HomeMy WebLinkAbout684ORDINANCE NO. 684
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF IRWIN DALE
APPROVING DEVELOPMENT AGREEMENT NO. 01-2014, BETWEEN CITY OF
IRWINDALE AND UNITED ROCK PRODUCTS ON PROPERTY LOCATED AT THE
SOUTHWEST CORNER OF AZUSA CANYON ROAD AND OLIVE STREET (4407
AZUSA CANYON ROAD — APN 8415-001-906) SUBJECT TO CONDITIONS AS SET
FORTH HEREIN AND MAKING
FINDINGS IN SUPPORT THEREOF
WHEREAS, United Rock Products, 1245 Arrow Highway, Irwindale, CA 91706,
the Applicant, has made a request to enter into a License and Mining Agreement with
the City of Irwindale to resume mining and reclamation of the Olive Pit, 4407 Azusa
Canyon Road, in the City of Irwindale — APN 8415-001-906, as more specifically
described in the Draft Development Agreement attached hereto and incorporated
herein; and
WHEREAS, The Subject Property is currently zoned A-1 (Agricultural) and will be
re-zoned Q (Quarry Overlay) as part of this approval to be consistent with the City's
General Plan land use designation of Quarry Overlay; and
WHEREAS, Pursuant to the authority and criteria contained in the California
Environmental Quality Act (CEQA) of 1970, as amended, and the City of Irwindale
environmental guidelines, the City, as the Lead Agency, has analyzed the project and
has prepared an Environmental Impact Report ("EIR"), and has determined, on the
basis of the EIR, that the proposed project will have significant and unavoidable impacts
related to air emissions due to a daily projected exceedance of the emissions threshold
for NOx, and traffic and circulation impacts including short term (2016), long term (2035)
and cumulative impacts associated with heavy duty transport trucks used to take
extracted materials off site for processing and trucks traveling to the site for backfilling
operations. The EIR was circulated for public review for the required 45 days from
August 14, 2014 to September 29, 2014. A copy of the EIR was circulated to the State
Clearinghouse (SCH#2014031051), posted on the City's website, and was available at
the Irwindale Public Library and Deputy City Clerk's Office. The Notice of Availability
was published in the San Gabriel Valley Tribune on August 29, 2014. A copy of the EIR
and Mitigation Monitoring and Reporting Program was posted on the City's website; and
WHEREAS, On October, 29, 2014, the project was scheduled before the
Planning Commission as a duly noticed public hearing. The public hearing was opened
and public testimony was taken. Members of the public expressed their opinion of the
proposal. One person testified in favor of the proposed landscaping and fencing
improvements along Olive Street. Others identified concerns over the truck traffic and
potential dust. The Community Development Manager of the City of Baldwin Park
submitted three letters: one letter dated September 29, 2014, which consisted of the
Ordinance No. 684
Page 1
City of Baldwin Park's comments on the Draft EIR 1 ; one letter dated October 29, 2014
consisting of Baldwin Park's comments on the City of Irwindale's responses to Baldwin
Park's comments on the Draft EIR; and one letter dated October 29, 2014, which
indicated that the Notice of Public Hearing for the October 29, 2014 Planning
Commission meeting was deficient pursuant to Government Code Section 65094 as it
did not include a "general description, in text or by diagram, of the location of the real
property," which was the subject of the hearing. All three letters are contained in
Attachment "B". After taking a recess and considering Baldwin Park's comment
pertaining to the public notice, the Assistant City Attorney recommended that the item
be re-noticed and a new public hearing be held at the next regularly scheduled Planning
Commission meeting of November 19, 2014; and
WHEREAS, On November 19, 2014, the project was scheduled before the
Planning Commission as a duly noticed public hearing and recommended for approval
by the City Council; and
WHEREAS, All legal prerequisites to the adoption of this Resolution have
occurred; and
WHEREAS, on December 3, 2014, the City Council conducted a duly noticed
public hearing, as required by law, on the Application and recommendation of the
Planning Commission to approve the proposed project, which allows for resumption of
mining in and reclamation of the Olive Pit, took testimony and reviewed relevant
documentary evidence and conducted a first reading of this Ordinance approving
Development Agreement No. 01-2014; and
WHEREAS, all legal prerequisites to the adoption of this Ordinance have
occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF IRWINDALE DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The City Council finds that the above recitals are true and correct
and are incorporated herein by this reference.
SECTION 2. The City Council finds as follows:
1 This letter had been submitted to the City of Irwindale on September 29, 2014 and has been
included in the Final EIR.
Ordinance No. 684
Page 2
0 A_L. a_e
a )41 -44'
ra M. Nieto, CMC
puty City Clerk
Development Agreement Findings:
a. Development Agreement No. 01-2014 is consistent with the
provisions of the Development Agreement statutes, at Government Code sections
65864 et seq.,
b. The proposed mining and reclamation of the Olive Pit per
Development Agreement No. 01-2014 are consistent with the General Plan and Quarry
Overlay Zoning designation,
c. Development Agreement No. 01-2014 contains provision for
periodic review of Developer's compliance with its terms, is limited in duration through
December 31, 2050, unless duly extended following negotiations between the City and
United Rock Products Corporation, specifies the permitted use of the site related to the
mining and reclamation activities thereon and provisions for City access to the site
where necessary.
SECTION 3. In light of the above findings and further testimony and
documentation provided at the public hearing to consider approval of the project
described in Development Agreement No. 01-2014, the City Council hereby approves
Development Agreement No. 01-2014 and authorizes its execution and all actions
necessary to comply with its terms.
SECTION 4. The City Council hereby authorizes and directs the Mayor and the
City Clerk to execute this Ordinance on behalf of the City of Irwindale forthwith upon its
adoption.
SECTION 5. The Deputy City Clerk shall certify as 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 3 rd day of December, 2014.
Mark A. Breceda, Mayor
ATTEST:
Ordinance No. 684
Page 3
ura M. Nieto, CMC
eputy City Clerk
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES } ss.
CITY OF IRWINDALE
I, Laura M. Nieto, Deputy City Clerk of the City of Irwindale, do hereby certify that the
foregoing Ordinance No. 684 was duly introduced at a special meeting of the Irwindale
City Council held on the 3 rd day of December 2014, and was duly approved and
adopted on second reading at its regular meeting held on the 10 th day of December
2014, by the following vote of the Council:
AYES: Councilmembers: Ambriz, Garcia, Miranda, Ortiz, Mayor Breceda
NOES: Councilmembers: None
ABSENT: Councilmembers: None
ABSTAIN: Councilmembers: None
AFFIDAVIT OF POSTING
I, Laura M. Nieto, Deputy City Clerk, certify that I caused a copy of Ordinance No. 684, adopted by the City Council of the City of
Irwindale at its regular meeting held December 10, 2014, to be posted at the City Hall, Library, and Post Office on December 11,
2014
Dated:
Ordinance No. 684
Page 4
ATTACHMENT 1
DEVELOPMENT AGREEMENT NO. 01-2014
Ordinance No. 684
Page 5
RECORDING REQUESTED BY
AND WHEN RECORDED, MAIL TO:
CITY OF IRWINDALE
5050 N. IRWINDALE AVE.
IRWINDALE, CA 91706
ATTN: CITY CLERK
(Space above this line for recorder's use only)
Exempt from Recording Fees per Gov't. Code Sec. 6103
DEVELOPMENT AGREEMENT FOR OLIVE PIT
between
THE CITY OF IRWINDALE
and
UNITED ROCK PRODUCTS CORPORATION
TABLE OF CONTENTS
1.0 MUTUAL BENEFITS AND ASSURANCES 2
1.1 Project Description 2
1.2 Summary of Development Plan. 3
1.3 Interest and Representations of Developer. 3
1.4 Binding Effect of Agreement 4
1.5 Superseded Mining Agreements. 4
2.0 DEFINITIONS. 4
2.1 Anticipated High Water Level. 5
2.2 Applicable Law. 5
2.3 Assignment. 5
2.4 Authorizing Ordinance 5
2.5 City 5
2.6 City Council. 5
2.7 Commercial Filling Operations 5
2.8 Completion of Reclamation. 6
2.9 Concurrent Mining Approvals. 6
2.10 Conditions of Approval 6
2.11 Default 6
2.12 Development. 6
2.13 Development Agreement Statute. 7
2.14 Development Approvals. 7
2.15 Development Parcel. 7
2.16 Development Plan 7
2.17 Effective Date. 7
2.18 EIR or "environmental documents" 7
2.19 Engineered Fill 7
2.20 Existing Development Approvals. 8
2.21 Financial Assurances. 8
2.22 Future Development Approvals. 8
2.23 Future Mining Land Use Regulations. 8
2.24 Guidelines. 8
2.25 Inert Materials 9
2.26 License 9
2.27 Maximum Depth. 9
2.28 Mining Development Approvals 9
2.29 Mining Land Use Regulations. 9
2.30 Mining Tax 9
2.31 Project Improvements. 9
2.32 Project. 10
2.33 Reclamation Plan. 10
2.34 Reservations of Authority. 10
2.35 Schedule of Performance. 10
2.36 Scope of Development 10
2.37 Site. 10
2.38 Site Development Fill. 11
2.39 Superseded Mining Agreements. 11
2.40 Term 11
2.41 Uniform Codes 11
2.42 Zone Amendment 11
3.0 TERM. 11
3.1 Term 11
3.2 Completion of Project. 12
3.3 Force Majeure. 12
4.0 OPERATION OF THE PROJECT AND DEVELOPMENT OF THE SITE.12
4.1 Right to Undertake Project 12
4.2 Later Enacted Measures. 13
4.3 Inconsistencies. 13
4.4 CEQA 13
4.5 Project Challenges. 14
4.6 Rights of Access. 15
4.7 Mining, Reclamation and Development of the Site .15
4.8 Project Improvements. 15
4.9 Environmental Control Systems. 16
4.10 Community Benefits. 16
4.11 Performance Responsibilities 16
4.12 Liquidated Damages. 17
5.0 SCHEDULE OF PERFORMANCE: TIME FOR OPERATION AND
COMPLETION OF PROJECT. 18
6.0 PROCESSING OF REQUESTS AND APPLICATIONS; OTHER
GOVER_NMENT PERMITS. 18
6.1 Standards. 18
6.2 Reclamation Plan. 19
6.3 Other Governmental Permits. 19
6.4 Public Agency Coordination. 19
7.0 RECLAMATION LIMITATIONS AND OBLIGATIONS. 19
7.1 Fill Requirements and Specifications. 20
7.2 Consultant Engineer; Site Certification 20
7.3 Commencement Date/Prioritization of Fill 21
7.4 Free-Market Filling Operation. 22
8.0 FEES, TAXES AND ASSESSMENTS. 22
8.1 -General 22
8.2 Mining Tax 23
8.3 Tipping Fees 23
8.4 Accord and Satisfaction. 24
8.5 Payment Made by City on Behalf of Developer. 24
9.0 AMENDMENT OF DEVELOPMENT AGREEMENT. 24
9.1 Initiation of Amendment. 24
9.2 Procedure. 25
9.3 Consent. 25
9.4 Minor Modifications. 25
9.5 Effect of Amendment to Development Agreement. 26
10.0 RESERVATIONS OF AUTHORITY 26
10.1 Limitations, Reservations and Exceptions 26
10.2 Objections to Regulation 27
10.3 Regulation by Other Public Agencies. 27
11.0 ANNUAL REVIEW 28
11.1 Annual Monitoring Review. 28
11.2 Estoppel Compliance. 29
11.3 Failure to Conduct Annual Review 29
12.0 DEFAULT, REMEDIES, TERMINATION AND FINANCIAL
ASSURANCES 29
12.1 Security for Performance. 29
12.2 Financial Assurance Bonds. 29
12.3 Rights of Non-Defaulting Party after Default 30
12.4 Notice and Opportunity to Cure 30
12.5 Remedies Cumulative. 31
12.6 Interest 31
12.7 Rights and Duties Following Termination 31
13.0 RESTRICTIONS ON TRANSFER 31
13.1 General. 31
13.2 Subject to Terms of Agreement. 32
13.3 Release of Developer.
14.0 INSURANCE, INDEMNIFICATION, WAIVERS. 32
14.1 Insurance. 32
14.2 Indemnification. 34
14.3 Waiver of Subrogation. 38
15.0 EFFECT OF AGREEMENT ON TITLE 38
15.1 Covenants Run with the Land. 38
15.2 Estoppel Certificate 38
16.0 GENERAL 39
16.1 Non-liability of City Officers and Employees. 39
16.2 Conflict of Interest. 39
16.3 Covenant Against Discrimination 39
16.4 Construction of Agreement. 39
16.5 Severability. 403-9
16.6 Attorney's Fees. 40
16.7 Time of Essence 40
16.8 Waiver. 40
16.9 No Third Party Beneficiaries. 40
16.10 Mutual Covenants. 40
16.11 Counterparts. 4140
16.12 Authority to Execute. 41
16.13 Notices, Demands and Communications Between the Parties. 41
16.14 Further Actions and Instruments 42
16.15 Recitals 42
16.16 Recording. 42
16.17 Relationship of Parties. ........................... .... ..........
16.18 Inspection of Books and Records. 42
16.19 Integration Clause. 43
16.20 Disputes 43
17.0 EXHIBITS. 43
DEVELOPMENT AGREEMENT FOR OLIVE PIT
THIS DEVELOPMENT AGREEMENT FOR OLIVE PIT ("Development Agreement"
or "Agreement") is entered into on , 2014, by and between the CITY OF
IRWINDALE, a municipal corporation (the "City"), and UNITED ROCK PRODUCTS
CORPORATION, a Delaware corporation ("Developer"). The City and Developer may be
referred to collectively as the "Parties" and individually as a "Party."
RECITALS:
A. Developer Property. The City owns and maintains an inactive mining site known
as the Olive Pit and identified as APN 8415-001-906 ("Site"). The Site" is a 189.74 acre
inactive sand and gravel quarry, as shown in the "Site Map" attached hereto as Exhibit A and
incorporated herein by this reference.
B. Legislation Authorizing Development Agreements. To strengthen the public
planning process, encourage private participation in comprehensive planning and reduce the
economic risk of development, the legislature of the State of California adopted the Development
Agreement Statute, Section 65864 et seq. of the Government Code, authorizing the City to enter
into an agreement with any person having a legal or equitable interest in real property providing
for the development of such property and establishing certain development rights therein.
C. CEQA. The activities contemplated under this Agreement qualify as a project
under State law, are not exempt under the provisions of the California Environmental Quality
Act, at California Public Resources Code Section 21000 et seq. and regulations promulgated
pursuant thereto ("CEQA"), and, as such has been reviewed by City for its potential
_ environmental impacts pursuant -to that certain Environmental Impact Report ("EIR") certified
by City concurrently with the approval of this Agreement.
D. Purpose of Agreement.
To address the on-going costs and liability of owning and maintaining the inactive
mining site due to factors such as slope stability concerns threatening neighboring properties,
erosion, and illegal dumping, the City issued a Request for Qualifications ("RFQ") in January,
2013 to evaluate options for the effective re-use of the Site. On or about January 22, 2013, in
response to the RFP, the City received 2 proposals, including that from Developer to excavate
and reclaim portions of the Site ("Project"). The City Council considered proposed terms to
license the Site to Developer for such purposes and approved that certain Memorandum of
Understanding ("MOU") on August 14, 2013 with Developer, finding that the proposal from
Developer best suits the needs of the City, as further described herein. City and Developer enter
into this Agreement pursuant to Government Code sections 65864 et seq. for the implementation
of the Project. Additionally, the parties intend to enter into a license agreement ("License")
concurrently with the approval of this Agreement, to provide access to Developer to the Site and
provide for Developer's payment of applicable royalties to City. The effectiveness of this
Agreement shall be contingent on the City's approval and continued effectiveness of the License.
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The Planning Commission and City Council have determined that the development and
operation of the Project is consistent with the City's General Plan, current policies and the
California Surface Mining And Reclamation Act of 1975, as amended ("SMARA"), and
implementing regulations of the State Mining and Geology Board ("SMARA Regulations")
designating the area that includes the Site as a Regionally Significant Construction Aggregate
Resource Area in the Orange County-Temescal Valley and San Gabriel Valley Production-
Consumption Regions (SMARA Regulations §3550.5). Said SMARA provisions prohibit the
City from abandoning the existing significant construction reserves or otherwise reclaiming the
Site so as to prevent the ability to extract such reserves, without making certain findings that are
not likely feasible to establish as to the Site (SMARA Section 2763).
Developer has submitted to City an application for development and operation of the
Project at the Site. The City is prepared to grant such entitlement, provided that Developer
agrees (1) to enter into the License concurrently with this Agreement providing Developer with
rights to access the Site and describing Developer's obligations to pay City royalties; (2) to mine
the Site in accordance with the terms of this Agreement; (3) to reclaim the Site in the manner set
forth herein and in the approved Reclamation Plan; (4) to provide the security required in this
Agreement in addition to the City's pledge of revenue as financial assurances in compliance with
SMARA; and (5) to fund the cost for all mitigation measures as identified in the EIR, except as
may be expressly provided at Article 9.0.
E. Public Hearings; Findings. On November 19, 2014 the City's Planning
Commission, after a duly noticed public hearing, adopted Resolution No. (14)
recommending City Council certification of the EIR, City Council approval of Zone Change,
Reclamation Plan, Financial Assurances and this Agreement. On , 2014, the City
Council, after making appropriate findings at a duly noticed public hearing, adopted Resolution
No. certifying the EIR, conditionally approving the Zone Change, Reclamation Plan,
Financial A-ssizariees, and -this A-greement-by int-1-(d) ucing Ordinance No. , subject to
comment from the California Department of Conservation, and on , 20 , after
considering all comments from the Department of Conservation, adopted Ordinance No.
approving this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, and having deteimined 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 Project Description.
Developer intends to mine useable aggregates from the Site, utilizing both dry and
underwater mining processes. The parties desire to have Developer construct a new on-site
access road and relocated driveway entrance to the Site on the south side of the Site, mine the
easterly area of the Site in the initial phase of the Project so as to allow reclamation of the
easterly area comprising approximately 31.2 acres to commence as soon as possible, and mine
the balance of the Site. All such mining and reclamation activities shall strictly follow the City's
Guidelines, as defined below as well as Appendix J of the City's Building Code. Developer
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intends to accomplish the Project utilizing environmental control systems aimed at mitigating the
impact of the Project on surrounding residences, businesses and roadways.
Developer understands and acknowledges that the City intends to ultimately develop the
31.2 acre portion of the Site for future commercial or industrial development in accordance with
the terms of this Agreement and the remainder for long-term use as a storm water retention area,
both of which are envisioned to occur after the completion of the mining and reclamation of the
Project described herein. This Article 1.0 outlines the parties' general intent as to the timeframe
and sequence for the development of the Site. The intended mining, reclamation and
development 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.
As further described in the Scope of Development at Exhibit B, Developer will extract
economically available construction aggregate resources from the Site in compliance with State
and City regulations. Developer will extract the resources in a phased manner while also
reclaiming the Site for future beneficial uses. The first phase will include mining the eastern
portion of the Site, followed by reclamation of this area to create an approximate 31.2-acre pad
suitable for development. Reclamation will involve filling the extraction void with inert fill
materials. The second phase will include mining the remainder of the Site utilizing both dry and
underwater mining processes.
1.3 Interest and Representations of Developer.
"Developer" is United Rock Products_ Corporation, a Delawarecorporation, and its
permitted successors and assigns, with its principal offices at 135 South State College Boulevard,
Suite 400, Brea, California 92821. Developer warrants and represents to City that:
(a) Developer is a Delaware corporation duly organized and existing under
the laws of the State of Delaware;
(b) By proper action of Developer, Developer's signatories have been duly
authorized to execute and deliver this Agreement, acting by and through its duly
authorized officers;
(c) Developer 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) Entering into this Agreement by Developer does not violate any provision
of any other agreement to which Developer is a party;
(e) Except as may be specifically set forth in this Agreement, no approvals or
consents not heretofore obtained by Developer are necessary in connection with the
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execution of this Agreement by Developer or with the performance by Developer of its
obligations hereunder;
(f) Neither Developer, nor the principals of Developer, 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 Developer 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; provided that the foregoing representation does not apply to the
present condition of the Site inasmuch as the City is the owner of this property;
(h) Developer 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) Developer is legally entitled to enter into the License with City to secure
the right of possession to the Site and operate any of the activities thereon approved
under this Agreement.
(1) Developer has inspected the Site pursuant to the authorization provided by
City under the MOU and performed sufficient testing in its discretion and to its
satisfaction to verify and, as a result of such access and testing, has verified that the Site
contains recoverable (i.e. useable) reserves of a minimum of 30 million tons and that such
reserves meet the quality standards of applicable California governmental agencies for
construction.
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 the Site.
1.5 Superseded Mining Agreements.
Prior to this Agreement, the Site was subject to approvals by the County of Los Angeles
(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. The Superseded Mining Agreements
shall also include the MOU between Developer and the City, dated August 14, 2013.
2.0 DEFINITIONS.
The following words and phrases are used as defined terms throughout this Agreement.
Each defined term shall have the meaning set forth below. Any capitalized terms not defined in
this Section shall have the meaning otherwise assigned to them in this Agreement or apparent
from the context in which they are used.
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2.1 Anticipated High Water Level.
"Anticipated High Water Level" means the anticipated high groundwater level of
approximately +285' amsl. 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.
2.2 Applicable Law.
"Applicable Law" means all statutes, rules, regulations, guidelines, actions,
determinations, Permits, orders, or requirements of the United States, State, County, City and
local and regional government authorities and agencies having applicable jurisdiction, that apply
to or govern the Site or the performance of the Parties' respective obligations hereunder,
including any of the foregoing which concern health, safety, fire, environmental protection, labor
relations, mitigation monitoring plans, building codes, zoning, non-discrimination, and
prevailing wages if applicable.
2.3 Assignment.
All forms of use of the verb "assign" and the nouns "assignment" and "assignee" shall
include all contexts of hypothecations, conveyances, transfers, leases, and assignments.
2.4 Authorizing Ordinance.
"Authorizing Ordinance" means Ordinance No. approving this Agreement.
2.5 City.
"City" means the City of Irwindale, California, a municipal corporation.
2.6 City Council.
"City Council" means the governing body of the City of Irwindale.
2.7 Commercial Filling Operations.
"Commercial Filling Operations" shall refer to the following: The City has established a
phased reclamation process to concentrate fill materials in prioritized mining pits so that the pits
can be fully reclaimed as quickly as possible and made available for the end uses, and. Developer
has agreed to participate in this process. Accordingly, without the written approval of the City
Manager, Developer 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 Developer and now by Irwindale Partners, LLC
("IP"), Hanson Aggregate's 40 acre portion along the 605 freeway, Developer's Pit No. 2 and
Vulcan Materials' Durbin and Reliance quarries. Developer understands and acknowledges the
contractual obligations of City to IP, Hanson, Developer (by separate agreement) and Vulcan
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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 Developer from commencing or carrying out reclamation
through noncommercial filling operations by utilizing fill from its own internal operations on the
Site or from Developer'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 IP, Hanson, Developer (by separate agreement), and Vulcan.
2.8 Completion of Reclamation.
"Completion of Reclamation" means, consistent with the definition under the California
Surface Mining and Reclamation Act of 1975, the completed process of land treatment which
minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding,
erosion, and other adverse effects from surface mining operations, including adverse surface
effects incidental to underground mines, so that the mined lands are reclaimed to a usable
condition which is readily adaptable for the ultimate development and other uses of the Site, as
specified in this Agreement and the Guidelines, and creates no danger to public health or safety.
The process 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 approximately 31.2 acre Development
Parcel in accordance with the Guidelines. Other reclamation activities include, but are not
limited to, the removal of all mining related facilities, final grading and revegetation of mine
slopes, etc.
2.9 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 Reclamation
Plan, FIR and approvals addressing Financial Assurance obligations.
2.10 Conditions of Approval.
"Conditions of Approval" means those conditions regulating the mining and reclamation
activities authorized by this Agreement and attached as Exhibit B hereto.
2.11 Default.
"Default" refers to any material default, breach, or violation of a provision of this
Agreement as defined in Section 12.0. "City Default" refers to a Default by the City, while
"Developer Default" refers to a Default by Developer.
2.12 Development.
"Development" shall have the meaning set forth under the definition of "Project" herein.
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2.13 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.
2.14 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
tem' 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 10.0.
2.15 Development Parcel.
"Development Parcel" means the 31.2-acre portion of the Site comprising the easterly-
most portion of the Site, which is intended to be developed for commercial and industrial uses,
when geotechnically stable, in accordance with the Guidelines and Scope of Development.
Developer shall reclaim such 31.2-acre portion pursuant to the terms of this Agreement and
Reclamation Plan to street level with a 2:1 slope along the western margin of the Site, which will
require more than 8 million cubic yards of fill.
2.16 Development Plan.
"Development Plan" means the Existing Development Approvals, Future Development
Approvals, Mining Land Use Regulations and permitted Future Mining Land Use Regulations
per Article 10.0.
2.17 Effective Date.
"Effective Date" means the date the Agreement becomes effective, which shall be the
date thirty (30) days after the adoption of the Authorizing Ordinance; provided the parties
approve the License on or before such date.
2.18 EIR or "environmental documents".
"EIR" or "environmental documents" means the final Environmental Impact Report or
other environmental documents certified by City Council Resolution No. in
accordance with the requirements of CEQA and processed in accordance with Section 4.4.
2.19 Engineered Fill.
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"Engineered Fill" means the use of Site Development Fill for the reclamation of quarry
pits to the following standard:
(a) All fill placed into the natural groundwater (Underwater Fill) at any level
that may exist at the time of fill placement shall comply with all provisions of the
Guidelines for Underwater Fill, as defined in Section 2.24.
(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.
2.20 Existing Development Approvals.
"Existing Development Approvals" means those Development Approvals which are in
effect on the Effective Date, but does not include the Superseded Mining Agreements.
2.21 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 12.2.
2.22 Future Development Approvals.
"Future Development Approvals" means those Development Approvals applicable to the
Site approved by the City after the Effective Date.
2.23 Future Mining Land Use Regulations.
"Future Mining Land Use Regulations" means those Mining Land Use Regulations
approved by the City after the Effective Date.
2.24 Guidelines.
a. "Guidelines" shall be the collective term used to refer to the following
standards applicable in the City for reclamation and maintenance of mining quanies,
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; provided,
however, that any changes to the existing guidelines which would result in a material increase
in cost to the Developer shall be the subject of further negotiations between the parties. The
parties contemplate that the City shall inspect and approve on a monthly basis any filling
operation performed by the Developer in order to assure that the parties are in agreement that
reclamation has been properly performed.
b. "Guidelines for Above Water Fill" shall mean the November 23, 2005
Guidelines for Above Water Backfilling of Open-Pit Mines, Irwindale, California.
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c. "Guidelines for Erosion Control" shall mean the July 6, 2004 Guidelines
For Drainage And Erosion Control for Open-Pit Mines, Irwindale, California.
d. "Guidelines for Underwater Fill" shall mean the May 20, 2005 Guidelines
for Underwater Backfilling of Open-Pit Mines, Irwindale, California.
e. "Guidelines for Slope Stability" shall mean the December 24, 2003
Guidelines for Slope Stability Analysis of Open Pit Mine Slopes, Irwindale, California.
2.25 Inert Materials.
"Inert Materials" shall have the meaning as provided in the Guidelines.
2.26 License
"License" shall have the meaning set forth at Recital D above and approval of the
License shall be a precondition to the effectiveness of this Agreement pursuant to Section 3.1
below.
2.27 Maximum Depth.
"Maximum Depth" shall have the meaning set forth at Exhibit B, Section A (1) (a) and
(b) herein which shall provide for the maximum depth Developer shall be authorized to excavate
pursuant to this Agreement.
2.28 Mining Development Approvals.
"Mining Development Approvals" means those City approvals including this Agreement
for mining and reclamation of the Site. Mining Development Approvals include the authority to
mine to specified depths, Reclamation Plan, and financial assurances concerning mining, mining
environmental assessments, and any amendments or modifications thereto.
2.29 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.
2.30 Mining Tax.
"Mining Tax" means the tax enacted by the voters pursuant to Sections 3.18.030 and
3.18.040 of the Irwindale Municipal Code, as it may be amended from time to time.
2.31 Project Improvements.
"Project Improvements" means those improvements required by Section 4.8 of this
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Agreement to be constructed or installed by Developer in conjunction with the post-reclamation
development of the Site. The parties acknowledge that such Project Improvements do not
constitute a comprehensive list of improvements that may be required and that the City reserves
the right to require additional improvements at the time it considers the post-reclamation
development of the Site.
2.32 Project.
"Project" means the excavation, reclamation, and placement of Site Development Fill for
rough-grade pads at the Site for commercial and industrial uses and open space-flood control,
storm water retention and/or ground water recharge basin uses pursuant to 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 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. This Agreement does not encompass any such
construction for the ultimate end use of the Development Parcel insofar as those will be
accomplished by the City, in its sole discretion, following the completion of Developer's
activities per this Agreement.
2.33 Reclamation Plan.
"Reclamation Plan" shall mean the October, 2014 Reclamation Plan prepared by
Environmine, Inc. for the Olive Pit and approved concurrently herewith by the City as part of
this Development Agreement.
2.34 Reservations of Authority.
"Reservations of Authority" shall have the meaning set forth in Section 10 of this
Agreement.
2.35 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 perfoimed.
2.36 Scope of Development.
"Scope of Development" means the development of the Site as described at Exhibit B
hereto.
2.37 Site.
"Site" means the property commonly referred to as the Olive Pit shown on the Site Map,
attached hereto as Exhibit A, and more specifically described in the Legal Description attached
hereto as Exhibit A-1.
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2.38 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.
2.39 Superseded Mining Agreements.
"Superseded Mining Agreements" shall have the meaning set forth in Section 1.5 of this
Agreement.
2.40 Term.
"Term" means that period of time during which this Agreement shall be in effect and
bind the Parties, as defined in Section 3.1.
2.41 Uniform Codes.
"Uniform Codes" means the California codes that are based on recommendations of a
multi-state professional organization, as adopted by City, such as, but not limited to, the
California Building, Electrical, Plumbing, Mechanical, Fire, or Abatement of Dangerous
Building Codes and includes the City's Grading ordinance "Appendix J Grading."
2.42 Zone Amendment.
"Zone Amendment" means the amendment to the Irwindale Zoning Code, at Chapter
17.63 authorizing the entitlements granted herein by development agreement and the inclusion of
the Site within the Quarry Zone pursuant to Irwindale Zoning Code, at Chapter 17.60.
3.0 TERM.
3.1 Term.
Provided the parties duly approve the License on or before the Effective Date, the term of
this Agreement (the "Term") shall commence on the Effective Date and shall continue until no
later than December 31, 2050, when final reclamation and-shall be accomplished for the Site, in
accordance with Article 7.0. The parties agree that this Agreement shall not be effective and
shall be void if the License is not approve by the parties and remains in effect throughout the
Term. However, mining operations and reclamation authorized by this Agreement and the
Reclamation Plan shall be conducted during the times set forth in the Schedule of Performance.
In the event Developer has not completed its performance hereunder upon expiration of the term,
the City Council may extend the Term in its reasonable 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. Additionally, based on Developer's access and inspection of
the available aggregate reserves at the Site before the Effective Date, should the parties desire to
have Developer continue to mine beyond the permitted depth to secure the additional reserves at
the Site, this Agreement may be amended, subject to the mutual agreement of the parties,
separate negotiation of the extension and amendment to the License, subject to compliance with
CEQA. Notwithstanding the foregoing, this Agreement shall terminate when reclamation, as
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described in this Agreement and the Reclamation Plan, as may be duly amended by the parties, is
complete.
3.2 Completion of Project.
Developer shall undertake the Project in accordance with this Agreement and the
License. When Developer believes the Project is complete, it shall so inform the City Engineer
and Consultant Engineer (as such term is defined in Section 7.2 below) in writing and the
Consultant Engineer shall within ten (10) days provide a written response confirming same.
Should Consultant Engineer disagree, Consultant Engineer shall prepare a list of outstanding
items for Developer to perform, which Developer shall perform within the time set forth in the
Schedule of Performance, unless otherwise agreed to by the Parties and memorialized in writing
in accordance with the Schedule of Performance. The Project shall be deemed complete upon
the issuance of a final report by the Consultant Engineer, and the filling of the Site complete
(collectively "Completion Notice")
3.3 Force Majeure.
Developer 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, Developer shall provide written notice to the City
specifically describing the nature and extent of the delay and Developer's detailed efforts to
avoid such delay, which references this Section and deliver such notice within 45 days of
discovering such delay, and Developer's obligations shall be extended for such time as the City
deems reasonable as a result of the delay if and only if Developer provides such written notice to
the City within such time; and (ii) the time within which Developer shall be required to perform
any act under this Development Agreement shall be extended by a period of time equal to the
number of days during which performance of such act is delayed due to war, insurrection,
strikes, lock-outs, riots, floods, earthquakes, fires, casualties, natural disasters, acts of God, acts
of the public enemy, epidemics, quarantine restrictions, freight embargoes, processing with any
governmental agencies, unusually severe weather, or any other similar causes beyond the control
of Developer or without the fault of Developer. 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 Developer claiming such extension is sent to
the City within 45 days of knowledge of the commencement of the cause. Any extension
granted herein shall not amend the Term as to reclamation if Developer is able to make up the fill
shortfall in future years of the Term. An extension of time due to the shortfall of fill shall only
apply to the reclamation phase of any portion of the Site, and not to the mining phase of any
portion of the Site.
4.0 OPERA HON OF THE PROJECT AND DEVELOPMENT OF THE SITE.
4.1 Right to Undertake Project.
This Agreement is approved by the City pursuant to Irwindale Municipal Code Section
17.63 and is intended to serve as the entitlement for Developer to operate and accomplish the
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Project at the Site. Accordingly, during the Term, Developer shall have the right to operate and
accomplish the Project at the Site (subject to Section 5.0 below) to the full extent permitted by
this Agreement. This Agreement, License and Reclamation Plan shall exclusively control the
mining and reclamation and other components encompassing the Project at the Site.
Additionally, at its cost, Developer shall be solely responsible for securing all other applicable
permits, entitlements and authorizations (collectively, "Permits") to perform the Project from
agencies having jurisdiction over the Project, including but not limited to, approvals from the
SCAQMD and RWQCB, if applicable. Developer further warrants that it is familiar with
securing such Permits and understands that the Agency is relying on Developer's experience and
expertise in securing all Permits. Developer and its authorized consultants may access the Site to
perform a Phase I soil report and, if warranted, a Phase II soil report of the Site before
commencing operations; provided that Developer shall be solely responsible for the cost of such
inspections and reports and shall provide City a copy of any such reports within five (5) days of
its receipt of same. City shall provide Developer or its authorized consultant access to the Site to
accomplish such inspection(s) upon at least 24 hours' prior notice to City, which access shall be
subject to Developer's indemnification obligations under Section 14.2.
4.2 Later Enacted Measures.
Developer 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 10 below.
4.3 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 10
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.
4.4 CEQA.
The City shall be responsible for any and all processing required under CEQA in
connection with this Project. As to the CEQA requirements hereunder, the parties agree as
follows:
(a) The City has reviewed and processed the EIR for this Agreement and the
Reclamation Plan for mining and reclaiming the Site.
(b) City selected HMCG, LLC to serve as its environmental consultant in the
preparation of the FIR.
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(c) As of the date of this Agreement, Developer has deposited with the City
the sum of $190,000.00, which includes the deposit against fifty percent (50%) of the
total estimated cost for the preparation of the new environmental documents. City shall
be solely responsible to pay for the next Fifty Thousand and 00/100 Dollars ($50,000.00)
for costs in preparing the expenses incurred by the environmental consultant in the
preparation of the environmental documents. Any amounts beyond such additional
$50,000 paid by the City shall be split equally between the City and Developer up to a
total contribution by Developer of two hundred ninety thousand dollars ($290,000) in
connection with the approvals of this Agreement. Should an amendment be processed
pursuant to Section 9.1, any expenses in connection with such amendment shall be
addressed pursuant to Section 9.1. Notwithstanding the foregoing, Developer shall be
solely responsible for the cost for the preparation of the Reclamation Plan, securing any
permits or other authorizations to conduct the Project, and any other costs related to
securing the approvals under this Agreement, including any amendments thereto.
(d) City shall pay the environmental consultant selected under subsection 4.4
(b) above pursuant to the environmental services contract between City and such
consultant, using funds deposited by Developer with the City under the MOU and the
City funds, as described therein. Should the funds deposited by Developer with City be
depleted, Developer 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 subject to subsection 4.4 (c) above. Within fifteen (15) days after the City's
payment of the last invoice to the environmental consultant, the City shall return to
Developer any unused funds deposited by Developer with the City hereunder. No
interest shall be paid or credited to Developer on such deposit.
4.5 Project Challenges.
In the event of any legal challenge to the City's determinations under CEQA, or to any
other City or City Council determination in connection with the Project by any third party, 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, award of damages, costs, attorney's fees,
undertakings, or any other liability shall be paid by Developer up to a maximum amount of two
hundred fifty thousand dollars ($250,000) and, any additional expenses thereafter, paid by City.
The City will promptly notify Developer of any such claim, action or proceeding against
the City and pay the associated legal costs or will advance funds to pay for the defense of the
matter by the City Attorney per Section 14.2(a). The City may retain other counsel, but only
with the consent of Developer, and such consent shall not be unreasonably withheld. The parties
shall cooperate fully in the defense of any such action. Notwithstanding the foregoing, the City
retains the right to settle or abandon the matter without Developer's consent as to the City's
liabilities or rights only, so long as the City's actions do not affect Developer's material
entitlements under the Agreement, and even with those entitlements that are not material, the
City will enter into good faith discussions with Developer prior to settling or abandoning the
matter.
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4.6 Rights of Access.
Representatives of the City shall have the reasonable right of access to the Site without
charges or fees, at any time during the period of excavation, reclamation and development, for
the purpose of assuring compliance with this Agreement, including but not limited to the
inspection of excavation, reclamation and development work being performed by or on behalf of
Developer. 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
Developer personnel at all times per Federal MSHA. The City's inspectors shall behave in a
manner so as to not interfere with Developer's operations or usage of the Site, subject to
Developer's safety requirements pursuant to Developer's policy, California OSHA requirements
and Federal MSHA requirements.
4.7 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, the Scope of Development (Exhibit B) and
Reclamation Plan and within the times set forth in the Schedule of Performance (Exhibit C).
Developer understands and acknowledges that the development of the Site shall be within the
sole authority of City to consider and is outside the scope of this Agreement. The current
regulations concerning mining and reclamation are specified in this Section. Developer agrees
that the City may amend the regulations applicable to mining and reclamation, provided such
amendments are in accordance with Article 10 herein.
4.8 Project Improvements.
The Project Improvements described in this Section, the Scope of Development (Exhibit
B) and Reclamation Planshall be constructed or installed by Developer in conjunction with the
post-reclamation development of the Site in accordance with the approvals granted by the City at
the time.
Walls, Fences and Landscaping.
Developer will construct and at all times maintain walls, fences, berms and landscaping
both during Mining Operations and any subsequent development of the Site, as provided in the
Development Plan and/or the approved Reclamation Plan, to screen the Site and present an
attractive appearance to the community. Additionally, at Developer's cost, Developer shall
install improvements to the northern boundary of the Site between the pit wall and Olive Street
so as to create an aesthetic, well landscaped walking park and adequate screening to the border
of the pit, Developer's costs will be capped at Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00). Any landscaping condition for other borders of the Site shall be in addition to the
aforementioned cap and shall be consistent with conditions typically imposed by the City for
such approvals, such as the landscaping requirements imposed for Developer's Pit 2 operations
in 2002. Any significant increases to this landscaping condition shall be subject to further
negotiations between the parties.
b. Other Infrastructure Requirements.
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Developer, at its expense, shall install all necessary infrastructure, as identified in the EIR
and the Scope of Development (Exhibit B).
4.9 Environmental Control Systems.
Developer shall implement the minimum measures to mitigate the impacts from mining
and reclamation activities to surrounding residents, businesses and roadways, as well as all
additional mitigation measures identified in either the EIR or Exhibit B.
4.10 Community Benefits.
Throughout the terru of this Agreement, Developer shall sponsor community events, as
specified by City, which sponsorship shall be in an amount of Ten Thousand Dollars ($10,000)
per year and payable on the Effective Date of the Development Agreement and on each
anniversary of such date. Additionally, if requested by City, Developer shall participate in City,
school, or other community events as follows: a) Provide display materials for use at City-
sponsored events and school presentations, b) Provide promotional items for distribution at
community events, c) Annual participation in an educational capacity at school assemblies, and
other civic organizations, and d) Participation in an educational capacity at community outreach
events annually. City will take into consideration preferences which Developer may have as to
which events are sponsored with its monies.
4.11 Performance Responsibilities.
(a) Developer Guarantees Against Violations. Developer guarantees that it
shall perform the obligations under this Agreement in a manner so as not to cause
violations of the terms of this Agreement or Irwindale Municipal Code. The breach of
any performance guarantee (including regulatory agency requirements) will subject
Developer to the administrative penalties provided at Section 4.12 below. Complaints
substantiated by the Public Works Director or designee of the following conditions shall
include, but is not limited to, the following:
(1) Traffic queuing on City streets and/or recurrent failures to
meet standards for vehicular circulation onto, through and away from the Site as
required by Section this Agreement and any approved traffic circulation plan;
(2) Failure to clear dirt and debris attributable to Developer's
operations found upon and in the immediate surrounding area near the Site and
along immediate access routes, traffic corridors and public rights-of-way or the
maintenance of the Site in such a manner as to facilitate a pest infestation;
(3) Violations of safety standards required under Applicable
Law or by this Agreement;
(4) Odor, air quality, soil or water conditions violating those
standards stated in the conditions of approval applicable to the Project and/or the
EIR;
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(5) Violations of the City's noise ordinance and other noise-
related requirements found in the conditions of approval applicable to the Project,
the EIR or Applicable Law;
(6) Failure to maintain landscaping at the Site in an attractive
and professional manner;
(7) Knowingly accepting fill materials that do not qualify as
Inert Materials;
(8) Closure of the operations at the Site in violation of this
and other Agreements;
(9) Misconduct with respect to scale operations, knowingly
misrepresenting measurements or persistent violations of Applicable Laws
governing weights and measures.
Violations listed in this Section 4.11 above, as items (1) through (6) shall be deemed
"minor" in nature, while violations in categories (7) through (9) shall be considered
"major." For any minor violation, the liquidated damages provisions of Section 4.12
below shall apply. Repeated violations in any minor category during a 12 month period
may become major violations for purposes of this Agreement. Should Developer commit
any major or repeated minor violations, the City may terminate this Agreement in
accordance with the procedures seat forth in Article 12.0. If, in its reasonable discretion,
City deems necessary, these guarantees will be monitored by requiring Developer to
submit reports to City, wherein Developer certifies to City that it has met its performance
obligations during the period covered by the report. If Developer cannot so certify, if its
complaint log evidences, or if the City notifies Developer it has failed to meet any of its
performance obligations and the service failures are not remedied in a satisfactory or
reasonable manner and time frame, then Developer will pay liquidated damages per
occurrence pursuant to Section 4.12 below for each of the specified breaches.
(b) City Right to Audit. City may also audit the tonnage, revenues and
payments to the City at any time or may perform an additional audit based on the request
of complainants, in its sole discretion. If City requests such an audit in addition to the
annual audit provided by Developer with payment of the applicable Mining Tax (or
Royalty Fee per the License), City will pay for the cost of the tonnage audit unless the
audit reflects a discrepancy (negative) greater than three percent (3%) of the Mining Tax
(or Royalty Fee per the License) due to the City, in which case Developer shall pay for
such audit; provided that any such audit conducted in accordance with any review under
Subsection 4.11(a) above shall be a part of such review and paid for thereunder. In
addition, in the event of an audit generated by complaints, if any violations or significant
issues are identified, Developer shall reimburse the City for any costs incurred in
performing the audit.
4.12 Liquidated Damages.
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The City, in its discretion, may elect to declare a default under this Agreement in
accordance with the procedures hereinafter set forth for any failure or breach by Developer in its
performance of a material duty or obligation of the terms of this Agreement or Irwindale
Municipal Code for issues such as, but not limited to, noise violations, dumping of debris on
public-rights-of way, traffic queuing on City streets, operating outside of peiniitted hours, late
payments, and late reports required herein or the License. However, the City must provide
written notice to Developer setting forth the nature of the breach or failure and the actions, if
any, required by Developer to cure such breach or failure ("Default Notice"). If a Default Notice
is issued and thereafter City concludes, in its reasonable discretion, that a default in fact occurred
and continued to exist without timely cure, then liquidated damages may be assessed against
Developer (as liquidated damages and not a penalty) by the Public Works Director and/or City
Manager designee in the amount of $250 for every day the condition persisted or persists.
The Parties recognize that if Developer causes or allows violations identified at Section
4.11(a) to occur, the City and its residents will suffer damages and that it is and will be
impractical and extremely difficult to ascertain and determine the exact amount of damages
which City and its citizens will suffer. Therefore, the Parties agree that the liquidated damages
established herein represent a reasonable estimate of the amount of such damages for such
specific violations, considering all of the circumstances existing on the date of this Agreement,
including the relationship of the sums to the range of harm to City that reasonably could be
anticipated and the anticipation that proof of actual damages would be costly or impractical. In
placing their initials at the places provided, each Party specifically confirms the accuracy of the
statements made above and the fact that each Party has had ample opportunity to consult with
legal counsel and obtain an explanation of these liquidated damage provisions prior to entering
this Agreement.
Developer Initials
City Initials
5.0 SCHEDULE OF PERFORMANCE: TIME FOR OPERATION AND COMPLETION OF
PROJECT.
Developer understands that the Development and any further developments for the
ultimate end use of the Site shall be considered Future Development Approvals, subject to
separate discretionary and administrative approvals, as applicable, by the City, as described in
Sections 4.7 and Article 10.0 of this Agreement, for which the City intends to secure a third party
developer to undertake. The Project shall be operated and completed, and the times for
performance of the requirements of this Agreement shall be accomplished, in accordance with
the Schedule of Performance at Exhibit C, as may be extended in the manner described therein.
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.
6.0 PROCESSING OF REQUESTS AND APPLICATIONS; OTHER GOVERNMENT
PERMITS.
6.1 Standards.
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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 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 Developer, (ii) interfere with Developer's ability to satisfy its
obligations hereunder, or (iii) be inconsistent with the provisions of Section 10.1(b).
6.3 Other Governmental Permits.
Developer 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
Developer in its efforts to obtain such permits and approvals.
6.4 Public Agency Coordination.
The City and Developer 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.
7.0 RECLAMATION 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, Developer will fill the
Development Parcel with Engineered Fill within the times set forth in the Schedule of
Perfoimance, subject to the following:
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7.1 Fill Requirements and Specifications.
Developer hereby acknowledges and represents, which representation is a material
consideration in City's decision to enter in to this Agreement, that the fill performed by
Developer at the Site will be suitable for development in accordance with the Applicable
Building Codes for residential, industrial or commercial development when the Development
Parcel, and any additional reclamation that may be required, is completed. Nothing herein is
intended or shall be construed as an assumption by Developer of any duty, responsibility,
obligation, or liability for the acts, errors, omissions, or debts of any third party who is not the
authorized employee, contractor, agent, or invitee of Developer performing the scope of work set
forth in this Agreement. Annually during the Term, Developer shall reimburse the City for the
cost to prepare a Topographic Survey in a form and by a licensed surveyor approved by the City
Engineer, which adequately and comprehensively describes the elevation of the fill materials
placed by Developer at the Site.
All Site Development Fill used for the Site shall meet the requirements of this Section 7.1
and the Scope of Development and be completed within the times set forth in the Schedule of
Performance, except as may be delayed by geotechnical conditions of the fill or other causes
beyond the reasonable control of the Developer. The determination of fill being above water or
underwater for the purpose of distinguishing the type of allowable Site Development Fill to be
placed at any given location of the Development Parcel shall be based on the location of the
groundwater table at the time of fill placement, in accordance with the Guidelines. All Site
Development Fill placed into the natural groundwater (Underwater Fill) at any level that exists at
the time of fill placement, or such higher level required under the Guidelines, shall comply with
all provisions of the Guidelines for Underwater Fill. All Site Development Fill placed above the
natural groundwater (Above Water Fill) at any 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 and Appendix J of the City's Building Code. Further,
reclamation for the Site shall be in accordance with the Reclamation Plan and the provisions of
the Guidelines and Appendix J of the City's Building Code, as further set forth in the Scope of
Development at Exhibit B.
7.2 Consultant Engineer; Site Certification.
At Developer's sole cost, which cost to Developer shall not exceed twelve thousand
dollars ($12,000) per month for the first five (5) years of reclamation operations (expected to
commence 5 years from the Effective Date of this Agreement), which not-to-exceed amount
shall increase to fifteen thousand dollars ($15,000) upon completion of the fifth (5 ) year of
reclamation operations, City shall retain a licensed geotechnical engineer ("Consultant
Engineer") to advise the City on the status of the Project. Throughout reclamation, Developer
shall reimburse City for the Consultant Engineer's cost within fifteen (15) days of receipt of each
copy of Consultant Engineer's invoice. The Consultant Engineer shall regularly inspect the Site,
based on a schedule approved by the City Engineer. Developer shall cooperate and provide the
Consultant Engineer with copies of all materials relevant to the remediation and filling
operations at the Site. Developer acknowledges that the Consultant Engineer shall have full and
complete access to the Site at all times for the purpose of verifying that the Project is being
performed in accordance with the requirements of this Agreement. Consultant Engineer shall
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continually inspect the Site, import materials and Developer's performance of the Project and
provide the City with daily, weekly, monthly, quarterly and annual testing reports that can be
used as a basis to certify the entire fill in accordance with Applicable Building Codes. These
reporting procedures and certifications, shall all bear Consultant Engineer's signature and official
seal, and certify that the remediation, filling and compaction at the Site is being performed in
accordance with this Agreement, including but not limited to, the requirements of the Guidelines
and Applicable Building Codes. Such logs and certifications shall be in a form approved by the
City Engineer. City and its Consultant Engineer shall only take actions consistent with the
purposes of this Agreement, or their responsibilities under law, and shall not otherwise interfere
with Developer's remedial work pursuant to this Agreement. Such work will be Developer's
sole responsibility, and the City and its Consultant Engineer shall have no right to direct or
supervise such work. Consultant Engineer however, shall be the City's field representative and
shall advise Developer in writing of any concerns that Consultant Engineer has with Developer's
performance under the terms of this Agreement. Consultant Engineer shall keep City informed
as to Developer's performance. Any concerns of Consultant Engineer with Developer's
performance shall first be brought to Developer. Consultant Engineer may confer with the City
during the performance of the remedial work. Where Consultant Engineer has substantial
concerns over Developer's performance, Consultant Engineer shall give Developer the
opportunity to correct such deficiencies by giving written notice of the deficiencies to Developer.
If Developer dos not commence correction of such deficiencies within two (2) working days of
receipt of such notice, then Consulting Engineer, City and Developer shall meet to discuss the
deficiencies, with forty-eight (48) hours written notice given to all parties of the time and place
of the meeting and the deficiencies. Consultant Engineer shall prepare a final report, which
includes a certification that the fill materials have been observed, tested, and placed in
accordance with the approved plans and specifications under this Agreement.
7.3 Commencement Date/Prioritization of Fill.
Developer shall not commence Commercial Filling Operations at the Site until such time
as fill operations at (i) Pit-1, formerly owned by Developer, now owned by Irwindale Partners,
LLC as of the date of this Agreement, bearing APN 8532-001-002 and located at 1270 East
Arrow Highway, Irwindale ("Pit-1"), (ii) a 40 acre portion along the 605 Freeway of the Hanson
mining operation, bearing APN 8532-004-024, (iii) Developer'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; and the Durbin
quarry, bearing APN 8546-002-082; 085; and 089, and Reliance I quarry, 16001 Foothill
Boulevard, bearing APN 8605-016-006; 007; 008; 009; 011; 017; 018; 900; 901; 902; 407; and
422, owned by Vulcan Materials (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 has not yet determined the priority of quarries
following Pit 1 above. The parties expressly acknowledge that the City is attempting to prioritize
filling of mining pits and, as such, the Commencement Date of any Commercial Filling
Operations at the Site shall be deferred until the Priority Quarries have been reclaimed; subject to
the provisions of Section 3.2 above relating to force majeure. Developer shall obtain all required
permits for the reclamation backfill of the Site, using Developer's own fill sources so that the
filling operations are not operated as Commercial Fill Operations, and shall immediately
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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.
7.4 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,
Hanson, and Vulcan 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
Developer, 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) Developer 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) Developer 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, irrespective and in addition to, any
royalties or license fees it pays to City under the License;
(c) Developer shall be obligated to pay all fees applicable to a peimit
application as charged by City at the time such application is filed by Developer;
(d) Developer shall be obligated to pay any future fees or assessments
imposed on an area-wide basis, (such as landscape and lighting assessments and
community services assessments) provided that the fees and assessments levied against
the Site do not constitute more than fifty percent (50%) of the total fees or assessment
levied within the applicable area, unless otherwise consented to in writing by Developer.
Developer reserves its right to protest the establishment or amount of any such fees or
assessments through the method prescribed by law;
(e) Developer shall be obligated to pay any fees imposed pursuant to any
assessment district established within the Project otherwise proposed or consented to by
Developer;
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(0 Developer 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) Developer shall be obligated to pay any fees imposed pursuant to any
Unifolui Code; and
(h) Developer 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.
(i) Developer shall pay any waste discharge permit fee requirements of the
Regional Water Quality Control Board, or County of Los Angeles, as may be applicable,
or any other waste discharge-related fees (collectively "Discharge Fee") insofar as "Solid
Waste Materials," as that term is defined (copied below) in the Los Angeles County
Code, section 20.88.020 H, may be imported at the Site. Solid Waste Materials are
defined in Los Angeles County Code, section 20.88.020 H as: "'Solid Waste' means all
putrescible and nonputrescible solid, semisolid, and liquid wastes, including garbage,
trash, refuse, paper, rubbish, ashes, industrial wastes, demolition and construction wastes,
abandoned vehicles and parts thereof, discarded home and industrial appliances,
dewatered, treated, or chemically fixed sewage sludge which is not hazardous waste,
manure, vegetable or animal solid and semisolid wastes, and other discarded solid and
semisolid wastes." Developer shall have the right to reasonable contest the application of
county taxes and fees to its operations on the Site.
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, Developer shall not contest the
existing mining taxes imposed by the City or the use of the special mining tax peimitted under
such ordinance. Developer 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 Developer from challenging the new tax.
Notwithstanding the foregoing, Developer 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 Tipping Fees.
No tipping (or filling) fee is intended to apply for the filling of the Development Parcel
(which shall include the slope included in the definition of such term), as described in this
Agreement. Any filling activities in excess of the Development Parcel as well as a tipping fee
shall be negotiated between the parties prior to completion of Phase 2 of mining. In calculating
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the applicable tipping fee, Developer will share its knowledge and costs for filling the Site
including market pricing for disposing suitable materials, processing costs, truck haul, filling,
compacting permits, administration fees, etc. The tipping fee will be calculated so that the
parties share equally in the profits by subtracting all costs associated with the filling of the Site
from the market tipping fee. If the parties cannot come to acceptable terms and conditions, the
City reserves the right to negotiate the filling of the Site, other than the Development Parcel with
a third party; provided the Developer shall reserve a 90 day right to make a matching or better
offer on any potential agreement with a third party.
8.4 Accord and Satisfaction.
No payment by either party or receipt by either party of a lesser amount than legally
required by such party 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 either may accept such check or payment
without prejudice to such party's right to recover the balance due or pursue any other remedy
herein provided.
8.5 Payment Made by City on Behalf of Developer.
In the event that:
(a) Developer 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 Developer,
Developer having been given the opportunity to cure pursuant to Section 12.4, and
(c) City incurs the expense thereof on behalf of Developer, then Developer
shall reimburse the City for all such costs and expenses. If the City is not reimbursed for
such costs by Developer 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 12.6 until paid.
9.0 AMENDMENT OF DEVELOPMENT AGREEMENT.
9.1 Initiation of Amendment.
Either Party may propose an amendment to this Agreement. The City acknowledges that
this Agreement was entered into by the Parties based on an estimate of the average amount of
materials to be excavated from the Site. However, should Developer determine in its sole
discretion, and be able to document such determination to the City, that commercial production
warrants an increase in the average annual excavation rate designated for the Project, Developer
shall have the right to apply for an amendment to such average production rate and the City
agrees to amend this Agreement to accomplish such revised average rate, subject to compliance
with CEQA and implementation of any required mitigation measures.
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City and Developer shall share equally in the cost of the EIR Consultant in processing
such amendment, provided that City's contribution toward such costs shall not exceed fifty
thousand dollars ($50,000), and Developer shall be required to pay the entirety of any costs in
excess of such amount. Notwithstanding the foregoing, and recognizing that the City is the
owner of the Site and will accordingly benefit from the increased aggregate production and
resulting property value, as it relates to the entitlements approved under this Agreement, City
will pay fifty percent (50%) percent of the cost of any required mitigation measures in excess of
those presently required, as may be required by an amendment contemplated under this Section
9.1.
In the event that such an amendment cannot be made to the average annual excavation
rate, notwithstanding the best efforts of the parties within a year of the Developer's determination
(or if earlier prior to the second payment of two million five hundred thousand dollars
($2,500,000) of advanced royalties due under the License), the Parties agree to meet and confer
to deteimine an appropriate adjustment to such amounts to account for the failure of the
amendment process. The adjustment will take into account, among all of the factors, the
economic viability of the permitted entitlement together with the costs of operation of the
Developer at the Site and elsewhere. If the parties cannot agree on an appropriate adjustment,
then Developer shall have the option to turn over the Project to City and shall receive a credit
equal to 2.5 million tons of aggregate materials (provided developer has paid the aforementioned
two million five hundred thousand dollars to the City) to be taken from the Site and the City may
re-sell the Project to another operator.
9.2 Procedure.
Except as set forth in Section 9.4 below, the procedure for proposing and adopting an
amendment to this Agreement shall be the same as the procedure required for entering into this
Agreement in the first instance.
9.3 Consent.
Except as expressly provided in this Agreement, no amendment to all or any provision of
this Agreement shall be effective unless set forth in writing, signed by duly authorized
representatives of each of the parties hereto and recorded in the Official Records of Los Angeles
County.
9.4 Minor Modifications.
(a) Implementation of the Project may require minor modifications of the
details of the Development Plan and performance of the Parties under this Agreement.
The parties desire to retain a certain degree of flexibility with respect to those items
covered in general terms under this Agreement. Therefore, modifications of the
Development Plan agreed to by both Developer 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.
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(b) A modification will be presumed non-substantive and/or procedural if it
does not result in more than a ten percent (10%) change in fees, cost, density, volumes,
time, intensity of use, permitted uses, the maximum height and size of buildings, the
reservation or dedication of land for public purposes, or the improvement and
specifications for the Project.
(c) Any modification that the City Manager believes is more than minor, but
does not materially change the Development Plan, may be approved by the City Council
by Resolution at a public hearing. Material changes to the Development Plan or other
terms of this Agreement shall require amendment of this Agreement.
(d) The City will process any material change to this Agreement consistent
with State law. The Parties expressly agree nothing herein is intended to deprive any
Party or person of due process of law.
9.5 Effect of Amendment to Development Agreement.
The Parties agree that except as expressly set forth in any such amendment, an
amendment to this Agreement will not alter, affect, impair, modify, waive, or otherwise impact
any other rights, duties, or obligations of either Party under this Agreement.
10.0 RESERVATIONS OF AUTHORITY.
10.1 Limitations, Reservations and Exceptions.
The application of Mining Land Use Regulations to the Project is governed by Sections
4.2, 6.1 and this Article. In addition to the Mining Land Use Regulations, only the following
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 Mining Land Use Regulations. All Future Mining Land Use
Regulations shall apply if they (i) are reasonably technically supported, (ii) are within the
City's police power and are required to protect public health and safety, and (iii) are
equally applicable to all mining companies operating in the City.
(b) Adoption of Land Use Regulations. All zoning ordinances, General Plan
amendments and other City policy or regulations or area-wide or multi-jurisdictional
codes and which are based on recommendations of a county or multi-jurisdictional
organization and become widely applicable, such as the San Gabriel Valley Council of
Governments (collectively, "Land Use Regulations") related to the allowable end uses of
Site are within the City's police power and may be implemented by the City in its
discretion to protect public health and safety and appropriately plan for the future end
uses of the Site, or portions thereof; provided such Land Use Regulations do not
materially impact the applicable mining or reclamation standards required to be met by
Developer under this Agreement.
(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
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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
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 Developer's operations nor
Developer'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 8. This
Agreement shall not prevent the City from adopting fees, taxes and assessments per
Section 8.0.
10.2 Objections to Regulation.
In evaluating the reservation of authority to the City and applying the standards described
above, in the event Developer believes that such Future Mining Land Use Regulation does not
satisfy such standards, Developer shall give written notice of its objections and the grounds
therefor to City, City shall duly consider Developer'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 Developer's position is
supported by a preponderance of the evidence.
10.3 Regulation by Other Public Agencies.
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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.
(a) In accordance with Government Code section § 65865.1, City and
Developer shall review the performance of this Agreement, and performance of the
Project, at least once during each twelve (12) month period from the Effective Date and
concurrently with the review of the financial assurances performance guarantee, as
described in Section 12.1. The cost of the annual monitoring review shall be borne by
Developer, but in no event shall such reimbursable costs exceed Five Thousand Dollars
(85,000) 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, Developer 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 Developer's performance under this Agreement demonstrating that
Developer 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 Developer has
substantially complied with the terms and conditions of this Agreement, the review shall
be concluded. If the City finds and determines that Developer has not substantially
complied with the terms and conditions of this Agreement for the period under review,
the City may declare a Default by Developer in accordance with Section 12.0. Such
review shall be in addition to any mining lead agency monitoring and testing to be
conducted by the City pursuant to the requirements of the Irwindale Municipal Code and
SMARA. Developer shall fully cooperate with the Director and his staff and consultants
conducting the reviews. The Public Works Director's review will consider, at minimum,
the following:
(1) Any bona fide complaints received by the City about the approved
operations, activities and events;
(2) Any negative impacts to the City, as identified by City staff, which
have not been resolved with Developer. Negative impacts may also include
impacts upon municipal revenue(s); and
(3) Violations of any of the performance standards.
(b) Following the review, the Public Works Director will notify Developer in
writing of any outstanding violations or other issues ("Issues List") related to Developer's
compliance with the conditions of the Agreement. Thereafter, within a specified time,
Developer will meet with City staff to discuss and develop a plan and schedule of
correction ("Correction Plan") concerning the issues outlined in the Issues List, which
Correction Plan shall be subject to the approval of the Public Works Director. Should
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there be no resolution of the issues in the Public Works Director's discretion, as outlined
in the Correction Plan approved by the Public Works Director or if Developer fails to
participate in the development of the Correction Plan, the Public Works Director may set
the matter for a duly noticed public hearing before the City Council to consider the Issues
List. At such hearing, the City Council may pursue termination proceedings under the
Development Agreement or any other remedy available to it thereunder. Failure of the
City to perfonn the statutory annual periodic review shall not affect the enforceability of
this Agreement.
11.2 Estoppel Compliance.
If at the conclusion of an annual monitoring review the City finds that Developer is in
substantial compliance with this Agreement, the City shall, upon request by Developer, issue an
Estoppel Certificate pursuant to Section 15.2.
11.3 Failure to Conduct Annual Review.
The failure of the City to conduct an annual monitoring review shall not be a Developer
Default, provided Developer initiates annual monitoring review in accordance with Section 11.1.
12.0 DEFAULT, REMEDIES, TERMINATION AND FINANCIAL ASSURANCES.
12.1 Security for Performance.
No later than the Effective Date, Developer shall provide a performance guarantee in the
amount of Three Hundred Ten Thousand Dollars ($310,000) representing the estimate of the
security required to assure Developer's faithful performance of all obligations hereunder. The
perfoimance guarantee shall be in the form of surety bonds, irrevocable letter of credit, trust
funds or cash deposit with the City, as approved by the City Finance Director, and 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 guarantee shall be issued in favor of the City in case of breach of any obligation by
Developer hereunder (following the notice and cure provisions of Section 12.4 herein) to
guarantee compensation for any costs and damages incurred by the City in performing
Developer's obligations hereunder.
12.2 Financial Assurance Bonds.
Before Developer commences the mining operations authorized by this Agreement,
Developer shall postthe financial assurance bonds or other security meeting the requirements of
SMARA Reghtlutions, at Section 3803performance guarantee shall be provided in the amount
described -ab-e-vein Section 12.1 above and this Section 12.2. As owner of the Site, the City
qualifies as a public agency for purposes of complying with Sections 3803, 3806 and 3806.1 of
the regulations promulgated by the State Mining and Geology Board ("SMGB") and Irwindale
Municipal Code section 17. , allowing greater flexibility to public agencies in providing
financial assurance mechanisms for reclamation than to private entities. Additionally, by
entering into this Agreement, Developer agrees to provide Inert Fill, processed at Developer's Pit
2 in the City of Irwindale, for reclamation at no cost to the City Pursuant to the aforementioned
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provisions of the SMGB Regulations and Irwindale Municipal Code, the City is supplementing
this fill commitment by Developer by setting aside revenues derived from the Project in the
amount of Two Hundred Forty Thousand and 00/100 Dollars ($240,000.00) annually for ten (10)
years for a total pledge of revenues of Two Million Four Hundred Thousand and 00/100 Dollars
($2,400,000.00). Such amount represents the City's pledge of revenues under SMGB section
3806.1 ("Pledge of Revenues") to secure the fill and reclamation commitment by Developer. At
all times, City retains exclusive control and discretion as to the use of such Pledge of Revenues.
All interest and principal of such funds shall at all times remain the City's sole property and shall
be revert to the City's unrestricted use following termination of reclamation, as described in this
Agreement. As such, fill revenues from filling activities at the Site with Inert Fill that accrue in
conducting the operations of the Site shall be counted toward the financial assurance obligations
for the Site.
12.3 Rights of Non-Defaulting Party after Default.
The Parties acknowledge that both Parties shall have hereunder all legal and equitable
remedies as provided by law following the occurrence of a Default (as defined in Section 12.4
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 12.4.
12.4 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 or License ("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 cure such Default within thirty
(30) days after the date of such notice or ten (10) days for monetary Defaults (or such lesser time
as may be specifically provided in this Agreement). However, if such non-monetary Default
cannot be cured within such thirty (30) day period, and as long as the Defaulting Party does each
of the following:
(a) Notifies the Non-Defaulting Party in writing with a reasonable explanation
as to the reasons the asserted Default is not curable within the thirty (30) day period;
(b) Notifies the Non-Defaulting Party of the Defaulting Party's proposed
cause of action to cure the Default, specifying dates by which specific actions will be
taken;
(c) Promptly commences to cure the Default within the thirty (30) day period;
(d) Makes reports in accordance with the time schedule provided to the Non-
Defaulting Party as to the progress of the program of cure, showing how the proposed
dates have been met and establishing any additional needed dates; and
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(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.
12.5 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. Developer specifically
acknowledges and agrees that the City's remedies under the performance bond described at
Section 12.1 are cumulative to other remedies available to City hereunder.
12.6 Interest.
In the event Developer fails to perform any monetary obligation under this Agreement,
Developer 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.
12.7 Rights and Duties Following Termination.
Upon the termination of this Agreement, no Party shall have any further right or
obligation hereunder except (i) with respect to any obligations to have been perfouned prior to
said termination or with respect to any default in the performance of the provisions of this
Agreement which has occurred prior to said termination, and (ii) with respect to the indemnity
obligations set forth herein.
13.0 RESTRICTIONS ON TRANSFER.
13.1 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 teuns of this Agreement or to another public agency.
Developer shall not transfer this Agreement or any of Developer's rights hereunder, or
any interest in the Site per the License 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
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whether it will grant approval to any transfer by Developer, 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 Developer'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 13.1 and, furthermore, the City's consent to a transfer shall not be
deemed to release Developer 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) A sale or transfer resulting from or in connection with a reorganization as
contemplated by the provisions of the Internal Revenue Code of 1986, as amended or
otherwise, in which the ownership interests of a corporation are assigned directly or by
operation of law to a person or persons, firm or corporation which acquires the control of
the voting capital stock of such corporation or all or substantially all of the assets of such
corporation.
(b) A sale or transfer of Developer to any entity controlling, controlled by or
under common control with United Rock Products Corporation.
(c) A sale or transfer of Developer to another publicly-traded company, so
long as the purchaser entity executes an assumption agreement assuming all of
Developer's duties and obligations hereunder.
13.2 Subject to Terms of Agreement.
Following any such assignment or transfer of any of the rights and interests of Developer
under this Agreement, in accordance with Section 13.1 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 Developer.
13.3 Release of Developer.
Upon the written consent of the City to the complete assignment of this Agreement and
the express written assumption of the assigned obligations of Developer under this Agreement by
the assignee, Developer shall be relieved of its legal duty to perform the assigned obligations
under this Agreement, except to the extent Developer is in default under the terms of this
Agreement prior to said transfer.
14.0 INSURANCE, INDEMNIFICATION, WAIVERS.
14.1 Insurance.
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(a) Types of Insurance.
(1) Public Liability Insurance. Beginning on the Effective Date hereof
and until completion of construction by Developer on the Site, Developer shall at
its sole cost and expense keep or cause to be kept in force for the mutual benefit
of the City and Developer comprehensive broad form general public liability
insurance against claims and liability for personal injury or death arising from the
use, occupancy, disuse or condition of the Site, improvements or adjoining areas
or ways, affected by such use of the Site or for property damage, providing
protection of at least Two Million Dollars ($2,000,000.00) for bodily injury or
death to any one person, at least Five Million Dollars ($5,000,000.00) for any one
accident or occurrence, and at least One Million Dollars ($1,000,000.00) for
property damage, which limits shall be subject to such increases in amount as the
City may reasonably require from time to time.
(2) Builder's Risk Insurance. Before commencement of any
construction, Developer 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. Developer shall also furnish or cause to
be furnished to the City evidence reasonably satisfactory to it that any contractor
with whom Developer has contracted for the performance of any work for which
Developer is responsible hereunder carries workers' compensation insurance as
required by law.
(4) Other Insurance. Developer 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 Developer.
(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
detelinines that the work or services to be performed under this Agreement
creates an increased or decreased risk of loss to the City, Developer 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 Developer shall have the right to appeal a
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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 Developer 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 14.1; (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. Developer 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.
Developer shall deliver to the City, in the manner required for notices, copies of
certificates of all insurance policies required hereunder together with evidence
satisfactory to the City of payment required for procurement and maintenance of each
policy within the following time limits:
(1) For insurance required above, within thirty (30) days after the
Effective Date.
(2) For any renewal or replacement of a policy already in existence, at
least ten (10) days before expiration or termination of the existing policy.
If Developer 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.
14.2 Indemnification.
(a) General.
Developer 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, 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 Developer's acts or omission on the Site,
whether or not such act or omission resulted or was undertaken pursuant to this
Agreement, the Reclamation Plan, and related approvals. The City will promptly notify
Developer of any such claim, action or proceeding against the City and Developer 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
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retain other counsel, but only with the consent of Developer, 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 Developer in a timely manner of any such claim, action
or proceeding, so that the City's and/or Developer's rights are prejudiced, Developer 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 Developer's consent as to the City's liabilities or rights only, so long as the City's
actions do not affect Developer's material entitlements under the Agreement, and even
with those entitlements that are not material, the City will enter into good faith
discussions with Developer 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 including
without limitation any environmental condition affecting the Site.
(b) Exceptions. The foregoing indemnity shall not include claims or liabilities
arising from the sole or gross negligence or willful misconduct of the City, its officers,
agents, or employees, who are directly responsible to the City.
In addition, the City shall indemnify and hold harmless the Developer and its
agents, officers, consultants and employees from any claim, action or proceeding relating
to environmental conditions existing on the Site as of the date that the Developer takes
possession of the Site. The terms of the indemnity shall work in favor of the Developer in
the same procedure and method as specified above in (a) relating to indemnification in
favor of 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 Developer to comply with performance of all of the
provisions of this Agreement;
(4) Developer'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
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(5) Any harm, delays, injuries or other damages incurred by any party
as a result of any subsurface conditions on the Site caused by the Developer,
including but not limited to, the presence of buried debris, hazardous materials,
hydrocarbons, or any form of soil contamination.
(6) Any Environmental Claims, Environmental Cleanup Liability and
Environmental Compliance Costs Concerning Hazardous Materials, demands,
judgments, actions, damages, losses, penalties, liabilities, costs and expenses
(including, without limitation, attorney's fees and court costs) arising from or in
connection with the performance of any obligation, activity, work or things done,
permitted or suffered by Developer or its authorized parties, employees, invitees,
contractors, agents and consultants under the terms of this Agreement or in or
about the Site, except to the extent caused by City's negligence or misconduct, or
Site conditions, including subsurface conditions, existing prior to the date of this
Agreement. For purposes of this Section, the following teinis shall have the
following meanings:
a. "Environmental Claim" means any claim for personal injury,
death and/or property damage made, asserted or prosecuted by or on behalf of any
third party, including, without limitation, any governmental entity, relating to the
Site or its operations and arising or alleged to arise under any Environmental Law.
b. "Environmental Cleanup Liability" means any cost or expense
incurred to contain, remove, remedy, clean up, or abate any contamination or any
Hazardous Materials on or under all or any part of the Site, including, without
limitation, (i) any direct costs or expenses required to comply with orders and
directives from federal, state or local government agencies, including costs for
investigation, study, assessment, legal representation, cost recovery by
governmental agencies, or ongoing monitoring in connection therewith and (ii)
any cost, expense, loss or damage incurred with respect to the Site or its operation
as a result of actions or measures necessary to implement or effectuate any such
containment, removal, remediation, treatment, cleanup or abatement.
c. "Environmental Compliance Cost" means any cost or expense
incurred to enable the Site to comply with all applicable Environmental Laws in
effect. "Environmental Compliance Cost" shall include all costs necessary to
demonstrate that the Site is capable of such compliance to the extent directed by
governmental agencies.
d. "Environmental Law" means any federal, state or local statute,
ordinance, rule, regulation, order, consent decree, judgment or common-law
doctrine, and provisions and conditions of permits, licenses and other operating
authorizations relating to (i) pollution or protection of the environment, including
natural resources, (ii) exposure of persons, including employees, to Hazardous
Materials or other products, raw materials, chemicals or other substances, (iii)
protection of the public health or welfare from the effects of by-products, wastes,
emissions, discharges or releases of chemical substances from industrial or
commercial activities, or (iv) regulation of the manufacture, use or introduction
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into commerce of chemical substances, including, without limitation, their
manufacture, formulation, labeling, distribution, transportation, handling, storage
and disposal.
e. Hazardous Material" is defined to include any hazardous or toxic
substance, material or waste which is or becomes regulated by any local
governmental authority, the State of California, or the United States Government.
The term "Hazardous Material" includes, without limitation, any material or
substance which is: (i) petroleum or oil or gas or any direct or derivate product or
byproduct thereof; (ii) defined as a "hazardous waste," "extremely hazardous
waste" or "restricted hazardous waste" under Sections 25115, 25117 or 25122.7,
or listed pursuant to Section 25140, of the California Health and Safety Code,
Division 20, Chapter 6.5 (Hazardous Waste Control Law); (iii) defined as a
"hazardous substance" under Section 25316 of the California Health and Safety
Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance
Account Act); (iv) defined as a "hazardous material," "hazardous substance," or
"hazardous waste" under Sections 25501(j) and (k) and 25501.1 of the California
Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release
Response Plans and Inventory); (v) defined as a "hazardous substance" under
Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7
(Underground Storage of Hazardous Substances); (vi) "used oil" as defined under
Section 25250.1 of the California Health and Safety Code; (vii) asbestos; (viii)
listed under Chapter 11 of Division 4.5 of Title 22 of the California Code of
Regulations, or defined as hazardous or extremely hazardous pursuant to Chapter
10 of Division 4.5 of Title 22 of the California Code of Regulations; (ix) defined
as waste or a hazardous substance pursuant to the Porter-Cologne Act, Section
13050 of the California Water Code; (x) designated as a "toxic pollutant"
pursuant to the Federal Water Pollution Control Act, 33 U.S.C. § 1317; (xi)
defined as a "hazardous waste" pursuant to the Federal Resource Conservation
and Recovery Act, 42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903); (xii) defined as a
"hazardous substance" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601);
(xiii) defined as "Hazardous Material" pursuant to the Hazardous Materials
Transportation Act, 49 U.S.C. § 5101 et seq.; or (xiv) defined as such or regulated
by any "Superfund" law, or any other federal, state or local law, statute,
ordinance, code, rule, regulation, order or decree regulating, relating to, or
imposing liability or standards of conduct concerning Hazardous Materials and/or
underground storage tanks, as now, or at any time hereafter, in effect.
(d) Loss and Damage.
The City shall not be liable for any damage to property of Developer or of others
located on the Site, nor for the loss of or damage to any property of Developer 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
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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 14.2 shall begin upon the
Effective Date and shall terminate upon termination of this Agreement, provided that
indemnification shall apply to all claims or liabilities arising during that period even if
asserted at any time thereafter.
14.3 Waiver of Subrogation.
Developer 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 Developer or to any person or
property, except as specifically provided hereunder and Developer 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.
15.0 EFFECT OF AGREEMENT ON TITLE.
15.1 Covenants Run with the Land.
Subject to the provisions of Section 13.0:
(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.
15.2 Estoppel Certificate.
Either Party (or a lender approved by City under Section 13.4) may at any time deliver
written notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate")
stating:
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(a) The Agreement is in full force and effect and is a binding obligation of the
Parties; and
(b) The Agreement has not been amended or modified either orally or in
writing or, if so amended, identifying the amendments.
A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to
the requesting Party within thirty (30) days after receipt of the request. The City Manager may
sign Estoppel Certificates on behalf of the City, in a form approved by the City Attorney. An
Estoppel Certificate may be relied on by assignees and mortgagees. Notwithstanding the
foregoing, the Party receiving the request may decline to provide an Estoppel Certificate if that
Party has previously given the other Party actual notice of a default or is aware of circumstances
which may constitute a default. If requested to do so by the requesting Party, the Party receiving
the request may state in writing the reasons for declining the request.
16.0 GENERAL.
16.1 Non-liability of City Officers and Employees.
No official, agent, contractor, or employee of the City shall be personally liable to
Developer, 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 Developer or to its successor, or for breach of any
obligation of the terms of this Agreement.
16.2 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.
16.3 Covenant Against Discrimination.
Developer 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. Developer shall take
affianative action to insure that employees are treated during employment without regard to their
race, color, creed, religion, sex, marital status, national origin or ancestry.
16.4 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.
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16.5 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.
16.6 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, mediation fees incurred per section 16.20, 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.
16.7 Time of Essence.
Time is of the essence in:
(a) The performance of the provisions of this Agreement as to which time is
an element; and
(b) The resolution of any dispute which may arise concerning the obligations
of Developer and City as set forth in this Agreement.
16.8 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.
16.9 No Third Party Beneficiaries.
The only parties to this Agreement are Developer 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.
16.10 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.
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16.11 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.
16.12 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.
16.13 Notices, Demands and Communications Between the Parties.
Notices, demands, submission of documents, and communications between City and
Developer 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:
A copy to:
DEVELOPER:
A copy to:
CITY OF IRWINDALE
5050 North Irwindale Avenue
Irwindale, CA 91706
Telecopier No. (626) 962-4209
Attn: City Manager
ALESHIRE & WYNDER, LLP
18881 Von Karman Avenue, #1700
Irvine, CA 92612
Telecopier No. (949) 223-1180
Attn: Fred Galante, Esq.
United Rock Products Corp.
Attention: David Martinez
135 South State College Boulevard, Suite 400
Brea, California 92821
Daniel J. LaFrance, Esq., Assistant General Counsel
Colas Inc.
163 Madison Avenue, Suite 500
Morristown, New Jersey 07960
and
JEFFER, MANGELS, BUTLER & MITCHELL LLP
1900 Avenue of the Stars, Seventh Floor
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Los Angeles, CA 90067-5010
Telecopier No. (310) 203-0567
Attn: William F. Capps, Esq.
Any such notice shall be deemed to have been given upon delivery if personally served or
delivered by courier, or upon the expiration of three (3) business days after mailing if given by
certified mail, return receipt requested. Such written notices, demands and communications may
be sent in the same manner to such other addresses as a party may from time to time designate by
mail.
16.14 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.
16.15 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.
16.16 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.
16.17 Relationship of Parties.
It is specifically understood and agreed by and between the Parties that the Project is a
private development, that neither Party is acting as the agent of the other in any respect
hereunder, and that such Party is an independent contracting entity with respect to the terms,
covenants, and conditions contained in this Agreement. The only relationship between the City
and Developer is that of a government entity regulating the development of private property and
the owner of such private property.
16.18 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 infoilliation of Developer which pertain to the Project. The
parties agree that Developer's financial statements and financial records not pertaining to the
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Project are confidential and shall not be disclosed to City pursuant to the provisions of this
Agreement.
16.19 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 Developer 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.
16.20 Disputes.
Any controversy or claim arising out of or relating to, this Agreement shall be mediated
before a JAMS (or if unavailable, ADR Services) mediator mutually selected by the parties prior
to initiation of any legal proceeding. Any cost of such mediation shall be equally shared by the
parties. Any legal proceeding following any unsuccessful mediation attempt, despite good faith
efforts by the parties, shall be filed in the Superior Court, County of Los Angeles.
17.0 EXHIBITS.
The following are the Exhibits to this Agreement:
Exhibit A:
Exhibit A-1:
Exhibit B:
Exhibit B-1:
Exhibit B-2:
Exhibit B-3:
Exhibit C:
Exhibit D:
Site Map
Legal Description of Site
Scope of Development
Manner of Reclamation
Typical Slope Cross Sections
Location of New Access Point and Road
Schedule of Performance
Reclamation Plan Drawings
[SIGNATURE PAGE FOLLOWS]
LA 11338609v3
01005.0020/173395.8 43
IN WITNESS WHEREOF, the City and Developer have executed this Development
Agreement on the date first above written.
"CITY"
CITY OF IRWINDALE, a municipal
corporation
Mark A Breceda, Mayor
Attest:
City Clerk
Approved as to form:
ALESHIRE & WYNDER, LLP
Fred Galante, City Attorney
"DEVELOPER"
UNITED ROCK PRODUCTS
CORPORATION, a Delaware corporation
By:
Name:
Title:
By:
Name:
Title:
[END OF SIGNATURES / NOTARY JURAT(S) FOLLOW]
LA 11338609v3 1
STATE OF CALIFORNIA
) ss.
COUNTY OF LOS ANGELES )
On ,20 , before me, , a Notary Public,
personally appeared , 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(s) 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
STATE OF CALIFORNIA
) ss.
COUNTY OF LOS ANGELES )
(Seal)
On , 20 , before me, , a Notary Public,
personally appeared , 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(s) 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
(Seal)
LA 11338609v3 2
EXHIBIT "A"
SITE MAP
[See Attached]
LA 11338609v3
A-1
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Project Location
EXHIBIT A
Site Map
N.T.S.
EXHIBIT A-1
LEGAL DESCRIPTION OF SITE
LA 11338609v3
A-1-1
EXHIBIT A-1
Page 3 of 3
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EXHIBIT B
SCOPE OF DEVELOPMENT
Developer shall mine the Site in accordance with this Agreement and reclaim and develop the
Site in accordance with the Reclamation Plan and this Agreement and in the manner described
below, as further depicted in Exhibit D.
A. Mining and Reclamation. Developer shall conduct mining and reclamation
operations in 2 phases as follows:
1. Access Road Relocation: Developer shall construct a new on-site access
road and relocated driveway entrance to the Site on the south side of the Site,
as further described in Section 4.8 (b) of this Agreement and 3.14 of the
Reclamation Plan
2. Mining:
a. Mining Phase 1. The maximum depth of excavation during the Phase 1 is
anticipated to yield approximately 4 million tons of material at elevation 175
above mean sea which is approximately 100 feet below the existing ground
level in the Site. Phase 1 is anticipated to take 3 years, but could be extended
depending on the conclusion of the environmental analysis, as adopted by the
City.
As part of the first phase of mining, access to the Site will be relocated from
Olive Street to a new intersection at Los Angeles. Developer will construct
the new access road with a combination of on-site materials and fill materials
and ascend from the bottom of the pit along the southern edge of the Site on
an 8% grade to the southeastern corner of the Site where it will exit at Los
Angeles Street. The access point will be approximately 700 feet west of the
Los Angeles and Azusa Canyon intersection. Developer will install a signal
to allow for safe ingress and egress to the site. Developer will construct the
new access road with a 45 foot wide road bed. Developer will also create an
approximate 4-acre pad ("Loading Area") at the southeastern corner of the
Site for loading trucks with extracted materials, which Loading Area shall
include property leased by City from Los Angeles County and paid for by
Developer. Construction of the new access road and loading area will require
1.9-million cubic yards of fill.
Mining will begin at the toe (bottom) of the existing pit area. The maximum
depth of excavation during Phase I is anticipated to reach 175 amsl, or 100
feet below the current surface level. Phase I will yield approximately 4-
million tons of material.
Developer shall extract an average of 1 million tons per year during Phase I,
but no more than the amount approved per the certified EIR, or any duly-
LA 11338609v3
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approved amendment, addendum or supplement thereto. Assuming 306 (6
day work week with 6 holidays) working days a year this will result in 262
one-way truck trips a day or 131 round trips. Actual production will vary
depending on market conditions.
b. Mining Phase 2. As stated above, Developer will commence Phase II
mining after completing Phase I mining and concurrently with Phase 1
reclamation. Phase II consists of the remaining 137 acres of the site and will
be mined to 0' amsl and will yield approximately 28 million tons. Developer
will create a 65-acre pad at the base of the pit within the southwest corner of
the Site, which will require approximately 207,600 cubic yards of fill. The
pad will serve as a collection point for aggregates mined in Phase II. During
Phase II, Developer will first mine all resources that occur above the water
table using a front end loader or excavator. When the water table is
encountered, Developer will use a dredge or other method adapted for
underwater mining (e.g., dragline or long reach excavator) to extract
materials. Phase II mining will yield about 28-million tons.
c. Process of Mining. All mining activities will be in compliance with the
Guidelines. Material will be extracted through dry mining and, thereafter, use
of a dredge or other methods for material below the water table. At present,
the majority of the pit bottom is found at or below the high water table
elevation (±285' amsl). The water table is known to raise and lower
dependent upon season and precipitation cycles. As such, all mining activities
will form a maximum 2:1 cut slope and be in accordance with the Guidelines.
Developer will transport excavated material up the access road to the Loading
Area by conveyor or off-road haul trucks and subsequently placed in overhead
hoppers. Over-the-road haul trucks will be loaded at the hoppers through an
automated process. As material is extracted and loaded into haul trucks,
Developer will transport such material to Developer's existing processing
facility located at 1245 E. Arrow Highway in Irwindale ("Processing Site").
The proposed route is approximately 3.3 miles and lies entirely within the
City of Irwindale. Trucks will reach this location by exiting the site at Los
Angeles Street, turning north onto Azusa Canyon, then west on Arrow
Highway to the Developer's processing plant. As part of the mining
operations, Developer will maintain the existing pit walls per the Reclamation
Plan. Provided Developer adequately and fully complies with such
maintenance obligations, it shall not be responsible for any damage or failure
of such existing walls due to pre-existing conditions. All other pit walls,
improvements and other changes to the Site created by Developer shall be
Developer's sole responsibility for which Developer shall indemnify the City
pursuant to Section 14 of this Agreement.
3. Reclamation:
a. Phase I Reclamation. Per the approved Reclamation Plan, Developer
will begin Phase I reclamation at the conclusion of the first mining phase.
LA 11338609v3
B-2
Phase II mining will occur simultaneously with Phase I reclamation.
Reclamation of Phase I will include filling the area according the Guidelines
for Above-Water and Underwater Backfilling of Open-Pit Mines. Before
commencing fill operations, Developer will remove disturbed and uncertified
fill and place compacted fill in a controlled manner. Additionally, Developer
shall compact all fills within 40 feet of the final elevation to a minimum of 93
percent, as further described the aforementioned Guidelines. Backfilling of
Phase I will be to street level (approximately 420 feet nisi) and proposed to be
a minimum of 600 foot wide (east to west) along the entire approximately
1000 foot eastern side of the Site, resulting in an approximately 31.2-acre pad
("Development Parcel") with a 2:1 slope along the western margin and will
require more than 8 million cubic yards of fill. All final fill slopes will be
revegetated per the Reclamation Plan.
Backfill material will originate from Developer's processing location where it
is collected from various sources throughout the greater urban area, including
construction demolition materials from construction projects associated with
Developer. Developer's trucks will exit the Site with a load of mined material
and return loaded with material to fill the pit. Fill material could also
originate from different sources throughout the Los Angeles region.
Depending on the type of construction activity, fill material suitable for
reclamation at the Site could originate from projects in which Developer-
associated companies are engaged. The availability of this material is
anticipated to be random and subject to market conditions.
The additional area to be reclaimed beyond the 600 foot Development Parcel
is necessary for fill placement to establish a 2:1 final fill slope from the
bottom of the pit to the Development Parcel. Backfilling will involve the
backhaul of processed material from Developer's Pit 2 processing operations
and will insure that the material placement will meet or exceed the Guidelines.
No processing of materials shall occur at the Site. The Development Parcel
shall be completed within the time set forth in the Schedule of Performance,
as adjusted for delays as described in Section 13 above. Maintenance of the
final fill slope for the reclamation area as well as required landscaping will be
City's responsibility, as may be assigned by the City to any third party.
b. Phase II Reclamation. Developer will commence Phase II reclamation at
the conclusion of Phase II mining or when the mineable aggregate resources
have been exhausted at the Site. Currently, Phase II reclamation consists of
utilizing the Site for flood control, storm water retention and/or ground water
recharge basin. Minimally, reclamation to any of the suggested end uses
would involve stabilization of the mined slopes and ensuring public safety
through fencing and access restrictions.
c. Reclamation of Additional Areas. Any additional reclamation of the
Site shall be subject to separate future agreement of the parties and duly-
approved amendment to the Development Agreement. Nothing stated herein
LA 11338609v3
B-3
shall require the parties to reach mutual agreement on such additional
reclamation.
d. Prioritization System. Developer has further requested to perform
reclamation operations at the Site as an authorized commercial fill operation
under the filling prioritization system applicable to reclamation operations in
the City, as such terms and system are further defined in development and
settlement agreements between City and other operators, including operations
owned and operated by Developer in other sites at the City. Although other
operators, including Developer, have the prior rights to operate commercial
fill operations in advance of any rights that may be granted by City for the
Site, the parties will nevertheless work together to ascertain if the Site may be
granted the priority fill designation, provided other affected operators agree.
If such priority designation is infeasible, Developer understands that it will be
bound to operate a non-commercial fill operation, utilizing fill from its own
sources and has represented that it is able to accomplish reclamation, as
intended and described in this Agreement, as adjusted for delays as described
in Section 3.
e. Flood Control or Storm Water Collection/Recharge Basin. The City
has expressed desire to have areas not reclaimed for future development serve
as a future flood control or storm water collection/recharge basin to serve the
needs of the City and potentially surrounding cities in their obligation to
provide for storm water runoff. The Development Agreement and
Reclamation Plan shall include requirements for Developer to reclaim the
remaining portions of the Site not slated for future development in such a
manner as to accommodate such end use.
4. Offsite Improvements. Offsite improvements would be provided
pursuant to the City's usual development requirements, subject to the
requirements of Section B below.
B. Environmental Control Systems. Developer is committed to implementing the
following minimum measures to mitigate the impacts from mining and reclamation
activities to surrounding residents, businesses and roadways, as well as any additional
mitigation measures identified through the environmental evaluation of the Project:
1. Transportation. Developer proposes to relocate the access point to the
Site to Los Angeles Street in an effort to minimize traffic and noise impacts to
residential development to the north and west of the Site. The existing access
point is found near the northeast corner of the Site, which will be used until
alterative access may be completed. Due to the limited setback and steep slopes
along the perimeter of the Site, the new access road will need to be constructed.
The new access road will require approximately 4,9 million cubic yards of fill
from the existing pit bottom (approximately 270 feet m.s.1.) along the southern
edge of the pit. The new access road will be constructed with a 45 foot road bed
at a maximum grade of 7.6%, as further described in the Proposal. Developer
LA 11338609v3 B-4
shall install signals per the EIR. Any improvements, including but not limited to,
the access road, intersection, signal and other improvements shall not exceed
$80,000, which maximum amount excludes any mitigation measures required by
the EIR to be paid by Developer; provided that Developer may object to any such
mitigation measures or negotiate with the City the allocation of costs for same as
part of the Development Agreement. In accordance with the EIR, all vehicles of
Developer, its employees, contractors, agents or invitees, entering and exiting the
Site shall utilize the new access road at Los Angeles and Cypress Streets.
Additionally, all commercial trucks of Developer, its employees, contractors,
agents or invitees used for the carrying any type of fill material or materials
excavated from the Site shall utilize the following routes exclusively for the
import or export of such materials:
Los Angeles Street to Azusa Avenue to Arrow Highway to United Rock Pit
2 and returning to the Site
2. Hours of Operation. To further limit the impacts to neighboring
properties, Developer will only conduct mining activities during normal business
hours which are:
a. For road construction: Monday through Saturday 7 a.m. to 7 p.m.
b. For extraction and reclamation: Monday through Saturday 6 a.m. to 6
p.m.
c. Transportation to the processing plant: Monday through Saturday 7 a.m.
to 5 p.m.;
d. Onsite maintenance which does not cause noise, light glare or other
potential impact to surrounding uses shall be authorized at other times.
3. Dust Control. Developer will manage dust from operations by paving the
entrance to the access road and the use of water trucks for all unpaved surfaces.
Additionally, Developer shall use a street sweeper to patrol the streets on a regular
basis to eliminate any spillage that could occur. Developer will conduct all
operations in strict compliance with South Coast Air Quality Management District
("SCAQMD") requirements.
4. Noise Attenuation. Developer's proposed relocation of the access road,
as described above is aimed at reducing noise impacts to residents along the
northern boundary of the Site. Additionally, mining activities will occur at
approximately 120 feet below ground level and will be 200 feet from the edge of
the northern property line of the Site. This is augmented by the presence of an
approximately 6 foot high block wall that extends along a portion of the northern
boundary of the Site to further eliminate line-of-sight contact between residential
areas and mining activities so as to reduce estimated noise signature to
approximately 60 dBA. Additionally, all of Developer's mining and reclamation
equipment will be late models using state-of-the-art noise reduction technology.
LA 11338609v3
B-5
To reduce noise from over-the-road haul trucks, Developer shall implement the
following measures:
a. Hours of operation will be limited to normal business hours,
b. All trucks shall be equipped with Diesel Particulate Filters or a resonator
to reduce noise by 3 to 6 dBA,
c. No Jake Brakes shall be used.
d. All trucks shall be equipped with a single exhaust, vertical straight
stacks and no turndown, and
e. All trucks shall be equipped with automatic transmissions, which
eliminate unnecessary engine revving.
5. Improvement to Northern Border. Developer and City shall negotiate
and implement at Developer's cost, mutually agreed improvements to the
northern boundary of the Site between the pit wall and Olive Street so as to create
an aesthetic, well landscaped walking park and adequate screening to the border
of the pit, Developer's costs will be capped at $250,000. Any landscaping
condition for other borders of the Site shall be in addition to the aforementioned
cap and shall be consistent with conditions typically imposed by the City for such
approvals, such as the landscaping requirements imposed for Developer's Pit 2
operations in 2002. Any significant increases to this landscaping condition shall
be subject to negotiations between the parties as part of the Development
Agreement.
6. Use of Water. Developer shall procure from the applicable water
supplier, and use water in the amounts and manner necessary to control dust at
that Site as well as any other prudent operational purpose. Developer shall be
solely responsible for paying for and securing the transportation of the water to
the Site.
7. Street Sweeping. Developer, at its sole cost and using a street sweeper
shall perform street sweeping upon all streets used by trucks entering and exiting
the Site in an area within 500 feet of the Site and at all times during Developer's
performance of the Project.
8. Responding to Public Concerns. Developer shall respond to any public
complaints or concerns related to the Project within 48 hours of any complaint.
Developer shall make a written record of all complaints or concerns received and
present them to the City within the same time required for it to respond to such
complaints or concerns.
C. Public Works Conditions of Approval. Developer shall conduct all activities
described in this Agreement in accordance with the following Public Works conditions of
approval:
LA 11338609v3
B-6
1. Applicant shall comply with the City Guidelines for Drainage and Erosion
Control for Open-Pit Mines during all phases of mining and reclamation of the
Site to address the following:
a. Implement appropriate measures to keep surface water from flowing
over the rim of the pits to avoid overtopping-induced erosion.
b. Implement appropriate measures to protect pit slopes from incident-
precipitation induced erosion.
c. Implement necessary measures to protect pit slopes that are exposed to
groundwater lakes and wave-lap erosion.
d. Applicant shall prepare necessary engineering plans for the
implementation of measures stated above, and submit to City for review and
approval by the City Engineer within one hundred twenty (120) days from
the approval of this DA.
e. Maintain sidewalks around the entire perimeter of the site clean at all
times.
f. Provide a minimum of one street sweeper during all hours of operation.
Street sweeping shall be extended at least 500 feet beyond property
boundaries. Debris left behind due to street sweeping adjacent to catch
basins shall be cleaned at all times.
2. Applicant shall ensure that Best Management Practices (BMPs) are used
to eliminate risks of contamination to the groundwater and ensure the safety of the
public with the implementation of the following:
3. Controlled Access.
a. The primary access to the pit during mining and reclamation activities
shall be strictly thru the proposed signalized entrance at Los Angeles Street.
Request for alternate access point must be requested by the operator in
writing to the City Engineer for its review and approval.
b. Restrict Site areas to authorized vehicles and equipment directly related
to Applicant's operation.
c. Place continuous security provisions to monitor and safeguard all access
point to the Site
d. Secure all access point with locks, except at entrances during business
hours.
4. Security.
LA 11338609v3
B-7
a. Construct and maintain in good, appropriate condition, appropriate
berms in accordance with the MSHA requirement for safety berm. The
design and construction of these berms shall meet the City's Drainage and
Erosion Control Guidelines if also used to control surface runoff.
b. Repair any damage to walls, fences, berms and its appurtenances within
two days of discovery. Make immediate necessary repairs to ensure public
safety.
c. Inspect MSHA berms on a daily basis; and
d. Police Site and remove any deleterious or hazardous materials in
accordance with government requirements.
e. Secure the Site with adequate walls and fences per Planning Division
requirements.
f. If not being used, the Applicant shall close and secure the existing
driveway located along Azusa Canyon Road. (g) Access points along
Olive Street shall be secured.
5. The Applicant shall, within ninety (90) days of the approval of the
Reclamation Plan, prepare and submit an Emergency Plan which includes step by
step remedial actions that deal with the handling of contamination to the Site. If,
at any time, contamination is found to be at or above established action levels, the
Applicant shall immediately notified the City and other responsible Agencies and
shall take all necessary remedial actions.
6. The Applicant, at its sole cost, shall implement all mitigation measures as
described in the final Environmental Impact Report. The improvements, as
described herein, shall be designed and constructed to City standards and/or other
applicable State and County standards pursuant to the schedule approved by the
city. All improvements shall be based on construction plans and specifications,
prepared by professional consultants retained by the Applicant. The Applicant
shall obtain all necessary permits for construction of the required improvements.
7. The Applicant shall complete construction of the two new traffic signals at
the intersections of Los Angeles Street and Azusa Canyon Road and at the new
access road on Los Angeles Street per the City approved construction plans and
specifications within twelve months of the City's approval of such plans and
specifications. The Applicant shall obtain all necessary pelinits for construction
of the required improvements.
8. The Applicant shall maintain in good condition the striping on the
following streets, per the direction of the City Engineer:
a. Los Angeles Street from Azusa Canyon Road to City Limits with
Baldwin Park(Westerly of Park Avenue).
LA 11338609v3
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b. Azusa Canyon Road from Los Angeles Street to Arrow Highway.
c. Avenida Barbosa from Arrow Highway to Buena Vista Street
9. Slope Reyegetation
a. Applicant shall revegetate the mine slopes in accordance with the
approved Reclamation Plan for the Site in phases concurrent with ongoing
mining operations on the Site.
b. Should any plant material become unhealthy or die, Applicant shall
replace same with equivalent materials within the next winter to spring
planting season in accordance with the revegetation plan contained in the
approved reclamation plan. Success of revegetation will be judged by
comparing the quantified measures of vegetative cover, density, and species-
richness of the reclaimed mined-lands to similar parameters of naturally
occurring vegetation in the area. Successful revegetation will be deemed
complete when plant cover has been established over 75 percent of the Site
slopes for three consecutive years.
10. Tree and Landscape Maintenance. The Applicant shall maintain all
trees and landscaping within the entire property and all trees and landscaping in
the public right-of-way adjacent to the entire property.
11. Air Quality and Dust Control.
a. Air Quality Mitigation Measures - The following mitigation measures
are required as Best Management Practices (BMPs) during mining
operations, reclamation, and post-reclamation phases of the Proposed
Project to reduce tailpipe exhaust emissions of CO, NOx, Sox, PM10, and
fugitive dust. Heavy-duty diesel trucks and other mobile equipment shall be
properly tuned and maintained to manufacturer's specifications to ensure
minimum emissions under nounal operations.
b. Applicant shall comply with all requirements of the site's South Coast
Air Quality Management District (SCAQMD) permits, including Rule 403
and 1157.
c. Dust shall be controlled pursuant to the requirements of the SCAQMD
Rule 403, as may be amended from time to time. A copy of the control
plan, as may be amended, prepared in accordance with Rule 403, shall be
provided to the City.
d. Applicant shall implement permanent necessary measures per
SCAQMD, as approved by the City Engineer, to minimize the tracking of
mud and/or dirt to the public right of way. These measures shall be
maintained to the satisfaction of the City Engineer.
LA 11338609v3
B-9
e. The Applicant shall apply for and maintain all appropriate penuits from
the SCAQMD.
12. Water Quality.
a. Applicant shall work with the responsible parties discharging storm
water to the Site to install appropriate protective measures to ensure
protection of the groundwater quality from storm water runoff.
b. Applicant shall implement necessary measures to protect groundwater
quality as stated in the Main San Gabriel Basin Watermaster Resolution No
3-88-57.
c. Applicant shall prepare a Stormwater Pollution Prevention Program
(SWPPP) to identify necessary measures to minimize erosion damages and
water quality pollution. This SWPPP shall be in accordance with National
Pollution Discharge Elimination System (NPDES) requirements and
Irwindale Municipal Code Chapter 8.28. Applicant shall file a copy of the
approved SWPPP with the City Department of Public Works within sixty
(60) days of approval.
d. Applicant shall provide to the City Engineer's office a copy of the
Regional Water Quality Control Board (RWQCB) issued General Activity
Certificate and/or its Spill Prevention Control and Countermeasure Plan
(SPCCP) sixty (60) days after City's approval of the Reclamation Plan.
13. Soils.
a. Applicant shall at all times comply with the City's Technical Guidelines
during all phases of mining and reclamation at the Site to ensure adequate
safety of all mining slopes. "Technical Guidelines" shall be the collective
tenn used to refer to the following standards applicable in the City for
reclamation and maintenance of mining quarries, developed by the
Irwindale Backfilling Committee, as approved December 20, 2005 by
Resolution No. 2005-89-2106 of the City Council, and specifically includes
any and all duly approved revisions, updates, amendments and
modifications of such Guidelines:
b. "Guidelines for Above Water Fill" shall mean the November 23, 2005
Guidelines for Above Water Backfilling of Open-Pit Mines, Irwindale,
California.
c. "Guidelines for Erosion Control" shall mean the July 6, 2004 Guidelines
For Drainage And Erosion Control for Open-Pit Mines, Irwindale,
California.
d. "Guidelines for Underwater Fill" shall mean the May 20, 2005
Guidelines for Underwater Backfilling of Open-Pit Mines, Irwindale,
LA 11338609v3
B-10
California.
e. "Guidelines for Slope Stability" shall mean the December 24, 2003
Guidelines for Slope Stability Analysis of Open Pit Mine Slopes, Irwindale,
California.
14. Applicant shall continuously monitor all the pit slopes that are created by
the mining activities of the operator, and the operator is required to monitor wave-
lap erosion and apply one or more of the following remediation methods as
required by the Guidelines:
a. Reduce slope steepness to achieve a slope inclination not subject to
wave lap erosion.
b. Armor the slope to prevent wave lap erosion.
c. Implement other procedures approved by the City Engineer's office.
15. Reclamation.
a. Mine reclamation backfills shall be required to obtain a special grading
permit for mine reclamation backfill from the City, and/or other State and
County permits that may be applicable based on the various type of backfill
material used for reclamation.
b. Applicant shall comply with the approved Reclamation Plan for the
reclamation of the Site. The reclamation phasing and timeline shall not be
altered without the approval by the City and, if required, the approval of the
State of California Department of Conservation,
c. Applicant shall be responsible for City's cost to monitor the reclamation
activities of the Site. The Applicant shall deposit sufficient funds based on
an annual cost estimate prepared by the City Engineer's office to cover the
actual monitoring cost. The Applicant shall deposit these funds to the City
on or before July 10th of each year. Deposits in excess of actual City cost
will be refunded to Applicant. To the extent the City obtains aerial
photographs, ground based photographs, topographic/Hydrographic maps or
reports from outside consultants as part of its monitoring activities, the City
shall provide copies of such documents to the Applicant. To the extent
possible, copies of aerial photographs and topographic/hydrographic maps
shall be provided in AutoCAD compatible electronic form as well.
d. City shall have the right, after providing at least 48 hours notice to
Applicant, to independently inspect and monitor the imported inert debris
fill loads (for mine reclamation backfill) for the presence of any Hazardous
Materials using a consultant retained by the City. The reasonable costs for
such tests shall be paid by Applicant if performed no more than quarterly.
Any material that is hazardous shall be removed and disposed of properly in
LA 11338609v3
B-11
accordance with applicable State law.
e. Applicant shall not conduct any waste trash recycling operations at the
Site, except as allowed under the Development Agreement.
f No permanent waste disposal locations or tailings ponds are permitted to
remain as tailings ponds upon the site after completion of mining and
reclamation.
g. Applicant shall remediate the slopes identified in the 2008 Geotechnical
Monitoring Report prepared by Geologic Associates, and supplemented by
the Tetra Tech Slope Stability Letter Report dated October 13, 2014. The
remediation of these slopes shall be in accordance with the approved
Reclamation Plan. Slope remediation plans and a construction schedule for
this work shall be submitted and approved by the City Engineer prior to
starting of the remediation. The slope remediation work shall commence
immediately after the plans are approved.
h. All equipment, structures, and other facilities associated with the mining
operations shall be dismantled and completely removed from the Site upon
termination of mining activities, and within the timeline specified in the
approved Reclamation Plan.
D. Planning Division Conditions of Approval. Developer shall conduct all
activities described in this Agreement in accordance with the following Planning
Division conditions of approval:
1. All conditions, requirements, ordinances, rules, regulations and/ or
policies, as they may be amended from time to time, applied and/or enforced by
any local agency, Federal or State agency, the State of California, the County of
Los Angeles or any other public or quasi-public entity including the City of
Irwindale, and each of its departments and divisions, with jurisdiction over the
Site (collectively "Applicable Law") shall be satisfied by the Applicant, and such
conformance shall be maintained at all times while the use approved by this
Development Agreement ("DA") is in operation.
2. The Applicant shall fully cooperate with the City of Irwindale and any
agency or entity with jurisdiction over the Site and uses approved thereon
regarding the filing of any materials, execution of documents, instruments or
similar items and all other acts, actions or undertaking deemed reasonably
necessary by the City of Irwindale to further the purposes of this DA. The
Applicant's full cooperation shall be at no cost to the City.
3. If the use authorized by this Development Agreement has become idle (as
defined in SMARA §2727.1 as such provision may be amended from time-to-
time), Applicant shall, within ninety (90) days thereafter, submit to the Director of
Planning for review and approval, an interim management plan (IMP), pursuant to
§2770 of SMARA, as may be amended. The IMP shall be processed in
LA 11338609v3
B-12
accordance with §17.63.110 of the Irwindale Municipal Code and §2770 of
SMARA, as may be amended.
4. This DA may be revoked for any material violation of or noncompliance
with any of the conditions of approval of this DA or Applicable Law.
5. The Applicant shall defend, indemnify and hold harmless the City of
Irwindale, its agents, officers, consultants and employees from any claim, action
or proceeding against the City or its agents, officers, consultants or employees to
attach, set aside, void or annul any approval of the City, its legislative body,
Planning Commission, or other advisory agencies, or administrative officers
concerning DA No. 01-2014, including but not limited to the Environmental
Impact Report, or for any damage to persons or property, losses, costs, penalties,
obligations, or liabilities arising out of or in connection with Applicant's acts or
omission on the Site, whether or not such act or omission resulted or was
undertaken pursuant to any condition or approval granted under this DA. The
City will promptly notify the Applicant of any such claim, action or proceeding
against the City and the Applicant 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 Applicant may elect to retain separate
counsel for themselves. The City shall cooperate fully in the defense of any such
action. If the City fails to promptly notify the Applicant of any such claim, action
or proceeding, or fails to cooperate fully in the defense, the Applicant 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 the Applicant's consent as to the City's liabilities or rights only,
but should it do so, 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 issuance of this DA, the City has no actual knowledge of any
pending or threatened claim which would result in indemnification under this
condition.
6. The Applicant shall at all times maintain the Site—and its use and
appearance thereof in full compliance with Applicable Law.
7. The Applicant agrees to allow City inspectors and/ or designees of the
City to reasonably inspect the Site during normal business hours or at any time
operations are occurring on site to assure compliance with Applicable Law,
provided the City complies with Mine Safety Health Administration (MSHA)
regulations. In cases of emergencies, City shall have the right to inspect the Site,
whether or not operations are occulting on site, provided City gives prior notice to
Applicant as may be reasonably possible. City inspectors or designees must be
accompanied by Applicant's personnel at all times per MSHA.
8. Any and all fees required to be paid to any public agency shall be paid
promptly when due.
LA 11338609v3
B-13
9. Approval of this application shall not excuse compliance with Applicable
Law.
10. The Applicant shall maintain the Site at all times free and clear of any
accumulation of trash. Applicant shall further maintain the Site in a manner that
shall avoid any deteimination by the City that any condition on the Site
constitutes a nuisance, pursuant to the City's Municipal Code.
11. Except as in accordance with Applicable Law, the Applicant shall
maintain the Site at all times free and clear of and shall not discharge or otherwise
release any hazardous substances, hazardous wastes and/or hazardous materials as
such terms are defined in their broadest form under any applicable federal, state or
local law or regulation, and any other kind of soil, air, or water contamination,
and combustible and/ or flammable materials (except for fuels, lubricants,
household waste and other chemicals noimally used with the mining and
reclamation uses allowed by this DA (collectively, as limited, "Hazardous
Materials"). Any Hazardous Materials lawfully used on the Site will be handled
in accordance with Applicable Law.
12. All graffiti shall be removed within 48 hours after Applicant becomes
aware, or the City notifies Applicant, of its application. The graffiti shall be
removed by either painting over the evidence of such vandalism with paint, which
has been color- matched to the surface to which is applied, or the graffiti may be
removed with solvents or detergent as appropriate.
13. All plans required by these conditions shall identify the Plant Manager and
other persons who have the authority and responsibility to ensure that the intent
and purpose of the plans are carried out. Such information shall also be provided
on a sign posted at the site office. These employees will be responsible for
coordinating, with the City Manager's Office, a response to complaints or
concerns expressed by persons affected by the operations on the subject Site.
Applicant must provide a written update to the City of the identification of such
Plant Managers within forty-eight (48) hours of any change.
14. In the event that any conflicts in the conditions of approval herein appear
to or do exist, the more stringent requirement or condition shall apply. The
conditions herein shall prevail over any conflicting conditions in the Olive Pit
Reclamation Plan dated October, 2014, approved by the City concurrently
herewith ("Reclamation Plan").
15. Landscaping/ Fencing.
a. The Applicant shall repair and maintain the existing six-foot high
concrete block and/or chain link fence with barbed wire extension along the
perimiter.
b. All landscaped areas will be kept in a-clean condition and free of weeds
and trash. All plant materials shall be kept healthy. In the event such
LA 11338609v3
B-14
materials are not kept in such condition, they shall be replaced with similar
materials, as required by the landscape plan, within 30 days. Applicant shall
revegetate inactive disturbed landscape areas at the Site. A landscape and
irrigation plan shall be prepared by a licensed landscape architect for all
required landscape areas. Such plan shall be submitted to the City within
120 days of approval of this DA, and shall be subject to the review and
approval by the City Engineer and Director of Community Development.
c. Landscaping within the site shall be in accordance with revegetation
program as stated in the approved Reclamation Plan.
d. The landscape setback along the Olive Street frontage shall be planted
with native plants, groundcover, and trees. A non-deciduous vine shall be
planted that will be trained to grow upon the fence and block wall, both to
obscure the site and deter graffiti. The landscape plan shall be subject to the
review and approval of the City Engineer and Community Development
Director.
e. The landscape setback along the western portion of the site shall be
planted with native plants, groundcover, and trees. The landscape plan shall
be subject to the review and approval of the City Engineer and Community
Development Director.
f. The existing landscape setback along the eastern and southern portion of
the site shall be cleaned up and all trees trimmed where necessary, as
determined by the Community Development Director. Any new landscaping
along this setback shall be native groundcover, plants, and trees. The
setback shall be maintained with a neat and clean appearance on an ongoing
basis.
16. Applicant acknowledges that the City of Irwindale may modify its Q zone
to create a Quarry Overlay Zone providing mining standards applicable to the Site
and other mining sites in the City pursuant to the terms of the Development
Agreement.
LA 11338609v3
B-15
EXHIBIT "B-1"
MANNER OF RECLAMATION
B-1-1
LA 11338609v3
EXHIBIT B-1
Reclamation Plan
The Reclamation Plan describes phased reclamation of extraction areas and sets forth
standards to assure adequacy of the plan measures. The goals of this Reclamation
Plan are to:
1. Maximize the recovery of aggregate resources in a safe and efficient manner.
2. Return extracted areas to a useful purpose following depletion of mineral resources.
This mining and reclamation plan provides for extraction and reclamation to occur
consecutively. As extraction of the site is completed, these areas will be reclaimed in
accordance with the reclamation objectives outlined herein. Final reclamation will occur
when all recovery operations have been completed.
Proposed Reclamation End Use
The proposed reclamation end use for the Olive Pit is different for each phase. Phase I
will be reclaimed by filling to street level to create an approximate 32-acre pad suitable
for future development. Phase ll will not require fill and will serve as a storm water
retention area.
Reclamation Phasing — Phase I
Phase I reclamation will begin at the conclusion of the first mining phase. Phase II
mining will occur simultaneously with Phase reclamation. Reclamation of Phase I will
include filling the area according the City of Irwindale Guidelines for Above-Water and
Underwater Backfilling of Open-Pit Mines. Prior to commencing fill operations, removal
of disturbed and uncertified fill will occur and placement of compacted fill will be
performed in a controlled manner. Backfilling of Phase I will result in an approximate 32-
acre pad with a 2:1 slope along the western margin and will require more than 8.4
million cubic yards of fill. (Appendix E, Sheet 4) All final fill slopes will be revegetated as
prescribed in the revegetation plan described in Section 4.8. Backfill material will
originate from the URP processing location where it is collected from various sources
throughout the greater urban area, including construction demolition materials from
construction projects associated with URP. URP trucks will exit the Olive Pit with a load
of mined material and return loaded with material to fill the pit. The total amount of
backhaul material brought to Olive Pit will equal the same as what is extracted from
Olive Pit; i.e. 1 million tons annually.
As stated above, Phase I reclamation will require 8.4-million cubic yards of fill to create
the 32-acre pad on the eastern portion of the site. Using a conversion factor of 1.5 tons
per cubic yard, the pad will require approximately 13-million tons of fill. Depending on
market conditions, it is anticipated that Phase I Reclamation will occur within a 15 year
period following the conclusion of Phase I Extraction. Therefore, assuming project
commencement in 2015, Phase I Reclamation should occur between 2019 and 2034.
Reclamation — Phase II
Phase ll reclamation will commence at the conclusion of Phase II mining or when the
mineable aggregate resources have been exhausted at the site. Phase II reclamation
calls the site to be used for flood control, storm water retention and/or ground water
recharge basin. Minimally, reclamation to any of the suggested end use would involve
stabilization of the mined slopes and ensuring public safety through access restrictions.
(Appendix E, Sheet 6) The existing access road on the north, the new access road to
the south and the 30-foot bench connecting the two will remain for future access to the
site for maintenance purposes and will not be reclaimed.
Phase II extraction activities will progress from higher elevations to lower elevations
within the pit. After final grading has been completed within the upper 20 feet of the
extraction area, the slopes will be revegetated in accordance with the revegetation plan.
Subsequent reclamation of final slopes will follow as each 20-foot (vertical) segment is
completed until groundwater is encountered. Final reclamation of Phase Ills anticipated
to occur after resource depletion (December 31, 2050) and will allow for a five year
monitoring period. Thus, depending on market conditions and project commencement in
2015, final reclamation can be anticipated by the end of 2055 after including the
additional time for monitoring.
EXHIBIT "B-2"
TYPICAL SLOPE CROSS SECTIONS
B-2-1
LA 11338609v3
700 000 000 400 .500 200 -100 200 -100 55444 141144241:RE 1' 200 700 600 500 400 300 200 f 00 EXHIBIT B-2 COO 500 400 500 200 c.,..,:_ , .i'...1--• -'...-,...,..5. _. . t. • X . L.....111 i ....C.....,.......1, SECTION A-A ,•„.. i- . , . . .,.. I 1 l'''.4 ;;,...41.,-;,1.76.:, sEcrictl la - SECI ION L:#-U NORVARE. ZOO Piggg,KMIK)N KEY MAP NTS CC4tEl mr-,==r77777 REVISIONS REFERENCES IotIffJlf Cf MCC Iffitt.TO IIT I MOMS CONCEIT FEDE/E.CRENT AGENCY WYO. DWG. Na it. I I 1 OLNIT E P cRo88-8EcTIONS MKS )00 0000/ env [wrap mweiDALE, CALFORVA 00EET 7 7110 SOO 500 400 300 200 100
EXHIBIT "B-3"
LOCATION OF NEW ACCESS POINT AND ROAD
B-3-1
LA 11338609v3
EXHIBIT B 3
APPRCOOMATE INGRESS AND EGRESS
LOCATION TO I.AS ANGELES STREET
LOCATION OF NEW
ACCESS POINT AND ROAD
EXHIBIT "C"
SCHEDULE OF PERFORMANCE
ITEM TO BE PERFORMED TIME FOR PERFORM AV I_ -GREEMEN I
REFERENCE
. Planning Commission holds
public hearing on this
Agreement, Reclamation
Plan and Financial
Assurances
November 19, 2014 Recitals
2. City Council conducts first
reading of Ordinance
approving this Agreement
and License Agreement
December 3, 2014 Recitals
3. City Council conducts
second reading of Ordinance
approving this Agreement
December 10, 2014 Recitals
4. Developer executes this
Agreement, Reclamation
Plan and License
January 7, 2014 1.3(b)
. Effective Date of this
Agreement
January 9, 2015 § 2.17
6. City records Agreement Within 10 days of execution by
all parties
§ 18.16
7. Developer commences
construction of relocated
road to intersection of
Cypress and Los Angeles
Streets
8. Developer delivers to City
first payment of
, 2015 (60 days § 4.10(b)
following the date at Event No. 4
above).
C-1
LA 11338609v3
ITEM TO BE PERfORN I ED TIM E FOR PERFORMANC E .V.IREENIEN 1
REFERENCE
9. Developer prepares
Emergency Plan as
attachment to Reclamation
Plan
, 2015 (90 days Condition #
following the date at Event No. 4
above).
10. Developer prepares plans
for implementation of
erosion and drainage
measures
, 2015 (120 days Condition #
following the date at Event No. 4
above).
11. Developer prepares and
submits to City Site
Management and Security
Plan
, 2015 (120 days Condition #
following the date at Event No. 4
above).
12. Developer commences
mining operations
13. Developer completes
construction of relocated
access road to intersection
of Cypress and Los Angeles
Streets
14. Developer delivers to City
second payment of
, 2015 (12 months § 4.10(b)
following the date at Event No. 4
above).
15. Developer delivers to City
third payment of
, 2015 (24 months § 4.10(b)
following the date at Event No. 4
above).
16. Developer delivers to City
annual monitoring fee and
documentation showing
good faith compliance with
Agreement
No later than December 12 of
each year of term, beginning on
, 2015
§ 11.1
17. City and Developer review
performance of parties
under this Agreement
No later than February 1 of each
year of term, beginning on
§ 11.1
C-2
LA 11338609v3
ITEM TO BE PERFORMED TIME FOR PERFORMANC li ,I CREEMENT REFERENCE
18. Developer completes Phase
I mining
Continues on the Effective Date
of this Agreement concurrently
with mining activities
§ 7.0 & Exhibit B,
5(c)&(d)
19. Developer commences
Phase I reclamation and
Phase II mining
§ 7.2
20. Developer completes
reclamation of Development
Parcel
No later than December 31, §3.1 & Exhibit B,
4(g) & 5(d)
21. Developer completes mining
Phase II
§
22. Developer completes Phase
II reclamation
§
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 perfolinance 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
Perfoimance and the text of the Agreement, the text shall govern.
The time periods set forth in this Schedule of Perfoimance may be altered or amended only by
written agreement signed by both City and Developer. A failure by either party to enforce a
breach of any particular time provision shall not be construed as a waiver of any other time
provision. The City Manager shall have the authority to approve extensions of time without City
Council action not to exceed a cumulative total of 180 days.
C-3
LA 11338609v3
Exhibit "D"
RECLAMATION PLAN DRAWINGS
The following Reclamation Plan drawings, dated . 2014, 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
Reclamation Plan drawings listed below are provided in reduced 11" x 17" prints hereafter.
Drawing No. Title
Title Sheet
Maximum Mining Extent
Reclamation Sequence Plan
Mine & Reclamation Fill Phasing
Reclamation Revegetation Plan
LA 11338609v3
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