HomeMy WebLinkAbout745ORDINANCE NO. 745
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF IRWINDALE APPROVING
DEVELOPMENT AGREEMENT NO. 01-2017 WITH IRWINDALE PARTNERS II, LLC TO
ALLOW FOR THE APPROVAL OF THE PARK @ LIVE OAK SPECIFIC PLAN TO
DEVELOP A LIGHT INDUSTRIAL/COMMERCIAL BUSINESS PARK, ON PROPERTY
LOCATED AT 1200, 1220, AND 1270 ARROW HIGHWAY (APN 8532-001-002,8532-001-
006, AND 8532-001-007), AND MAKING FINDINGS IN SUPPORT THEREOF
A. RECITALS.
WHEREAS, Tony Spinrad, on behalf of Irwindale Partners II, LLC, 510 East Foothill
Boulevard, Suite 206, San Dimas, CA 91711, the Applicant, has made a request to enter into
a Development Agreement (DA) with the City of Irwindale to allow for the approval of The
Park @ Live Oak Specific Plan to develop a light industrial/commercial business park for
property located at 1200, 1220, and 1270 Arrow Highway — APN's: 8532-001-002, 8532-001-
007, 8532-001-006. (This Development Agreement is being processed concurrently with
General Plan Amendment No. 01-2017, Zone Change No. 01-2017, Zone Ordinance
Amendment No. 01-2019, Tentative Parcel Map No. 82551 and FEIR State Clearinghouse
No. SCH# 2018041001).
WHEREAS, The Project Site is a ±78.3 -acre parcel located immediately south of
Arrow Highway, west of Interstate 605 (1-605), and northwest of Live Oak Avenue.
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"). The EIR was circulated for public review
for 60 days from March 18, 2019 through May 15, 2019. A copy of the EIR was circulated
through the State Clearinghouse (SCH# 2018041001), posted on the City's website, and was
available at the Irwindale Public Library, City Clerk's Office, and Community Development
Department. A copy of the EIR, Findings of Fact, Statement of Overriding Considerations,
and Mitigation Monitoring and Reporting Program was posted on the City's website.
WHEREAS, On December 18, 2019, the Planning Commission held a duly noticed
public hearing on the proposed Development Agreement No. 01-2017, at which time oral
and documentary evidence was introduced along with the written recommendation of the
City of Irwindale Planning Commission, received public testimony, closed the public hearing
and, based thereon, unanimously approved Resolution No. 778(19) recommending that the
City Council approve DA No. 01-2017; and
WHEREAS, notice of a public hearing before the City Council on the proposed
SP adoption, was given in accordance with applicable law; and
WHEREAS, a copy of the proposed Development Agreement as
presented to the City Council is on file with the Community Development Department,
at City Hall, additional printed copies are also posted at the Irwindale Public Library,
and an electronic copy is provided on the City's website; and
Ordinance No. 745
Page 1
WHEREAS, the City Council has considered the staff report and all of the
information, evidence, and testimony received at the public hearing; and
WHEREAS, On February 26, 2020, the City Council duly approved and adopted on
second reading, Ordinance No. 745; and
WHEREAS, All legal prerequisites to the adoption of this Ordinance have occurred.
B. ORDINANCE.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF IRWINDALE DOES HEREBY
ORDAIN AS FOLLOWS:
1. The City Council hereby specifically finds that all of the facts set forth in
Recitals, Part A, of this Ordinance are true and correct.
2. The City Council hereby specifically finds and determines that the project, as
proposed, 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 on certified the Final
Environmental Impact Report (FEIR) (SCH#2018041001). A copy of the FEIR and Mitigation
Monitoring and Reporting Program was posted on the City's website
hftp�//www.irwindaleca.gov/index.aspx?nid=392.
3. The City Council hereby specifically finds and determines the project, as
proposed, 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"). The EIR was circulated for public review for 60 days from March 18,
2019 through May 15, 2019. A copy of the Draft EIR was circulated through the State
Clearinghouse (SCH# 2018041001), posted on the City's website, and was available at the
Irwindale Public Library, City Clerk's Office, and Community Development Department. A
copy of the EIR, Findings of Fact, Statement of Overriding Considerations, and Mitigation
Monitoring and Reporting Program was posted on the City's website.
4. The provisions of the proposed Development Agreement are consistent with
the general plan, as amended by General Plan Amendment No. 01-2017. The DA is also
consistent with the SP. The project site land use designation will be The Park @ Live Oak
Specific Plan, which permits industrial and commercial uses, consistent with the proposed
business park project.
5. Based upon substantial evidence and conclusions presented to this City
Council during the public hearing conducted with regard to this Application and set forth
herein above, this City Council hereby approves Development Agreement No. 01-2017,
attached hereto and by this reference incorporated herein. The Development Agreement is
necessary to protect the public health, safety and general welfare and is reasonable and
proper in accordance with the intent and purposes of Title 17 of the Irwindale Municipal Code.
Ordinance No. 745
Page 2
6. The Chief Deputy City Clerk shall:
a. Certify to the adoption of this Ordinance; and
b. Forthwith transmit a certified copy of this Ordinance, by certified mail, to the
Applicant at the address of record set forth in the Application.
PASSED, APPROVED AND ADOPTED this 26th day of February 2020.
ATTE :
aur M. Nieto, MMC
Chi f Deputy City Clerk
Albert F. Ambriz, Mayor
Ordinance No. 745
Page 3
STATE OF CALIFORNIA }
COUNTY OF LOS ANGELES }ss.
CITY OF IRWINDALE }
I, Laura M. Nieto, Chief Deputy City Clerk of the City of Irwindale, do hereby certify that the
foregoing Ordinance No. 745 was duly introduced by the City Council of the City of Irwindale,
at a regular meeting held on the 12th day of February 2020, and was duly approved and
adopted on second reading at its regular meeting held on the 26th day of February 2020, by
the following vote of the Council:
AYES:
Councilmembers:
Breceda, Burrola, Garcia, Ortiz, Mayor Ambriz
NOES:
Councilmembers:
None
ABSENT:
Councilmembers:
None
ABSTAIN:
Councilmembers:
None
Waur M. Nieto, MMC
f Deputy City Clerk
AFFIDAVIT OF POSTING
I, Laura Nieto, Chief Deputy City Clerk, certify that I caused a copy of Ordinance No. 745, adopted by the
City Council of the City of Irwindale at its regular meeting held February 26, 2020 to be posted at the City
Hall, Library, and Post Office on March 2, 2020.
L4U'40 �n')La
Lau a M. Nieto, MMC
C of Deputy City Clerk
Ordinance No. 745
Page 4
Dated: March 2, 2020
Recording Requested by And
When Recorded Return to:
5050 N. Irwindale Ave.
Irwindale, CA 91706
Attn: City Clerk
(Space Above This Line for Recorder's Office Use
(Exempt from Recording Fee per Gov. Code §
DEVELOPMENT AGREEMENT
between
THE CITY OF IRWINDALE
("City")
and
IRWINDALE PARTNERS II, LLC
A California Limited Liability Company
("Developer")
DEVELOPMENT AGREEMENT
This Development Agreement (hereinafter "Agreement") is entered into this 12th day of
February, 2020, by and between the CITY OF IRWINDALE, a municipal charter corporation
(hereinafter "City"), and IRWINDALE PARTNERS 11, LLC, a California limited liability
company, ("hereinafter "Developer"). City and Developer are hereinafter referred to each as a
"party" and collectively as the "parties".
RECITALS
A. The Development Agreement Law. California Government Code Sections 65864
et seq. ("Development Agreement Law") authorizes cities to enter into binding development
agreements with persons having a legal or equitable interest in real property for the development
of such property, all for the purpose of strengthening the public planning process, encouraging
private participation and comprehensive planning and identifying the economic costs of such
development. The legislative findings and declarations underlying the Development Agreement
Law and the provisions governing contents of development agreements state, in Government Code
§§ 65864(c) and 65865.2, that the lack of public facilities, including, but not limited to, streets,
sewerage, transportation, drinking water, school, and utility facilities is a serious impediment to
the development of new housing and commercial economic development opportunities, and that
applicants and local governments may include provisions in development agreements relating to
applicant financing of necessary public facilities and subsequent reimbursement over time.
B. The Property. Developer is the owner of legal and equitable interests in certain real
property legally described in Exhibit "A" attached hereto and incorporated herein (the
"Property"), and thus qualifies to enter into this Agreement in accordance with Development
Agreement Law. The Property is a former mining site located at 1200, 1220, and 1270 Arrow
Highway, Irwindale, California, 91706 and identified as APNs 8532-001-002, 8532-001-900 (the
parcel bearing APN 8532-001-900, known as the Gore Point, at 1200 Arrow Highway) and 8532-
001-901. The Property is located south of Arrow Highway, northwest of Live Oak Avenue, and
west of Interstate 605 (I-605). I-605 is the immediate east boundary of the site, Interstate 10 (1-10)
is located approximately 3.1 miles to the south of the site, and Interstate 210 (I-210) is located
approximately 1.5 miles to the north of the Property.
C. Existing Uses and Zoning. The Property is currently within the Regional
Commercial land use designation of the City's General Plan, and an amendment to the City's
General Plan and Zoning Maps is required to implement the Project. Developer has already
submitted applications for a Development Agreement, Specific Plan, Zone Change, Tentative
Parcel Map, and General Plan Amendment. The City is approving the entitlements for
construction of the Project, subject to certain understandings contained in that Memorandum of
Understanding entered by the Parties on August 9, 2017 (the "MOU") that are now manifest in
this Agreement. Such understandings are aimed at accommodating the needs of the City and
Developer, including a monetary payment to the City in order to support the loss of sales tax
revenue that may potentially result from the contemplated change in land use from commercial
uses to a significant amount of industrial uses. To this end, the legislative and discretionary
approvals sought from the City by Developer include a General Plan Amendment, a Zone Change,
Specific Plan, Tentative Parcel Map and this Development Agreement. Developer acknowledges
that the County of Los Angeles conducts plan check for the City on a contract basis.
D. The Project. Developer and City agree that a development agreement should be
approved and adopted for this Property in order to memorialize the Property expectations of
City and Developer as more particularly described herein. Developer has proposed a project for
the construction and operation of an industrial/commercial business park for the Property (the
"Project"). (See Specific Plan and Project Description at Exhibit `B".) The Project proposes the
construction and operation of an industrial/commercial business park on the reclaimed property,
containing multiple buildings that collectively would provide a maximum of 1,550,000 square feet
of building space, which includes up to 1,451,400 square feet of industrial building space, and up -
to 98,600 additional square feet of commercial building space. The proposed Project represents
the end use that will result from reclaiming a property that was previously mined. The Project is
intended to appeal to a range of tenant types, including general warehouse and distribution,
logistics, high -cube warehouse, e-commerce, light industrial, manufacturing, industrial park, and
ancillary retail. Development of the Project may occur concurrently with fill activities on the
Property. Associated improvements to the Property would include, but are not limited to, paved
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DEVELOPMENT AGREEMENT
The Park @ Live Oak
parking areas, drive aisles, truck courts, utility infrastructure, landscaping, retention basins/water
quality basins, monument signage, lighting, and property walls, gates, and fencing. The Project
shall include a private drive as its main access road with signalized intersections at Live Oak Ave
and Arrow Highway (at the existing Avenida Barbosa intersection), described as Private Drive A
in more detail in the Specific Plan; provided that any private road shall have access to public rights
of way, as further required in the CC&Rs. The Project shall comport to the Specific Plan and be
designed in accordance with the Specific Plan Design Guidelines described therein.
E. Public Benefits of the Project. The City Council has found that this Agreement is
in the best public interest of the City and its residents, adopting this Agreement constitutes a present
exercise of the City's authority, and this Agreement is consistent with the City's General Plan, as
amended. This Agreement and the proposed Project will achieve a number of City objectives,
including the orderly development of the Property; the providing of public benefits to the City and
its residents through public improvements, improvements to the Property, and street improvements
in and around the Property. The Project will provide local and regional public benefits to the City,
including, without limitation:
Increased Tax Revenues. The development of the Property in accordance with the terms of this
Agreement will result in increased real property, sales, utility and business taxes, and other
revenues to the City. In addition to the generation of actual retail sales tax proceeds allocable
to the City, this Agreement also provides for Developer's payment in -lieu of taxes attributable
to the loss of retail sales tax potential at the Property as a result of the Project's warehouse
components.
Sustainable Design. The Developer will, to the extent reasonably feasible, include sustainable
design for commercial and industrial uses and green building standards.
Job Creation. The Project proposes to employ approximately 850 people.
Environmental Reclamation. The proposed Project represents the end use that will result from
reclaiming a property that was previously mined, including the reclamation of severely
environmentally damaged lands to useful commercial/industrial/service use purposes.
F. Public Hearing Findings. City finds and determines that all actions required of City
precedent to approval of this Agreement by Ordinance No. 745 of the City Council have been
duly and regularly taken. In accordance with the requirements of the California Environmental
Quality Act (Public Resources Code § 21000, et seq. ("CEQA")), appropriate studies, analyses,
reports and documents were prepared and considered by the Planning Commission and the City
Council. The Planning Commission, after a public hearing on December 18, 2019, recommended
to the City Council by Resolution No. 774(19), and the City Council, after making appropriate
findings, certified, by Resolution No. 2020-08-3169, on February 12, 2020, a Final Environmental
Impact Report (SCH No. 201804100 1) for the Project, as having been prepared in compliance with
CEQA. On December 18, 2019, the Planning Commission, after giving notice pursuant to
Government Code § § 65090, 65091, 65092 and 65094, held a public hearing on the Developer's
application for this Agreement. On February 12, 2020, the City Council, after providing the public
notice required by law, held a public hearing to consider the Developer's application for this
Agreement. The Planning Commission and the City Council have found on the basis of substantial
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DEVELOPMENT AGREEMENT
The Park @ Live Oak
evidence based on the entire administrative record, that this Agreement is consistent with all
applicable plans, rules, regulations and official policies of the City.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
DEFINITIONS AND EXHIBITS.
1.1 Definitions. This Agreement uses a number of terms having specific meanings, as
defined below. These specially defined terms are distinguished by having the initial letter
capitalized, when used in the Agreement. The defined terns include the following:
1.1.1 Agreement. "Agreement" means this Development Agreement and all
attachments and exhibits hereto.
1. 1.2 Annual Review. "Annual Review" means the annual review of the
Developer's performance of the Agreement in accordance with Section 4.1 of the Agreement and
Government Code § 65865.1.
1.1.3 Applications. "Application(s)" means a complete application for the
applicable land use approvals (such as a subdivision map, conditional use permit, etc.) meeting all
of the current ordinances of the City provided that any additional or alternate requirements in those
ordinances enacted after the Effective Date which affect the Project application shall apply only to
the extent pennitted by this Agreement.
1.1.4 Authorizing Ordinance. "Authorizing Ordinance" means Ordinance No.
745 approving this Agreement, introduced on February 12, 2020 and adopted on February 26, 2020.
1.1.5 Certificate of Occupancy. "Certificate of Occupancy," with respect to a
particular building or other work of improvement, means the final certificate of occupancy issued
by the City with respect to such building or other work of improvement.
1.1.6 City. "City" means the City of Irwindale, a chartered municipal corporation.
1.1.7 City Council. "City Council" means the City Council of the City.
1.1.8 Claims or Litigation. "Claims or Litigation" means any challenge by
adjacent owners or any other third parties (i) to the legality, validity or adequacy of the General
Plan, Land Use Regulations, this Agreement, Development Approvals or other actions of the City
pertaining to the Project, or (ii) seeking damages against the City as a consequence of the foregoing
actions, for the taking or diminution in value of their property or for any other reason.
1.1.9 Developer. "Developer" means Irwindale Partners II, LLC, a California
limited liability company, fee owner of the Property, and its successors and assigns to all or any part
of the Property.
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1.1.10 Development. "Development" means the improvement of the Property for
the purposes of completing the structures, improvements and facilities comprising the Project
including, but not limited to: grading; the construction of infrastructure related to the Project
whether located within or outside the Property; the construction of buildings and structures; and
the installation of landscaping and other facilities and improvements necessary or appropriate
for the Project, the maintenance, repair, or reconstruction of any building, structure, improvement,
landscaping or facility after the construction and completion thereof on the Property and leasing
or selling portions of, or all of, the Project to third party end users.
1.1.11 Development Approvals; Existing Development Approvals. "Development
Approvals" means all site-specific (meaning specifically applicable to the Property 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, General Plan amendments, specific plans, site plans, tentative and final subdivision maps, design
guidelines, variances, zoning designations or changes, conditional use permits, grading, building,
and other similar permits, the site-specific provisions of General Plans, environmental assessments,
including environmental impact reports and negative declarations, and any amendments or
modifications to those plans, maps, permits, assessments and entitlements. The term Development
Approvals does not include (i) rules, regulations, policies, and other enactments of general
application within the City, or (ii) any matter where City has reserved authority under Article 3. It
is anticipated that the following Development Approvals will be approved before or in conjunction
with this Agreement (the "Existing Development Approvals"): (i) Zone Change No. 01-2017, and
(iii) General Plan Amendment No. 01-2017, and (v) Zone Ordinance Amendment No. 01-2019,
to adopt a Specific Plan and (vi) Tentative Parcel Map No. 82551, (vii) this Development
Agreement, (viii) certification of an Environmental Impact Report ("EIR") pursuant to CEQA and
the existing Land Use Regulations in effect at the time this Development Agreement was adopted.
1.1.12 Effective Date. "Effective Date" means the date thirty (30) days after the
adoption of the Authorizing Ordinance if no Claim or Litigation has been filed that would prevent
the Authorizing Ordinance from taking effect. If such a Claim or Litigation has been filed, then the
Effective Date shall be the date that the Claim or Litigation has been successfully resolved in the
City's favor, and the time for any further judicial review has run, so that the Authorizing Ordinance
shall be effective. The City shall give Developer notice as to the date established as the Effective
Date. The Effective Date may be tolled for any other Force Majeure as described in Section 10.10.
1.1.13 Existing Land Use Regulations. "Existing Land Use Regulations" means
the Land Use Regulations which have been adopted and are effective on or before the
Effective Date of this Agreement. For avoidance of doubt, the Existing Land Use Regulations include
the Development Approvals and the Existing Development Approvals.
1.1.14 Land Use Regulations. "Land Use Regulations" means all ordinances, laws,
resolutions, codes, rules, regulations, policies, requirements, guidelines or other actions of City,
including but not limited to the City's General Plan, the Specific Plan ("Specific Plan"), and
Municipal Code and Zoning Code and including all development impact fees (except as otherwise
provided in Sections 3.9 and 3.12), which affect, govern or apply to the Development and use of
the Property, including, without limitation, the permitted use of land, the density or intensity of use,
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subdivision requirements, the maximum height and size of proposed buildings, the provisions for
reservation or dedication of land for public purposes, and the design, improvement and construction
standards and specifications applicable to the Development of the Property, subject to the terms of
this Agreement. The term Land Use Regulations does not include, however, regulations relating to
the conduct of business, professions, and occupancies generally; taxes and assessments; regulations
for the control and abatement of nuisances; uniform codes; utility easements; encroachment and
other permits and the conveyances of rights and interests which provide for the use of or entry upon
public property; any exercise of the power of eminent domain; health and safety regulations;
environmental regulations; or similar matters or any other matter reserved to the City pursuant to
Article 3.
1.1.15 Mortgagee. "Mortgagee" means a mortgagee of a mortgage, a
beneficiary under a deed of trust or any other security device, a lender or each of their respective
successors and assigns.
1.1.16 Project. "Project" means the Development of the Property consistent with
the Specific Plan and this Agreement and as further described in Recital D hereinabove.
1.1.17 Property. "Property" means the real property legally described and shown
in Exhibit "A."
1.1.18 Public Improvements. "Public Improvements" means the improvements to
be constructed on and adjacent to the Property, as further described in Exhibit "C" attached hereto.
1.1.19 Reservation of Authority. "Reservation of Authority" means the rights and
authority accepted from the assurances and rights provided to Developer under this Agreement and
reserved to City under Section 3.5 of this Agreement.
1. 1.20 Specific Plan. "Specific Plan" shall refer to the Park @ Live Oak Specific
Plan approved concurrently with the approval of this Agreement.
1.1.21 Subsequent DevelopmentApprovals. "Subsequent Development Approvals"
means all Development Approvals issued subsequent to the Effective Date in connection with
Development of the Property, which shall include, without limitation, approvals included in the
Specific Plan to be issued after the Effective Date, subject to the approval process provided in the Specific
Plan, and (i) all on-site plans, including grading and on-site utilities, (ii) approval of a Storm Water
Pollution Prevention Plan (SWPPP) to mitigate site runoff during construction and a Standard
Urban Stormwater Mitigation Plan (SUSMP) to mitigate for post -construction runoff flows.
1.1.22 Subsequent Land Use Regulations. "Subsequent Land Use Regulations"
means any Land Use Regulations effective after the Effective Date of this Agreement (whether
adopted prior to or after the Effective Date of this Agreement), which apply to the development,
and use of the Property.
1. 1.23 Term. "Term" shall mean the period of time from the Effective Date until
the termination of this Agreement as provided in Section 2.4, unless earlier terminated as provided
in this Agreement.
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1.2 Exhibits. The following documents are attached to, and by this reference made a
part of, this Agreement:
A. Exhibit "A" (Legal Descriptions);
B. Exhibit "B" (Specific Plan Land Use Plan and Conditions of Approval);
C. Exhibit "C" (Public Improvements);
D. Exhibit "D" (CC&Rs);
E. Exhibit "E" (Estimated City Fees; City User Fee Schedule).
2. TERM & GENERAL COVENANTS.
2.1 Binding Effect of Agreement; Termination of Prior Entitlements. From and
following the Effective Date, actions by the City and Developer with respect to the Development
of the Property, including actions by the City on applications for Subsequent Development
Approvals affecting the Property, shall be subject to the terms and provisions of this Agreement.
2.2 Ownership of Property. Developer represents it has a legal or equitable interest
in the Property and thus Developer is qualified to enter into and be a party to this Agreement
under the Development Agreement Law.
2.3 Assi ent.
2.3.1 Right to Assign. Developer shall have the right to sell, transfer or assign the
Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map
Act, Government Code Section 66410, et seq.) to any person, partnership, joint venture, firm or
corporation ("Assignee") at any time during the term of this Agreement; provided, however, that
(i) Developer shall provide evidence to the City, as described in Subsection 2.3.2 below, confirming
that: (a) the transfer to such proposed Assignee shall not delay or jeopardize the completion of the
Project, that (b) the Assignee possesses sufficient financial strength and capability to perform City's
obligations hereunder; and (c) the Assignee possesses experience and expertise in the planning,
financing, development, ownership and operation of similar projects; and (ii) any such sale, transfer
or assignment shall include the assignment and assumption of the rights, duties and obligations
arising under or from this Agreement and be made in strict compliance with the following
conditions precedent:
(a) No sale, transfer or assignment of any right or interest under this
Agreement shall be made unless made together with the sale, transfer or assignment of all or a part
of the Property.
(b) Concurrent with any such sale, transfer or assignment, or within 30
business days thereafter, Developer shall notify City, in writing, of such sale, transfer or
assignment and shall provide City with a copy of an executed agreement by the purchaser,
transferee or assignee and providing therein that the purchaser, transferee or assignee expressly
DEVELOPMENT AGREEMENT
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and unconditionally assumes all the duties and obligations of Developer under this Agreement or
portions thereof, as approved by the City.
Any sale, transfer or assignment not made in compliance with the foregoing
conditions shall constitute a default by Developer under this Agreement. Notwithstanding the
failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b)
of this Subsection 2.4.1, the burdens of this Agreement shall be binding upon such purchaser,
transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser,
transferee or assignee until and unless such agreement is executed.
2.3.2 For purposes of Section 2.3.1(i), Developer shall provide to City
documentation reasonably requested by the City to facilitate the City's review, including but not
limited to: (i) reasonably satisfactory evidence that the proposed transferee has commercial
development and retail or industrial (as applicable) management experience on a scale equal to or
exceeding the scale of the Project; (ii) reasonably satisfactory evidence that the transferee's key
principals have no felony criminal convictions; and (iv) any other information reasonably required
by the City to ensure the Assignee can fulfill the terms of this Agreement and the Development
Approvals, including the payment of indemnities and damages and provision of bonds and/or
performance standards. Any financial statement deemed private shall be provided to City's third
party financial consultant to protect its confidentiality; provided that Developer shall pay the
reasonable cost of any such consultant's fees to review same. Failure of Developer to provide City
documentation confirming that the Assignee meets the requirements of Section 3.2.1(1) shall
authorize the City, by action of the City Manager, in its reasonable discretion, to deny such Assignee
and any purported assignment over the City's written objection, provided within 30 days of
Developer's provision of the documentation required by this Section 2.3.2 shall be deemed a default
by Developer under this Agreement.
2.3.3 Release of Transferring Developer. Notwithstanding any sale, transfer or
assignment, Developer shall continue to be obligated under this Agreement as to that portion of the
Property sold, transferred or assigned, unless Developer is given a release in writing by City, which
release shall be provided by City upon the full satisfaction by Developer of all of the following
conditions:
(a) Developer no longer has a legal or equitable interest in all or any
part of the Property sold.
(b) Developer is not then in default under this Agreement.
(c) Developer has provided City with the notice and executed
agreement required under paragraph (b) of subsection 2.4.1 above.
(d) The purchaser, transferee or assignee provides City with security
equivalent to the security, if any, previously provided by Developer to secure performance of its
obligations regarding the Project.
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2.3.4 Subsequent Assignment. Any subsequent sale, transfer or assignment after
an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms
and conditions of this Section
2.4 Term of Agreement. Unless earlier terminated as provided in this Agreement,
this Agreement shall continue in full force and effect until the date that is twenty (20) years from
and after the Effective Date.
2.5 Covenants Run with the Land; CC&Rs. Prior to the date identified in the Section
3.4.1, the Developer shall submit a proposed form of Declaration of Covenants, Conditions and
Restrictions to be recorded against the Property to City for its review and approval ("CC&Rs").
Such CC&Rs shall be substantially similar in form and substance to City's standard form of
declaration of covenants, conditions and restrictions imposed by City upon commercial
development projects located in the City, and will contain, among other things, protective
covenants to protect and preserve the integrity and value in the Project, including but not limited
to use restrictions, maintenance covenants, , restrictions under this Agreement and the
Development Plan that will continue to apply to the Project, and a provision giving City the right
to enforce said CC&Rs. The CC&Rs will be in a form substantially similar to those at Exhibit
"D" hereto. Except as specifically provided otherwise in this Agreement, and pursuant to the
Development Agreement Statute (Gov. Code § 65868.5):
2.5.1 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
Property, 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;
2.5.2 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
2.5.3 Each covenant to do or refrain from doing some act on the Property
hereunder (i) is for the benefit of and is a burden upon every portion of the Property, (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.
3. DEVELOPMENT OF THE PROJECT.
3.1 Rights to Develop. Developer shall be responsible for obtaining all legislative and
discretionary approvals, permits and entitlements required by law for the proposed Project. The
Subject to and during the Term of this Agreement, Developer shall have a vested right to develop
the Property in accordance with, and to the extent of, the Specific Plan and this Agreement. Except
as provided within this Agreement, the Specific Plan shall exclusively control the Development of
the Property (including the uses of the Property, the density or intensity of use, the maximum
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height and size of proposed buildings, the provisions for reservation or dedication of land for public
purposes and the design, improvement and construction standards and specifications applicable to
the Project). The Developer retains the right to apportion the uses, intensities and densities,
between itself and any subsequent Owners, upon the sale, transfer, or assignment of any portion
of the Property, so long as such apportionment is consistent with this Agreement and the Specific
Plan. Subject to Section 9.4, Developer may elect to develop and construct upon the Property or
any portion thereof a Project of lesser height or building square footage than that permitted by the
Specific Plan, provided that such Project otherwise complies with the Specific Plan and this
Agreement. Developer further retains the right to develop the Project following completion of all
fill and grading activities or in phases concurrently with such activities. Certificates of Occupancy
for any building will not be issued until all fill and rough grading activities have been completed
and associated permits have been closed. Developer shall comply with all applicable laws in the
development and operation of the Project.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided
under the terms of this Agreement, the rules, regulations and official policies governing permitted
uses of the Property, the density and intensity of use of the Property, the maximum height and
size of proposed buildings, and the design, improvement and construction standards and
specifications applicable to Development of the Property, shall be as set forth in the terms of this
Agreement and as defined by the Specific Plan, including duly -approved amendments to the
Specific Plan. To the extent there is any conflict in interpretation between this Agreement and the
Specific Plan, the terms of the Specific Plan shall govern. Pursuant to Government Code Section
66452.6, the tern of any tentative map for the Property or any portion thereof, if any, filed within
the term of this Agreement shall automatically be extended for the term of this Agreement, as
amended by the Development Approvals. Any Subsequent Land Use Regulations shall not be
applied to the Project or any phase thereof unless the subject matter is not addressed in the Specific
Plan, the Specific Plan is amended to incorporate the Subsequent Land Use Regulations, or is
otherwise required by law.
3.3 Development of Commercial Area. Pursuant to the Specific Plan, until at least
15,000 square feet of commercial floor space is constructed at the Project, a minimum of 1.0 acre
will be reserved for this purpose within the area described therein with adequate vehicular access
for commercial uses.
3.4 Timing of Development. Developer may develop the Project following
completion of all fill and grading activities or in phases concurrently with such activities.
Certificates of Occupancy for any building will not be issued until all fill and rough grading
activities have been completed and associated permits have been closed. Pursuant to Irwindale
Municipal Code section 3.50.020D, any portions of the Project that have (i) received a building
pemmit and (ii) commenced construction in reliance on such building permit within eight (8) years
of the Effective Date of this Agreement, plus two (2) additional years with City Manager approval
so long as reasonable progress has been made to develop the Project in a timely and responsible
manner and subject to Section 10.10 below, shall not be subject to or required to pay the
Development Impact Fees set forth in Irwindale Ordinance No. 726 (establishing Municipal Code
section 3.50 et seq.). Any portions of the Project that have not received a building permit and
commenced construction within such eight (8) year period shall pay the then applicable
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Development Impact Fees in effect at such time as set forth in Irwindale Municipal Code Chapter
3.50, as amended from time -to -time. These current fees are set forth in Exhibit E.1.
3.5 Progress Meetings. During the preparation of all drawings, applications and plans
for the Subsequent Development Approvals, the parties shall hold regular progress meetings to
coordinate the preparation of, submission to, and review of construction plans and related
documents by City. If any substantial revisions or corrections of plans approved by City shall be
required by any government official, agency, department or bureau having jurisdiction, or any
lending institution involved in financing, the parties shall cooperate in efforts to develop a mutually
acceptable alternative.
3.6 Reservations of Authority.
3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other
provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the
Development of the Property:
(a) Existing processing fees and charges of every kind and nature
imposed by City to cover the estimated actual costs to City of processing applications for
Subsequent Development Approvals or for monitoring compliance with any Subsequent
Development Approvals granted or issued.
(b) Procedural regulations consistent with this Agreement relating to
hearing bodies, petitions, applications, notices, findings, records, hearing, reports,
recommendations, appeals and any other matter of procedure.
(c) Changes adopted by the International Conference of Building
Officials, or other similar body, as part of the then most current versions of the Uniform Building
Code, Uniform Fire Code, Uniform Plumbing Code, Uniform Mechanical Code, or National
Electrical Code, or other such Uniform Codes, and also adopted by City as Subsequent Land
Use Regulations, if applicable City-wide.
(d) Federal, State, County, and multi jurisdictional laws and regulations
which City is required to enforce as against the Property or the Development of the Property.
(e) Subsequent Land Use Regulations applicable to regional development
impact fees. City development impact fees shall apply, as specified in Section 3.4.1 above.
3.6.2 Modification or Suspension by Federal, State, County, or Multi -
Jurisdictional Law. In the event that Federal, State, County, or multi jurisdictional laws or
regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with
one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified
or suspended as may be necessary to comply with such Federal, State, County, or multi -
jurisdictional laws or regulations, and this Agreement shall remain in full force and effect to the
extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations
do not render such remaining provision impractical to enforce.
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3.7 Regulation by Other Public Agencies.
3.7.1 It is acknowledged by the parties that other public agencies not subject
to control by City may possess authority to regulate aspects of the Development of the Property,
and this Agreement does not limit the authority of such other public agencies. Developer
acknowledges that the County of Los Angeles conducts plan check for the City on a contract basis.
3.7.2 The 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. The City shall provide the Developer reasonable cooperation in Developer's efforts to
obtain such permits and approvals. The City and Developer shall cooperate and use reasonable
efforts in coordinating the implementation of the Specific Plan with other public agencies, if any,
having jurisdiction over the Property or the Project.
3.8 Employment Outreach for Local Residents. A goal of the City with respect to
this Project and other major projects within the City is to foster employment opportunities for
Irwindale residents. To that end, Developer covenants that with respect to the construction,
operation and maintenance of the Project, the Developer shall make reasonable efforts to cause all
solicitations for full or part-time, new or replacement, employment relating to the construction,
operation and maintenance of the Project to be advertised in such a manner as to target local City
residents and shall make other reasonable efforts at local employment outreach as the City shall
approve. Developer shall also notify the City of jobs available at the Project such that the City
may inform City residents of job availability at the Project. Developer will inform its purchasers
and lessees of the provisions of these requirements. Without limiting the generality of the
foregoing, the provisions of this Section 3.8 are not intended, and shall not be construed, to benefit
or be enforceable by any person whatsoever other than City.
3.9 Development Costs & Fees. Developer shall be solely responsible for all
Development costs associated with the Project, including without limitation design, land use
entitlements, permitting, CEQA review, construction, rolling stock, equipment, operational costs,
advertising and public relations and information and City staff and consultant expenses related to
the Project. Project Development and operations will entail extensive, significant costs and capital
expenditures due, without limitation, to the Project's size, the magnitude of necessary
environmental mitigation measures, need for heavy equipment and complex design and
infrastructural elements. Currently, Project costs are expected to exceed Twenty -Eight Million,
Six Hundred and Fifty Thousand- Dollars ($28,650,000.00). Further, Developer shall be
responsible for paying all of the customary and ordinary fees and costs imposed by the City on the
development of an industrial/commercial business park facility like the Project as set forth on the
"Schedule of Estimated City Fees" attached hereto as Exhibit "E". Developer shall also be
responsible for Los Angeles County building plan check, inspection and permit fees for review
and inspection of all on-site work at rates no higher than the City -approved building fee schedule
in Exhibit "E". The fee schedules attached hereto as Exhibit "E" are current at the time of the
contract agreement execution, but are subject to change. Developer shall pay the current fees at
the time such fees are due.
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3.9.1 Offsite Improvement Fees. In addition to Developer's construction of those
offsite Public Improvements described in Exhibit "C", Developer will pay City $600,000.00 to
cover City fees related to offsite work. These fees will be paid according to the City's User Fee
Schedule effective at the time fees are due (current fees schedule is included in Exhibit "E").
3.9.2 Caltrans Studies. Additionally, Developer shall be responsible for paying
its pro rata fair share cost to Caltrans to fund the preparation of a study of potential improvements
to the I-605 Corridor that may be initiated by Caltrans and/or City in the future. Prior to issuance of
the first building permit, Developer shall pay $703,665.81 to City toward this study. Developer
shall provide the City with a cash deposit in the amount of $1,600,000.00, at the time of the first
building permit issuance, to be applied to the cost of the Caltrans improvements. City shall commit
to requiring all future developments, which City reasonably determines will impact such Caltrans
improvements, to contribute a fair share amount toward this study so that each developer is not
contributing more than its fair share and the costs of this study are borne equally.
3.9.3 Payment in Lieu of Taxes (PILT). Developer shall pay to City
$350,000.00 per year for "payment in -lieu of taxes" attributable to the loss of retail sales tax
potential at the Property as a result of the Project ("PILT"). PILT payments shall begin upon
Developer securing a certificate of occupancy on the first industrial building on the Property, be
paid to the City annually no later than July 1, and Agreement is in effect and continue for a period
of ten (10) years. For any partial annual period (July 1 to July 1) in which this Agreement is in
effect, the PILT payment shall be prorated on a monthly/weekly basis. The PILT payment is to be
increased each year in accordance with the Los Angeles -Riverside -Orange County, CA Consumer
Price Index. However, if the Developer secures a fulfillment or distribution center (such as a Target
online retail distribution center) as a user at the Project that generates sales tax for the City, the
PILT will be reduced by an amount equal to seventy percent (70%) of the generated sales tax
received by the City. For example, if the fulfillment center were to generate $100,000.00 in sales
tax, the $350,000.00 PILT would be reduced by $70,000.00 to $280,000.00. Developer
acknowledges and agrees that the PILT is payment that it is willing to pay in exchange for the City
approving the Development Agreement, Specific Plan, Tentative Parcel Map and modifications to
the existing General Plan Map and Zoning Map to allow for the Project. Developer hereby
acknowledges and agrees that the PILT payment is reasonable to address any potential loss of sales
tax revenue to the City resulting from the Project and, as such, waives any right to assert any legal
challenge to same. Upon sale and transfer of portions of the Project, this PILT obligation shall be
apportioned on a per building square footage basis.
3.9.4 Reimbursement of City Costs and Expenses. In addition to any applicable
user fees or fees described in Section 3.9.1, and pursuant to the terms of the MOU, Developer and/or
assignee agreed to reimburse City for all actual costs and expenses incurred by City, estimated in
the MOU as the amount of the Initial Deposit of $130,000.00, which Initial Deposit and any
Subsequent Deposit shall cover the Expenses, as such terms as refined in the MOU. To this end,
the terms of the MOU related to the Initial and Supplemental Deposits, including but not limited to,
the City's provision of monthly accounting of the use of the funds and any refunds shall continue
to control beyond the approval of this Agreement and until the end of the Project.
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3.10 Prevailing Wages. Developer's purchase price for the Property and cost of
Developing the Project and constructing all of the onsite and offsite improvements, if any, at or
about the Property required to be constructed for the Project shall be borne by Developer.
Developer is aware of the laws of the State governing the payment of prevailing wages on public
projects and will comply with same and will indemnify City in the event Developer fails to do so.
As the City is not providing any direct or indirect financial assistance to Developer, the Project
should not be considered to be a "public work" "paid for in whole or in part out of public funds,"
as described in California Labor Code Section 1720. Accordingly, it is believed by the parties that
Developer is not required to pay prevailing wages in connection with any aspect of the
Development or the construction of the Project. However, to the extent that (contrary to the parties'
intent) it is determined that Developer was required to pay prevailing wage and has not paid
prevailing wages for any portion of the Project, Developer shall defend and hold the City (which,
for purposes of this Section, shall include its related agencies, officers, employees, agents and
assigns) harmless from and against any and all increase in construction costs, or other liability,
loss, damage, costs, or expenses (including reasonable attorneys' fees and court costs) arising from
or as a result of any action or determination that Developer failed to pay prevailing wages in
connection with the construction of the Project. City shall reasonably cooperate with Developer
regarding any action by Developer hereunder challenging any determination that the Project is
subject to the payment of prevailing wages. 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, but should it do so, City shall waive the indemnification herein provided such waiver
occurs prior to the issuance of any judgment in the matter.
3.11 Public Improvements. Developer shall construct those offsite Public
Improvements described in Exhibit "C," which are in accordance with the requirements of the EIR.
In addition, and notwithstanding any provision herein to the contrary, the City shall retain the right
to condition any Subsequent Development Approvals to require Developer to dedicate necessary
land and/or to construct the required Public Improvements ("Exactions") at such time as City shall
determine subject to the following conditions:
3.11.1 The dedication, payment or construction must be to alleviate an impact
caused by the Project or be of benefit to the Project;
3.11.2 The timing of the Exaction should be reasonably related to the phasing of
the Development of the Project and said Public Improvements shall be phased to be commensurate
with the logical progression of the Project Development as well as the reasonable needs of public;
and
3.11.3 When Developer is required by this Agreement and/or the Specific Plan to
construct any Public Improvements that will be dedicated to the City or any other public agency
upon completion, Developer shall perform such work in the same manner and subject to the same
construction standards as would be applicable to the City or such other public agency should it have
undertaken such construction work. The City desires that required Public Improvements generally
be constructed in the early portion of the Development cycle, with work on such Public
Improvements commencing not later than the start of onsite Project grading.
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3.12 Fees, Taxes and Assessments. 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, except such fees, taxes and assessments as are
described in or required by this Development Agreement and/or the Specific Plan. Except as set
forth in Section 3.4 above, this Development Agreement shall not prohibit the application of fees,
taxes or assessments as follows:
3.12.1 Developer, or Developer's Project tenants, shall be obligated to pay those
fees, taxes or City assessments which exist as of the Effective Date or are included in the Specific
Plan and any increases in same, as provided herein;
3.12.2 Developer, or Developer's Project tenants, shall be obligated to pay any non -
development impact fees, except as provided in Section 3.4 taxes, and increases thereof, imposed
on a City-wide basis such as business license fees or taxes, sales or use taxes, transient occupancy
taxes, utility taxes, and public safety taxes;
3.12.3 Developer, or Developer's Project tenants, shall be obligated to pay any
future landscape and lighting assessments and community services assessments, provided that
Developer reserves its right to protest the establishment or amount of any such fees or assessments
through the method prescribed by law;
3.12.4 Developer, or Developer's Project tenants, shall be obligated to pay any fees
imposed pursuant to any assessment district established within the Project otherwise proposed or
consented to by Developer;
3.12.5 Developer, or Developer's Project tenants, shall be obligated to pay any fees
imposed pursuant to any Uniform Code.
3.12.6 Developer, or Developer's Project tenants, shall be obligated to pay any
utility fees and charges, including amended rates thereof, for City services such as electrical utility
charges, water rates, and sewer rates.
4. REVIEW FOR COMPLIANCE.
4.1 Annual Review. The City Council shall review this Agreement annually, on or
before the anniversary of the Effective Date, in order to ascertain the good faith compliance by
Developer with the terms of the Agreement ("Annual Review"). No failure on part of City to
conduct or complete an Annual Review as provided herein shall have any impact on the validity
of this Agreement. The cost of the Annual Review shall be borne by Developer and Developer
shall pay a reasonable deposit in an amount requested by City to pay for such review.
4.2 Special Review. The City Council may, in its sole and absolute discretion, order
a special review of compliance with this Agreement at any time at City's sole cost ("Special
Review"). Developer shall cooperate with the City in the conduct of such Special Reviews.
4.3 Procedure. Each party shall have a reasonable opportunity to assert matters
which it believes have not been undertaken in accordance with the Agreement, to explain the basis
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for such assertion, and to receive from the other party a justification of its position on such matters.
The procedure for an Annual Review or Special Review shall be as follows:
4.3.1 As part of either an Annual Review or Special Review, within ten (10) days
of a request for information by the City, the Developer shall deliver to the City all information and
supporting documents reasonably requested by City (i) regarding the Developer's performance
under this Agreement demonstrating that the Developer has complied in good faith with the terms
of this Agreement, and (ii) as required by the Existing Land Use Regulations.
4.3.2 The City Manager, or his/her designee, shall prepare and submit to
Developer a written report on the performance of the Proj ect and identify any perceived deficiencies
in Developer's performance of this Agreement. The Developer may submit written responses to
the report and Developer's written response shall be included in the City Manager's report. If the
City Manager determines that the Developer has substantially complied with the terms and
conditions of this Agreement, the Annual or Special Review shall be concluded.
4.3.3 If any deficiencies are noted, or if requested by a Councilmember, a public
hearing shall be held before the City Council at which the Council will review the City Manager's
report. The report to Council shall be made at a regularly -scheduled City Council meeting occurring
as soon as possible, subject to the requirements of the Brown Act, after the commencement of the
Annual or Special Review process outlined in Section 4.3.1. If the City Council finds and
determines, based on substantial evidence, that the 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 the Developer in accordance with Article 5.
4.3.4 Neither party hereto shall be deemed in breach if the reason for non-
compliance is due to a "Force Majeure" as defined in, and subject to the provisions of, Section
10.10.
4.4 Certificate of Agreement Compliance. If, at the conclusion of an Annual
Review or a Special Review, Developer is found to be in compliance with this Agreement, City
shall, upon request by Developer, issue a Certificate of Agreement Compliance ("Certificate") to
Developer stating that after the most recent Annual Review or Special Review and based upon the
information known or made known to the City Manager, Planning Commission, and City Council
that (i) this Agreement remains in effect and (ii) Developer is in compliance. The Certificate, whether
issued after an Annual Review or Special Review, shall be in recordable form, shall contain information
necessary to communicate constructive record notice of the finding of compliance. Developer record
the Certificate with the County Recorder. Additionally, Developer may at any time request from
the City a Certificate stating, in addition to the foregoing, which obligations under this Agreement
have been fully satisfied with respect to the Property or any lot or parcel within the Property.
4.5 Review Process Not a Prerequisite to Declaring a Default. Neither the Annual Review
nor Special Review procedure is a prerequisite to either party declaring a default and initiating the default
and cure procedure in Article 5. In other words, either party may declare a default at any time without
first undertaking the Annual Review or Special Review process.
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4.6 Public Hearings. The public hearing prescribed by Section 4.3.3 is independent of, and
in addition to, any further hearing procedures prescribed in Article 5. Thus, ifthe City Council finds that
the Developer has not substantially complied with the terms and conditions of this Agreement as
part of a review process pursuant to Section 4.3.3 and determines to declare a default, the City
Council is still required to follow the notice/cure process (Section 5.2) and the termination hearing
process (Section 5.4) before terminating this Agreement.
5. DEFAULT AND REMEDIES.
5.1 Rights of Non -Defaulting Party after Default; Opportunities to Cure. The
parties acknowledge that both parties shall have hereunder all legal and equitable remedies as
provided by law following the occurrence of a default or to enforce any covenant or agreement
herein. Before this Agreement maybe terminated or action maybe taken to obtain judicial relief
the party seeking relief ("Non -Defaulting Party") shall comply with the notice and cure provisions
of this Section 5.1.
5. 1.1 Notice and Opportunity to Cure. A Non -Defaulting Party 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 of the other party ("Defaulting Party") to perform any material
duty or obligation of the Defaulting Party under the terns of this Agreement. However, the Non -
Defaulting Party must provide written notice to the Defaulting Party setting forth the nature of the
breach or failure and the actions, if any, required by the Defaulting Party to cure such breach or
failure (the "Default Notice"). The Defaulting Party shall be deemed in Default under this
Agreement, if the breach or failure can be cured, but the Defaulting Party has failed to take such
actions and cure such default within thirty (3 0) days after the date of such notice or ten (10) days
for monetary defaults (or such lesser time as may be specifically provided in this Agreement).
However, if such non -monetary Default cannot be cured within such thirty (30) day period, and if
and, as long as the Defaulting Party does each of the following:
1. 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;
2. Notifies the Non -Defaulting Party of the Defaulting Party's proposed
cause of action to cure the default;
Promptly commences to cure the default within the thirty (30) day
period;
4. Makes periodic reports to the Non -Defaulting Party as to the progress
of the program of cure; and
5. Diligently prosecutes such cure to completion.
Then the Defaulting Party shall not be deemed in breach of this Agreement.
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5.2 Termination Notice. Upon receiving a Default Notice, should the Defaulting Parry
fail to timely cure any default, or fail to diligently pursue such cure as prescribed above, the
Nondefaulting Parry may seek termination of this Agreement, in which case the Nondefaulting
Parry shall provide the Defaulting Parry with a written notice of intent to terminate this Agreement
("Termination Notice"). The Termination Notice shall state that the Nondefaulting Party will elect
to terminate this Agreement within thirty (3 0) days and state the reasons therefor (including a copy
of any specific charges of default or a copy of the Default Notice) and a description of the evidence
upon which the decision to terminate is based. Once the Termination Notice has been issued, the
Nondefaulting Party's election to terminate this Agreement will only be rescinded if so determined
by the City Council pursuant to Section 5.3, below.
5.3 Hearing Opportunity Prior to Termination. If Developer is the Defaulting Party
pursuant to Section 5.2 above, then the City's Termination Notice to Developer shall additionally
specify that Developer has the right to a hearing prior to the City's termination of any Agreements
("Termination Hearing"). The Termination Hearing shall be scheduled as an open public hearing
item at a regularly -scheduled City Council meeting within thirty (30) days of the Termination
Notice, subject to any legal requirements including but not limited to the Ralph M. Brown Act,
Government Code Sections 54950-54963. At said Termination Hearing, Developer shall have the
right to present evidence to demonstrate that it is not in default and to rebut any evidence presented
in favor of termination. Based upon substantial evidence presented at the Termination Hearing,
the Council may, by adopted resolution, act as follows:
1. Decide to terminate this Agreement; or
2. Determine that Developer is innocent of a default and, accordingly,
dismiss the Termination Notice and any charges of default; or
3. Impose conditions on a finding of default and a time for cure, such
that Developer's fulfillment of said conditions will waive or cure any default.
Findings of a default or a conditional default must be based upon substantial evidence
supporting the following two findings: (i) that a default in fact occurred and has continued to exist
without timely cure, and (ii) that such default has caused or will cause a material breach of this
Agreement and/or a substantial negative impact upon public health, safety and welfare, the
environment, or such other interests that the City and public may have in the Project.
5.4 Rights and Duties Following Termination. Upon the termination of this
Agreement, no parry shall have any further right or obligation hereunder except with respect to
(i) any obligations to have been performed prior to said termination, (ii) any default in the
performance of the provisions of this Agreement which has occurred prior to said termination, or
(iii) any indemnification provisions herein. Termination of this Agreement shall not affect either
party's rights or obligations with respect to any Development Approval granted prior to such
termination.
5.5 Waiver of Breach. By not challenging any Development Approval within 90 days
of the action of City enacting the same, Developer shall be deemed to have waived any claim that
any condition of approval is improper or that the action, as approved, constitutes a breach of the
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provisions of this Agreement. Otherwise, failure by a parry 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.
5.6 Interest on Monetary Default. In the event Developer fails to perform any
monetary obligation under this Agreement, Developer shall pay interest thereon at the rate of ten
percent (10%) per annum from and after the due date of said monetary obligation until payment is
actually received by City.
5.7 Crossdefault. In the event that the City Council, following a hearing on a
Developer default, determines to terminate this Agreement as a remedy for such default, such
determination shall concurrently be the basis for termination of the MOU, any Development
Approvals, Reimbursement Agreement, CC&Rs, or such other instruments extant between the
parties that are directly related to the Project, except as the City Council shall otherwise direct by
resolution.
6. LITIGATION. INDEMNITIES & LEGAL DEFENSE OBLIGATIONS.
6.1 Indemnity Obligations on Third -Party Claims or Litigation; Hazardous
Materials.
6.1.1 General. The Developer shall indemnify and defend the City and its elected
boards, commissions, officers, agents and employees and will defend, hold and save them and each
of them harmless from any and all third -parry Claims or Litigation (including but not limited to
attorneys' fees and costs) against the City and shall be responsible for any judgment arising
therefrom.
6.1.2 Hazardous Materials. Developer understands and agrees that in the event
Developer incurs any loss or liability concerning Hazardous Materials (as hereinafter defined)
and/or underground storage tanks whether attributable to events occurring prior to or following the
Effective Date, then Developer may look to current or prior owners of the Property, but in no event
shall Developer look to City for any liability or indemnification regarding Hazardous Materials
and/or underground storage tanks, except concerning Hazardous Materials that were directly
brought onto the Property by City or its respective contractors, agents, employees or affiliated
governmental bodies (such as the successor agency). Developer, and each of the entities
constituting Developer, if any, from and after the Effective Date, hereby waives, releases, remises,
acquits and forever discharges City, its directors, officers, shareholders, employees, and agents, and
their heirs, successors, personal representatives and assigns, of and from any and all Environmental
Claims, Environmental Cleanup Liability and Environmental Compliance Costs, as those terms are
defined below, and from any and all actions, suits, legal or administrative orders or proceedings,
demands, actual damages, punitive damages, loss, costs, liabilities and expenses, which concern or
in any way relate to the physical or environmental conditions of the Property, the existence of any
Hazardous Materials thereon, or the release or threatened release of Hazardous Materials therefrom,
whether existing prior to, at or after the Effective Date. It is the intention of the parties pursuant to
this release that if the Effective Date occurs any and all responsibilities and obligations of City, and
any and all rights, claims, rights of action, causes of action, demands or legal rights of any kind of
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Developer, its successors, assigns or any affiliated entity of Developer, against the City, arising by
virtue of the physical or environmental condition of the Property, the existence of any Hazardous
Materials thereon, or any release or threatened release of Hazardous Material therefrom, whether
existing prior to, at or after the Effective Date, are by this release provision declared null and void
and of no present or future force and effect as to the parties; provided, however, that no parties other
than the Indemnified Parties (defined below) shall be deemed third party beneficiaries of such
release. In connection therewith, Developer and each of the entities constituting Developer,
expressly agree to waive any and all rights which said party may have with respect to such
released claims under Section 1542 of the California Civil Code which provides as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor."
Developer and each of the entities constituting Developer, shall, from and after the
Effective Date, defend, indemnify and hold harmless City and its officers, directors, employees,
agents and representatives (collectively, the "Indemnified Parties") from and against any and all
Environmental Claims, Environmental Cleanup Liability, Environmental Compliance Costs, and
any other claims, actions, suits, legal or administrative orders or proceedings, demands or other
liabilities resulting at any time from the physical and/or environmental conditions of the Property
after the Effective Date or from the existence of any Hazardous Materials or the release or
threatened release of any Hazardous Materials of any kind whatsoever, in, on or under the Property
occurring at any time after the Effective Date, including, but not limited to, all foreseeable and
unforeseeable damages, fees, costs, losses and expenses, including any and all attorneys' fees and
environmental consultant fees and investigation costs and expenses, directly or indirectly arising
therefrom, and including fines and penalties of any nature whatsoever, assessed, levied or asserted
against any Indemnified Parties to the extent that the fines and/or penalties are the result of a
violation or an alleged violation of any Environmental Law. Developer further agrees that in the
event Developer obtains, from former or present owners of the Property or any other persons or
entities, releases from liability, indemnities, or other forms of hold harmless relating to the subject
matter of this Section, Developer shall use its diligent efforts to obtain for City the same releases,
indemnities and other comparable provisions.
Notwithstanding anything to the contrary in this Section, Developer's limited release and
indemnification of the Indemnified Parties from liability pursuant to this Section shall not extend
to Hazardous Materials brought onto the Property by City or its respective contractors, agents, or
employees after the Effective Date. For purposes of this Section, the following terms 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 Property or its operations and arising or
alleged to arise under any Environmental Law.
(b) `Environmental Cleanup Liability" means any cost or expense of any
nature whatsoever incurred to contain, remove, remedy, clean up, or abate any contamination or
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any Hazardous Materials on or under all or any part of the Property, including the ground water
thereunder, including, without limitation, (A) any direct costs or expenses for investigation, study,
assessment, legal representation, cost recovery by governmental agencies, or ongoing monitoring
in connection therewith and (B) any cost, expense, loss or damage incurred with respect to the
Property 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 of any
nature whatsoever necessary to enable the Property to comply with all applicable Environmental
Laws in effect. `Environmental Compliance Cost" shall include all costs necessary to demonstrate
that the Property is capable of such compliance.
(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 (A)
pollution or protection of the environment, including natural resources, (B) exposure of persons,
including employees, to Hazardous Materials or other products, raw materials, chemicals or other
substances, (C) protection of the public health or welfare from the effects of by-products, wastes,
emissions, discharges or releases of chemical sub -stances from industrial or commercial activities,
or (D) regulation of the manufacture, use or introduction 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
(other than the City or Agency), the State of California, or the United States Government. The term
"Hazardous Material" includes, without limitation, any material or substance which is: (A)
petroleum or oil or gas or any direct or derivate product or byproduct thereof, (B) 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); (C) 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); (D) defined as a "hazardous
material," "hazardous substance," or "hazardous waste" under Sections 255O10) and (k) and
25501.1 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials
Release Response Plans and Inventory); (E) 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); (F) "used oil" as defined under Section 25250.1 of the California Health
and Safety Code; (G) asbestos; (H) 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; (I) defined as waste
or a hazardous substance pursuant to the Porter -Cologne Act, Section 13050 of the California Water
Code; (J) designated as a "toxic pollutant" pursuant to the Federal Water Pollution Control Act, 33
U.S.C. § 1317; (K) 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); (L) defined as a "hazardous
substance" pursuant to the Comprehensive Environmental Response, Compensation and Liability
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Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601); (M) defined as "Hazardous Material" pursuant to
the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq.; or (l) defined as such or
regulated by any "Superfund" or "Superlien" 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 here -after, in effect.
(t) Notwithstanding any other provision of this Agreement, Developer's
release and indemnification as set forth in the provisions of this Section, as well as all provisions of
this Section shall survive the termination of this Agreement and shall continue in perpetuity.
Notwithstanding anything to the contrary in this Section, Developer's limited release and
indemnification of Agency and City and the Indemnified Parties from liability pursuant to this
Section shall not extend to Hazardous Materials brought onto the Property by City or their
respective contractors, agents, or employees.
6.1.3 Defense Obligations. The City shall provide the Developer with notice of
the pendency of such Claims or Litigation and shall request that the Developer defend such action.
The Developer may utilize the City Attorney's office or use legal counsel of its choosing, but shall
reimburse the City for any necessary legal cost incurred by City. In all cases, City shall have the
right to utilize the City Attorney's office in any legal action. The Developer shall provide a deposit
in the amount of 100% of the City's estimate, in its sole and absolute discretion, of the cost of
litigation, including the cost of any award of attorney's fees, and shall make additional deposits as
requested by City to keep the deposit at such level. If the Developer fails to provide or maintain
the deposit, the City may abandon the action and the Developer shall pay all costs resulting
therefrom and City shall have no liability to the Developer. The Developer's obligation to pay the
cost of the action, including judgment, shall extend until judgment. After judgment in a trial court,
the parties must mutually agree as to whether any appeal will be taken or defended. Any and all
portions of the Deposit not expended by the City shall be returned the Developer within thirty (30)
days of the resolution of the Claim or Litigation.
(a) The Developer shall have the right, within the first 30 days of the
service of the complaint, in its reasonable discretion, to determine that it does not want to defend
the Claims or Litigation, in which case the City shall allow the Developer to settle the Claims or
Litigation on whatever terns the Developer determines, in its reasonable discretion, but Developer
shall confer with City before acting and cannot bind City. In that event, the Developer shall be
liable for any costs incurred by the City up to the date of settlement but shall have no further
obligation to the City beyond the payment of those costs. In the event of an appeal, or a settlement
offer, the parties shall confer in good faith as to how to proceed.
(b) The procedures and administration of litigation defense costs and
legal defense procedures set forth in this Section 6.1.3 may be relegated to the Reimbursement
Agreement, the terms of which shall control such obligations and procedures.
6.2 Hold Harmless: Developer's Construction and Other Activities. The
Developer shall defend, save and hold the City and its elected and appointed boards, commissions,
officers, agents, and employees harmless from any and all claims, costs (including attorneys' fees)
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and liability for any damages, personal injury or death, which may arise, directly or indirectly,
from the Developer's or the Developer's agents, contractors, subcontractors, agents, or employees'
Project construction activities and operations under this Agreement, whether such Project
construction activities and operations be by the Developer or by any of the Developer's agents,
contractors or subcontractors or by any one or more persons directly or indirectly employed by or
acting as agent for the Developer or any of the Developer's agents, contractors or subcontractors.
Nothing herein is intended to make the Developer liable for the acts of the City's officers,
employees, agents, contractors of subcontractors.
6.2.1 Loss and Damage. City shall not be liable for any damage to property of
Developer or of others located on the Property, nor for the loss of or damage to any property of
Developer or of others by theft or otherwise. 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 Property or from the pipes or plumbing, or from the street, or from any
environmental or soil contamination or hazard, or from any other latent or patent defect in the soil,
subsurface or physical condition of the Property, or by any other cause of whatsoever nature.
6.3 Non -liability of City Officers and Employees. No official, agent, contractor, or
employee of the City shall be personally liable to the 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 the
Developer or to its successor, or for breach of any obligation of the terms of this Agreement.
6.4 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 this Agreement which affects the financial interest of any corporation,
partnership or association in which he or she is, directly or indirectly, interested, in violation of
any state statute or regulation.
6.5 Revision of Land Use Restrictions to Cure Litigation. If, for any reason, the
Specific Plan, Existing Development Approvals, this Agreement or any part thereof is hereafter
judicially determined, as provided above, to not be in compliance with the State or Federal
Constitution, laws or regulations and, if such noncompliance can be cured by an appropriate
amendment thereof otherwise conforming to the provisions of this Agreement, then this
Agreement shall remain in full force and effect to the extent permitted by law. The Specific Plan,
Existing Development Approvals and this Agreement may be amended by mutual agreement of
the parties as necessary, in order to comply with such judicial decision.
6.6 Release of Claims Related to Prior Litigation. By executing this Agreement,
Developer further releases and forever discharges the City and its elected boards, commissions,
officers, agents and employees for any Claim alleged by any party in the cases entitled Irwindale
Partners, L.P. v. United Rock Products Corporation et al., Case Number KC051372G or USA
Waste of California, Inc. v. City of Irwindale; Irwindale Partners, L.P.; and Dispatch
Transportation, LLC dba Windrow Earth Transport, Case No. KC066276H, whether related to the
City's actions to enforce filling standards at the Property, competing fill, violations of Priority
Filling Obligations, as defined in Section 6.7 below, or otherwise.
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6.7 Release of Benefits Under Prioritization Clause. Developer relinquishes, waives
and releases (collectively "release") the City from any further rights it may have to conduct a
priority filling operation at the Site, pursuant to the "Prioritization Clause" contained in various
agreements between the City and operators conducting mining and reclamation operations in the
City (including United Rock Products Corporation ("United"), Hanson Aggregates West, Inc. and
Calmat Co., dba Vulcan Materials Company, Western Division), a sample of which Prioritization
Clause is contained in the September 1, 2004 Settlement Agreement and Mutual General Release
between the City and United, wherein the City may approve filling operations at its properties,
provided it uses fill that would not otherwise be reasonably available to the operators subject to
the Prioritization Clause or their successors ("Priority Filling Obligations"). The release provided
herein shall be effective commencing on either (i) the issuance of the first building permit for
development of the Project, or any portion thereof, or (ii) September 30, 2020, whichever occurs
first. Following the termination of Priority Filling Obligations, Developer may no longer claim
any rights or benefits to the terms of such Priority Clause.
6.8 Venue. In the event of any judicial action, venue shall be in the Superior Court of
Los Angeles County.
6.9 Survival of Indemnity Obligations. All indemnity provisions set forth in this
Agreement shall survive termination of this Agreement for any reason other than a default by City.
7. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner,
at Developer's sole discretion, from encumbering the Property or any portion thereof or any
improvement thereon by any mortgage, deed of trust or other security device securing financing
with respect to the Property. City acknowledges that the lenders providing such financing may
require certain Agreement interpretations and modifications and City agrees upon request, from time
to time, to meet with Developer and representatives of such lenders to negotiate in good faith any
such request for interpretation or modification. Subj ect to compliance with applicable laws, City
will not unreasonably withhold its consent to any such requested interpretation or modification
provided City determines such interpretation or modification is consistent with the intent and
purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights
and privileges:
(a) Neither entering into this Agreement nor a breach of this
Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property
made in good faith and for value, unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, which Mortgagee has submitted a request in writing to the City in
the manner specified herein for giving notices, shall be entitled to receive written notification
from City of any default by Developer in the performance of Developer's obligations under
this Agreement.
(c) If City timely receives a request from a Mortgagee requesting a
copy of any notice of default given to Developer under the terms of this Agreement, City shall make
a good faith effort to provide a copy of that notice to the Mortgagee within ten (10) days of sending
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the notice of default to Developer. The Mortgagee shall have the right, but not the obligation, to
cure the default during the period that is the longer of (i) the remaining cure period allowed such
party under this Agreement, or (ii) sixty (60) days.
(d) Any Mortgagee who comes into possession of the Property, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure,
shall take the Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any
other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or
duty under this Agreement to perform any of Developer's obligations or other affirmative
covenants of Developer hereunder, or to guarantee such performance; except that (i) to the extent that
any covenant to be performed by Developer is a condition precedent to the performance of a covenant
by City, the performance thereof shall continue to be a condition precedent to City's performance
hereunder, and (ii) in the event any Mortgagee seeks to develop or use any portion of the Property
acquired by such Mortgagee by foreclosure, deed of trust, or deed in lieu of foreclosure, such
Mortgagee shall strictly comply with all of the terms, conditions and requirements of this Agreement
and the Specific Plan applicable to the Property or such part thereof so acquired by the Mortgagee.
8. INSURANCE.
8.1 Types of Insurance.
8.1.1 Public Liability Insurance. Prior to commencement and until completion of
construction by Developer on the Property, Developer shall, at its sole cost and expense, keep or
cause to be kept in force, for the mutual benefit of 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 Property, improvements or adjoining areas or
ways, affected by such use of the Property or for property damage. Such policy shall provide at
least One Million Dollars ($1,000,000) for any one accident or occurrence, including bodily injury
and property damage, which limits shall be subject to such increases in amount as City may
reasonably require from time to time.
8.1.2 Builder's Risk Insurance. Prior to commencement and until completion of
construction by Developer on the Property, Developer shall procure and shall maintain in force, or
caused to be maintained in force, "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 (8.1.1) above.
8.1.3 Worker's Compensation. Developer shall also furnish or cause to be
furnished to 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.
8.1.4 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.
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8.2 Insurance Policy Form, Sufficiency, Content and Insurer. All insurance
required by express provisions hereof shall be carried only by responsible insurance companies
licensed and admitted 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 waived by City. 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 City or Developer that might otherwise result
in the forfeiture of the insurance, (ii) the insurer waives the right of subrogation against City and
against City's agents and representatives; (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 City or City's designated
representative. Developer shall furnish City with copies of all such policies promptly on receipt
of them or with certificates evidencing the insurance. City shall be named as an additional insured
on all policies of insurance required to be procured by the terms of this Agreement. Moreover,
the insurance policy must specify that where the primary insured does not satisfy the self-insured
retention, any additional insured may satisfy the self-insured retention. In the event the City's
Risk Manager determines that the use, activities or condition of the Property, improvements or
adjoining areas or ways, affected by such use of the Property under this Agreement creates an
increased or decreased risk of loss to the City, Developer agrees that the minimum limits of the
insurance policies required by Section 8.1 may be changed accordingly upon receipt of written
notice from the City's Risk Manager; provided that Developer shall have the right to appeal a
determination of increased coverage to the City Council of City within ten (10) days of receipt of
notice from the City's Risk Manager.
8.3 Failure to Maintain Insurance and Proof of Compliance. Developer shall
deliver to City, in the manner required for notices, copies of certificates of all insurance policies
required hereunder together with evidence satisfactory to City of payment required for
procurement and maintenance of each policy within the following time limits:
(a) For insurance required above, within thirty (30 days) after the
Effective Date.
(b) For any renewal or replacement of a policy already in existence, at
least ten (10) days before the 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 City with required proof that that insurance has been procured and is in
force and paid for, such failure or refusal shall be a default hereunder.
9. AMENDMENT AND MODIFICATION OF DEVELOPMENT AGREEMENT.
9.1 Initiation of Amendment. Either party may propose an amendment to this
Agreement.
9.2 Procedure. Except as set forth in Section 9.4 below, the procedure for proposing
and adopting an amendment to this Agreement shall be the same as the procedure required for
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entering into this Agreement in the first instance, and meet the requirements of the Development
Agreement Statute § 65867.
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 and 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. The provisions of this Agreement require a close degree of
cooperation between the City and the Developer. Implementation of the Project may require minor
modifications of the details of the Specific Plan and affect the performance of the parties under
this Agreement. The anticipated refinements to the Project and the Development of the Property
may demonstrate that clarifications to this Agreement and the Existing Land Use Regulations are
appropriate with respect to the details of performance of the City and the Developer. The parties
desire to retain a certain degree of flexibility with respect to those items covered in general terms
under this Agreement. Therefore, non -substantive and procedural modifications of the Specific
Plan shall be those that qualify for a Substantial Conformance Determination under the provisions
of the Chapter 5 of the Specific Plan, at Section B thereunder and shall not require amendment of
this Agreement.
9.5 Hearing Rights Protected. Notwithstanding the foregoing, City will process any
change to this Agreement consistent with state law and will hold public hearings thereon if so
required by state law and the parties expressly agree nothing herein is intended to deprive any
party or person of due process of law.
9.6 Effect of Amendment to Development Agreement. All modifications
determined not to be minor shall require an amendment to this Agreement. 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. MISCELLANEOUS PROVISIONS.
10.1 Recordation of Agreement. This Agreement shall be recorded with the County
Recorder by the City Clerk within the period required by Section 65868.5 of the Government Code.
Amendments approved by the parties, and any cancellation, shall be similarly recorded.
10.2 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the parties with respect to the subject matter set forth herein, and
there are no oral or written representations, understandings or ancillary covenants, undertakings or
agreements which are not contained or expressly referred to herein. No testimony or evidence of
any such representations, understandings or covenants shall be admissible in any proceeding of
any kind or nature to interpret or determine the terms or conditions of this Agreement.
10.3 Severability. If any term, provision, covenant or condition of this Agreement
shall be determined invalid, void or unenforceable, then this Agreement shall terminate in its
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entirety, unless the parties otherwise agree in writing, which agreement shall not be unreasonably
withheld.
10.4 Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the laws of the State of California.
This Agreement shall be construed as a whole according to its fair language and common
meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction
to the effect that ambiguities are to be resolved against the drafting party or in favor of City shall
not be employed in interpreting this Agreement, all parties having been represented by counsel in
the negotiation and preparation hereof.
10.5 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
10.6 Singular and Plural. As used herein, the singular of any word includes the plural.
10.7 Time of Essence. Time is of the essence in the performance of the provisions of
this Agreement as to which time is an element.
10.8 Waiver. Failure of 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.
10.9 No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit for the parties and their successors and assigns. No other person shall
have any right of action based upon any provision of this Agreement.
10.10 Force Majeure. Neither party shall be deemed to be in default where failure or delay
in performance of any of its obligations under this Agreement is caused by earthquakes, other acts
of God, fires, wars, terrorism, riots or similar hostilities, strikes and other labor difficulties beyond
the party's control (including the party's employment force), government regulations, court actions
and pending litigation (such as restraining orders or injunctions, or petitions for writ of mandate
filed challenging the Development Approvals), the existence of third party lawsuits, which impact
development of the Project, or other causes beyond the party's reasonable control. If any such
events shall occur, the term of this Agreement and the time for performance shall be extended for
the duration of each such event, provided that the term of this Agreement shall not be extended
under any circumstances for more than one (1) year.
10.11 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.
10.12 Counterparts. This Agreement may be executed by the parties in counterparts,
which counterparts shall be construed together and have the same effect as if all of the parties had
executed the same instrument.
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10.13 Estoppel Certificates. Either parry (or a Mortgagee under Article 7) may at any
time deliver written notice to the other party requesting an Estoppel Certificate stating:
A. The Agreement is in full force and effect and is a binding obligation of the
parties;
B. The Agreement has not been amended or modified either orally or in writing
or, if so amended, identifying the amendments; and
C. There are no existing defaults under the Agreement to the actual knowledge
of the party signing the Estoppel Certificate.
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. An Estoppel Certificate may be relied
on by assignees and Mortgagees.
10.14 Covenant Not To Sue. The parties to this Agreement, and each of them, agree that
this Agreement and each term hereof are legal, valid, binding, and enforceable. The parties to this
Agreement, and each of them, hereby covenant and agree that each of them will not
commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding
against any other party to this Agreement, in law or in equity, or based on any allegation or
assertion in any such action, that this Agreement or any term hereof is void, invalid, or
unenforceable.
10.15 Project as a Private Undertaking. It is specifically understood and agreed by and
between the parties hereto that the Development of the Project is a private Development, that
neither party is acting as the agent of the other in any respect hereunder, and that each party is an
independent contracting entity with respect to the terms, covenants and conditions contained in this
Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between City and Developer is that of a government entity
regulating the Development of private property, on the one hand, and the holder of a legal or
equitable interest in such property and as future holder of fee title to such property, on the other hand.
City agrees that by its approval of, and entering into, this Agreement that it is not taking any action
which would transform this private Development into a "public work" project, and that nothing
herein shall be interpreted to convey upon Developer any benefit which would transform
Developer's private project into a public work project, it being understood that this Agreement is
entered into by City and Developer upon the exchange of consideration described in this
Agreement, including the Recitals to this Agreement, and that City is receiving by and through this
Agreement the full measure of benefit in exchange for the burdens placed on Developer by this
Agreement, including but not limited to Developer's obligation to provide the public
improvements set forth herein.
10.16 Further Actions and Instruments. Each of the parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated here under in the performance
of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.
Upon the request of either party at any time, the other party shall promptly execute, with
DEVELOPMENT AGREEMENT
The Park @ Live Oak
01005.0018/459528.8
acknowledgment or affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary under the terms of
this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to
evidence or consummate the transactions contemplated by this Agreement.
10.17 Eminent Domain. No provision of this Agreement shall be construed to limit or
restrict the exercise by City of its power of eminent domain.
10.18 Attorney's Fees. If either parry to this Agreement is required to initiate or defend
litigation against the other parry, the prevailing party in such action or proceeding, in addition to
any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable
attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and, in addition, a
party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such
action, taking depositions and discovery and all other necessary costs the court allows which are
incurred in such litigation. All such fees shall be deemed to have accrued on commencement of
such action and shall be enforceable whether or not such action is prosecuted to a final judgment.
10.19 Corporate Authority. The person(s) executing this Agreement on behalf of each
of the parties hereto represent and warrant that (i) such party, if not an individual, 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, and (iv) the entering into this Agreement does not violate any provision of
any other agreement to which such parry is bound.
10.20 Notices. All notices under this Agreement shall be effective when delivered by (i)
personal delivery, or (ii) reputable same-day or overnight courier or messenger service, (iii)
overnight United States Postal Service Express Mail, postage prepaid, or (iv) by United States
Postal Service mail, registered or certified, postage prepaid; and addressed to the respective
parties as set forth below or as to such other address as the parties may from time to time
designate in writing:
Original To City: City of Irwindale
5050 N. Irwindale Ave.
Irwindale, CA 91706
Attn: City Manager
With copy to: Aleshire & Wynder
18881 Von Karman Avenue, Suite 1700
Irvine, CA 92612
Attn: Fred Galante
With copy to : Tony Spinrad (Developer)
Irwindale Partners II, LLC
373 E. Foothill Blvd, Suite 100
San Dimas, CA 91773
O
01005.00181459528.8
DEVELOPMENT AGREEMENT
The Park @ Live Oak
With copy to: Jeff Yellen
Irwindale Partners, LP
11021 Winner's Circle, Suite 200
Los Alamitos, CA 90720
and
John A. Ramirez
Rutan & Tucker, LLP
611 Anton Blvd.
Costa Mesa, CA 92694
10.21 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.
10.22 No Brokers. City and Developer represent and warrant to the other that neither has
employed any broker and/or finder to represent its interest in this transaction. Each party agrees
to indemnify and hold the other free and harmless from and against any and all liability, loss, cost,
or expense (including court costs and reasonable attorney's fees) in any manner connected with
a claim asserted by any individual or entity for any commission or finder's fee in connection with this
Agreement arising out of agreements by the indemnifying party to pay any commission or finder's
fee.
[SIGNATURE PAGE FOLLOWS]
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01005.0018/459528.8
DEVELOPMENT AGREEMENT
The Park @ Live Oak
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year
first set forth above.
City: CITY OF IRWINDALE, a municipal
corporation
Lo
ATTEST:
Laura M. Nieto, MMC
Chief Deputy City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
M
Fred Galante, City Attorney
Albert F. Ambriz, Mayor
Developer: IRWINDALE PARTNERS II,
LLC, a California limited liability
company
U -N
Tony Spinrad, Managing Member
John Edwards, Jr., Member
[End of Signatures]
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01005.00181459528.8
DEVELOPMENT AGREEMENT
The Park @ Live Oak
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On 2020 before me, personally appeared proved to me on the
basis of satisfactory evidence to be the person(s) whose names(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:
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On , 2020 before me, personally appeared proved to me on the
basis of satisfactory evidence to be the person(s) whose names(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:
33
01005.0018/459528.8
DEVELOPMENT AGREEMENT
The Park @ Live Oak
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
Real property in the City of Irwindale, County of Los Angeles, State of California, described as follows
PARCEL 1:
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
IRWINDALE, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS
DESCRIBED AS FOLLOWS:
THOSE PORTIONS OF LOTS 36, 43, AND 44 OF THE J.R. LOFTUS TRACT NO. 1, AS
SHOWN ON A MAP RECORDED IN BOOK 14, PAGE 29 OF MAPS IN THE OFFICE OF
THE COUNTY RECORDER OF LOS ANGELES, CALIFORNIA, AND ALSO THAT
PORTION OF SECTION 1, TOWNSHIP 1 SOUTH, RANGE 11 WEST, OF THE
SUBDIVISION OF THE RANCHO AZUSA DE DUARTE, AS SHOWN ON A MAP
RECORDED IN BOOK 6, PAGES 80 TO 82, INCLUSIVE, OF MISCELLANEOUS
RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, BOUNDED AS FOLLOWS:
BOUNDED WESTERLY BY THE SOUTHERLY PROLONGATION OF THE WESTERLY
LINE OF LOT 35 OF SAID J.R. LOFTUS TRACT NO. 1;
BOUNDED SOUTHWESTERLY BY THE NORTHEASTERLY LINE OF THE 100 -FOOT
WIDE PUBLIC ROAD DESCRIBED IN THE FINAL JUDGMENT IN FAVOR OF THE
COUNTY OF LOS ANGELES UNDER CASE NO. 269622 IN SUPERIOR COURT,
RECORDED AUGUST 18, 1933 IN BOOK 12289, PAGE 277 OF OFFICIAL RECORDS.
BOUNDED EASTERLY BY THE GENERAL WESTERLY LINES OF THE LAND
DESCRIBED IN PARCEL 3A (REAMENDED) IN THE FINAL ORDER OF
CONDEMNATION IN FAVOR OF THE PEOPLE OF THE STATE OF CALIFORNIA
UNDER CASE NO. 842381 IN SUPERIOR COURT, RECORDED FEBRUARY 25, 1970 AS
DOCUMENT NO. 2784, IN BOOK D-4641, PAGE 886 OF OFFICIAL RECORDS.
BOUNDED NORTHWESTERLY BY THE SOUTHEASTERLY LINE OF 100 -FOOT WIDE
PUBLIC ROAD DESCRIBED IN THE FINAL ORDER OF CONDEMNATION IN FAVOR
OF THE COUNTY OF LOS ANGELES UNDER CASE NO. 517607 IN SUPERIOR COURT,
RECORDED JANUARY 12, 1949 AS DOCUMENT NO. 1324, IN BOOK 29149, PAGE 166
OF OFFICIAL RECORDS.
AND BOUNDED NORTHERLY BY A LINE HAVING A BEARING AND DISTANCE OF
"SOUTH 83039'23"WEST, 384.64," AS SAID LINE IS SET FORTH IN PARCEL 3A OF THE
FINAL ORDER OF CONDEMNATION RECORDED FEBRUARY 25, 1970 AS DOCUMENT
NO. 2784, IN BOOK D-4641, PAGE 866 OF OFFICIAL RECORDS.
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01005.0018/459528.8
APN: 8532-001-002
PARCEL 2:
THAT PORTION OF LOT 6 OF FRACTIONAL SECTION 1 OF TOWNSHIP 1 SOUTH,
RANGE 11 WEST, AS SHOWN ON MAP OF THE SUBDIVISION OF THE RANCHO
AZUSA DE DUARTE, IN THE CITY OF IRWINDALE, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 6 PAGES 80 TO 82
INCLUSIVE OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, BOUNDED AS FOLLOWS:
BOUNDED NORTHERLY BY THE SOUTHERLY LINE OF ARROW HIGHWAY, 100
FEET WIDE, AS DESCRIBED IN PARCEL 4-3, IN FINAL ORDER OF CONDEMNATION
ENTERED IN LOS ANGELES COUNTY SUPERIOR COURT CASE NO. 517607, A
CERTIFIED COPY OF WHICH WAS RECORDED IN BOOK 29149 PAGE 166 OFFICIAL
RECORDS OF SAID COUNTY, BOUNDED SOUTHERLY BY THE NORTHERLY LINE OF
LIVE OAK AVENUE, 100 FEET WIDE, AS DESCRIBED IN FINAL ORDER OF
CONDEMNATION ENTERED IN LOS ANGELES COUNTY SUPERIOR COURT CASE
NO. 269622, A CERTIFIED COPY OF WHICH WAS RECORDED IN BOOK 12289 PAGE
277 OFFICIAL RECORDS OF SAID COUNTY, BOUNDED WESTERLY BY THE EAST
LINE OF PARCEL 1 OF PARCEL MAP NO. 18724, AS SHOWN ON MAP FILED IN BOOK
198 PAGES 77 AND 78 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
APN: 8532-001-901 (OLD) 8532-001-006 (NEW)
PARCEL 3:
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF BALDWIN
PARK, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS
DESCRIBED AS FOLLOWS:
PARCEL 1 OF PARCEL MAP NO. 18724, AS PER MAP FILED IN BOOK 198, PAGES 77
AND 78 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
APN: 8532-001-900
01005.0018/459528.8
DEVELOPMENT AGREEMENT
The Park @ Live Oak
EXHIBIT 64$99
SPECIFIC PLAN CONCEPTUAL PLANS, TPM CONDITIONS OF APPROVAL
(Attached Separately)
DEVELOPMENT AGREEMENT
The Park @ Live Oak
Exhibit `B"
Page 1 of 1
01005.0018/459528.8
EXHIBIT "C"
PUBLIC IMPROVEMENTS
Off-site improvements that would occur in association with the Proiect include the followin
Construction of an 10 -foot wide meandering sidewalk/landscaped parkway along the Project's
frontage with Live Oak Avenue and Arrow Highway;
Construction of a 12 -inch underground water main in the segments of Live Oak Avenue and
Arrow Highway that front the Project site;
Construction of a 16 -inch underground water main in the segment of the Avenida Barbosa right-
of-way located between Buena Vista Street and Arrow Highway;
Construction of a 16 -inch underground water main in the segment of Buena Vista Street located
east of the intersection of Avenida Barbosa and Buena Vista Street which would connect to an
existing pipeline in Buena Vista Street;
Upsizing of an existing 8 -inch underground water main in Buena Vista Street to a 12 -inch
underground water main;
Construction of lateral connections to proposed and existing water, sewer and storm water
utilities located in Arrow Highway and Live Oak Avenue; and
Construction of driveway aprons along Arrow Highway and Live Oak Avenue.
Off-site Traffic Improvements.
MM 4.11-1 Prior to issuance of the first certificate of occupancy, the Project Applicant shall
submit to the City of Irwindale a payment equal to the full cost to install the following
improvement at Intersection #3 — Longden Avenue & Live Oak Avenue/Driveway. The City
of Irwindale shall ensure installation of the improvement.
Restripe a 3rd eastbound through lane and modify the existing traffic signal to accommodate
the additional 3rd eastbound lane.
MM 4.11-2 Prior to issuance of the first certificate of occupancy, the Project Applicant shall
submit to the City of Irwindale a payment equal to the full cost to install the following
improvement at Intersection #27 — Stewart Avenue & Live Oak Avenue. The City of Irwindale
shall ensure installation of the improvement.
Restripe a 3rd westbound through lane and modify the existing traffic signal to accommodate
the additional 3rd westbound lane. MM 4.11-2
DEVELOPMENT AGREEMENT
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01005.0018/459528.8
MM 4.11-3 Prior to issuance of the first certificate of occupancy, the Project Applicant shall
submit to the City of Irwindale a payment equal to the full cost to install the following
improvement at Intersection #29 — Arrow Highway & Live Oak Avenue. The City of Irwindale
shall ensure installation of the improvement.
Restripe a 3rd eastbound through lane and modify the existing traffic signal to accommodate
the additional 3rd eastbound lane.
MM 4.11-4 Prior to issuance of the first certificate of occupancy, the Project Applicant shall
submit to the City of Irwindale a payment equal to the full cost to install the following
improvement at the intersection of Maine Avenue & Arrow Highway (Intersection #30). The
City of Irwindale shall ensure installation of the improvement.
• Restripe a 3rd eastbound through lane and modify the existing traffic signal to accommodate
the additional 3rd eastbound lane.
MM 4.11-5 Prior to issuance of building permits for future implementing development projects
that involve a driveway connection point with Arrow Highway or Live Oak Avenue, the Project
Applicant shall submit a driveway access study to the City of Irwindale Public Works
Department for City review and approval. The study shall be prepared by a licensed traffic
engineer, identify the proposed access driveway(s) connecting to a public street, and include a
detailed evaluation of the proposed driveway for intersection lane geometries, turn lane storage
capacity, and sight distance. The City shall require that the driveway intersection be constructed
in accordance with the City -approved access study prior to the issuance of a certificate of
occupancy for any building that would use the driveway for ingress/egress.
Based on the studied driveway locations (as shown on Exhibit 1-1 of The Park @ Live Oak
Traffic Impact Analysis prepared by Urban Crossroads, Inc. and dated December 12, 2018) and
mix of land uses studied in The Park @ Live Oak Specific Plan's Traffic Impact Analysis
prepared by Urban Crossroads, Inc. and dated December 12, 2018 (as shown in EIR Table 4.11-
15, Project Trip Generation Summary (Actual Vehicles)), the following are anticipated to be
required as the maximum extent of public roadway lane configuration and signalization
improvements:
a) As a condition of any building permit that would involve ingress/egress at the
intersection of Arrow Highway and Private Drive A, the Project Applicant shall
install the following improvements at the existing intersection of Avenida
Barbosa/Private Drive A & Arrow Highway (Intersection #15). The
improvements shall be constructed and operable prior to the issuance of a
certificate of occupancy.
• Restripe a southbound through lane. (E+P requirement)
• Add a 3rd eastbound through lane. (E+P requirement)
• Add a westbound left turn lane. (E+P requirement)
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01005.0018/459528.8
DEVELOPMENT AGREEMENT
The Puk @ Live Oak
• Add a 2nd westbound left turn lane (E+P requirement with maximum
commercial development in Planning Areas 1 and 2A)
• Add a northbound left turn lane. (2020 Opening Year requirement)
• Add a northbound through lane. (2020 Opening Year requirement)
• Add a northbound right tum lane. (2020 Opening Year requirement)
• Modify traffic signal to accommodate the above -listed changes to lane
configurations.
b) As a condition of any building permit that would involve ingress/egress at the
intersection of Arrow Highway and Private Drive B, the Project Applicant shall
install the following improvement at Private Drive B & Arrow Highway
(Intersection #11). The improvement shall be constructed and operable prior to
the issuance of a certificate of occupancy.
• Install a traffic signal (E+P requirement with maximum commercial
development in Planning Areas 2A and 3A)
c) As a condition of any building permit that would involve ingress/egress access
at the intersection of Live Oak Avenue and Private Drive A, the Project
Applicant shall install the following improvement at Private Drive A and Live
Oak Avenue (Intersection #16). The improvement shall be constructed and
operable prior to the issuance of a certificate of occupancy.
• Install a traffic signal (E+P requirement)
d) As a condition of any grading or building permit that would involve
ingress/egress access at the existing intersection of Speedway Driveway & Live
Oak Avenue, the Project Applicant shall install the following roadway
improvement at Speedway Driveway & Live Oak Avenue (Intersection #7). The
improvement shall be constructed and operable prior to the issuance of a
certificate of occupancy.
• Install a traffic signal (E+P requirement)
• Add a 3rd westbound through lane. (E+P requirement)
e) As a condition of any building permit that would involve ingress/egress at the
existing intersection of Live Oak Avenue and the entrance driveway to the
Irwindale Events Center Intersection #13 (Project Driveway 7), the Project
Applicant shall install the following improvement at Project Driveway
7/Driveway & Live Oak Avenue (Intersection #13). The improvement shall be
constructed and operable prior to the issuance of a certificate of occupancy.
DEVELOPMENT AGREEMENT
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01005.0018/459528.8
• Add a 3rd eastbound through lane and modify the traffic signal to
accommodate the additional 3rd eastbound lane. (E+P requirement)
MM 4.11-6 Prior to the issuance of each building permit for future implementing development
projects proposed within The Park @ Live Oak Specific Plan, the Project Applicant shall submit
a preliminary trip generation calculation and trip distribution exhibit to the City of Irwindale
Public Works Department for the development project under consideration for City review and
approval. The preliminary calculation and exhibit shall be prepared by a licensed traffic
engineer and be accompanied by sufficient analytical data to enable the City to (1) Determine
which of the mitigation measures identified below to address cumulatively considerable impacts
in the E+P, Opening Year 2020, and Horizon Year 2040 scenarios are applicable to the
implementing project and calculate the fair share percentage associated with each applicable
respective mitigation measure, and (2) Enable the City to determine sufficient intersection and
driveway geometries and lane storage and turn lane capacity needs. The City Engineer shall
have the authority to determine the extent of the traffic study and analyses required to determine
the appropriate mitigation measures and fair share calculations. Traffic analyses shall utilize
traffic counts collected within 12 months of the analysis.
Proposed development projects and speculative buildings without an occupant or tenant shall
be analyzed in accordance with the proposed uses, trip generations rates and planning areas
listed in EIR Table 4.11-15. For the purposes of the traffic analysis, uses assigned to speculative
developments within The Park @ Live Oak Specific Plan site shall be consistent with the
distribution and proportion of uses and trip generation rates studied in The Park @ Live Oak
Specific Plan's Traffic Impact Analysis prepared by Urban Crossroads, Inc. and dated
December 12, 2018 and listed in EIR Table 4.11-15.
If the total trips generated by all developments within The Park @ Live Oak Specific Plan area
exceeds the trips analyzed in The Park @ Live Oak Specific Plan's Traffic Impact Analysis
prepared by Urban Crossroads, Inc. and dated December 12, 2018 (1,280 PCE AM peak hour
trips and 1,644 PCE PM peak hour trips), an additional full Traffic Impact Analysis shall be
required.
Based on the studied driveway locations (depicted on Exhibit 1-1 of The Park @ Live Oak
Specific Plan's Traffic Impact Analysis prepared by Urban Crossroads, Inc. and dated
December 12, 2018), mix of land uses, and projected traffic volumes studied in the Park @ Live
Oak Specific Plan's Traffic Impact Analysis and listed in FIR Table 4.11-15, the following are
anticipated to be to applicable to some or all implementing development projects:
a) Prior to issuance of building permits, the Project Applicant shall make a fair
share monetary contribution to the City of Irwindale for the following
improvements to Intersection #1 — Myrtle Avenue & Longden Avenue:
• Restripe a 2nd eastbound through lane and
widen the bridge over the Sawpit Wash.
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01005.0018/459528.8
DEVELOPMENT AGREEMENT
The Park @ Live Oak
b) Prior to issuance of building permits, the Project Applicant shall make a fair
share monetary contribution to the City of Irwindale for the following
improvements to Intersection #2 — Myrtle Avenue/Peck Road & Live Oak
Avenue:
• Add a 2nd southbound left turn lane and modify the existing traffic signal
to
accommodate the 2nd southbound left turn lane.
c) Prior to issuance of grading and building permits, the Project Applicant shall
make a fair share monetary contribution to the City of Irwindale for the
following improvements to Intersection #4 — Live Oak Avenue & Arrow
Highway (West):
• Add a 3rd westbound through lane.
• Restripe a 3rd eastbound through lane.
• Modify the existing traffic signal to accommodate the above -listed lane
configuration improvements.
d) Prior to issuance of grading and building permits, the Project Applicant shall
make a fair share monetary contribution to the City of Irwindale for the
following improvements to Intersection #15 — Avenida Barbosa/Private Drive
A & Arrow Highway:
• Add a 3rd westbound through lane.
• Add a 2nd eastbound left turn lane.
• Modify the traffic signal to implement overlap phasing on the westbound
right turn lane and accommodate the changes to lane configuration.
e) Prior to issuance of grading and building permits, the Project Applicant shall
make a fair share monetary contribution to the City of Irwindale for the
following improvements to Intersection #7 — Speedway Driveway & Live Oak
Avenue:
• Install a traffic signal.
I) Prior to issuance of building permits, the Project Applicant shall make a fair
share monetary contribution to the City of Irwindale for the following
improvements to Intersection #13 — Driveway 7/Driveway & Live Oak Avenue:
• Add an eastbound right turn lane and modify the existing traffic signal to
accommodate the new eastbound right turn lane.
g) Prior to issuance of grading and building permits, the Project Applicant shall
make a fair share monetary contribution to the City of Irwindale for the
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01005.0018/459528.8
DEVELOPMENT AGREEMENT
The Park @ Live Oak
following improvements to Intersection #23 — I-605 Northbound Off -Ramp &
Live Oak Avenue:
• Install a traffic signal.
h) Prior to the issuance of building permits, the Project Applicant shall make a fair
share monetary contribution to the City of Irwindale for the following
improvements to Intersection #26 — Rivergrade Road & Live Oak Avenue:
• Modify the traffic signal to implement overlap phasing on the northbound
right turn lane.
i) Prior to issuance of building permits, the Project Applicant shall
make a fair share monetary contribution to the City of Irwindale
for the following improvements to Intersection #27 — Stewart
Avenue & Live Oak Avenue
• Restripe a 3rd eastbound through lane and modify the existing traffic
signal to accommodate the 3rd eastbound through lane.
MM 4.11-7 Mitigation and fair share calculations for impacts to State Highway System facilities
shall be subject to the review and approval of the California Department of Transportation
(Caltrans). Fair share contributions for improvements to State Highway System facilities shall
be determined by and paid to Caltrans in accordance with nexus requirements contained in the
Mitigation Fee Act (Govt. Code § 66000 et seq.) and 14 Cal. Code of Regs. § 15126.4(a)(4).
MM 4.11-8 Prior to the issuance of grading or building permits, the Project Applicant shall
prepare and the City of Irwindale shall approve a temporary traffic control plan. The temporary
traffic control plan shall comply with the applicable requirements of the California Manual on
Uniform Traffic Control Devices and shall address temporary closures of roadways and
sidewalks. A requirement to comply with the temporary traffic control plan shall be noted on
all grading and building plans and also shall be specified in bid documents issued to prospective
construction contractors.
DEVELOPMENT AGREEMENT
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01005.0018/459528.8
EXHIBIT "D"
FREE RECORDING REQUESTED AND
WHEN RECORDED, RETURN TO:
City of Irwindale
5050 N. Irwindale Ave.
Irwindale, CA 91706
Attn: City Clerk
CC&Rs
(Space above this line for Recorder's Office Use Only)
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
("CC&Rs") is made and entered into this 12th day of February, 2020, by IRWINDALE
PARTNERS II, LLC, a California limited liability company (collectively, "Owner"). These
CC&Rs are declared for the benefit of the CITY OF IRWINDALE, a California Charter
municipality ("City"). Owner and City are occasionally referred to herein each as a "Party" and
collectively as the "Parties".
RECITALS:
A. Owner is the owner of that certain real property located in the City of Irwindale,
County of Los Angeles, State of California, more particularly described in Exhibit "A" attached
hereto and incorporated herein by this reference ("Site") .
B. Pursuant to the Development Agreement, Owner shall submit a proposed form of
Declaration of Covenants, Conditions and Restrictions to be recorded against the Site to ensure
Owner undertakes appropriate development of the Site consistent with The Park @ Live Oak
Specific Plan and all applicable building codes in connection with developing the Site and
indemnifies the City in ongoing litigation, as further described in these CC&Rs.
D. City has fee or easement interests in various streets, sidewalks and other property
within the City and is responsible for the appropriate planning and development of land within the
City in such a manner so as to provide for the health, safety and welfare of the residents of the
City. That portion of the City's interest in real property most directly affected by these CC&Rs
are public rights of way surrounding the Site.
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DEVELOPMENT AGREEMENT
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E. City and Owner now desire to place restrictions upon the use and operation of the
Site in order to ensure that the Site shall be developed and operated in accordance with the
requirements set forth herein.
F. It is the intent of City and Owner that these CC&Rs shall be recorded on title to the
Site in the Office of the County Recorder for the County of Los Angeles, and that the terms hereof
shall be binding on the Owner and its successors in interest in the Site until replaced with covenants
applicable to the developed Site.
AGREEMENT:
NOW, THEREFORE, Owner declares, covenants and agrees, by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through it, that the Site
shall be held, transferred, encumbered, used, sold, conveyed, leased and occupied, subject to the
covenants and restrictions hereinafter set forth, all of which are declared to be in furtherance of a
common plan for the improvement and sale of the Site, and are established expressly and
exclusively for the use and benefit of City, the residents of the City of Irwindale, and every person
buying an interest in the Site.
1. DEVELOPMENT OF THE SITE AND THE PARK @ LIVE OAK Owner
has represented and hereby represents to City that it intends to and will develop the Site ("The
Park @ Live Oak') as an industrial and commercial development in compliance with The Park
@ Live Oak Specific Plan.
2. MAINTENANCE.
2.1 General Maintenance Obligations. Following development of the Site in a
manner consistent with The Park @ Live Oak Specific Plan, Owner, for itself and its successors
and assigns, shall enter into a new covenant agreement to replace these CC&Rs, which shall
require Owner to maintain and repair or cause to be maintained and repaired the Site (or such
applicable portion of the Site) and all related on-site improvements and landscaping thereon,
including, without limitation, buildings, parking areas, lighting, signs and walls in a first class
condition of comparable properties in the Irwindale area and repair, free of rubbish, debris and
other hazards to persons using the same, and in accordance with all applicable laws, rules,
ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction,
at Owner's sole cost and expense. Such maintenance and repair shall include, but not be limited
to, the following: (i) sweeping and trash removal; (ii) the care and replacement of all shrubbery,
plantings, and other landscaping in a healthy condition; and (iii) the repair, replacement and
restriping of asphalt or concrete paving using the same type of material originally installed, to the
end that such pavings at all times be kept in a level and smooth condition. Such conditions to be
imposed shall require the Owner to maintain the Property or cause the Property to be maintained
in such a manner as to avoid the reasonable determination of a duly authorized official of the City
that a public nuisance has been created by the absence of adequate maintenance such as to be
detrimental to the public health, safety or general welfare or that such a condition of deterioration
or disrepair causes appreciable harm or is materially detrimental to property or improvements
within one thousand (1,000) feet of such portion of the Site.
C-2
01004.0005/553005.1 FG
2.2 Condition During Construction. During any period of grading or other
construction activities, Owner, for itself and its successors and assigns, hereby covenants and
agrees to maintain and repair or cause to be maintained and repaired the Site (or such applicable
portion of the Site) in a safe condition, free of rubbish, debris and other hazards to persons using
the same, and in accordance with all applicable laws, rules, ordinances and regulations of all
federal, state, and local bodies and agencies having jurisdiction, at Owner's sole cost and expense.
Such maintenance and repair shall include, but not be limited to, the following: (i) sweeping and
trash removal; (ii) ground watering or other similar measures for the reasonable suppression of
construction -related dust and air particulates; and (iii) employment of acoustical barriers, limited
heavy construction hours, or other similar measures for the reasonable suppression of construction -
related noise.
2.3 Private Streets, Parking and Driveways. Should any private streets be
provided on the Site, including, but not limited to the private drive serving its main access road
with signalized intersections at Live Oak Ave and Arrow Highway (at the existing Avenida
Barbosa intersection), described as Private Drive A in more detail in the Specific Plan, Owner shall
at all times assure that each such private streets have full access to public rights of way, as
expressly approved by the City Engineer of the City. The driveways and traffic aisles on the Site
shall be kept clear and unobstructed at all times. No obstructions to vehicular or pedestrian traffic
shall project into any of the driveways, traffic aisles, or pedestrian thoroughfares in such a manner
as to unreasonably block ingress, egress and circulation or create a safety hazard. Additionally,
Owner shall further cause to be maintained all areas as described in Section H., entitled
"Maintenance Plan," of the Specific Plan, including but not limited to, enforcing the Truck Traffic
Management Plan contained in the in the Specific Plan.
2.4 Right of Entrv. From and after the date(s) that Owner's obligations to
maintain the Site commence under Sections 2.1 through 2.3, and in the event Owner, or its
successors or assigns, fail to maintain the common area of the Site as set forth in Sections 2.1
through 2.3 above, and satisfactory progress is not made in correcting the condition within thirty
(30) days from the date of written notice from City, City may, at its option, and without further
notice to Owner, declare the unperformed maintenance to constitute a public nuisance. Thereafter,
subject to the rights of tenants to perform the landscaping or maintenance pursuant to such tenant's
lease, City, its employees, contractors or agents, may cure Owner's default by entering upon the
Site and performing the necessary maintenance. The City shall give Owner reasonable notice of
the time and manner of entry, and entry shall only be at such times and in such manner as is
reasonably necessary to carry out these CC&Rs. The Owner, or its successors and assigns owning
the affected portion of the Site, shall pay such costs as are reasonably incurred by City for such
maintenance for the affected common area of the Site, including attorneys' fees and costs within
thirty (3 0) days after receipt of a written invoice from City with supporting documentation for such
costs.
Nothing in this Section 2.4 shall be construed to waive, limit or prevent the City
from seeking all legal and equitable remedies for the abatement or prosecution of public nuisances
found on the Site in the reasonable determination of a duly authorized official of the City,
regardless of whether such nuisance conditions are located within a common area, tenant
improvement, or any other portion of the Site.
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01004.0005/553005.1 FG
2.5 Lien. If such costs incurred by City pursuant to Section 2.4 above are not
reimbursed within thirty (30) days after Owner's, or such successors or assigns, receipt of written
notice thereof with supporting documentation as set forth in Section 2.5 above, the same shall be
deemed delinquent, and the amount thereof shall bear interest thereafter at a rate equal to the lesser
of ten percent (10%) per annum or the legal maximum until paid. Any and all delinquent amounts,
together with said interest, costs and reasonable attorney's fees, shall be an obligation of the Owner
or such successor or assign as well as a lien and charge, with power of sale, upon the property
interests of Owner or such successor, and the rents, issues and profits of such property. City may
bring an action at law against Owner or such successor obligated to pay any such sums or foreclose
the lien against Owner's or such successor's property interests. Any such lien shall be created by
recordation of a Notice of Claim of Lien against the affected portion of the Site and may be
enforced by sale by the City following recordation of a Notice of Default of Sale given in the
manner and time required by law as in the case of a deed of trust; such sale to be conducted in
accordance with the provisions of Section 2924, et seq., of the California Civil Code, applicable
to the exercise of powers of sale in mortgages and deeds of trust, or in any other manner permitted
by law.
Any monetary lien provided for herein shall be subordinate to any bona fide
mortgage or deed of trust covering an ownership or leasehold interest in and to the Site or the
applicable portion thereof, and any purchaser at any foreclosure or trustee's sale (as well as the
transferee under any deed or assignment in lieu of foreclosure or trustee's sale) under any such
mortgage or deed of trust shall take title free from any monetary lien created by these CC&Rs, but
otherwise subject to the provisions hereof; provided that, after the foreclosure of any such
mortgage and/or deed of trust, all other assessments provided for herein to the extent they relate to
the expenses incurred subsequent to such foreclosure and are assessed hereunder to the purchaser
at the foreclosure sale, as Owner of the subject Site after the date of such foreclosure sale, shall
become a lien upon the affected portion of the Site upon recordation of a Notice of Claim of Lien
as hereinabove provided.
3. COMPLIANCE WITH LAWS.
Owner or its successors and assigns shall comply with all ordinances and regulations of the
State or City applicable to the Site. Owner or its successors and assigns shall comply with all rules
and regulations of any assessment district of the City with jurisdiction over the Site.
4. OBLIGATION TO REPAIR.
If a portion of the Project shall be totally or partially destroyed or rendered wholly or partly
uninhabitable by fire or other casualty, Owner, or its successor with respect to the affected portion
of the Project, shall either (i) promptly proceed to obtain any available insurance proceeds and take
all steps necessary to begin reconstruction and, upon receipt of insurance proceeds and any
applicable permits and approvals, to promptly and diligently commence and to thereafter pursue
the repair or replacement of the affected portion of the Project to substantially the same condition
as existed prior to such damage or destruction, or (ii) if Owner, or such successor with respect to
the affected portion of the Site, elects not to restore or replace such improvements, such Owner or
successor shall promptly remove all debris from the affected portion of the Site and place the
affected portion of the Site in a clear and secure condition. City shall cooperate with Owner, at no
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01004.0005/553005.1 FG
expense to City, in obtaining any governmental permits required for the repair, replacement, or
restoration of any improvements. Following any such event of damage or destruction, Owner, or
its successor with respect to the affected portion of the Site, may also reconstruct such other
improvements on the Site as are consistent with applicable land use regulations provided it shall
obtain all legally required approvals from the City and other governmental agency or agencies with
jurisdiction with respect to those improvements.
5. ENFORCEMENT.
In the event Owner defaults in the performance or observance of any covenant, agreement
or obligation of Owner pursuant to these CC&Rs, and if such default remains uncured for a period
of thirty (30) days after written notice thereof shall have been given by City, or, in the event said
default cannot reasonably be cured within said time period, Owner has failed to commence to cure
such default within said thirty (30) days and thereafter fails to diligently prosecute said cure to
completion, then City may declare an "Event of Default" to have occurred hereunder, and, at its
option, may take one or more of the following steps:
5.1 By mandamus or other suit, action or proceeding at law or in equity, require
Owner to perform its obligations and covenants hereunder or enjoin any acts or things which may
be unlawful or in violation of these CC&Rs; or
5.2 Take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations, covenants and agreements of Owner hereunder; or
5.3 Enter the affected portion of the Site and cure the Event of Default.
Except as otherwise expressly stated in these CC&Rs, the rights and remedies of the parties
are cumulative, and the exercise by any 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 another party.
6. COVENANTS TO RUN WITH THE LAND.
Owner hereby subjects the Site to the covenants, reservations, and restrictions set forth in
these CC&Rs. City and Owner hereby declare their express intent that all such covenants,
reservations, and restrictions shall be deemed covenants running with the land and shall pass to
and be binding upon the Owner's successors in title to the Site. All covenants, without regard to
technical classification or designation, shall be binding for the benefit of the City, and such
covenants shall run in favor of the City for the entire term of these CC&Rs, without regard to
whether the City is or remains an owner of any land or interest therein to which such covenants
relate. Each and every contract, deed or other instrument hereafter executed covering or conveying
the Site, or any portion thereof, shall conclusively be held to have been executed, delivered and
accepted subject to the CC&Rs, regardless of whether such covenants, reservations, and
restrictions are set forth in such contract, deed or other instrument.
City and Owner hereby declare their understanding and intent that the burden of the
covenants set forth herein touch and concern the land. City and Owner hereby further declare their
understanding and intent that the benefit of such covenants touch and concern the land by
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01004.0005/553005.1 FG
enhancing and increasing the enjoyment and use of the Site by the intended beneficiaries of such
covenants, reservations, and restrictions, and by furthering the public purposes of protecting the
public health, safety and welfare.
Owner hereby agrees to hold, sell, and convey the Site subj ect to the terms of these CC&Rs.
Owner also grants to the City, as a third party beneficiary hereof, the right and power to enforce
the terms of these CC&Rs against the Owner and all persons having any right, title or interest in
the Site or any part thereof, their heirs, successive owners and assigns.
7. INDEMNIFICATION.
Owner, while in possession of the Site, and each successor or assign of Owner while in
possession of the Site, shall remain fully obligated for the payment of any property taxes and
assessments applicable to its interest in the Site. Owner, and its successors and assigns, shall
indemnify, defend and hold harmless City from and against any loss, liability, claim or judgment
arising from their breach of the foregoing covenant. The foregoing indemnification, defense, and
hold harmless agreement shall only be applicable to and binding upon the party then owning the
Site or applicable portion thereof.
8. INSURANCE.
Owner covenants and agrees for itself, and its assigns and successors -in -interest in the Site,
that during grading and related construction activities on the Site, Owner or such successors and
assigns shall procure and keep in full force and effect or cause to be procured and kept in full force
and effect for the mutual benefit of Owner and City, and shall provide City evidence reasonably
acceptable to Executive Director and the City's Risk Manager of the existence of, the following
policies of insurance:
8.1 Comprehensive General Liability Insurance. Prior to commencement and
until completion of construction by Developer on the Property, Developer shall, at its sole cost and
expense, keep or cause to be kept in force, for the mutual benefit of 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 Property,
improvements or adjoining areas or ways, affected by such use of the Property or for property
damage. Such policy shall provide protection of at least One Million Dollars ($ 1,000,000) for
any one accident or occurrence, $2,000,000 general aggregate, for including bodily injury and
property damage, which limits shall be subject to such increases in amount as City may reasonably
require from time to time.
8.2 Workers' Compensation Insurance. If applicable, Owner shall also furnish
or cause to be furnished to City evidence reasonably satisfactory to it that any contractor with
whom Owner has contracted for the performance of any work for which Owner is responsible
hereunder carries workers' compensation insurance as required by law.
9. ATTORNEY'S FEES.
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01004.0005/553005.1 FG
In the event that a parry to these CC&Rs brings an action against the other party hereto by
reason of the breach of any condition, covenant, representation or warranty in these CC&Rs, the
prevailing party in such action shall be entitled to recover from the other reasonable expert witness
fees, and its reasonable attorney's fees and costs. Attorney's fees shall include attorney's fees on
any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable
costs for investigating such action, including the conducting of discovery.
10. AMENDMENTS.
These CC&Rs shall only be amended by a written instrument executed by both the Owner
and City or their successors in title, and duly recorded in the real property records of the County
of Los Angeles.
11. NOTICES.
Any notice required to be given hereunder shall be made in writing and shall be given by
personal delivery, certified or registered mail, postage prepaid, return receipt requested, at the
addresses specified below, or at such other addresses as may be specified in writing by the parties
hereto:
Original To City: City of Irwindale
5050 N. Irwindale Ave.
Irwindale, CA 91706
Attn: City Manager
With copy to: Aleshire & Wynder
18881 Von Karman Avenue, Suite 1700
Irvine, CA 92612
Attn: Fred Galante
With copy to: Owner: Irwindale Partners, LP
11021 Winners Circle, Suite 200
Los Alamitos, CA 9072
Attn: Jeffrey Yellen
With a copy to: John A. Ramirez
Rutan & Tucker, LLP
611 Anton Blvd. Costa Mesa, CA 92694 Email:
jramirez@rutan.com
The notice shall be deemed given three (3) business days after the date of mailing, or, if
personally delivered, when received.
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01004.0005/553005.1 FG
12. SEVERABILITY / WAIVER / LENDER PROTECTION.
12.1 Severability. If any provision of these CC&Rs shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not
in any way be affected or impaired thereby.
12.2 Waiver. A waiver by either party of the performance of any covenant or
condition herein shall not invalidate these CC&Rs nor shall it be considered a waiver of any other
covenants or conditions, nor shall the delay or forbearance by either party in exercising any remedy
or right be considered a waiver of, or an estoppel against, the later exercise of such remedy or
right.
12.3 Owner's Breach Does Not Defeat Mortga eg Lien. Owner's breach of any
of the covenants or restrictions contained in these CC&Rs shall not defeat or render void or invalid
the lien of any mortgage, deed of trust or other security interest encumbering the Site made in good
faith and for value but, unless otherwise provided herein, the terms, covenants, conditions,
restrictions, easements and reservations of these CC&Rs shall be binding and effective against the
holder of such encumbrance whose interest is acquired by foreclosure, trustee's sale, deed or
assignment in lieu thereof, or otherwise.
13. GOVERNING LAW.
These CC&Rs shall be governed by the laws of the State of California.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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01004.0005/553005.1 FG
IN WITNESS WHEREOF, the Owner has executed these CC&Rs by its duly authorized
representative on the date first written hereinabove.
"OWNER"
IRWINDALE PARTNERS, LP, a California
Limited Partnership
Jeffrey Yellen, President, Irwindale
Management, Inc., a California Corp (General
Partner)
LIM
John Edwards, Jr., Managing Member,
Yellow Iron Development 255, a Delaware
limited liability company (Partner)
APPROVED BY CITY OF IRWINDALE as third -party beneficiary to the CC&Rs:
City: CITY OF IRWINDALE, a municipal
corporation
Albert F. Ambriz, Mayor
ATTEST:
:A
Laura M. Nieto, MMC
Chief Deputy City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
Fred Galante, City Attorney
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01004.0005/553005.1 FG
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On 2020 before me, , personally appeared proved to me on the
basis of satisfactory evidence to be the person(s) whose names(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:
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the 1
document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
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01004.0005/553005.1 FG
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF IRWINDALE
IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS
FOLLOWS:
PARCEL 1:
THAT PORTION OF LOT 6 OF FRACTIONAL SECTION 1 OF TOWNSHIP 1 SOUTH,
RANGE 11 WEST, AS SHOWN ON MAP OF THE SUBDIVISION OF THE RANCHO AZUSA
DE DUARTE, IN THE CITY OF IRWINDALE, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 6 PAGES 80 TO 82 OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, BOUNDED AS FOLLOWS:
BOUNDED NORTHERLY BY THE SOUTHERLY LINE OF ARROW HIGHWAY, 100 FEET
WIDE, AS DESCRIBED IN PARCEL 4-3, IN FINAL ORDER OF CONDEMNATION
ENTERED IN LOS ANGELES COUNTY SUPERIOR COURT CASE NO. 517607, A
CERTIFIED COPY OF WHICH WAS RECORDED IN BOOK 29149 PAGE 166 OF OFFICIAL
RECORDS OF SAID COUNTY, BOUNDED SOUTHERLY BY THE NORTHERLY LINE OF
LIVE OAK AVENUE, 100 FEET WIDE, AS DESCRIBED IN FINAL ORDER OF
CONDEMNATION ENTERED IN LOS ANGELES COUNTY SUPERIOR COURT CASE NO.
269622, A CERTIFIED COPY OF WHICH WAS RECORDED IN BOOK 12289 PAGE 277 OF
OFFICIAL RECORDS OF SAID COUNTY, BOUNDED WESTERLY BY THE EAST LINE OF
PARCEL 1 OF PARCEL MAP NO. 18724, AS SHOWN ON MAP FILED IN BOOK 198 PAGES
77 AND 78 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
rikly f[ 11 11
PARCEL 2:
THOSE PORTIONS OF LOTS 36, 43, AND 44 OF THE J.R. LOFTUS TRACT NO. 1, IN THE
CITY OF IRWINDALE, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS
SHOWN ON A MAP RECORDED IN BOOK 14, PAGE 29 OF MAPS IN THE OFFICE OF
THE COUNTY RECORDER OF LOS ANGELES, CALIFORNIA, AND ALSO THAT
PORTION OF SECTION 1, TOWNSHIP 1 SOUTH, RANGE 11 WEST, OF THE
SUBDIVISION OF THE RANCHO AZUSA DE DUARTE, IN SAID CITY, COUNTY AND
STATE, AS SHOWN ON A MAP RECORDED IN BOOK 6, PAGES 80 TO 82 OF
MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, BOUNDED
AS FOLLOWS:
BOUNDED WESTERLY BY THE SOUTHERLY PROLONGATION OF THE WESTERLY
LINE OF LOT 35 OF SAID J.R. LOFTUS TRACT NO. 1; BOUNDED SOUTHWESTERLY BY
DEVELOPMENT AGREEMENT
The Park @ Live Oak
01005.0018/459528.8
THE NORTHEASTERLY LINE OF THE 100 -FOOT WIDE PUBLIC ROAD DESCRIBED IN
THE FINAL JUDGEMENT IN FAVOR OF THE COUNTY OF LOS ANGELES UNDER CASE
NO. 269622 IN SUPERIOR COURT, RECORDED AUGUST 18, 1933 IN BOOK 12289, PAGE
277 OF OFFICIAL RECORDS; BOUNDED EASTERLY BY THE GENERAL WESTERLY
LINES OF THE LAND DESCRIBED IN PARCEL 3A (REAMENDED) IN THE FINAL
ORDER OF CONDEMNATION IN FAVOR OF THE PEOPLE OF THE STATE OF
CALIFORNIA UNDER CASE NO. 842381 IN SUPERIOR COURT, RECORDED FEBRUARY
25, 1970 AS DOCUMENT NO. 2784, IN BOOK D-4641, PAGE 886 OF OFFICIAL RECORDS;
BOUNDED NORTHWESTERLY BY THE SOUTHEASTERLY LINE OF 100 -FOOT WIDE
PUBLIC ROAD DESCRIBED IN THE FINAL ORDER OF CONDEMNATION IN FAVOR OF
THE COUNTY OF LOS ANGELES UNDER CASE NO. 517607 IN SUPERIOR COURT,
RECORDED JANUARY 12,1949 AS DOCUMENT NO. 1324, IN BOOK 29149, PAGE 166 OF
OFFICIAL RECORDS; AND BOUNDED NORTHERLY BY A LINE HAVING A BEARING
AND DISTANCE OF "SOUTH 83°39'23" WEST, 384.64," AS SAID LINE IS SET FORTH IN
PARCEL 3A OF THE FINAL ORDER OF CONDEMNATION RECORDED FEBRUARY 25,
1970 AS DOCUMENT NO. 2784, IN BOOK D-4641, PAGE 866 OF OFFICIAL RECORDS.
. ZN.NtI� Xlll 1 1
PARCEL 3:
PARCEL 1 OF PARCEL MAP NO. 18724, IN THE CITY OF IRWINDALE, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 198 PAGES 77 AND
178 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
APN: 8532-001-900 (OLD) 8532-001-07 (NEW)
DEVELOPMENT AGREEMENT
The Park @ Live Oak
01005.0018/459528.8
DEVELOPMENT AGREEMENT
The Park @ Live Oak
01005.0018/459528.8
EXIHBIT "E"
SCHEDULE OF ESTIMATED CITY FEES
Community Development Filing Fee Schedule
Adopted by City Council Resolution No. 2018-78-3072 of November 14, 2018
OCCUPANCY PERMIT
Fee......................................................................................................................
$150.00
PLAN CHECK
Tenant Improvement/Addition....................................................................................$100.00
EntitlementPlan Check............................................................................................$100.00
REVIEW
Development Review Team 1st Meeting........................................................................No
Fee
Development Review Team 2nd Meeting........................................................................$250.00
Development Review Team 31d Meeting.......................................................................$250.00
Preliminary Review..................................................................................................$300.00
ZONING VERIFICATION LETTER
Fee...........................................................................
$106.00+ Any Additional Research Costs
RESEARCH & ANALYSIS
Fee........................................................................................................Hourly
Rate Varies
SIGN PERMITS
ForBanners.............................................................................................................$40.00
ForWall Signs..........................................................................................................$50.00
ForMonument Signs................................................................................................$100.00
BUSINESS LICENSE PROCESSING FEES
New/1 st Time Applications — In City Business..................................................................$30.00
New/1st Time Applications — Out of City But Requiring
Special Permit Reviews .....................$30.00
ExpeditedFee................................................................................................................$30.00
BUSINESS LICENSE PENALTIES
Delinquency Penalty Fee...........................................10%
1st Month + 5% Each Additional Month
EnforcementFee.....................................................................................................$200.00
Appeal...................................................................................................................$200.00
SPECIAL EVENT PERMIT
Standard Fee (30 Days or More Prior)........................................................................
$150.00
Late Fee (10-29 Days Prior)......................................................................................$203.00
FILM PERMIT
Application............................................................................................................ $215.00
ExpeditedFee ....................................................................................................... $150.00
CONDITIONAL USE PERMIT & CUP MODIFICATIONS
Application (1) (2) (3) ...........................................................................
$2,000.00
Appeal(2) .............................................................................................
$400.00
Determination (2) ...................................................................................
$300.00
SITE PLAN & DESIGN REVIEW
Administrative Approval (1) ....................................................................
$1,000.00
Discretionary Approval (1) (2) (3) ............................................................
$2,000.00
VARIANCE
Single Family Home (1) (2) (3) ..................................................................
$300.00
Non -Residential (Standard) (1) (2) (3) ......................................................$2,000.00
Appeal(2) ............................................................................................
$400.00
ZONING ORDINANCE AMENDMENT
Application (1) (2) (3) ..................................................$2,000.00
+ Attorney Deposit
Appeal (2) ...................................................................
$400.00 + Attorney Deposit
ZONE CHANGE
Application (1) (2) (3) ............................................................................
$2,000.00
Appeal(2) ............................................................................................
$400.00
GENERAL PLAN AMENDMENT
Application (1) (2) (3) ............................................................................
$1,000.00
LAND SUBDIVISIONS
Lot Line Adjustment (4) ...........................................................................
$200.00
Tentative Parcel Map (1) (2) (3) (4) ....................................$1,900.00
+ $60.00 per lot
Tentative Tract Map (1) (2) (3) (4)......................................$2,000.00
+ $60.00 per lot
Vesting Tentative Map (1) (2) (3) (4) ...................................$2,000.00
+ $60.00 per lot
Reversion to Acreage (1) (2) (3) (4) ............................................................
$200.00
Appeal(2) ............................................................................................
$400.00
DEVELOPMENT AGREEMENT
Application + (1) (2) (3) .........................................................................
$2,000.00
01005.0018/459528.8
City Attorney Deposit..........................................................................$10,000.00
All Costs (Consultants, Notices, etc.)......................................All Costs + Admin. Fee
Note:
(1) Applications subject to environmental assessment fees. Fees are processed once
per application package as indicated below:
ENVIRONMENTAL DOCUMENTS
Environmental Assessment Questionnaire ..................................................$250.00
Negative Declaration..............................................................................$500.00
Mitigated Neg. Dec .... $1,500.00 + Deposit Study + 100% Consultant Cost + Admin. Fee
Env. Impact Report .... $1,000.00 + Deposit Study + 100% Consultant Cost + Admin. Fee
CA Dept. of Fish and Wildlife CEQA Filing Fees.....................See Attached Document
Note:
(2) Applications subject to notification fees. Fees are processed once per application
package as indicated below:
NOTIFICATION FEES
Newspaper Ad (One Hearing Required)......................................................$175.00
Newspaper Ad (Two Hearings Required)....................................................$350.00
Public Notice Mailing/Posting (One Hearing Required) ............ $1.00/parcel + Admin. Fee
Public Notice Mailing/Posting (Two Hearings Required) ......... $2.00/parcel + Admin. Fee
Note:
(3) Please submit a separate, undated check made payable to the "LACC" for the fee
indicated below, which is a filing fee for the Notice of Determination to be posted for 30
days after the approving body has approved an environmental clearance:
NOTICE OF DETERMINATION FEE (Payable to LACC)
Fee....................................................................................................... $75.00
Note:
(4) Applications subject to engineering fees:
ENGINEERING FEES
Fee...........................$7,000 Deposit + all costs for Engineering Review + Admin. Fee
Note:
*35% Administrative Fee is for review and oversight of projects and contracts.
DEVELOPMENT AGREEMENT
The Puk @ Live Oak
01005.0018/459528.8
Exhibit "B"
SUMMARY OF FINDINGS OF FACT
At a session assembled on February 12, 2020, the City Council determined that, based on all
of the evidence presented, including but not limited to the EIR (SCH# 2018041001), written and oral
testimony given at meetings and hearings, and the submission of testimony from the public,
organizations and regulatory agencies, the following environmental impacts associated with the
Project are: (1) less than significant and do not require mitigation; or (2) potentially significant but will
be avoided or reduced to a level of insignificance through the identified Mitigation Measures and
Regulatory Requirements; or (3) significant and cannot be fully mitigated to a level of less than
significant but will be substantially lessened to the extent feasible by the identified Mitigation
Measures and Regulatory Requirements.
FINDINGS REGARDING LESS THAN SIGNIFICANT IMPACTS NOT REQUIRING MITIGATION
Consistent with Public Resources Code Section 21002.1 and Section 15128 of the State
CEQA Guidelines, the EIR focused its analysis on potentially significant impacts, and limited
discussion of other impacts for which it can be seen with certainty there is no potential for significant
adverse environmental impacts. State CEQA Guidelines § 15091 does not require specific findings
to address environmental effects that an EIR identifies as "no impact" or a "less than significant"
impact. Nevertheless, the City Council hereby finds that the Project would have either no impact or
a less than significant impact to the following resource areas:
A. AESTHETICS
Scenic Vista
Threshold: Would the Project have a substantial adverse effect on a scenic vista?
Finding: Less -than -Significant Impact. (EIR, p. 4.1-9)
Explanation: The Project Site does not comprise all or part of a scenic vista. Construction
equipment that would be located on the property would be similar in size and stature to the IDEFO
equipment that occurs on the property as part of the IDEFO reclamation activities, resulting in no
substantive change compared to existing conditions. The only recognized scenic vistas available in
the Project Site's vicinity are mountain views associated with the San Gabriel Mountains to the
northwest. The San Gabriel Mountains rise to an elevation of approximately 10,000 feet. Often,
mountain views are partially masked by smog and haze. The Project would have no potential to
adversely affect the distant views of the San Gabriel Mountains available from Live Oak Avenue and
the 1-605 abutting the Project Site's frontage. Views of the higher elevations would remain available
and viewership from the roads are partially and intermittently obscured due to manmade berms,
stockpiles, and billboards found on site under existing conditions. The existing mountain views along
a majority of the roadway segment would remain as it does under exiting conditions. The Project
would not substantially obstruct the view. Views of the Puente Hills also are available south of the
Project Site. These views are predominately obscured by existing man made and topographical
features located at the Project Site. Implementation of the Project would construct buildings with a
maximum height of 60 feet which would partially and intermittently obstruct views of the Puente Hills
for pedestrians and motorists traveling along segments of the surrounding roadways to the Project
Site. However, viewership of the higher elevations would not be obstructed. Therefore, impacts to
these scenic vistas would be less than significant and no other recognized scenic vistas are present
that the Project could affect. (EIR, pp. 4.1-9 to 4.1-11.)
2. Scenic Resources
Threshold: Would the Project substantially damage scenic resources including, but not
limited to, trees, rock outcroppings, and historic buildings within a state scenic highway?
Finding: No Impact. (EIR, p. 4.1-11)
Explanation: The Project Site is not located within the viewshed of a scenic highway. The
nearest Officially Designated State Scenic Highway considered under the Scenic Highways program
is State Route 2, located approximately 11.3 miles north of the Project Site. The nearest Eligible
State Scenic Highway is SR -32 and is located approximately 4.0 east of the Project Site. The
Project's proposed development features would not be visible from SR -2 or SR -32 due to intervening
development, landscaping, and topography, as well as distance. Because the Project Site is not
visible from a state scenic highway and contains no scenic resources, the proposed Project would
not adversely impact the viewshed within a scenic highway corridor and would not damage important
scenic resources within a scenic highway corridor, including trees, rock outcroppings, and historic
buildings. (EIR, p. 4.1-11)
3. Visual Character
Threshold: In non -urbanized areas, would the Project substantially degrade the existing
visual character or quality of public views of the site and its surroundings? (Public views are those
that are experienced from publicly accessible vantage point). If the Project is in an urbanized area,
would the Project conflict with applicable zoning and other regulations governing scenic quality?
Finding: Less -than -Significant Impact (EIR, p. 4.1-13)
Explanation: The Project proposes Zone Change No. 01-2017 to change the existing zoning
designations on the property from "Quarry Zone Overlay (Q)" and "Heavy Manufacturing (M-2)" to
"The Park @ Live Oak Specific Plan Zone." Zone Change No. 01-2017 would allow for the Project
to be developed per the Design Guidelines of the Park @ Live Oak Specific Plan which includes
comprehensive architectural and landscape standards, and development criteria which provides for
an attractive, contemporary industrial and commercial business park. By implementing the Design
Guidelines for The Park @ Live Oak Specific Plan, the Project would be consistent with the City of
Irwindale's General Plan policies governing scenic quality. Future development of the Project Site
would be subject to an administrative site plan and design review pursuant to the Specific Plan's
Implementation Plan. Views of the site from the surrounding area will change from an active quarry
reclamation site to an industrial/commercial business center. Although the aesthetic changes would
be substantial, the proposed Project would include design features that soften the visual prominence
of the development along the Project's abutting roadways. The Project would be considered a visual
improvement to that of the existing IDEFO operations and the half -a -century mining and reclamation
activities. Therefore, the Project would have a less -than -significant impact on the visual character
of the surrounding area. (EIR, pp. 4.1-12 to 4.1-13)
4. Light and Glare
Threshold: Would the Project create a new source of substantial light or glare that would
adversely affect day or nighttime views in the area?
Finding: Less than significant Impact. (EIR, p. 4.1-14.)
Explanation: The Project would not create substantial light or glare. The Park @ Live Oak
Specific Plan includes requirements for exterior lighting that are intended to prevent glare and
spillover of lighting in public streets or adjoining properties. The implementation of the lighting
standards would ensure that the Project would not produce substantial amounts of light and glare
from artificial light that would impact day or nighttime views and additionally prevent substantial light
spill overall on adjoining properties. The Specific Plan also addresses the design requirements to
reduce daytime glare by prohibiting potentially reflective building materials. Therefore, the Project
would not create a new source of substantial light and glare that would adversely affect day or
nighttime views in the area. The Project would thus have less -than -significant light and glare impacts.
(EIR, pp. 4.1-14 to 4.1-15)
B. AIR QUALITY
Sensitive Receptors
Threshold: Would the Project expose sensitive receptors to substantial pollutant
concentrations?
Finding: Less than significant impact. (EIR, p. 4.2-34.)
Explanation: Project -related construction emissions would not exceed the South Coast Air
Quality Management District's (SCAQMD's) Localized Threshold for CO, NOx, PMlo, or PM2.5.
Accordingly, construction of the proposed Project would not result in the exposure of any sensitive
receptors to substantial pollutant concentrations on a direct or cumulatively considerable basis.
During the Project's operation, the Project would generate/attract diesel -fueled trucks. Diesel trucks
produce diesel particulate matter (DPM), which is known to be associated with health hazards,
including cancer; however, based on a technical evaluation for residential exposure, worker
exposure, and school child exposure, the carcinogenic risk attributable to the Project's DPM
emissions would not exceed the SCAQMD threshold for direct and cumulatively considerable
emissions. Non -cancer risks would also be below the SCAQMD's threshold for direct and
cumulatively considerable emissions and would be less than significant. Operational emissions also
would not exceed Localized Significance Thresholds and would not cause or contribute to a CO Hot
Spot. (EIR, pp. 4.2-31 to 4.2-34)
2. Objectionable Odors
Threshold: Would construction and/or operation of the Project create objectionable odors
affecting a substantial number of people?
Finding: Less than significant impact. (EIR, p. 4.2-35)
Explanation: The Park @ Live Oak Specific Plan would allow for some business uses that
may emit odors. Additionally, the construction of the Project may emit odors that can be managed
through the use of standard construction practices. Temporary odors would cease with the
conclusion of construction. The Project Site would be required to comply with SCAQMD Rule 402,
prohibiting the emissions of odors that could be deemed a nuisance to the public. Compliance with
SCAQMD 402 and the City's solid waste regulations would ensure the long-term operation of the
proposed Project would not emit objectional odors affecting substantial number of people.
Therefore, the Project would have a less than significant impact. (EIR, pp. 4.2-34 and 4.2-35)
D. ENERGY
1. Energy Resources
Threshold: Would the Project result in a potentially significant environmental impact due to
wasteful, inefficient, or unnecessary consumption of energy resources, during Project construction
or operation?
Finding: Less than significant impact (EIR, p 4.3-13)
Explanation: Project design features, mandatory compliance with the California Green
Building Standards Code (CalGreen) and the City of Irwindale Green Building Standards Code, and
the implementation of the design features and regulatory requirements listed in EIR Subsection 4.2,
Air Quality, and Subsection 4.5, Greenhouse Gas Emissions, demonstrate evidence of the Project's
efficient use of energy. The proposed Project's projected energy consumption, calculated and
disclosed in EIR Subsection 4.3, would be comparable to or less than energy consumed by other
industrial and commercial business park projects of similar scale and intensity that are currently
constructed and operating in California. As regulatory requirement mandates for energy efficiency
increase, such as those contained in CalGreen, newer buildings are inherently more energy efficient
than older buildings. The amount of energy and fuel consumed by construction and operation of the
Project would not be inefficient, wasteful, or unnecessary. Furthermore, the Project would not cause
or result in the need for additional energy facilities or energy delivery systems. Accordingly, the
Project's impacts associated with energy consumption would be less than significant. (EIR, pp. 4.3-
9 — 4.3-10 and p. 4.3-13)
2. Energy Regulations
Threshold: Would the Project conflict with or obstruct a state or local plan for renewable
energy or energy efficiency?
Finding: Less than significant impact (EIR, p. 4.3-13)
Explanation: Transportation and access to the Project Site is provided primarily by the local
and regional roadway systems, which includes the Interstate 605 (1-605) Freeway, Interstate 210 (1-
210) Freeway, Arrow Highway, and Live Oak Avenue. The Project would not interfere with, nor
otherwise obstruct intermodal transportation plans or projects that may be realized pursuant to the
Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) because SCAG is not planning for
intermodal facilities on or through the Project Site. The Project Site is located near major
transportation corridors with proximate access to the interstate freeway system (i.e., 1-605 Freeway
and 1-210 Freeway). The location of the Project Site facilitates access, acts to reduce vehicle miles
traveled (VMT), takes advantage of existing infrastructure systems, and promotes land use
compatibilities through collocation of industrial and commercial business park uses. Accordingly, the
Project supports the strong planning processes emphasized under the Transportation Equity Act for
the 216t Century (TEA -21) and is therefore consistent with, and would not otherwise interfere with or
obstruct implementation of TEA -21. AB 1493 is applicable to the Project because model year 2009-
2016 passenger cars and light duty truck vehicles traveling to and from the Project Site are required
by law to comply with the legislation's fuel efficiency requirements. The City of Irwindale requires
that the Project be designed, constructed, and operated to meet or exceed the City's Green Building
Standards Code (Chapter 15.10). On this basis, the Project is determined to be consistent with, and
would not interfere with, nor otherwise obstruct implementation of the City's Green Building
Standards Code. RME Policy 11 of the City of Irwindale General Plan encourages the conservation
of non-renewable resources, including efforts to reduce the use of energy, greenhouse gas
emissions, and efforts to find more efficient methods for delivering services. The Project promotes
non -vehicular transportation and has the potential to reduce VMT through its proximity to major
transportation corridors, which would reduce tailpipe emissions — a major source of greenhouse
gases. The Project would be consistent with applicable federal, State, and local energy efficiency
policies; therefore, the Project would have less than significant impacts. (EIR, pp. 4.3-10 to 4.3-13)
E. GEOLOGY AND SOILS
1. Soil Erosion
Threshold: Would the Project result in substantial soil erosion or the loss of topsoil?
Finding: Less than significant impact. (EIR, p. 4.4-17.)
Explanation: Erosion during Project construction activities would be controlled through
mandatory compliance to a National Pollutant Discharge Elimination System (NPDES) permit which
is required of clearing, grading, and/or excavation projects that disturb at least one acre of total land
area. Also, the City's Municipal Separate Storm Sewer System (MS4) NPDES Permit requires the
Project Applicant to prepare and submit to the City for approval a Project -specific Storm Water
Pollution Prevention Plan (SWPPP) which will identify a combination of erosion control and sediment
control measures (i.e., Best Management Practices) to reduce or eliminate sediment discharge to
surface water from storm water and non -storm water discharges during construction. Following
construction, wind and water erosion on the Project Site would be minimized, as the areas disturbed
during construction would be landscaped or covered with impervious surfaces and drainage would
be controlled through a storm drain system and water quality detention basins. Additionally, as
required under the County's Municipal Separate Storm Sewer System (MS4) Permit and Waste
Discharge Requirements (Order No. R4-2012-0175; NPDES No. CAS004001), the City requires new
development and major redevelopment to prepare a Standard Urban Stormwater Management Plan
(SUSMP) as part of the development permit process. In addition, the NDPES program also requires
preparation of a SWPPP for operational activities and implementation of a long-term water quality
sampling and monitoring program under an Industrial General Permit. With mandatory compliance
to the Project -specific SWPPP, SUSMP, Industrial General Permit, the City's MS4 NPDES Municipal
Stormwater Permit, and SCAQMD Rule 403, impacts associated with substantial soil erosion or the
loss of topsoil would be less than significant. (EIR, pp. 4.4-16 to 4.4-17)
2. Expansive Soils
Threshold: Would the Project be located on expansive soil, as defined in Table 18-1-B of the
Uniform Building Code (1994), creating substantial direct or indirect risks to life or property?
Finding: Less than significant impact. (EIR, p. 4.4-19.)
Explanation: Materials being imported into the Project Site as part of the IDEFO activities
consist of clean inert debris and soil. Inert materials and soils that are brought into the Project Site
are inspected and processed and the processed material is mixed together and placed into the
former quarry site, which is then compacted. The IDEFO's Reclamation Plan requires that the upper
15 feet of the site be capped with clean, non -expansive soils. Through this process of filling in the
quarry, the expansion potential is reduced and the final grade is expected to have a low soil
expansion potential. Final soils testing is required to be performed upon completion of the IDEFO
activities to confirm the anticipated conditions as called for by the Reclamation Plan, WDR No. 01-
179, and approved Grading Permit No. 05061504220003 are present. Accordingly, the Project,
which is the proposed end use of the quarry property, would not be located on expansive soils and
as a result would not present substantial direct or indirect risks to life or property; impacts associated
with placing development on expansive soil would be less than significant. (EIR, p. 4-19)
3. Septic Tanks
Threshold: Would the Project have soils incapable of adequately supporting the use of septic
tanks or alternative waste water disposal systems where sewers are not available for the disposal of
waste water?
Finding: No impact. (EIR, p. 4.4-19)
Explanation: The Project does not propose the use of septic tanks or alternative wastewater
disposal systems that make use of soils on or from the Project Site. Therefore, the Project would not
have any impact. (EIR, p. 4.4-19)
4. Paleontological Resources
Threshold: Would the Project directly or indirectly destroy a unique paleontological resource
or site or unique geologic feature?
Finding: No impact. (EIR, p. 4.4-20)
Explanation: The Project Site has been disturbed by a former surface mine and does not
contain any unique geologic features or any known paleontological resources. Given the extensive
level of surface and subsurface alterations that have occurred during the on-site mining operation
and the ongoing reclamation process, there is no potential for discovery of paleontological resources
during the fine grading and site preparation phases of the proposed Project. As such, the proposed
Project has no potential to directly or indirectly impact a unique paleontological resource, site, or
unique geologic features. (EIR, p. 4.4-20)
G. HAZARDS AND HAZARDOUS MATERIALS
The Public and Environment
Threshold: Would the Project create a significant hazard to the public or the environment
through the routine transport, use, or disposal of hazardous materials; and/or
Threshold: Would the Project create a significant hazard to the public or the environment
through reasonably foreseeable upset and accident conditions involving the release of hazardous
materials into the environment?
Finding: Less than significant impact. (EIR, p. 4.6-18.)
Explanation: The Project -specific Phase I ESA (EIR Technical Appendix F) did not identify
any existing recognized environmental contaminates (RECs) or other environmental concerns at the
site that would create a hazard to the public during construction or operation of the Project. The
Project would involve the construction of uses in conformance with the proposed The Park @ Live
Oak Specific Plan. Future operators at the Project Site would be required to comply with all
applicable federal, State, and local regulations to ensure proper use, storage, and disposal of
hazardous substances. Such uses also would be subject to additional review and permitting
requirements by the Los Angeles County Fire Department, Health Hazardous Materials Division.
Accordingly, the Project would result in less -than -significant impacts with respect to hazardous
materials.
2. Schools
Threshold: Would the Project emit hazardous emissions or handle hazardous or acutely
hazardous materials, substances, or waste within one-quarter mile of an existing or proposed
school?
Finding: Less than significant impact. (EIR, p. 4.6-12.)
Explanation: The Project Site is located more than one-quarter mile from any school. The
proposed Project would not emit hazardous emissions or handle hazardous or acutely hazardous
materials, substances, or waste within one-quarter mile of an existing or proposed school. The
Project's operational air emissions would result in a less -than -significant impact to maximally
exposed school children. (EIR, p. 4.6-12.)
3. Hazardous Materials Sites
Threshold: Would the Project be located on a site which is included on a list of hazardous
materials sites complied pursuant to Government Code § 65962.5 and, as a result, would create a
significant hazard to the public or environment?
Finding: No impact. (EIR, p. 4.6-15.)
Explanation: The Project Site is not listed on any of the hazardous materials lists compiled
in accordance with California Government § 65962.5. No impact would occur. (EIR, p. 4.6-15.)
4. Public Airports and Private Airstrips
Threshold: For a project located within an airport land use plan or, where such a plan has
not been adopted, within two miles of a public airport or public use airport, would the Project result
in a safety hazard or excessive noise for people residing or working in the project area?
Finding: No impact. (EIR, p.4.6-15.)
Explanation: No airports occur in the City. The nearest airport to the Project Site is the EI
Monte Municipal Airport located approximately 2.8 miles south west of the Project Site. The Project
Site is not located in a Runway Protection Zone (RPZs) of the EI Monte Municipal Airport. The
Project Site also is not located within an airport influence area (AIA) for the EI Monte Municipal
Airport. Therefore, the proposed Project would not result in hazards that could occur from
development located within an airport land use plan or within 2.0 miles of a public airport or public
use airport. The proposed Project has no potential to create an airport safety hazard, and no impact
would occur. (EIR, p. 4.6-15)
5. Emergency Plans
Threshold: Would the Project impair implementation of or physically interfere with an adopted
emergency response plan or emergency evacuation plan?
Finding: Less than significant. (EIR, p.4.6-16.)
Explanation: Development on the Project Site would have direct roadway access to Arrow
Highway and Live Oak Avenue and would not interfere with emergency response or evacuation of
adjacent sites. The Project would not impair implementation of, or physically interfere with an
adopted emergency response plan or emergency evacuation plan. (EIR, pp. 4.6-15 and 4.6-16.)
6. Wildland Fires
Threshold: Would the Project expose people or structures, either directly or indirectly, to
significant risk of loss, injury or death involving wildland fires?
Finding: No impact. (EIR, p. 4.6-16.)
Explanation: The Project Site is not located within a wildland fire hazard area and would not
expose people or structures to a significant risk of loss, injury, or death involving wildland fires,
including where wildlands are adjacent to urbanized areas or where residences are intermixed with
wildlands. (EIR, p. 4.6-16.)
H. HYDROLOGY AND WATER QUALITY
Water Quality Standards
Threshold: Would the Project violate any water quality standards or waste discharge
requirements or otherwise substantially degrade surface or groundwater quality?
Finding: Less than significant impact. (EIR, p. 4.7-11.)
Explanation: Construction of the proposed Project would generate potential water quality
pollutants. Short term water quality impacts would have the potential to occur during construction of
the Project in the absence of any protective or avoidance measures. Pursuant to the requirements
of the Los Angeles Regional Water Quality Control Board (LARWQCB) and the Irwindale Municipal
Code, the Project Applicant would be required to obtain a NPDES Municipal Stormwater Permit,
which is required for all projects that include construction activities. The Project would also be
required to comply with the LARWQCB Water Quality Control Plan. Compliance with the NPDES
and LARWQCB Water Quality Control Plan would require the preparation and implementation of a
SWPPP for construction -related activities. The SWPPP specifies the Best Management Practices
(BMPs) that would require construction contractors to implement during construction to ensure all
potential pollutants of concern would be prevented, minimized, and/or otherwise appropriately
treated prior to be discharged from the subject property. During the operation of the Project, a
majority of the Project Site would be covered with impervious surfaces, which would increase the
rate and amount of runoff compared to the site's existing condition. The Project would build an onsite
storm water drainage plan to capture and detain runoff prior to its discharge into the existing public
storm drain, which would ultimately discharge into the Sawpit Wash Channel. All development is
required to comply with Chapter 8.28 of the Irwindale Municipal Code, which supplements the
LARWQCB NPDES permit and prohibits the discharge of specific pollutants into storm water and
requires development projects to provide BMPs to reduce pollutants in the storm water. Required
by the MS4 permit and Waste Discharge Requirements for the County, the City requires new
developments and major redevelopment projects to comply with the Standard Urban Stormwater
Mitigation Program (SUSMP). SUSMP requires projects to provide LID structural and non-structural
BMPs. The Project would comply with the NPDES program, requiring certain land uses to prepare
a SWPPP for operation activities and to implement long term water quality sampling and monitoring
program. Since the Project's primary pollutants of concern are heavy metals, the Project Applicant
would install detention basins on the Project Site for the treatment of heavy metals before discharging
into the public storm drain system. Accordingly, the operation and construction of the Project would
not contribute to run off that would violate water quality standards or waste discharge treatments.
Therefore, the Project's water quality impacts would be less than significant. (EIR, pp. 4.7-8 to 4.7-
11)
2. Groundwater Supplies
Threshold: Would the Project substantially decrease groundwater supplies or interfere
substantially with groundwater recharge such that the Project may impede sustainable groundwater
management of the basin?
Finding: Less than significant impact. (EIR, p. 4.7-13)
Explanation: All water used by the construction and long-term operation of the Project would
be provided by California American Water Company's (CAW) water supply from the Main San
Gabriel Basin (MSGB) and CAW water distribution system. Under existing conditions, one
groundwater supply well is located on the Project Site, which supports the site's on-going IDEFO
reclamation activities. The onsite well was not originally constructed to meet the standards of
functional municipal supply well, therefore, the well is proposed to be converted to a monitoring well
as part of the Project. An onsite groundwater supply well is proposed to be installed on the Project
Site in order to assist CAW to meet the future demand of the proposed Project, as well as the demand
from the City of Hope expansion project. Should CAW extract an excess of its annual portion, then
CAW would be required to pay a Replacement Water Assessment fee, used by the MSGB
watermaster to purchase imported water from the Upper District, San Gabriel Valley Municipal Water
District, and Three Valleys Municipal Water district. Based on the CAW's existing groundwater
entitlements and the replacement water available through the Upper District, the Project's potable
water demand could be accommodated without substantially decreasing groundwater supplies or
lowering the groundwater table relied upon by other wells. Because the Project would not adversely
affect any existing groundwater extraction wells, install a well which would extract water in excess of
available groundwater supplies, interfere with primary groundwater recharge facility, or prohibit water
falling on the site from potentially reaching the groundwater table, the Project's impact on
groundwater supplies and recharge would be less than significant. Accordingly, the proposed Project
would not substantially decrease groundwater supplies, substantially interfere with groundwater
recharge, result in substantial changes in the rate or amount of surface runoff, or interfere with
sustainable groundwater management of the MSGB, and a less -than -significant impact would occur.
(El R, pp. 4.7-11 to 4.7-13)
3. Existing Drainage Patterns and Runoff
Threshold: Would the Project substantially alter the existing drainage pattern of the site or
area, including through the alteration of the course of a stream or river or through the addition of
impervious surfaces, in a manner which would:
Result in substantial erosion or siltation on- or off-site?
ii. Substantially increase the rate or amount of surface runoff in a manner which
would result in flooding on- or off-site?
iii. Create or contribute runoff water which would exceed the capacity of existing
or planned storm water drainage systems or provide substantial additional
sources of polluted runoff?
iv. Impede or redirect flood flows?
Threshold: Would the Project substantially alter the existing drainage pattern of the site or
area, including through the alteration of the course of a stream or river, or substantially increase the
rate or amount of surface runoff in a manner which would result in flooding on or off site?
Finding: Less than significant impact. (EIR, p 4.7-16)
Explanation: The Project design includes a series of detention basins and/or subsurface
chambers to be installed on the Project Site to handle runoff generated at the Project Site under post
development conditions. The Project's proposed drainage design would generally maintain the
Project Site's pre -development drainage pattern (as ensured through completion of the Reclamation
Plan) and provide first -flush capture and detention of water runoff before storm water is discharged
from the Project Site. Storm water discharge from the Project Site is proposed to be directed into
the existing public storm drain system in Live Oak Avenue (MTD #1595) which conveys water to the
Sawpit Wash channel under existing conditions. Storm water discharge from the Project Site would
be required to be controlled to the appropriate energy dissipation to prevent scouring or erosion at
the Sawpit Wash channel outlet structure. Final grading and site development would have no direct
impact on the existing configuration of any stream or river, because none exist within the Project
Site. The existing public storm drain system (MTD #1595) within Live Oak Avenue has adequate
capacity to accommodate the proposed storm water discharge from the Project and there is no
potential that the Project's drainage outfall could directly or indirectly alter the course of a stream or
river and cause substantial erosion or siltation. The Project Site is not located within a 100 -year
floodplain, as mapped on Federal Flood Hazard Boundary or Flood Insurance Rate Map or other
flood hazard delineation map. As such, the Project has no potential to place structures within a 100 -
year floodplain, as mapped on a Federal Flood Hazard Boundary or Flood Insurance Rate Map or
other flood hazard delineation map. Additionally, as noted in the discussion above, the Project's
proposed drainage plan would generally maintain the Project Site's drainage pattern as it will exist
following the completion of reclamation activities. The Project's proposed drainage system would
adequately capture detain, and discharge site runoff in a manner that prevents flooding on or off-
site. Implementation of The Park @ Live Oak Specific Plan would increase the extent of impervious
surfaces across the property. As proposed by the Project, a series of detention basins and/or
underground chambers are proposed on-site to detain water on-site when 50 -year flows would be
expected to exceed the allowable peak flow rate for MTD #1595. In order to comply with the MS4
Permit and Waste Discharge Requirements for the County, the City requires new developments and
major redevelopment projects to comply with standard urban storm water mitigation program
(SUSMP) conditions, which requires projects to provide LID structural and non-structural BMPs.
According to the Project's LID report, either drywells would be placed within the proposed surface
basins (outside of the limits of underlying fill) or detained storm water would be infiltrated into the
native soils, below the compacted fill. Additional treatment through the basin soils and ongoing
maintenance practices throughout the Project Site would ensure that storm water runoff pollutants
do not result in substantial adverse water quality impacts. Therefore, the impacts of the proposed
Project would be less than significant. (EIR, pp. 4.7-13 to 4.7-16)
4. Inundation
Threshold: In flood hazard, tsunami, or seiche zones, would the Project risk release of
pollutants due to Project inundation?
Finding: No impact. (EIR, p. 4.7-15.)
Explanation: The Project Site has little to no potential to be exposed to hazards associated
with seiches, tsunamis, or mudflows. Therefore, the Project has no impact. (EIR, p. 4.7-16)
5. Water Regulation
Threshold: Would the Project conflict with or obstruct implementation of a water quality
control plan or sustainable groundwater management plan?
Finding: No impact. (EIR, pp. 4.7-16-4.7-17.)
Explanation: The Project Site is located within the Los Angeles River Watershed, which is
regulated by the LARWQCB. The LARWQCB has developed a "Water Quality Control Plan" for the
Los Angeles River Basin (herein, "Basin Plan"). The LARWQCB regulates waste discharges to
minimize and control their effects on the quality of the region's groundwater and surface water.
Permits are issued under a number of programs and authorities. The terms and conditions of these
discharge permits are enforced through a variety of technical, administrative, and legal means. The
LARWQCB ensures compliance with the Basin Plan through its issuance of National Pollutant
Discharge Elimination System (NPDES) Permits, issuance of Waste Discharge Requirements
(WDR), and Water Quality Certifications pursuant to Section 401 of the Clean Water Act (CWA).
The 2014 Sustainable Groundwater Management Act (SGMA) requires local public agencies and
Groundwater Sustainability Agencies (GSAs) in "high"- and "medium" -priority basins to develop and
implement Groundwater Sustainability Plans (GSPs) or Alternatives to GSPs. GSPs are detailed
road maps for how groundwater basins will reach long term sustainability. The California Department
of Water Resources (DWR) currently categorizes the San Gabriel Valley Groundwater Basin
(includes the MSGB) as a "low -priority" basin; therefore, the MSGB is not subject to the requirements
of the SGMA. The Project would not contribute substantial amounts of polluted runoff that could
adversely affect the underlying groundwater basin. Therefore, the Project would not conflict with any
water quality control plans or sustainable groundwater management plans, and impacts would be
less than significant. (EIR, pp. 4.7-16 to 4.7-17)
LAND USE
1. Community Compatibility
Threshold: Would the Project physically divide an established community?
Finding: No impact. (EIR, p. 4.8-6.)
Explanation: The Project Site is not located in an established community. The closest
established community to the Project Site is a residential neighborhood located approximately 0.4 -
mile northwest of the Project Site in Unincorporated Los Angeles County and a residential community
approximately 0.7 -mile southeast of the Project Site located in the City of Baldwin Park. Areas
surrounding the Project Site are zoned under the City of Irwindale General Plan as "Regional
Commercial," "Commercial/Recreation," "Industrial/Business Park," and "Quarry Overlay."
Therefore, the proposed Project would have no potential to divide an established community and no
impact would occur. (EIR, p. 4.8-6)
2. Land Use Policy Compatibility
Threshold: Would the Project cause a significant environmental impact due to a conflict with
any land use plan, policy, or regulation adopted for the purpose of avoiding or mitigating an
environmental effect?
Finding: Less than significant. (EIR, p. 4.8-16.)
Explanation: The Project would be consistent with the City of Irwindale General Plan and its
policies to address adverse environmental impacts. The Project would undergo a Zone Change in
order to allow for the site to be developed in accordance to The Park @ Live Oak Specific Plan's
Development Standards. The proposed zoning standards is not expected to create any new or more
severe environmental effects than the existing zoning standards under the City of Irwindale General
Plan. The Project is also expected to be consistent with the policies of SCAG 2016-2040 RTP/SCS.
Although the Project would require a zone change, the Project would be considered to have less
than significant impacts on the environment because zoning designations in and of themselves do
not have a physical impact on the environment. The Project would be consistent with both the City
of Irwindale General Plan and SCAG 2016-2040 RTP/SCS, therefore, the Project would have less
than significant impacts related to consistency with a land use plan, policy, or regulation adopted for
the purpose of avoiding or mitigating an environmental effect. (EIR, pp. 4.8-7 to 4.8-16)
J. NOISE
Permanent Traffic -Related Noise and Operational Noise
Threshold: Would the Project result in generation of a substantial temporary or permanent
increase in ambient noise levels in the vicinity of the Project in excess of standards established in
the local general plan or noise ordinance, or applicable standards of other agencies?
Finding: Less than significant. (EIR, p. 4.9-42.)
Explanation: The proposed Project has the potential to generate high levels of noise during
construction activities due to construction equipment. However, construction related activities would
not produce noise levels that exceed the City's significance threshold for daytime and nighttime
hours. During operation of the Project, daytime noise levels would not increase; however, the Project
would result in an increase of up to 0.1 dBA Leq during the nighttime hours. Although the Project
would result in a slight increase in nighttime ambient noise levels, the increase would not result in
an exceedance of the County's nighttime noise level threshold. Operational and construction noise
would not generate substantial temporary or permanent increase in noise levels that would exceed
local general plans or noise ordinances. Therefore, Project impacts would be less than significant.
(EIR, pp.4.9-27 to 4.9-31 and 4.9-41 to 4.9-42)
2. Groundborne Vibration and Noise
Threshold: Would the Project result in generation of excessive groundborne vibration or
groundborne noise levels?
Finding: Less than significant. (EIR, p. 4.9-47.)
Explanation: Ground borne vibration from the Project's construction would only be an intermittent,
localize intrusion. Heavy construction equipment such as bulldozers are not expected to operate
close enough to any residences to cause a vibration impact. Ground borne vibrations as a result of
the Project are not expected to reach levels that could damage to residential structures. During
operation of the Project, trucks transitioning onsite would be traveling at low speeds that would
reduce their potential of impacting nearby receivers. Therefore, the Project is expected to have less
than significant impacts. (EIR, pp. 4.9-45 to 4.9-47)
3. Airports
Threshold: For a project located within the vicinity of a private airstrip or an airport land use
plan, or, where such a plan has not been adopted, within two miles of a public airport or public use
airport, would the project expose people residing or working in the project area to excessive noise
levels?
Finding: No impact. (EIR, p. 4.948.)
Explanation: The uses proposed for the Project Site by The Park @ Live Oak Specific Plan
are not noise -sensitive. There are no private or public airports within the vicinity of the Project Site.
The closest airport to the Project Site is the EI Monte airport which is located approximately 2.8 miles
southwest of the Project Site. As shown on the Los Angeles County Airport Land Use Commission
(ALUC) GIS database, the Project Site is not located within the Airport Influence Area (AIA), Airport
Runway Protection Zone and Inner Safety Zone, or the Federal Aviation Regulations (FAR) — Part
77 Imaginary Surfaces associated with the EI Monte Airport. Additionally, the proposed Project does
not involve the construction, operation, or use of any public airports or public use airports. There are
no conditions associated with the proposed Project that would contribute to airport noise or exposure
of additional people to unacceptable levels of airport noise. Accordingly, the Project would have no
impact associated with airport noise. (EIR, p. 4.9-47 to 4.9-48)
K. PUBLIC SERVICES
Fire Services and Emergency Medical Services
Threshold: Would the Project result in substantial adverse physical impacts associated with
the provision of new or physically altered government facilities, need for new or physically altered
government facilities, the construction of which could cause significant environmental impacts, in
order to maintain acceptable service ratios, response times or other performance objectives for any
of the public services:
a) Fire protection?
Finding: Less than significant impact. (EIR, p. 4.10-7.)
Explanation: The Project Site is located approximately 2.4 north east of the closest fire
station. The proposed Project does not pose a need for a new fire protection facility. Therefore, the
Project would have a less than significant impact. (EIR, p. 4.10-1 and 4.10-6 to 4.10-7)
2. Police Protection
Threshold: Would the Project result in substantial adverse physical impacts associated with
the provision of new or physically altered government facilities, need for new or physically altered
government facilities, the construction of which could cause significant environmental impacts, in
order to maintain acceptable service ratios, response times or other performance objectives for any
of the public services:
b) Police protection?
Finding: Less than significant impact. (EIR, 4.10-8.)
Explanation: The Project Site is serviced by the Irwindale Police Department (IPD) which
provides police services throughout the City. The IPD station is located approximately 3.2 roadway
miles east of the Project Site. No new police facilities would need to be constructed as a result of the
proposed Project. Therefore, the Project will have a less than significant impact. (EIR pp. 4.10-1 to
4.10-2, and 4.10-7 to 4.10-8)
3. Education
Threshold: Would the Project result in substantial adverse physical impacts associated with
the provision of new or physically altered government facilities, need for new or physically altered
government facilities, the construction of which could cause significant environmental impacts, in
orderto maintain acceptable service ratios, response times or other performance for any of the public
services?
c) Schools?
Finding: Less than significant impact. (EIR, 4.10-8.)
Explanation: The Project Site is located within the Baldwin Park Unified School District and
Covina -Valley Unified School District. Merwin Elementary School is the only public school located
within the City and is approximately 3.2 miles southeast of the Project Site. The proposed Project
would not contain any new residences that house school age children and the Project would not
generate a need for new educational facilities. Although the Project does not directly contribute to
the demand for additional educational facilities, the Project would still be required to contribute fees
to both the Baldwin Park Unified School District and the Covina -Valley Unified School District to meet
compliance with California Senate Bill 50 (SB 50), California Government Code §§ 65995.5-65998.
SB 50 allows new developments to pay into school impact fees in order to mitigate for the potential
increase in the schools' capacity. The proposed Project is not expected to result or require any new
or expanded public school facilities. Therefore, the Project would have a less than significant impact.
(EIR, pp. 4.10-2, 4.10-8)
Finding: Less than significant impact. (EIR, 4.10-8.)
4. Parks
Threshold: Would the Project result in substantial adverse physical impacts associated with
the provision of new or physically altered government facilities, need for new or physically altered
government facilities, the construction of which could cause significant environmental impacts, in
order to maintain acceptable service ratios, response times or other performance for any of the public
services?
d) Parks?
Finding: Less than significant impact. (EIR, p. 4.10-9.)
Explanation: The nearest park facility to the Project Site is the Irwindale Park which is located
2.7 miles east of the Project Site. The proposed Project would not create a demand for construction
of new facilities nor modification of the existing facilities. Irwindale Park may be used by employees
and visitors of the Project Site. The demand of new recreational facilities is based on the generation
of a resident population within a person's place of residence, not their place of work. The proposed
Project would not create a demand for new or modified park facilities. Therefore, the Project would
have a less than significant impact. (EIR, p. 4.10-9)
5. Other Public Facilities
Threshold: Would the Project result in substantial adverse physical impacts associated with
the provision of new or physically altered government facilities, need for new or physically altered
government facilities, the construction of which could cause significant environmental impacts, in
order to maintain acceptable service ratios, response times or other performance objectives for any
of the public services?
e) Other public facilities?
Finding: Less than significant impact. (EIR, p. 4.10-9.)
Explanation: The Project would not directly create a demand for public library facilities and
would not directly result in the need to modify existing or construct new library. Demand placed on
libraries are based on the generation of a resident population associated with a person's place of
residence, and not typically their place of employment. Because the Project would not directly result
in a demand for library facilities, Project -related impacts to library facilities would be less than
significant. There are no other public services for which Project -related service demands would have
the potential to physically impact public facilities. Therefore, the Project would have less than
significant impacts. (EIR, p. 4.10-9)
L. TRANSPORTATION AND CIRCULATION
Consistent with CEQA Guidelines Section 15-64.3(b) for Vehicle Miles
Traveled
Threshold: Would the Project conflict or be inconsistent with CEQA Guidelines Section
15064.3 (b)?
Finding: No impact. (EIR, p. 4.11-62.)
Explanation: Updates to the CEQA Guidelines were approved by the State of California on
December 28, 2018 which entailed changes to the thresholds of significance for the evaluation of
impacts to transportation. Updates to the CEQA Guidelines included the addition of CEQA
Guidelines Section 15064.3, of which subdivision (b) establishes criteria for evaluating a project's
transportation impacts based on project type and using automobile Vehicle Miles Travelled (VMTs)
as the metric. Lead agencies are required to adopt VMT thresholds of significance by July 2020.
The City of Irwindale has not yet adopted a VMT metric. As such, there is no potential for the Project
to conflict with CEQA Guidelines Section 15064.3(b). No impact would occur. (EIR, pp. 4.11- 61 to
4.11-62)
2. Design Features
Threshold: Would the Project substantially increase hazards due to a geometric design
feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g. farm equipment)?
Finding: Less than significant impact. (EIR, p. p. 4.11-63.)
Explanation: Construction of on-site and site -adjacent roadway improvements would occur
in conjunction with development of the Project Site. The Project Applicant would construct curb and
gutter improvements along the Project Site's frontages where they do not currently exist which would
be implemented consistent with City of Irwindale standards. Sight distance at each Project access
point would be reviewed with respect to standard Caltrans and City of Irwindale sight distance
standards at the time of preparation of final grading, landscape, and street improvement plans.
Compliance with applicable City of Irwindale design standards for the proposed Project driveways
would ensure that the proposed site access improvements do not result in safety hazards for
motorists entering/exiting the site along Live Oak Avenue or Arrow Highway. Impacts would be less
than significant. (EIR, p. 4.11-62 to 4.11-63)
3. Emergency Access
Threshold: Would the Project result in inadequate emergency access?
Finding: Less than significant impact. (EIR, p. 4.11-63.)
Explanation: The proposed Project was reviewed by the Los Angeles County Fire Department
(LACoFD), which determined that the site access and internal circulation can accommodate
sufficient maneuvering space for fire trucks and fire -fighting crews and apparatus. Certificates of
occupancy would not be issued until sufficient emergency access has been demonstrated to the
satisfaction of the LACoFD. Through this routine plan check and inspection process, provision of
adequate emergency access will be assured. Impacts would be less than significant. (EIR, p. 4.11-
63)
M. TRIBAL CULTURAL RESOURCES
Cultural Resources
Threshold: Would the Project cause a substantial adverse change in the significance of a
tribal cultural resource, defined in Public Resources Code §21074 as either a site, feature, place,
cultural landscape that is geographically defined in term of the size and scope of the landscape,
sacred place, or object with cultural value to a California Native Tribe, and that is:
a) Listed or eligible for listing in the California Register of Historical Resources,
or in a local register of historical resources as defined in Public Resources
Code §21074.1(k), or
b) A resource determined by the lead agency, in its discretion and supported by
substantial evidence, to be significant pursuant to criteria set forth in
subdivision (c) of Public Resources Code Section 5024.1. In applying the
criteria set forth in subdivision (c) of Public Resources Code Section 5024.1,
the lead agency shall consider the significance of the resource to a California
Native American tribe.
Finding: No impact. (EIR, p. 4.12-6)
Explanation: The Project Site has been disturbed by historical sand and gravel quarry
operations and is currently undergoing reclamation via ongoing IDEFO activities; given the extensive
level of surface and subsurface alteration that have taken place over the years of the mining activities
and the ongoing reclamation process, the potential for discovery of tribal cultural resources during
the fine grading and site preparation phases of the proposed Project is considered to be nil. Similarly,
the Project's proposed off-site improvements would occur within existing roadway rights-of-way that
are already heavily disturbed under existing conditions. As part of the AB 52 and SB 18 consultation
processes required by State law, the City of Irwindale sent notification of the proposed Project on
April 3, 2018 to the Native American tribes with possible traditional or cultural affiliation to the area
in accordance with AB 52 and SB 18 requirements. The City received a request for consultation as
part of the DEIR review process from one tribe, the Gabrieleno Band of Mission Indians - Kizh Nation.
The consultation process occurred in June 2019 and concluded that because the site is an IDEFO,
there is no reasonable potential for tribal cultural resources to be present. Based on the foregoing, it
was determined that the Project would result in no impacts associated with the significance of tribal
cultural resources. (EIR, p. 4.12-6)
N. UTILITIES
New or Expanded Utilities
Threshold: Would the Project require or result in the relocation or construction of new or
expanded water, wastewater treatment or storm water drainage, electric power, natural gas, or
telecommunications facilities or expansion of existing facilities, the construction or relocation of which
could cause significant environmental effects?
Finding: Less than significant. (EIR, p. 4.13-18)
Explanation: The Project's proposed installation to and connection to utilities, as well as
installation of on-site and off-site storm water management, water, and wastewater infrastructure,
are inherent to the Project's construction phase, which is evaluated throughout the EIR. Cal
American Water (CAW) would serve the Project; a new water well would be installed on the Project
Site and off-site water infrastructure would connect the well to CAW's water distribution system. The
well would draw groundwater into CAW's water distribution system to service the Project and the
City of Hope expansion project in the City of Duarte, but no new water supply entitlements would be
required of CAW. A The existing sewer system and water treatment facilities (San Jose Creek WRP
and the Joint Water Pollution Control Plant in the City of Carson) that would serve the Project have
adequate remaining capacities to accommodate the Project's wastewater treatment demands.
Therefore, no additional wastewater treatment facilities or expansion of existing wastewater
treatment facilities would be required to accommodate wastewater treatment flows generated by the
Project. The Project area is already served by electric, gas, and telecommunications utilities, and
improvements to provide service to the Project Site would occur within existing improved rights-of-
way off-site, or on-site within areas already planned for impact and development by the Project. The
construction of storm drain infrastructure as necessary to serve the proposed Project would not result
in any potentially significant physical effects on the environment. Mitigation measures are identified
for construction -related effects that would reduce construction -phase impacts to the maximum
feasible extent. There would be no significant impacts specifically related to the installation of the
Project's proposed utility infrastructure beyond the overall construction -related effects of the Project
as a whole. Impacts would be less than significant. (EIR, pp. 4.13-15 to 4.13-18)
2. Water Supplies
Threshold: Would the Project have sufficient water supplies available to serve the Project
and reasonably foreseeable future development during normal, dry, and multiple dry years?
Finding: Less than significant impact. (EIR, p. 4.13-23.)
Explanation: The CAW obtains its potable water from ground water wells. The proposed
Project will include the installation of a new water supply on the Project Site to meet the water
demands of the Project and the City of Hope Specific Plan expansion project in the City of Duarte.
No new water supply entitlements would be required of CAW and CAW's water supply would meet
the projected water demand for the Project during average, dry, and multiple dry water years during
a 20 -year period providing the onsite groundwater well is installed. With installation of the proposed
well, CAW would have sufficient water supplies available to serve the Project during normal, dry,
and multiple dry years. There would be no significant impacts specifically related to the installation
of the proposed water well beyond the overall construction -related effects of the Project as a whole.
Therefore, the Project would have less than significant impacts. (EIR, pp 4.13-18 to 4.13-23)
3. Wastewater Treatment Capacity
Threshold: Would the Project result in a determination by the wastewater treatment provider
which serves or may serve the Project that it has adequate capacity to serve the Project's projected
demand in addition to the provider's existing commitments?
Finding: Less than significant impact. (EIR, p. 4.13-24.)
Explanation: Wastewater generated by the proposed Project would be conveyed via local
sewer lines into LACSD's regional sewer lines to a wastewater treatment facility maintained by
LACSD. Implementation of the proposed Project would utilize a small percentage of the available,
excess treatment capacity at the San Jose Creek wastewater treatment plant (WRP), which has
more than enough capacity to accommodate wastewater flows from the Project. Accordingly, there
is adequate treatment capacity to serve the Project's projected demand in addition to the LACSD's
existing commitments, and the Project's impacts would be less than significant. (EIR, pp. 4.13-23 to
4.13-24)
4. Landfill Capacity
Threshold: Would the Project generate solid waste in excess of State or local standards, or
in excess of the capacity of local infrastructure, or otherwise impair the attainment of solid waste
reduction goals?
Finding: Less than significant impact. (EIR, 4.13-26.)
Explanation: The Project's construction waste would not exceed the permitted daily capacity
of any of the landfills that serve the City of Irwindale, and long-term planning efforts to establish a
Waste -to -Rails program would further increase the City's landfill disposal capacity. The Project
would be required to comply with AB 939 which requires that a minimum of 50% of all solid waste
be diverted from landfills (by recycling, reusing, and other waste reduction strategies). Based on the
foregoing, the Project would not generate solid waste in excess of State or local standards, or in
excess of the capacity of local infrastructure, or otherwise impair the attainment of solid waste
reduction goals. Non -recyclable solid waste generated during long-term operation of the Project
would be disposed at the Puente Hills MRF, the Calabasas Sanitary Landfill, the Scholl Canyon
Landfill, and the Mesquite Regional Landfill. These landfills receive well below their maximum
permitted daily disposal volume; thus, waste generated by the Project's operation is not anticipated
to cause the landfill to exceed its maximum permitted daily disposal volume. Throughout operational
activities, the Project would be required to comply with all applicable State and local solid waste
regulations, goals, and policies. Applicable solid waste regulations include the California Solid
Waste Integrated Waste Management Act (AB 939) and the related Los Angeles County Integrated
Waste Management Plan (CIWMP); the California Solid Waste Reuse and Recycling Act of 1991
(Cal Pub Res. Code § 42911); the California Mandatory Commercial Recycling Program (AB 341);
and the solid waste provisions of CALGreen. Therefore, the Project would not generate solid waste
in excess of State or local standards, and a less -than -significant impact would occur. (EIR, pp. 4.13-
24 to 4.13-26)
5. Solid Waste Regulations
Threshold: Would the Project comply with federal, state, and local management and
reduction statues and regulations related to solid waste?
Finding: No impact. (EIR, 4.11-26.)
Explanation: The California Integrated Waste Management Act (Assembly Bill [AB] 939),
signed into law in 1989, established an integrated waste management system that focused on source
reduction, recycling, composting, and land disposal of waste. In addition, the bill established a 50%
waste reduction requirement for cities and counties by the year 2000, along with a process to ensure
environmentally safe disposal of waste that could not be diverted. Per the requirements of the
Integrated Waste Management Act, areas within Los Angeles County are subject to the County's
Integrated Waste Management Plan (CIWMP), which outlines the goals, policies, and programs the
County and its cities implement to create an integrated and cost-effective waste management system
that complies with the provisions of AB 939 and its diversion mandates. In order to achieve the
mandated goals of the Integrated Waste Management Act, separate bins would be provided on-site
to allow tenants to separate recyclable materials from refuse. Additionally, in accordance with the
California Solid Waste Reuse and Recycling Act of 1991 (Cal Pub Res. Code § 42911), the Project
is required to provide adequate areas for collecting and loading recyclable materials where solid
waste is collected. The collection areas are required to be shown on construction drawings and be
in place before occupancy permits are issued. The implementation of these mandatory requirements
would reduce the amount of solid waste generated by the Project and diverted to landfills, which in
turn will aid in the extension of the life of affected disposal sites. The Project would be required to
comply with all applicable solid waste statutes and regulations; as such, impacts related to solid
waste statutes and regulations would be less than significant. (EIR, p. 4.13-26)
FINDINGS REGARDING ENVIRONMENTAL IMPACTS MITIGATED TO A LEVEL OF LESS
THAN SIGNIFICANT.
The City Council hereby finds that feasible Mitigation Measures and Regulatory Requirements have
been identified in the EIR and this Resolution that will avoid or substantially lessen the following
potentially significant environmental impacts to a less than significant level. The potentially
significant impacts, and the Mitigation Measures and Regulatory Requirements that will reduce them
to a less than significant level, are as follows:
A. GEOLOGY AND SOILS
Fault Rupture and Seismic Ground Shaking
Threshold: Would the Project directly or indirectly cause potential substantial adverse effects,
including the risk of loss, injury or death involving:
Rupture of a known earthquake fault, as delineated on the most recent Alquist-
Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area
or based on other substantial evidence of a known fault?
ii. Strong seismic ground shaking?
iii. Seismic -related ground failure, including liquefaction?
iv. Landslides?
Finding: Less than significant impact with Mitigation Incorporated.
Explanation: There are no know active faults that extend through or towards the Project Site.
The closest active Alquist-Priolo faults are the Duarte and Sierra Madre Faults, located
approximately 2.5 miles north of the Project Site, running along the southern edge of the San Gabriel
Mountains. The Project Site is subjected to the same normal amount of seismic shaking as areas
throughout southern California, based on the active and potentially active faults in the surrounding
region. Based on the density of the engineered fill and the anticipated groundwater depths (greater
than 50 feet below ground surface (bgs)), the potential for liquefaction in the Project area is
considered low. Additionally, the Project Site is not depicted as being located within a zone
designated by the State Geologist as being susceptible to soil liquefaction; therefore, the potential
for liquefaction to occur along the margins of the Project Site that contain native materials is also
considered low. Buildings located within the Project Site must comply with the California Building
Standards Code (CBSC) (Title 24) and the City of Irwindale Municipal Code standards, which
address seismic shaking and liquefaction. In addition to meeting these standards, CBSC (Chapter
18) and the City of Irwindale Municipal Code Section 16.17.050 requires development projects to
prepare geological engineering reports that identify site specific geologic and seismic conditions and
provides site specific recommendations that preclude adverse effects. With mandatory compliance
with the CBSC (Title 24), and the City of Irwindale Municipal Code, as well as the standard and
Project -specific design and construction recommendations set forth in the Project's geotechnical
report, buildings would be constructed to withstand seismic ground shaking and liquefaction.
Under existing conditions, the Project Site before reclamation is subject to landslides. However, as
IDEFO activities continue, the topography of the Project Site will change and be restored from a
former sand and gravel quarry to the final grade conditions. At the final grade, the Project Site will
be relatively flat, with no major slopes that may be subject to landslides. Accordingly, the current
seismically -induced landslide hazards will be eliminated with completion of the IDEFO activities.
Based on the generally dense condition of the compacted inert landfill materials on the Project Site,
the potential for seismically -induced settlement at the Project Site is considered low. However, the
margins of the site (within the native materials and above the areas of the former quarry slopes), the
westerly areas of the site, and the northeast corner of the Project Site contain native materials;
therefore, in these areas of the Project Site where native materials are present, there is a potential
for seismically -induced settlement. Accordingly, implementation of the proposed Project would result
in a potentially significant impact as a result of seismically -induced settlement on the site margins
(within the native materials and above the areas of the former quarry slopes and westerly area) of
the Project Site. Before mitigation the Project would have significant direct impacts as a result of the
seismically induced settlements on the Project Site margins. However, through the implementation
of mitigation measures MM 4.4-1 through MM 4.4-4, impacts associated with seismically induced
settlement would be reduced to less than significant. (EIR, pp. 4.4-14 to 4.4-16 and 4.4-23)
Mitigation Measure 4,4-1 Prior to the issuance of the first grading or building permit
within each of the construction phase areas, the City of Irwindale shall confirm that the
activities authorized by approved Grading Permit No. 05061504220003 are complete
in the each of the respective construction phase areas, and that the final geologic and
soil conditions of the site, as called for by the approved Grading Permit No.
05061504220003, are documented in a final report prepared by a licensed geologist
or civil engineer.
Mitigation Measure 4.4-2 Project construction activities shall be required to comply
with the recommendations contained in Section 8 of the Geotechnical Report prepared
by HD Geosolutions Inc., dated April 17, 2018, and included as Technical Appendix D
to The Park @ Live Oak Draft EIR. The recommendations contain specifications for
grading, building foundations, building floor slabs, basement and retaining walls, and
paving
Mitigation Measure 4.4-3 Prior to the issuance of the first grading or building permit
associated with the Project, a licensed geotechnical engineer shall examine the
perimeter of the property and the westerly area of the Project Site that consists of
native soils and/or fill materials that were not placed and compacted under engineering
supervision as part of the IDEFO. These areas shall be examined by a licensed
geotechnical engineer performing geotechnical explorations to determine if substantial
differential settlement has the potential to occur as the result of seismic settlement
based on the differences between the compacted materials within the IDEFO and the
uncompacted materials outside of the IDEFO. If yes, flexible connections shall be
used based on the recommendations of the geotechnical engineer for all utilities
passing from the uncompacted materials outside the IDEFO to the soils within the
IDEFO. Flexible connections shall be designed such that potential differential
settlements calculated as a result of the geotechnical exploration and analysis can be
safely accommodated within wet or dry utilities, thereby safeguarding utility lines
against potential seismic hazards. The findings of the geological explorations and
recommendations shall be documented in a report prepared by the licensed
geotechnical engineer. The report shall be approved by the City of Irwindale and the
recommendations contained in the report shall be implemented and required as
building permit conditions of approval.
Mitigation Measure 4.4-4 Building foundations shall be contained within the portions
of the property that are underlain by fill that was placed and compacted under
engineering supervision as part of the IDEFO. If a building foundation is proposed in
an area that is not underlain by compacted fill, prior to issuance of a fine grading permit
or building permit, a licensed geotechnical engineer shall examine the soil and
geologic conditions, review detailed construction plans, and provide recommendations
in a written report to address potential seismically -induced settlement hazards that
may be associated with the building. Recommendations may include deepened
foundations, removal of the uncompacted soil and replacement with fill material similar
in nature to that which was placed and compacted as part of the IDEFO, the use of
structural slabs, or comparable method to provide adequate foundation support and
building performance. The report shall be approved by the City of Irwindale and the
recommendations contained in the report shall be implemented and required as
building permit conditions of approval. No building permit shall be issued for building
foundation construction in an area of the property that was not compacted as part of
the IDEFO until the licensed geotechnical engineer has either deemed the existing soil
and geologic conditions suitable for the proposed development, or, if deemed
unsuitable under existing conditions, until the recommendations for addressing
potential seismically -induced settlement are identified and indicated on construction
plans and documents. As part of the City's final grading and/or building verification,
the City shall ensure that all recommendations of the Project's geotechnical engineer
have been constructed in conformance with the approved building and construction
plans
2. Unstable Soils
Threshold: Would the Project be located on a geologic unit or soil that is unstable, or that
would become unstable as a result of the Project, and potentially result in on- or off-site landslide,
lateral spreading, subsidence, liquefaction, or collapse?
Finding: Less than significant impact with Mitigation Incorporated.
Explanation: Following IDEFO activities, the final grade conditions of the Project Site will
consist of engineered fill ranging from 0-170 feet thick, surrounded by and underlain by alluvium to
an unknown depth. At final grade the Project Site will be relatively flat and no open face slopes will
remain. The Project's grading plan does not propose any prominent slopes within the Project Site
than may expose the Project to landslide risks. Because the Project Site is not located within a zone
designated by the State Geologist as being susceptible to soil liquefaction -related hazard, it is
unlikely that the Project Site will experience lateral spreading and/or liquefaction. Groundwater
depths are expected to be approximately 60 to 70 feet below finish grade. As a result of IDEFO
activities, the quarry has been filled with compacted inert materials for the restoration to final grade
and allowing the Project Site conditions to be suitable for development. The Project Site is not located
within an area of known subsidence associated with fluid withdrawal (groundwater or petroleum),
peat oxidation, or hydro -compaction. There is no potential for engineering fill, as a result of IDEFO
activities, to pose safety issues associated with potential collapse. However, at the margins of the
site (above the areas of the former quarry slopes and the western area of the Project Site) is looser
native materials potentially subject to seismically -induced settlement. Before mitigation the Project
would have significant direct impacts as a result of the seismically induced settlements on the Project
Site margins. However, through the implementation of mitigation measures MM 4.4-1 through MM
4.4-4, impacts associated with settlement potential would be reduced to less than significant. (EIR,
pp. 4.4-18 and 4.4-23)
Mitigation Measure 4.4-1 Prior to the issuance of the first grading or building permit
within each of the construction phase areas, the City of Irwindale shall confirm that the
activities authorized by approved Grading Permit No. 05061504220003 are complete
in the each of the respective construction phase areas, and that the final geologic and
soil conditions of the site, as called for by the approved Grading Permit No.
05061504220003, are documented in a final report prepared by a licensed geologist
or civil engineer.
Mitigation Measure 4.4-2 Project construction activities shall be required to comply
with the recommendations contained in Section 8 of the Geotechnical Report prepared
by HD Geosolutions Inc., dated April 17, 2018, and included as Technical Appendix D
to The Park @ Live Oak Draft EIR. The recommendations contain specifications for
grading, building foundations, building floor slabs, basement and retaining walls, and
paving