a central angle of 35°14'55", an arc length of 1,261.17 feet to a point on the westerly line of the Rancho Azusa de Dalton; K LEGAL DESCRIPTION - Vulcan Materials — Reliance Landfill Site Page 2 thence, 5.39°01'50"W., a distance of 1,536.73 feet along said Rancho Line to Comer No 10 of said Rancho; thence, continuing along said Rancho Line, S.58°34'33"W., a distance of 527.12 feet to the northerly line of Parcel IA, as described in a Final Order of Condemnation in favor of the State of California, recorded in Book D4082, Page 240, Official Records of said County; thence, southeasterly, along last said line, 5.66°21' 19"E., a distance of 750.20 feet to the beginning of a tangent curve on said line, concave northerly, having a radius of 2,357.00 feet; thence, easterly along said curve through a central angle of 34001'59", an arc length of 1,400.03 feet to the beginning of a compound curve in said line, concave northwesterly, having a radius of 1,920.00 feet; thence, northeasterly along said curve through a central angle of 10°15'12", an are length of 343.59 feet; thence, continuing along said line, N.69°21'30"E., a distance of 533.32 feet to the beginning of a tangent curve on said line concave northwesterly, having a radius of 475.00 feet; thence, northeasterly along said curve through a central angle of 06°18'35", an arc length of 52.31 feet; thence, continuing along said line, N.63°02'55"E., a distance of 95.75 feet; thence continuing along said line, S.84°41'48"E., a distance of 28.40 feet to the westerly line of the land described as Parcel 1H, in the aforedescribed Final Order of Condemnation; thence, along said westerly line, N.05°18'38"E., a distance of 214.19 feet; thence, continuing along said line N.05°04'51"E., a distance of 755.41 feet the beginning of a tangent curve on said line, concave westerly, having a radius of 403.59 feet; U4 LEGAL DESCRIPTION - Vulcan Materials — Reliance Landfill Site Page 3 thence, northerly along said curve through a central angle of 05°12'37", an arc length of 36.70 feet to a point on the west line of the land described in the deed to Southern Pacific Railroad Company by document recorded in Book 42540, Page 267, Official Records of said County, said point being the beginning of a non -tangent curve, concave southwesterly, having a radius of 403.59 feet left, a radial of said curve to said point bears N.88°27'04"E.; thence, northerly along said curve and last said line, through a central angle of 30°05'51", an arc length of 212.01 feet to the TRUE POINT OF BEGINNING. Reference is hereby made to the Record of Survey filed in Book 184, Pages 4 through 7, Records of Los Angeles County for field survey data and details relative to above description. Includes any and all reversionary rights to adjoining portions of Foothill Boulevard. Subject to Covenants, Conditions, Reservations, Restrictions, Rights of Way and Easements of record, if any. Containing 89.56 acres, more or less. Prepared by me or under my direction this 1st day of December, 2004. 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 F. 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 operates the Processing Plant at the easterly portion of the Site, west of the Azusa jurisdiction line, as depicted at Exhibit F ("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 Reliance II Landfill (provided that excavation incidental and necessary for reclamation shall be permitted), as set forth in Section 4.11 of this Agreement, however, the Reliance II Landfill 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 at the Reliance I Quarry and reclamation at the Reliance II Landfill, as described below: (a) Reliance I Quarry. (1) Rights Before Effective Date of this Agreement. The Reliance I Quarry is currently being mined and reclaimed concurrently, with mining operations occurring in phases, as described in Section 5 below of this Exhibit B, namely in the western portion of the parcel, as depicted at Exhibit F. Vulcan is currently entitled to excavate the Reliance I Quarry to a depth of approximately elevation 390 feet above msl or 200 feet bgs. Vulcan currently operates the Processing Plant at the eastern portion of the Reliance I Quarry and abutting the Azusa Rock Site in the City of Azusa. (2) Proposed Mining and Reclamation — Phase 1. Vulcan will continue concurrent mining and reclamation following the approval of this Agreement and in the manner set forth in Exhibit F. Within the time set forth in the Schedule of Performance, Vulcan will mine the Reliance I Quarry in two phases. In Phase 1, Vulcan will mine approximately 28,839,000 tons, which mining will be substantially completed by the year 2017. As part of Phase 1, Vulcan will create a Site Development Fill pad of approximately 11 acres for the possible relocation of the Processing Plant after completion of Phase 1 and before commencement of Phase 2 mining at a minimum elevation of 310feet msl and nominally 280 feet bgs. (3) Proposed Mining and Reclamation — Phase 2. Vulcan shall relocate the Processing Plant before the commencement of Phase 2 (as described in q% W rte` Exhibit F) mining operations, in approximately 2038, but with market condition variability as to specific date. Vulcan shall pay the City an in -lieu fee equal to the Processing Tax due the City if the Processing Plant is not relocated within the City of Irwindale during such Phase 2 operations. Vulcan may continue mining operations during Phase 2 of an additional approximately 20,175,000 tons in the easterly portion of the Reliance I Quarry and under the former location of the Processing Plant until approximately 2047, when Maximum Safe Depth is reached, which is nominally 440 feet bgs to a level pit floor at Elevation 150 feet msl. Throughout the mining operation, Vulcan shall continue reclamation and Site Development Fill activities in accordance with the Schedule of Performance. Vulcan shall reclaim and conduct Site Development Fill activities to achieve a depth of no more than 280 feet bgs or minimum elevation 310 feet msl. All mining shall terminate by 2047. Within 18 to 24 months thereafter, the Processing Plant will be removed, except as provided for in this Agreement regarding post mining use of the Processing Plant, and Vulcan shall continue backfilling with Site Development Fill to create the 124.2 acre Reliance I Development Parcel, which shall be comprised of a 122.1 acre industrially -zoned area (approximately 11 net developable acres as part of Phase 1 and approximately 31 net developable acres as part of Phase 2) at a minimum elevation of 310 feet msl (or maximum 280 feet bgs), and a 2.1 acre retail -commercial area at grade level with and abutting Foothill Boulevard, all pursuant to the �. Guidelines. When each portion of the Site Development Fill for the 122.1 acre portion Reliance I Development Parcel is geotechnically capable of supporting industrial uses, Vulcan shall develop such portion for said uses. The 2.1 acre portion of the Site shall be developed with retail -commercial uses as soon as practical, provided such development doesn't interfere with Vulcan's mining or filling activities. The remaining approximately 80.1 acres (maximum) of the 122.1 acres portion of the Reliance I Quarry shall be improved with roads, other infrastructure, appropriate slopes, landscaping and open space to support the Reliance I Development Parcel, portions of which will provide an aesthetic feature to the industrial development of the Reliance I Development Parcel. Vulcan shall install all infrastructure and security measures as may be necessary and provided in the Reclamation Plan to protect any exposed groundwater in the Phase 1 and Phase 2 mining areas. (b) Reliance II Landfill. No further excavation or mining activity -shall be permitted in the Reliance II Landfill; provided that excavation incidental and necessary for reclamation shall be permitted. Vulcan will continue to operate a Class U or Inert Debris Engineered Fill operation at the Site. Vulcan will fill the Reliance II Landfill to street grade along Foothill Boulevard and in accordance with the Guidelines, this Scope of Development, and the Reclamation Plan to create an approximate 89.56 net acre development pad for development of a retail - commercial center in accordance with the City's commercial, regional zone, as may be amended from time -to -time before entitlements are issued for development. Vulcan may develop a portion of the site below grade level (at approximately elevation 518 feet msl or about 35 feet bgs) with rail road access for a distribution center if economically desirable by Vulcan. Site Development - Fill will be completed by December 31, 2020 if Vulcan's approval from the City of Azusa for mining at Vulcan's Azusa Rock Quarry is obtained by December 31, 2009, or for each year after December 31, 2009 that such approval is delayed, Vulcan shall have an extension of time equal to such delay, but no later than December 31, 2038. The reclaimed parcel will be developed for a freeway -visible retail -commercial center in accordance with the City's then applicable commercial, regional zone. 4. Specific Approvals and Operational Assumptions - Reliance I Quarry: (a) Maximum Safe Depth. The "Maximum Safe Depth" approved under the Conditional Use Permit and this Agreement for the Reliance I Quarry means the nominal depth of 440 feet bgs (to a maximum level bottom at elevation 150 feet msl) to which the Site may be excavated to achieve the maximum safe yield of aggregate reserves as provided for in the Reclamation Plan, taking into account the permitted slopes, 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 at the Reliance I Quarry, Vulcan may mine a total of approximately 49,014,000 net tons of material, comprised of 10,670,00 net tons of previously permitted reserves as of January 1, 2005, 18,169,000 new net tons of reserves derived directly from Phase 1 deeper mining (collectively 28,839,000 net tons), and 20,175,000 net tons derived from Phase 2 deeper mining. (c) 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 import Inert Materials for Underwater Fill and Above Water Fill and will use its operational silts and import Inert Materials for Above Water Fill in Phases 1 and 2 for a total of approximately 7,700,000 cubic yards ("CY"). The proportion of Above Water and Underwarter Fill will vary based on groundwater level fluctuations and availability of import Inert Materials. Nevertheless, the combined volume of 7.7 million CY is approximately correct with respect to the appropriate planning levels of accuracy, assuming an average groundwater level. The total Site Development Fill will be to a minimum elevation of 310 feet msl (or maximum 280 feet bgs). The Phase 1 Site Development Fill will be completed no later than at the commencement of Phase 2 mining, but may occur sooner as determined by Vulcan in its discretion. (d) Rate of Minine. Vulcan will mine at a rate of approximately 2.5 million net tons per year (based on materials sold in 2005) and varying thereafter based on market conditions. i (e) Rate of Reclamation and Site Development Fill: The rate of Site Development Fill for Underwater Fill will occur in proportion to the availability of import Inert Materials at the time of filling. Above Water Fill will occur in proportion to silt production, overburden stripping, and import Inert Materials, which are based on tons sold and market conditions. Combined Phase 1 Underwater and Above Water Fill is estimated to be 1,900,000 CY and the combined Phase 2 fill is estimated to be 5,800,000 CY, not counting the fill required for the final access road, which is currently planned to be located on the north side of the property. (f) Years to completion of Mining: Phase 1 shall be substantially completed by 2017 and Phase 2 shall be completed by 2047. Minor portions of Phase I mining will be performed along the west and southwest portions of the Phase I mining area after completion of Vulcan's processing of Azusa Rock material. (g) Years to completion of Reclamation: Reclamation of the Site, except Site Development Fill, will be completed by 2049, Site Development Fill for Phase 1 will be completed by 2038, and the Phase 2 Site Development Fill will be completed by 2059, unless such completion date is extended in accordance with provisions of this Agreement. Within 12 -months thereafter, Vulcan shall complete the installation and proper establishment periods for revegetation coverage, as required in the Reclamation Plan. (h) Description of Mining, Reclamation and Site Development Fill Phases: (i) Phased Mining. Vulcan will mine in phases on a rotational basis as to depth. Phase 1 will be mined to 440 feet bgs (elevationl50 feet msl) to yield approximately 28,839,000 net tons (as defined above), as depicted at Exhibit F. With the commencement of Phase 2 mining, Vulcan shall relocate the Processing Plant and then mine in the eastern portions of the Reliance I Quarry (under the old plant site) to 440 feet bgs (elevation 150 feet msl) to yield approximately 20,175,000 net tons. All mining shall be in accordance with the terms of this Agreement, the Conditional Use Permit, and the Reclamation Plan. (ii) Slopes. Slopes from the bottom of the mined Site to the surrounding grade above the Reliance I Development Parcel shall be the Maximum Safe Yield Slopes as provided for in the Reclamation Plan and shall comply with the Guidelines and as shown in the Typical Cross Section attached as Exhibit B-2, in accordance with the Guidelines for Slope Stability. (iii) 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 F. In Phase 1 and Phase 2, Vulcan shall fill to not more than 280 feet bgs (minimum elevation 310 feet msl, with approximately 1,900,000 CY and 5,800,00 Cy respectively, as depicted in Exhibit F. All (iv) reclamation will be conducted in accordance with Section 7.1 of this Agreement. Phases: ' Minor portions of Fhase 1 mining will be completed after Azusa Rock material processing. (i) Description of End Condition: (i) Time for completion. Vulcan shall terminate all mining by December 31, 2047. Within 18 to 24 months thereafter (not later than December 31, 2049), Vulcan shall completely remove the Processing Plant if not required for processing material imported by rail or truck and approved by City in its discretion. (ii) Developable Area. Vulcan shall create the 121.1 -acre Reliance I Development Parcel for industrial uses, containing approximately 42 acres (minimum) of "developable building pads" (11 acres for the Phase 1 Site Development, and 31 acres for Phase 2 Site Development). The Reliance I Development Parcel shall be at 280 feet bgs (310 msl) in Irwindale. The Reliance I Development Parcel shall be completed by December 31, 2059, or as extended pursuant to this Agreement. The remainder of the 122.1 acre parcel shall be improved with an access road, other infrastructure, reclaimed mine slopes, landscaping and open space, which will provide aesthetic features, to support the Reliance I Development Parcel. Material Time Material Net Backfill Based on Completion, Phase Tons Mined CY's 1-1-05 Dec. 31st Phase 1 28,839,000 13 2017* Azusa Rock Phase 1 34 2038 Processing 1,900,000 cy Phase 2 20,175,000 43 2047 Total 49,014,000 2047 Remove Unless Site 18-24 2049 Processing Plant used for months import or export Complete Phase 2 55 2059 Fill cy eclamation 5,800,000 cy Plus 12 otal Fill 7,700,00 cy months revegetation ' Minor portions of Fhase 1 mining will be completed after Azusa Rock material processing. (i) Description of End Condition: (i) Time for completion. Vulcan shall terminate all mining by December 31, 2047. Within 18 to 24 months thereafter (not later than December 31, 2049), Vulcan shall completely remove the Processing Plant if not required for processing material imported by rail or truck and approved by City in its discretion. (ii) Developable Area. Vulcan shall create the 121.1 -acre Reliance I Development Parcel for industrial uses, containing approximately 42 acres (minimum) of "developable building pads" (11 acres for the Phase 1 Site Development, and 31 acres for Phase 2 Site Development). The Reliance I Development Parcel shall be at 280 feet bgs (310 msl) in Irwindale. The Reliance I Development Parcel shall be completed by December 31, 2059, or as extended pursuant to this Agreement. The remainder of the 122.1 acre parcel shall be improved with an access road, other infrastructure, reclaimed mine slopes, landscaping and open space, which will provide aesthetic features, to support the Reliance I Development Parcel. .19 (iii) Access Point. Foothill Boulevard and Irwindale Avenue shall be the main access points to the Reliance I Development Parcel. Existing service and emergency vehicle access to Todd Avenue in the City of Azusa will remain as a secondary access point, subject to any approval required from the City of Azusa. Existing secondary Site access at the southwest corner of the Site in Irwindale shall be retained. (iv) End Use. Upon completion of the Reclamation, Vulcan shall develop the Reliance I Quarry with industrial uses encompassing 121.1 acres. The 2.1 acre site fronting on Foothill Blvd and south of the Rail Road right- of-way shall be developed with commercial or retail uses. Vulcan will release the property for development on a phased basis, as soon as possible after completion of the developable building pads; provided the release doesn't interfere with Vulcan's mining or fill activities. (v) Plant Relocation. If Vulcan moves the Processing Plant outside the City of Irwindale, it shall be revenue neutral to City of Irwindale, as set forth in Section 4.10 of this Agreement. (vi) Rail Access. Site Development may be designed to accommodate rail access and/or existing operations may be modified to accommodate rail access for imports or exports if economically desirable by Vulcan and approved by the City for both Reliance 1 Quarry and Reliance II Landfill. (vii) Selection of Developer. The parties will select a developer for the construction of improvements on the site pursuant to Section 4.13 of this Agreement. 5. Other Specific Approvals and Operational Assumptions - Reliance II Landfill. No further excavation or mining activity -shall be permitted in the Reliance II Landfill; provided that excavation incidental and necessary for reclamation shall be permitted. Vulcan shall reclaim and provide Site Development Fill for the Reliance II Landfill in accordance with the Conditions of Approval and the Reclamation Plan. (a) Site Reclamation. The Reliance II Landfill shall be reclaimed in accordance with this Agreement and the Reclamation Plan. (b) Site Development Fill. Vulcan shall continue to operate the Reliance II Landfill as a Class U or an Inert Debris Engineered Landfill Operation. Vulcan shall further utilize fill from Azusa Rock mining operation overburden and. silt from the Reliance plant to complete the Site Development Fill. (c) Fill to street grade along Foothill Blvd. A portion of the Reliance II Landfill may be developed at below grade level, with rail access for a distribution center if economically desirable by Vulcan. Vulcan may develop a portion of the site below grade approximately at a low point of Elevation 518 msl (35 ft bsg), as provided for in the Reclamation Plan. (d) Time for completion. Site Development Fill will be completed by December 31, 2020 if Vulcan's approval from the City of Azusa for mining at Vulcan's Azusa Rock Quarry is obtained by December 31, 2009, or for each year after December 31, 2009 that such approval is delayed, Vulcan shall have an extension of time equal to such delay, but no later than December 31, 2038, if such approval is not obtained. (e) Developable Area. Vulcan shall create an approximate 89.56 acre development pad for retail -commercial development, which may include a retail -commercial center, in accordance with the City's commercial, regional zone, as may be amended from time to time before entitlements are issued for development. (f) Access Point. Foothill Boulevard and Irwindale Avenue shall be the access points to the development at the Reliance II Landfill. (g) End Use. Retail -commercial center in accordance with City's commercial, regional zone, as may be amended from time -to -time before entitlements are issued for development, so long as the use remains consistent with development of a retail -commercial center. The reclaimed parcel will be developed for a freeway -visible retail -commercial center in accordance with the City's then applicable commercial, regional zone. Vulcan may develop the Reliance II Landfill with rail access to accommodate a distribution center on a portion of the site, having a maximum size as approved by the City, to complement the retail - commercial center. (h) Selection of Developer. The parties will select a developer for the construction of improvements on the site pursuant to Section 4.13 of this Agreement. M.M EXHIBIT "B-1" MANNER OF RECLAMATION C-1 Fh irk vo ON.. wzzu a w d I w a a I Wd k a d 't5`i9y I I ~ g Z ,c U, O y F Z I 6 FOw v, U w �c I � <��x � / 41 ___—_______ O CD LO ON.. wzzu a w d I w a a I Wd k a d 't5`i9y I .1 ~ g Z ,c U, O y F Z I 6 FOw v, U w W g i I � <��x � U W g v F O a w d w a a � U k jh A a w 0 U W Ph hil N T— e J I§ 3 >1z a =n �RV1�g W Pz" t g9 IF �I 1 I � J c?� a� r§ 3 c w 8 m n m n I 00000000 if I i' I 1 -a � r 1. rsv.ao.+n s I e J I§ 3 >1z a =n �RV1�g W Pz" t g9 IF �I 1 I � J c?� a� r§ 3 c w 8 m n m n 00000000 e J I§ 3 >1z a =n �RV1�g W Pz" t g9 IF �I 1 I � J c?� a� r§ EXHIBIT "B-2" TYPICAL SLOPE CROSS SECTIONS C-1 c MI � U uj 2 .(IVA)(IS )/|) j &j & ,2 ,` §§!. ; ! ] LU / z & o ; m § °\ 4/\ \ § z , w }\ ) P )\ .| /\ / \ LLJ En z / IL u;. LLI2 § ( . \ \ z . \ ! » - ! S j ! { J,d ! ! . / . ! ) / | � ■ , ,! ;• | ; E \\ `} eeeeeJ� \eeeeJ�� e.A;deJ� 6� � � � }/| . () i . -- - : - ( ■ z { \ _ \ ) j ; LU \ " LL , / ! / LL " r \ \ ° \ 3 . F \ !§ | ! z L ` 2 /\ ,/X: @ G G /: & 0®z \� I j !° ,| ;§ /2 , _ LU \ G {\'/}\\ . LU ` ) \ ! ! \ Lli / . [ f \ , ! � >x __ mM)_ 0T __ . 7 � � � EXHIBIT "C" SCHEDULE OF PERFORMANCE EXHIBIT "C" SCHEDULE OF PERFORMANCE ITEM TO BE PERFORMED TIME FOR PERFORMANCE AGREEMENT REFERENCE 1. City Council conducts first May 1, 2008 Recitals reading of Ordinance approving the CUP, Reclamation Plan, Financial Assurances, and SMARA Transfer Agreement 2. City Council conducts September 24, 2008 Recitals second reading of Ordinance approving this Agreement 3. Vulcan executes this October 24, 2008 1.3(b) Agreement, CUP, Reclamation Plan and _ SMARA Transfer Agreement 4. Effective Date of this October 24, 2008 § 2.21 Agreement 5. City records Agreement Within 10 days of execution by § 18.16 all parties 6. Vulcan delivers to City first December 22, 2008 (60 days § 4.12(b) payment of $1,140,000 for following the date at Event No. 4 street improvement costs above). 7. Vulcan prepares Emergency January 22, 2009 (90 days CUP Condition #34 Plan as attachment to following the date at Event No. 4 Reclamation Plan above). 8. Vulcan prepares plans for February 23, 2009 (120 days CUP Condition implementation of erosion following the date at Event No. 4 #37.d and drainage measures above). C-1 5a ITEM TO BE PERFORMED TIME FOR PERFORMANCE AGREEMENT REFERENCE 9. Vulcan prepares and February 23, 2009 (120 days CUP Condition #33 submits to City Site following the date at Event No. 4 Management and Security above). Plan 10. Vulcan delivers to City October 24, 2009 (12 months § 4.12(b) second payment of $760,000 following the date at Event No. 4 for street improvement costs above). 11. Vulcan delivers to City third October 24, 2010 (24 months § 4.12(b) payment of $760,000 for following the date at Event No. 4 street improvement costs above). 12. Vulcan delivers to City No later than November 24 of § 11.1 annual monitoring fee and each year of term, beginning on documentation showing November 24, 2009 good faith compliance with Agreement 13. City and Vulcan review No later than February 1 of each § 11.1 performance of parties year of term, beginning on under this Agreement February 1, 2010 14. Vulcan commences filling No later than December 31, 2017 § 7.0 & Exhibit B, operations at Reliance I 4(h)(iii) & (iv) Quarry 15. Vulcan commences Within 180 days after Vulcan's § 7.2 Commercial Filling receipt of the City's authorization Operations at Reliance I to commence the Commercial Quarry Filling Operations 16. Vulcan completes No later than December 31, §3.1 & Exhibit B, reclamation of entire 2020, or as extended under 5(d) Reliance II Landfill, Section 3.1 if Vulcan does not provided any portion may be secure approvals from Azusa completed earlier Rock, but no later than December 31, 2038 17. Vulcan completes Phase I No later than December 31, 2038 §3.1 & Exhibit B, filling operations at 4(h)(iii)&(iv) Reliance I Quarry (to 280' bgs) C-2 N ITEM TO BE PERFORMED TIME FOR PERFORMANCE AGREEMENT REFERENCE 18. Vulcan completes Phase II No later than December 31, 2047 §3.1 & Exhibit B, filling operations at 4(h)(iii)&(iv) Reliance I Quarry (to 200' bgs) 19. Vulcan prepares Water Before sale of any Sale Property § 17.1(a) Supply Assessment assessing water needs for developing Parcels 20. Vulcan notifies City of At least ten (10) days before any § 17.1(b) intent to sell the Balance of offer to sell Balance of Water Water Rights Rights to any third party 21. City notifies Vulcan of any Within 10 days of City's receipt § 17.1(b) intent to purchase Balance of the notice from Vulcan of Water Rights described in Paragraph 18 above 22. Vulcan offers to sell any On first occasion that Vulcan § 17.2 Sale Property to the City determines to commence marketing such Sale Property for sale. 23. City notifies Vulcan of any Within 30 days of City's receipt § 17.2 intent to purchase Sale of the notice from Vulcan Property described in Paragraph 22 above 24. Vulcan ceases Mining No later than December 31, 2047 §3.1 & Exhibit B, operations at Reliance I 4(h)(iii)&(iv) Quarry 25. Vulcan removes Processing December 31, 2049 § 3.1 & Exhibit B, Plant and completes rough 4(h)(iii)&(iv) grading of Parcels 26. Vulcan completes No later than December 31, 2059 § 3.1 & Exhibit B, reclamation of entire 4(h)(iii)&(iv) Reliance I Quarry, provided any portion may be completed earlier C-3 ITEM TO BE PERFORMED TIME FOR PERFORMANCE AGREEMENT REFERENCE 27. Vulcan and City develop Within 1-3 years before the § 5.2 phasing plan for completion of reclamation on any construction of portion of portion of the Site the Site 28. Vulcan submits amendment Within 1 year before completion § 5.2 to Development Plan, of reclamation on any portion of including subdivision maps the Site 29. Vulcan files application for Within 1 year before the § 5.2 development of any portion completion of reclamation on any of the Site portion of the Site 30. Development of Site shall Within 5 years of the completion § 5.2 be completed of reclamation on any portion of the Site or pursuant to approved phasing plan It is understood that the foregoing Schedule of Performance is subject to all of the terms and conditions set forth in the text of the Agreement. The summary of the items of performance in this Schedule of Performance is not intended to supersede or modify the more complete description in the text; in the event of any conflict or inconsistency between this Schedule of Performance and the text of the Agreement, the text shall govern. The time periods set forth in this Schedule of Performance may be altered or amended only by written agreement signed by both City and Vulcan. A failure by either party to enforce a breach of any particular time provision shall not be construed as a waiver of any other time provision. The City Manager shall have the authority to approve, in writing, extensions of time without City Council action not to exceed a cumulative total of 180 days. C-4 EXHIBIT "D" FORM EASEMENT DEED FOR RELIANCE II DRAINAGE EASEMENT W rh D-1 LEGAL DESCRIPTION RELIANCE DRAINAGE EASEMENT A strip of land, 20.00 feet in width, in the City of Irwindale, County of Los Angeles, State of California, the southerly line of which is described as follows: Beginning at the intersection of the north line of Parcel 1A, as described in Final Order of Condemnation in favor of the State of California, recorded in Book D4082, Page 240, Official Records of said County with the westerly line of the Rancho Azusa de Dalton as shown on a map recorded in Book 43, Page 94 of Miscellaneous Records, Records of said County, all as shown on a map filed in Book 184, Pages 4 through 7, of Records of Surveys, Records of said County; thence, along said north line as shown on said Record of Survey, the following courses: 1) South 66'21'19" East, a distance of 750.20 feet to the beginning of a tangent curve on said line, concave northerly, having a radius of 2,357.00 feet; 2) thence, easterly along said curve through a central angle of 34°01'59", an arc length of 1,400.03 feet to the beginning of a compound curve in said line, concave northwesterly, having a radius of 1,920.00 feet; 3) thence, northeasterly along said curve through a central angle of 10°15'12", an arc length of 343.59 feet; 4) thence, continuing along said line, North 69°21'30" East, a distance of 533.32 feet to the beginning of a tangent curve in said line concave northwesterly, having a radius of 475.00 feet; 5) thence, northeasterly along said curve through a central angle of 06°18'35", an arc length of 52.31 feet; 6) thence, continuing along said line, North 63°02'55" East, a distance of 95.75 feet; 7) thence, continuing along said line, South 84°41'48" East, a distance of 28.40 feet to the westerly line of the land described as Parcel 1H, in the aforedescribed Final Order of Condemnation. The northerly line of said 20.00 foot strip to be shortened to terminate westerly in the aforedescribed west line of the Rancho Azusa de Dalton, and lengthened to terminate easterly in the aforedescribed westerly line of Parcel 1H. The above-described strip contains 1.466 acres, more or less. Prepared by me or direction this 22nd day of October, 2008. A. 00era LS 4215 216 , No. 0 /1�/ �� EXP. 6-30-10 44215 H � EXHIBIT "E" SINGLE RECLAMATION PLAN SCHEDULE (Per Section 9.5 of Agreement) bli EXHIBIT "E" SINGLE RECLAMATION PLAN SCHEDULE (Per Section 9.5 of Agreement) ITEM TO BE PERFORMED TIME FOR PERFORMANCE 1. Irwindale City Council conducts first reading of June 11, 2008 Ordinance approving the CUP, Reclamation Plan, Financial Assurances, and SMARA Transfer Agreement 2. Irwindale City Council conducts second reading of September 24, 2008 Ordinance approving this Agreement 3. Vulcan executes this Agreement, CUP, Reclamation October 24, 2008 Plan and SMARA Transfer Agreement 4. Effective Date of this Agreement October 24, 2008 5. Vulcan meets with City of Azusa Representatives to Within 30 days of execution by discuss the single Reclamation Plan concept all parties, or as soon thereafter as Azusa has availability to meet 6. Vulcan informs Irwindale if Azusa is amenable to Within 5 days of notification by transferring lead agency responsibility to Irwindale Azusa. 7. If Azusa is not amenable to transferring lead agency Within 5 days of notification by responsibilities, Irwindale shall inform the DOC. In Azusa. such case, Irwindale and Vulcan take no further action, unless State Mining and Geology Board schedules a hearing on the issue, at which time Irwindale will support any transfer of lead agency responsibilities of the Reliance -Azusa pit to Irwindale. 8. If Azusa is amenable to transferring lead agency Within 10 days of Paragraph 6 responsibilities for the Reliance -Azusa pit, Vulcan to above. request that Azusa approve a Resolution effecting the transfer. 9. City of Irwindale adopts resolution accepting lead Within 30 days of Azusa agency transfer of Reliance -Azusa adopting resolution pursuant to Paragraph 8 above. E-1 ITEM TO BE PERFORMED TIME FOR PERFORMANCE 10. City of Irwindale and Vulcan conduct a joint design Within 60 days of City of conference to confirm the scope and scale of the Irwindale adopting resolution required technical content of the Single Reclamation pursuant to Paragraph 9 above. Plan documents, including adequacy to support SMARA, CEQA, City and VMC objectives 11. Vulcan submits an appropriate amendment to its Within 90 days of action of Reclamation Plan application and environmental Paragraph 10 above. review for approval of the Single Reclamation Plan 12. City completes environmental review and Within 1 year of action under consideration of application for Single Reclamation Paragraph 11 above. Plan 13. City holds public hearing to adopt Single Reclamation Within 60 days of action under Plan Paragraph 12 above. 14. City transmits Single Reclamation Plan to OMR Within 5 days of action under Paragraph 13 above 15. City requests Vulcan to adopt changes to Single Within 5 days of Irwindale's Reclamation Plan per OMR comments receipt of comments to Single Reclamation Plan from OMR 16. City determines whether Vulcan adequately addresses Within 5 days of City's receipt of OMR comments comments to Single Reclamation Plan from OMR 17. City holds final approval hearing for Single Within 30 days of City's receipt Reclamation Plan and amendment to this Agreement of OMR's approval of Single to adopt same Reclamation Plan or action under Paragraph 16 above The time periods set forth in this Single Reclamation Plan Schedule may be altered or amended only by written agreement signed by both City and Vulcan. A failure by either party to enforce a breach of any particular time provision shall not be construed as a waiver of any other time provision. The City Manager shall have the authority to approve, in writing, extensions of time without City Council action not to exceed a cumulative total of 180 days. Additionally, the times set forth herein may be further extended in accordance with Section 3.2; provided that the a time extension authorized under Section 3.2 shall be further extended as is reasonably necessary in order to resolve any litigation initiated by a third party challenging the Single Reclamation Plan or transfer of lead agency responsibilities to the City. Vulcan understands that the indemnity provisions of Section 4.7 specifically apply to any such litigation. Should such litigation arise, the parties shall meet to negotiate an appropriate resolution to such litigation, amendment to this Agreement, or the requirements for the creation of the Single Reclamation Plan. E-2 �3 ig ?O^ EXHIBIT "F" RELIANCE RECLAMATION PLAN DRAWINGS The following Reliance Reclamation Plan drawings, dated September 10, 2008, provide facility locations and the manner of mining and reclamation including depths, sequencing, tons mined and backfill volume information referred to in Exhibit B "Scope of Development'. The Reliance Reclamation Plan drawings listed below are provided in reduced 11" x 17" prints hereafter. Drawing No. Title 005-017-MPL-0012 Rev. C Title Sheet, Reliance I & II 005-017-MPL-0013 Rev. C Max. Mining Extent, Min, Reclamation Fill, Reliance I 005-017-MPL-0014 Rev. E Mining & Reclamation Fill Phasing, Reliance I 005-017-MPL-0061 Rev. B Maximum Fill Level, Reliance II 005-017-MPL-0062 Rev. B Minimum Fill Level, Reliance II 005-017-MPL-0016 Rev. B Reclamation Revegetation Plan, Reliance I 005-017-MPL-0053 Rev. B Reclamation Revegetation Plan, Reliance II F-1 Z 0 N ❑ Z K H 10 �iN�ul E °�5yo U<Yorn mpQmU vwat z o 0o i LL C O w y O U w� Q z U 1 j ee$ m ss�x�n 9 m b P o goo g? gN i a'ouOV _9 g §E' mE c s $_ Ess m3 Pa go fr �-E 66 ii s $2 HU, a g8 eE @ H 18 E._ mPP @ sb § s a ¢ r E - 9=m g' gb@E EE@fl•F 3G•Tq &gypp �g $ E -o aEg E �fra �'mg y@@ mm F Meg g brog FgBV @€a'd$i Y�aap9E@elf f V$ m g g Eget �oaie Srv3 � TiUU�Z sv m' 6 E3 H -g6 lei t eEH g $ apa 3sz €F ggo m'n5, r s9 '93$ .�ao m g=Smsg . g ' �Ee & oa d:3 ao' Uo'-�s vs"w'a is F� s2g Et HHmj i m a m� _6 •-g�iq € m€wry @=9 s"oma ma a>Ra€moo- ms""a $jE LLas �:�amze E Eg?�yE ➢EEm $ 4aEgq Flit p�p e 9 5 pa m8�s$ gs Ss€8>3i� 8 E c ="aarc na Z['Z:S 'svow.el'Wtl BE:bi:9 8002/EL/OL'�p'J ZSOJ' w..-LSO-800\SNVId N011bWVD3tl tlO3J\8ll8IHX3 03N8[NI3\PMU\Wawaufiy ]vatW-ldAal) aleW p++l\:d I SyeSym�m ymy�m HIM,11505#111.11 r �o d s x z z q eA z5 0 N g U x S� P1 z1 Sa5aAgsn® pl oil Ae b-ggbm!! �a Aeg ill pa lilt bmm aA@aail55m 50aq� mmAgA e e e emm�am�qpg? e eqb a eo E IN aqH V ma Ii axaggagmaa--aae�agmaA� IASIAS IN E§m Ilje @y�y��yy� �dd IN A �, IN d A d`d pp�a� �d lip {�9R��6gz 111 y��� HiM !� Fg lg id 4 9 A SyeSym�m ymy�m HIM,11505#111.11 r �o d s el 3 s v � o� SyeSym�m ymy�m HIM,11505#111.11 r �o d s ZL'ZO'—I'WV LO:SZ:9 MOZ/EZ/OI'&a 3EIOJ-..W-LIO-S00\SNV NOUVW DA b03J\4GIHM 03HSINI3\9MOV--6v1vas--+ISO-RX.-I* 3 s v � o� z5 0 N g U ZL'ZO'—I'WV LO:SZ:9 MOZ/EZ/OI'&a 3EIOJ-..W-LIO-S00\SNV NOUVW DA b03J\4GIHM 03HSINI3\9MOV--6v1vas--+ISO-RX.-I* ZL'Z:i'suruel'WV 85:92:9 8002/EZ/OS'Oh+P3 bLOJ9ew-LLO-S00\SNtlld NOLLVWtl1Atl tl03J\Sll8[Hk3 03N9NH\89M0Uiawaa�fiy luamepra0 aleWP+0\oa ad d \ i IL - _ - --- - C ----- ZL'Z:i'suruel'WV 85:92:9 8002/EZ/OS'Oh+P3 bLOJ9ew-LLO-S00\SNtlld NOLLVWtl1Atl tl03J\Sll8[Hk3 03N9NH\89M0Uiawaa�fiy luamepra0 aleWP+0\oa C5 , � . _,» 9_w�T9�_�_r_______w __ ; t / [ v. /& . || < y •y . w � = � jC2 , � . _,» 9_w�T9�_�_r_______w __ < y •y . w � ) d\| •§ {g \f1 2 z .! §R` . -H - Qj !!,. \g._ M «9Q !!i \}) . . \6@ §5/ 6b QQ;Rba; .� \ \\\\ \\\\ \\ \\ 0 © . , ! . , � . _,» 9_w�T9�_�_r_______w __ D� ZLZ:S"nos O'M9Z:IV9M/EZ/0I 'WP '9 Z90}HdW—d-SMSWd D3 T130NM3Ntl M\S IHn 03HSIN1AS9W\4a WBV Ju —P^ alepuv j\ s=5"6� -21 E,.1 U p2 s� D� ZLZ:S"nos O'M9Z:IV9M/EZ/0I 'WP '9 Z90}HdW—d-SMSWd D3 T130NM3Ntl M\S IHn 03HSIN1AS9W\4a WBV Ju —P^ alepuv j\ Y y£ �E Y �E ZL'LL'aaw.el'WV 4E:W9 SOOZ/CZ/OI--•V'99T0. yW-LIO-SOO\SWd 93MM\S SIHU 43HSINU\ZM\1 a--bv Wau._aanap alepe� 0 Gt ZZZ:Ta-el'WV 9ZT6:9 SOOZ/EZ/OS--P'9 ESOD9W-ZSO-SOO\SNtl 9A38\S IHk G3HANU\S9MO\Na—BV puaw.,a aleOulwA