Ordinance No. 836 - Wal-Mart Real Estate BusinessORDINANCE NO. 836
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ROSEMEAD, CALIFORNIA APPROVING A
DEVELOPMENT AGREEMENT WITH WAL-MART REAL
ESTATE BUSINESS TRUST FOR DEVELOPMENT OF
PROPERTY LOCATED AT THE SOUTHWEST CORNER
OF WALNUT GROVE AVENUE AND RUSH STREET
(DEVELOPMENT AGREEMENT 04-01)
THE CITY COUNCIL OF THE CITY OF ROSEMEAD DOES HEREBY ORDAIN AS
(40 FOLLOWS:
SECTION 1. Background.
A. Development Resource Consultants has filed applications for development of a
22.5 acre siteabounded by Delta Street to the west, Rush Street to the north, Walnut
Grove Avenue to the east, and the Panda Restaurant Group corporate building which is
located immediately south of and adjacent to the southern border of the project site.
Development Resources Consultant sought approval of a 253,267 square foot
retail/commercial center which would include a 230,367 square foot general
merchandise/grocery sales store (Wal-Mart), a gas station with eight fueling pumps, and
approximately another 22,000 square feet of restaurant and retail uses (the 'Proposed
Project').
B. The Proposed Project required approval by the Planning Commission of a
tentative parcel map to divide the parcel into 6 lots and conditional use permits to
establish a gas station, allow the sale of alcoholic beverages, and establish a "mini-mall"
as defined by Chapter 17.04 of the Rosemead Municipal Code. The Project also
requires approval by the City Council of a General Plan amendment to the Land Use
Element, changing the designation of the site from "Office/Light Industrial" to
"Commercial" and making corresponding textual changes. The Developer has also
requested approval of a 10 year Development Agreement between the City of
Rosemead and Wal-Mart Real Estate Business Trust which will give Wal-Mart a vested
right to develop and construct the project in accordance with the entitlements received
from the City pursuant to its discretionary approvals as well as all existing land use
regulations and development standards in existence at the time the Development
Agreement is approved.
C. The City of Rosemead has conducted an extensive environmental review for the
Proposed Project which included an EIR prepared by the independent consulting firm of
Applied Planning, Inc., with technical reports concerning traffic and circulation impacts;
air quality, noise, and geotechnical effects; and an economic/market impact analysis, as
well as a review of the Proposed Project site's previous environmental documentation.
The following is a summary of the City's environmental review:
A Scoping Meeting was held on November 19, 2003, to solicit input from
the public on the content of the Draft Environmental Impact Report. This
meeting was held at the Doubletree Hotel in Rosemead, and was attended
by approximately 300 people.
A Notice of Preparation (NOP) and Initial Study identifying the scope of
environmental issues were distributed to numerous state, federal, and
local agencies and organizations on December 12, 2003. A total of 12
. comment letters were received from state, regional and local agencies,
and an additional 29 letters were received from individuals. Copies of
those comment letters, along with copies of numerous signatures on
"Petition Protesting Wal-Mart" forms, are included in Appendix A of the
Draft EIR (under separate cover). Relevant comments received in
response to the NOP/Initial Study were incorporated into the Draft EIR.
The Draft EIR was distributed for public review on May 17, 2004, for a 45-
day review period with the comment period expiring on July 2, 2004; the
FEIR includes response to comments received through July 20, 2004, well
past the public review period.
A Notice of Completion (NOC) was sent with the Draft EIR to the State
Clearinghouse on May 17, 2004. A Notice of Availability of the Draft EIR
for public review was mailed to interested parties on May 13, 2004. The
Notice of Availability was transmitted to the Los Angeles County Clerk's
office for posting on May 17, 2004 and published in the San Gabriel Valley
Tribune on May 12, 2004.
Comment letters on the Draft EIR were received at the close of the public
comment period. The letters and responses to these comments are
included in the Final EIR.
Responses to comments were distributed in accordance with CEQA 10
days prior to the August 16, 2004.
The Planning Commission held a duly noticed and advertised public
hearing on August 16, 2004 to consider the Final EIR, the parcel map and
conditional use permits and recommendation on the General Plan
Amendment and Development Agreement to the City Council along with
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the staff recommendations on these items, at which time oral and written
testimony was considered. Notice of this Planning Commission hearing
was provided through publication on August 2, 2004.
D. At the close of the public hearing on August 16, 2004, the Planning Commission
took the following actions:
1. Adoption of Resolution No. 04-22, certifying the Environmental Impact
Report for Tentative Parcel Map 26827 and Conditional Use Permits 02-
882 (mini-mall), 02-883 (gasoline station) and 03-939 (alcohol sales) and
recommending that the City Council certify the EIR for the Development
Agreement and General Plan Amendment; and
. 2. Adoption of Resolution No. 04-23, approving tentative parcel map 26827
for the Project Design Alternative for a four lot division and conditional use
permits 02-882 (mini-mall), 03-939 (alcohol sales), denying conditional
use permit 02-883 (gasoline station), adopting and approving findings,
mitigation measures, a statement of overriding considerations and a
mitigation monitoring program for the approved actions and
recommending that the City Council approve the General Plan
Amendment and Development Agreement subject to the same
environmental findings.
E. On August 17, 2004, Mayor Pro Tern Imperial filed an appeal of the Planning
Commission's actions in order that the City Council could decide all matters pertaining
to the applications so that there would be uniformity of approvals, disapprovals and/or
conditions.
F. On August 24, 2004, the City Council continued its regular meeting to September
7, 2004 in order to hear testimony on this matter.
G. On August 25, 2004, a public hearing notice was published in the San Gabriel
Valley Tribune.
H. On September 7, 2004 the City Council held a duly noticed public hearing on this
Project, including this Development Agreement, at which time it considered all evidence
presented, both oral and written.
1. Prior to adopting this Ordinance the City Council adopted Resolution No. 2004-
36, certifying the EIR for the Proposed Project, adopted Resolution No. 2004-37
approving the General Plan Amendment changing the designation of the Property for
Office/Light Industrial to Commercial and making corresponding text changes; adopted
Resolution No. 2004-38 upholding the decision of the Planning Commission in
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approving Tentative Parcel Map 26827 for a four lot division, approving conditional use
permits for the mini-mall on Parcel 2 and the sale of alcoholic beverages at the major
tenant on Parcel 1, and denying the conditional use permit for a gasoline station, and
adopted Resolution No. 2004-39 adopting and approving findings, mitigation measures,
a statement of overriding considerations, and a mitigation monitoring program for the
Project.
Section 2. The City Council finds, determines and declares:
A. The adoption of the proposed Development Agreement will not be detrimental to
the health, safety, peace, morals, comfort and general welfare of persons residing or
working in the neighborhood of the Project or be detrimental to property and
. improvements in the neighborhood or to the general welfare of the City;
B. The proposed Development Agreement is consistent with the City's General
Plan;
C. The proposed Development Agreement will promote and provide for the
development of retail facilities that are currently not available to the residents of the City;
D. The proposed Development Agreement is compatible with the uses authorized in
and the Regulations prescribed for the land use district in which the property is located;
E. The proposed Development Agreement will not adversely affect the orderly
development of property or the preservation of property value;
F. The project will provide significant benefits to the City in the form of local
shopping opportunities, increased tax revenues and employment opportunities.
Section 3. The City Council hereby approves Development Agreement 04-01
attached hereto for the property heretofore described and the provisions of said
Development Agreement shall prevail over any conflicting provisions of the Rosemead
Municipal Code.
Section 4. The City Clerk shall certify to the adoption of this Ordinance.
PASSED, APPROVED and ADOPTED this '9~ day of 2004.
Margare Isar Mayor
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ATTEST:
Nancy Vald rrama, CIVIC City Clerk
City of Rosemead, California
U
0
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF ROSEMEAD
I, Nancy Valderrama, City Clerk of the City of Rosemead, do hereby certify that the
foregoing Ordinance No. 836 being:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD,
CALIFORNIA APPROVING A DEVELOPMENT AGREEMENT WITH WAL-MART
REAL ESTATE BUSINESS TRUST FOR DEVELOPMENT OF PROPERTY
LOCATED AT THE SOUTHWEST CORNER OF WALNUT GROVE AVENUE AND
RUSH STREET (DEVELOPMENT AGREEMENT 04-01)
was duly adopted at a regular meeting of the Rosemead City Council on the 14a' day of
September, 2004 by the following vote to wit:
YES: COUNCILMEMBERS, VASQUEZ, ALARCON, CLARK, IMPERIAL,
TAYLOR
NO:
NONE
ABSENT:
NONE
ABSTAIN:
NONE
r City Clerk
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Jay C. Egenes, Esq.
Gresham, Savage, Nolan & Tilden, LLP
550 East Hospitality Lane, Suite 300
San Bernardino, CA 92408
SPACE ABOVE THIS LRJE FOR RECORDER'S USE
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF ROSEMEAD
AND
WAL-MART REAL ESTATE BUSINESS TRUST
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this
day of 2004, by and between the CITY OF ROSEMEAD, a municipal
corporation ("City"), and WAL-MART REAL ESTATE BUSINESS TRUST, a Delaware statutory
trust (herein "Developer"), pursuant to the authority of Article 2.5, Chapter 4, Division 1, Title 7
(Sections 65864 et seq.) of the Government Code, relating to development agreements with respect to
the following matters:
RECITALS
A. Government Code sections 65864 to 65869.5 (herein the "Development Agreement
Law") provides that cities and counties may enter into development agreement with private interests
•for the mutual benefit of the parties to such agreements, on satisfaction of the conditions specified
therein.
B. This Agreement relates to the retail development project at the intersection of Walnut
Grove Avenue and Rush Street, in the City of Rosemead, County of Los Angeles, State of California
(the "Project"). A legal description of the Project land (the "Property") is attached hereto as
Exhibit DA-A and incorporated herein by reference. The Project is described on Exhibit DA-B
attached hereto and incorporated herein by reference, and is depicted on the Site Plan attached hereto
as Exhibit DA-C and incorporated herein by reference ("Site Plan"). Developer has a legal or
equitable interest in the Property.
C. The Project is expected to be built in phases. "Phase I" shall mean the first phase of
development of the Project, including construction of approximately 147,580 square feet of retail
commercial space, a garden center of approximately 14,300 square feet, a greenhouse of approximately
,000 square feet, and such roadway, parking and other improvements,as are required to be constructed
n Phase I in accordance with the conditions of approval for the Project. "Buildout" shall mean
construction of the outpads and Expansion Area as depicted on the Site Plan attached as Exhibit DA-C.
D. City and Developer have, in good faith, negotiated the terms of this Agreement
hereinafter set forth. Said terms are consistent with the purposes set forth in the Development
Agreement Law and will assure City, Developer and the residents of the City that the Property will be
developed in a manner consistent with the laws of the State of California and the ordinances, policies,
procedures and adopted plans of the City.
E. City, in response to Developer's applications for land use entitlements to develop the
Property and following public hearings and any required environmental analysis, has granted various
land use entitlements for the Project to be built on the Property, which entitlements and approvals are
described in Exhibit DA-D attached hereto and incorporated herein by reference. Exhibit DA-D also
lists future land use entitlements and approvals for the Project that will be required as a precondition to
the issuance of building permits for the construction of any structures on the Property, but which have
not yet been granted by the City.
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F. Development of the Property and Project pursuant to the terms and conditions of the
various present and future entitlements and approvals described in Exhibit DA-D, and the
environmental approvals issued for the Project will provide for orderly growth and development
consistent with the development standards, policies and programs of City.
G. City and Developer have taken all actions mandated by and fulfilled all requirements set
forth in the Development Agreement Law.
H. Having duly considered this Agreement and having held the noticed public hearings,
City finds and declares that the provisions of this Agreement are consistent with the Applicable
Standards (as defined herein) in effect on the date of this Agreement.
AGREEMENT
NOW, THEREFORE, the City and Developer, pursuant to the authority contained in
the Development Agreement Law and in consideration of the mutual covenants and agreements
contained herein, agree as follows:
Effective Date.
The effective date of this Agreement shall be the thirtieth day following the adoption by the
City Council of the Ordinance approving this Agreement (the "Effective Date").
2. Definitions.
(a) "Applicable Standards" means:
(i) The provisions of this Agreement; and
(ii) Land use entitlements and approvals applicable to the Project listed in
Exhibit DA-D, and the conditions of their approval attached hereto as Exhibit
DA-E and incorporated herein by reference, to the extent that same have been
granted to all or a portion of the Project on the Effective Date; and
(iii) Land use entitlements and approvals applicable to the Project that are requested
by Developer and granted to all or a portion of the Project following the
Effective Date, including any and all subsequent tentative maps, use permits,
design review and building permits: and
(iv) Existing Land Use Regulations.
(b) "Existing Land Use Regulations" means the ordinances, resolutions and regulations
adopted by the City Council in effect on the Effective Date that govern the permitted uses of
land, the density and intensity of use, the timing of development, any sign improvements, the
engineering design standards and, except as provided below with respect to the Construction
Codes construction specifications applicable to the development of the Project, including, but
not limited to:
(i) The Zoning Ordinance found in Chapter 17 of the Rosemead City Code (the
"City Zoning Law"); and
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(ii) The Subdivision Ordinance found in Chapter 16 of the Rosemead City Code (the
"City Subdivision Law").
(c) "Construction Code" shall mean the Los Angeles County Building Code and those
other uniform construction, fire and other codes applicable to improvements, structures and
development, and the applicable version or revision of said codes in place at that time that a
building, grading or other permit subject to such Construction Codes is submitted to the City
for approval, provided that all of the following shall apply:
(i) Such Construction Codes have been adopted by the City and are in effect on a
Citywide basis;
(ii) Such Construction Codes shall be interpreted and applied in a reasonable
manner consistent with the express provisions and limits in the particular
Construction Code(s) adopted by the City; and
Is I
(iii) The provisions of such Construction Code(s) shall be interpreted and applied
to the property in a manner consistent with the generally prevailing interpretation
of such provision(s) under the State Building Standards Code.
3. Duration.
(a) This Agreement shall expire ten (10) years from the Effective Date of this Agreement.
In the event that litigation to which the City and/or the Developer, or any of its officers, agents,
employees, contractors, representatives or consultants, is a party, should delay implementation
or construction of the Project on the Property, the expiration date of this Agreement shall be
tolled from the time the summons and complaint is served on the defendant(s) until the
judgment entered by the court is final and not subject to appeal. The term of this Agreement
may be extended at any time before its termination date by the mutual agreement of the parties
to this Agreement and by following the procedures for the extension of the term of statutory
development agreements which are provided for by the resolutions or ordinances of the City
Council and by the Development Agreement Law.
(b) The Developer shall commence construction of Phase I on or prior to the date which is
three years from the Effective Date and shall thereafter diligently prosecute the same to
completion. In the event that litigation to which the City and/or the Developer, or any of its
officers, agents, employees, contractors, representatives or consultants, is a party, should delay
implementation or construction of the Project on the Property, this deadline shall be extended
from the time the summons and complaint is served on the defendant(s) until the judgment
entered by the court is final and not subject to appeal. As used in this subsection (b), the term
"commence construction" shall mean commencement of the pouring of a foundation for the
building contemplated to be constructed as part of Phase I. In the event that Developer fails to
timely commence construction of Phase I and thereafter diligently prosecute the same to
completion, City may, but shall not be required to, give Developer a notice pursuant to
Section 17 below, and Developer shall have a thirty (30) day period as referred to in Section 17
below to cure or to reasonably commence procedures or actions needed to cure such failure. In
the event that Developer does not cure or reasonably commence procedures or actions needed
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to effect such cure within such thirty (30) days, the City's sole remedy, exercisable in its sole
discretion, shall be to elect to terminate this Agreement. It is expressly agreed by the parties
hereto, for their own benefit and that of their successors-in-interest, that nothing contained in
this Agreement shall be construed to contain a covenant, either express or implied, to either
commence the operation of a business, or thereafter continuously operate a business upon the
Property or any portion thereof. City recognizes and agrees that Developer may, at
Developer's sole and absolute discretion and at any time during or after the expiration of the
term of this Agreement, cease the operation of its business upon the Property or any portion
thereof, and City hereby waives any legal action for damages or for equitable relief which
might otherwise be available to City because of such cessation of business activity by
Developer or its successor-in-interest.
(c) Buildout of the Project, in whole or in part, is not required by this Agreement and is
wholly in the discretion of the Developer.
Development Standards for the Project.
(a) Subject to Developer's fulfillment of its obligations under this Agreement, upon the
Effective Date of this Agreement, the City hereby grants to Developer a vested right to develop
and construct on the Property all the improvements for the Project authorized by, and in
accordance with the terms of this Agreement and the Applicable Standards. In no event shall
the permitted uses of the Property, the density or intensity of use, or the maximum height and
size of proposed buildings exceed those set forth in the Applicable Standards.
(b) Upon such grant of right, Developer's exercise of such right and all other rights
provided to Developer under this Agreement shall not be impaired, affected or limited by any
ordinance, resolution, or other measure, initiative adopted by the voters of the City or any other
body having jurisdiction that directly or indirectly relates to, or limits, the rate, timing or
sequencing of the development of, or construction on, all or any part of the Project that is in
16 conflict with the Applicable Standards, or that reduces the development rights provided by this
Agreement or any amendment thereto. Without limiting the foregoing general statement, and
for all purposes pursuant to this Agreement generally, and this Section specifically, an
ordinance, resolution, moratorium or other measure shall be deemed to conflict with the
Applicable Standards if the ordinance, resolution, initiative or measure seeks to, whether as
part of a specific or general enactment that applies to the Property or Project: (i) limit or reduce
the density, intensity, height or size of structures or type of development on the Property; (ii)
regulate the timing of the development of the Property in any manner; (iii) increase, or
accelerate the due dates of, any fees applicable to the development of the Property; (iv) require
any additional on-site or off-site improvements not required by the Applicable Standards to be
constructed or paid for by Developer or a subsequent owner of the Property; or (v) restricting
the use of the Property in any manner or degree, other than restrictions expressly set forth in the
Applicable Standards.
5. Permits for the Project.
Developer shall be subject to the applicable Construction Codes and shall pay those processing
fees, building permit fees, and other similar permit and entitlement fees which are in force and
effect on a Citywide basis at the time the application for those permits is presented. Building
permits and certificates of occupancy shall be issued by the City after the City's review and
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approval of Developer's applications therefore, provided that City's review of the applications
for such permits and certificates is limited to determining whether the following conditions are
met:
1. The application is complete;
2. The application demonstrates that Developer has complied with the
conditions of the Applicable Standards and the Construction
Codes; and
3. All applicable processing, administrative and legal fees have been
paid, subject to the provisions of this Agreement.
6. Vesting of Approvals.
• During the term of this Agreement, unless sooner terminated in accordance with the terms
hereof, in developing the Property consistent with the Project described herein, Developer is
assured, and City agrees, that the development rights, obligations, terms and conditions
specified in the Applicable Standards are and shall be fully vested in the Developer and may
not be changed or modified by the City, except as may be expressly permitted by, and in
accordance with, the terms and conditions of this Agreement, or as expressly consented thereto
by the Developer to the extent such proposed change or modification is applicable thereto.
7. Cooperation Between Parties in Implementation of this Agreement.
The Developer and City shall proceed in a reasonable and expeditious manner, in compliance
with the deadlines mandated by applicable agreements, statutes or ordinances, to complete all
steps necessary for implementation of this Agreement and development of the Property in
accordance with the terms of this Agreement. The City shall proceed in an expeditious manner
to complete all actions required for the development of the Project, including but not limited to,
processing and checking all maps, plans, permits, building plans and specifications and other
plans relating to development of the Property filed by Developer or its nominee, successor or
assign as necessary for development of the Property. It is the parties' express intent to
cooperate with one another and diligently work to implement all land use and building
approvals for development of the Property in accordance with the terms of this Agreement.
8. New Taxes.
Any subsequently enacted city-wide taxes shall apply to the Property provided that: (1) the
application of such taxes to the Property is prospective; and (2) the application of such taxes
would not prevent development in accordance with this Agreement.
9. Indemnity.
Developer agrees to indemnify, defend and hold harmless City, and its elected and appointed
councils, boards, commissions, officers, agents, employees, and representatives from any and
all claims, costs (including legal fees and costs) and liability for any personal injury or property
damage which may arise directly or indirectly as a result of any actions or in actions by the
Developer, or any actions or in actions of Developer's contractors, subcontractors, agents, or
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employees in connection with the construction, improvement, operation, or maintenance of the
Project, provided that Developer shall have no indemnification obligation with respect to
negligence or willful misconduct of City, its contractors, subcontractors, agents or employees
or with respect to the maintenance, use or condition of any improvement after the time it has
been dedicated to and accepted by the City or another public entity (except as provided in an
improvement agreement or maintenance bond).
10. Assignment.
Developer may at any time or from time to time transfer its right, title or interest in or to all or
any portion of the Property. In accordance with Government Code Section 65868.5, the
burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure
to, all successors in interest to Developer in the Property. As a condition precedent to any such
transfer, Developer shall require the transferee to acknowledge in writing that transferee has
been informed, understands and agrees that the burdens and benefits under this Agreement
• relating to such transferred property shall be binding upon and inure to the benefit of the
transferee.
Within 10 days of the date escrow closes on any such transfer (a "Transfer Date"), Developer
shall notify the City in writing of the name and address of the transferee. Upon the completion
of Developer's responsibilities pursuant to this section, Developer shall have no further
obligations or, benefits hereunder with respect to such transferred property save for those the
performance of which was due prior to the Transfer Date. Any transfer which does not comply
with the notice requirements of this paragraph shall not release the Developer from its
obligations to the City under this Agreement.
11. Covenants Run With The Land.
The terms of this Agreement are legislative in nature, and apply to the Property as regulatory
ordinances. During the term of this Agreement, all of the provisions, agreements, rights,
powers, standards, terms, covenants and obligations contained in this Agreement shall run with
the land and 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 or entities acquiring the Property, any lot, parcel or any portion thereof, and
any interest therein, whether by sale, operation of law or other manner, and they shall inure to
the benefit of the parties and their respective successors.
12. Conflict with State or Federal Law.
In the event that State or Federal laws or regulations, enacted after the Effective Date, prevent
or preclude compliance with one or more provisions of this Agreement, such provisions of this
Agreement shall be modified or suspended as may be necessary to comply with such State or
Federal laws or regulations. The Project shall be deemed modified only to the extent necessary
to comply with future state or federal laws or regulations. Notwithstanding the foregoing,
Developer shall have the right to challenge, at its sole cost, in a court of competent jurisdiction,
the law or regulation preventing compliance with the terms of this Agreement and, if the
challenge in a court of competent jurisdiction is successful, this Agreement shall remain
unmodified and in full force and effect. In the event that state or federal laws or regulations
enacted after the Effective Date of this Agreement prevent or preclude compliance with one or
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more provisions of this Agreement or require changes in any of the Applicable Standards, the
parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to
comply with such federal or state law or regulation. Any such amendment or suspension of the
Agreement shall be approved by the City Council in accordance with the Development
Agreement Law.
13. Periodic Review.
During the term of this Agreement, the City shall conduct "annual" and/or "special" reviews of
Developer's good faith compliance with the terms and conditions of this Agreement in
accordance with the Applicable Standards and the Development Agreement Law.
14. Amendment or Cancellation of Agreement.
This Agreement may be further amended or terminated only in writing and in the manner set
• forth in Government Code Sections 65865.1, 65868, 65869.5 and the Development Agreement
Law.
15. Agreement is Entire Agreement.
This Agreement and all exhibits attached hereto or incorporated herein contain the sole and
entire Agreement between the parties concerning the Property and Project. The parties
acknowledge and agree that neither of them has made any representation with respect to the
subject matter of this Agreement or any representations inducing the execution and delivery
hereof, except representations set forth herein, and each party acknowledges that it has relied
on its own judgment in entering this Agreement. The parties further acknowledge that all
statements or representations that heretofore may have been made by either of them to the other
are void and of no effect, and that neither of them has relied thereon in its dealings with the
other.
~6. Events of Default.
Developer shall be in default under this Agreement (an "Event of Default") upon the
happening of one or more of the following events:
(a) If a warranty, representation or statement made or furnished by Developer to the City is
false or proves to have been false in any material respect when it was made if the City shows
that such warranty, representation or statement would have had a material, adverse effect on the
City's willingness to enter into this Agreement; or
(b) A finding and determination by the City made following an annual or special review
under the procedure provided for in Government Code Section 65865.1 and the Development
Agreement Law that, upon the basis of substantial evidence, Developer has not complied in
good faith with the terms and conditions of this Agreement.
(c) Developer fails to fulfill any of its obligations set forth in this Agreement.
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17. Procedure Upon Default.
(a) The City shall give Developer written notice of any Event of Default under this
Agreement, which shall reasonably describe the alleged Event of Default, and Developer shall
have thirty (30) days after the date of receipt of the notice to cure the Event of Default or to
reasonably commence the procedures or actions needed to cure the Event of Default.
(b) Upon the occurrence of an Event of Default not cured by the Developer pursuant to
Section 17(a) above, the City may terminate or modify this Agreement in accordance with the
provisions of Government Code Section 65865.1 and the Development Agreement Law.
(c) The City shall not be deemed to have waived any claim of defect in Developer's
performance if, on annual or special review, the City does not propose to terminate this
Agreement.
• (d) No waiver or failure by the City or Developer to enforce any provision of this
Agreement shall be deemed to be a waiver of any provision of this Agreement or of any
subsequent breach of the same or any other provision.
(e) Any actions for breach of this Agreement shall be decided in a court of competent
jurisdiction located in Los Angeles County, California.
18. Attorneys Fees and Costs.
If legal action by either party is brought because of breach of this Agreement or to enforce a
provision of this Agreement, the prevailing party is entitled to reasonable attorney's fees and
court costs. In the event of any administrative, legal or equitable action or other proceeding
instituted by any person, entity or organization challenging the validity of the Project, this
Agreement, any Subsequent Approval, or the sufficiency of any environmental review, the
parties agree to cooperate with each other in the defense of any such challenge. In the event
• City and Developer are unable to select mutually agreeable legal counsel to defend such action
or proceeding, each may select its own legal counsel. Notwithstanding the above, City and
Developer agree that City may, at its sole option, tender the complete defense of any such third
party challenge to the Developer, and upon acceptance of such tender by Developer, Developer
shall indemnify and hold harmless City against any and all fees and costs arising out of the
defense of such challenge and shall control the defense. Should Developer refuse to accept such
a tender by the City, City may defend such action or proceeding and if City so defends,
Developer shall indemnify and hold City harmless from all attorneys' fees related to such
defense.
19. Severability.
If any term or condition of this Agreement is for any reason held by a final judgment of a court
of competent jurisdiction to be invalid, then this Agreement shall continue to be valid unless
the provision that is found to be invalid constitutes a material change in the consideration for
this Agreement, in which case, at, the election by written notice of the party adversely affected
by such change, this entire Agreement shall likewise be invalid, and shall be deemed null and
void and of no further force or effect following such judicial determination.
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20. No Third Parties Benefited.
No person other than the City, Developer, or their respective successors is intended to or shall
have any right or claim under this Agreement, this Agreement being for the sole benefit and
protection of the parties hereto and their respective successors. Similarly, no amendment or
waiver of any provision of this Agreement shall require the consent or acknowledgment of any
person not a party or successor in interest to a party to this Agreement.
21. Binding Effect of Agreement.
The provisions of this Agreement shall bind and inure to the benefit of the parties originally
named herein and their respective successors and assigns.
22. Relationship of Parties.
It is understood that this Agreement is a contract that has been negotiated and voluntarily
entered into by City and Developer and that the Developer is not an agent of City. The parties
do not intend to create a partnership, joint venture or any other joint business relationship by
this Agreement. The City and Developer hereby renounce the existence of any form of joint
venture or partnership between them, and agree that nothing contained herein or in any
document executed in connection herewith shall be construed as making the City and
Developer joint venturers or partners. Neither Developer nor any of Developer's agents or
contractors are or shall be considered to be agents of City in connection with the performance
of Developer's obligations under this Agreement.
23. Bankruptcy.
The obligations of this Agreement shall not be dischargeable in bankruptcy.
24. Mortgagee Protection: Certain Rights of Cure
• (a) Mortgage Protection. This Agreement shall be superior and senior to all liens placed
upon the Property or portion thereof after the date on which a memorandum of this Agreement
is recorded, including the lien of any deed of trust or mortgage ("Mortgage").
Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair
the lien of any Mortgage made in good faith and for value, but all of the terms and conditions
contained in this Agreement shall be binding upon and effective against all persons and entities,
including all deed of trust beneficiaries or mortgagees ("Mortgagees") who acquire title to the
Property or any portion thereof by foreclosure, trustee's sale, deed in lieu of foreclosure or
otherwise.
(b) Mortgagee Not Obligated. No foreclosing Mortgagee shall have any obligation or duty
under this Agreement to construct or complete the construction of any improvements required
by this Agreement, or to pay for or guarantee construction or completion thereof. City, upon
receipt of a written request therefore from a foreclosing Mortgagee, shall permit the Mortgagee
to succeed to the rights and obligations of Developer under this Agreement, provided that all
defaults by Developer hereunder that are reasonably susceptible of being cured are cured by the
Mortgagee as soon as is reasonably possible, or Mortgagee provides assurances reasonably
-9-
N :\W599-000\Development Agnit 05
08/31/04
satisfactory to City that such defaults will be cured. The foreclosing Mortgagee thereafter shall
comply with all of the provisions of this Agreement.
(c) Notice of Default to Mortgagee. If City receives notice from a Mortgagee requesting a
copy of any notice of default given to Developer hereunder and specifying the address for
service thereof, City shall deliver to the Mortgagee concurrently with service thereof to
Developer, all notices given to Developer describing all claims by the City that and Event of
Default has occurred, or will, after the expiration of any applicable cure period, occur. If City
determines that Developer is in noncompliance with this Agreement, City also shall serve
notice of noncompliance on the Mortgagee, concurrently with service thereof on Developer.
Each Mortgagee shall have the right during the same period available to Developer to cure or
remedy, or to commence to cure or remedy, the condition of default claimed or the areas of
noncompliance set forth in City's notice.
25. Estoppel Certificate.
•
Either party from time to time may deliver written notice to the other party requesting written
certification that, to the knowledge of the certifying party (i) this Agreement is in full force and
effect and constitutes a binding obligation of the parties; (ii) this Agreement has not been
amended or modified either orally or in writing, or, if it has been amended or modified,
specifying the nature of the amendments or modifications; and (iii) the requesting party is not
in default in the performance of its obligations under this Agreement, or if in default,
describing therein the nature and monetary amount, if any, of the default. A party receiving a
request hereunder shall execute and return the certificate within thirty (30) days after receipt
thereof. The City Manager of the City shall have the right to execute the certificates requested
by Developer hereunder. City acknowledges that a certificate hereunder may be relied upon by
permitted transferees and Mortgagees. At the request of the Developer, the certificates
provided by City establishing the status of this Agreement with respect to the Property shall be
in recordable form, and Developer shall have the right to record the certificate at its cost.
06. Force Majeure.
Notwithstanding anything to the contrary contained herein, either party shall be excused for the
period of any delay in the performance of any of its obligations hereunder, when prevented
from so doing by certain causes beyond its control, including, and limited to, major weather
differences from the normal weather conditions for the Rosemead, California area, war, acts of
God or of the public enemy, fires, floods, strikes, freight embargoes, and acts of the
government (other than the City).
27. Rules of Construction and Miscellaneous Terms.
(a) The singular includes the plural; the masculine gender includes the feminine; "shall" is
mandatory, "may" is permissive.
(b) Time is and shall be of the essence in this Agreement.
(c) Where a party to this Agreement consists of more than one person, each such person
shall be jointly and severally liable for the performance of such party's obligation hereunder.
-t0-
NAW598-OOWDevelopment Agmt 05
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(d) The captions in this Agreement are for convenience only, are not a part of this
Agreement and do not in any way limit or amplify the provisions thereof.
(e) This Agreement shall be interpreted and enforced in accordance with the laws of the
State of California in effect on the date thereof.
28. Exhibits
Exhibit DA-A - Legal Description
Exhibit DA-B - Description of the Project
Exhibit DA-C - Site Plan
Exhibit DA-D - Project Approvals
Exhibit DA-E - Conditions of Approval
29. Notices
All notices required or provided for under this Agreement be in writing and delivered in person
or sent by certified mail, postage prepaid. Notice required to be given to the City shall be
addressed as follow:
City of Rosemead
Attention: Brad Johnson, Planning Director
8838 East Valley Boulevard
Rosemead, California 91770
Notices required to be given to Developer shall be addressed as follows:
Wal-Mart Real Estate Business Trust
Attention: Real Estate Manager
2001 S.E. 10` Street
Bentonville, Arkansas 72712
• and to:
with a copy to:
Wal-Mart Real Estate Business Trust
Attention: President
2001 S.E. 10th Street
Bentonville, Arkansas 72712
Gresham, Savage, Nolan & Tilden, LLP
Attention: Mark Ostoich, Esq.
550 E. Hospitality Lane, Suite 300
San Bernardino, California 92408
A party may change its address for notice by giving notice in writing to the other party and
thereafter notices shall be addressed and transmitted to the new address.
[Signatures Contained on Following Page]
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N:\R'59g-000\Nvelopment Agmt 05
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IN WITNESS WHEREOF this Agreement has been executed by the parties on the day
and year first above written.
ATTEST:
City Clerk
0
APPROVED AS TO FORM
City Attorney
i
STATE OF ARKANSAS )
COUNTY OF BENTON )
CITY OF ROSEMEAD
DEVELOPER
WAL-MART REAL ESTATE BUSINESS
TRUST, a Delaware statutory trust
By:
Its:
On , 2004, before me, the undersigned, a Notary Public in and for said
County and State, personally appeared
, personally known to me or proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
Notary Public
_tz-
N:\W59g-0000evelopment Agmt OS
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EXHIBIT DA-A
LEGAL DESCRIPTION OF PROPERTY
A METES AND BOUNDS DESCRIPTION THAT ENCOMPASSES PARCELS 1, 2 & 3 OF TENTATIVE
PARCEL MAP NO. 26827, IN THE CITY OF ROSEMEAD, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA.
•
•
N:\W598-000\Development Agmt 05
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EXHIBIT DA-B
DESCRIPTION OF THE PROJECT
Development of the Rosemead Commercial Retail Center on a 22.35 acre vacant site which is bounded
by Delta Street to the west, Rush Street to the North and Walnut Grove Avenue to the east. The
development site will be composed of three legal parcels created by Tentative Parcel Map 26827 which
may be improved with the following uses:
Parcel 1 - 230,165 square feet of building area for general merchandise and grocery sales;
Parcel 2 - 3,000 square foot building for general merchandise;
.Parcel 3 - 2,448 square foot restaurant building.
The Project is more particularly delineated on the Site Plan attached as Exhibit DA-C and the Floor Plans,
Elevations and Landscape Plans referenced in Planning Condition No. 1 of the Conditions of Approval
attached as Exhibit DA-E.
0
N \W 598-000\Developnxnt AKmt 05
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EXHIBIT DA-C
SITE PLAN
[Final Site Plan to be Attached]
l1 J
0
NAW598-00MDevelopment Agmt 05
08/31/04
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EXHIBIT DA-D
APPROVALS
A. The land use entitlements and approvals which have concurrently herewith or
heretofore been granted by the City for the Project as of the Effective Date are as follows:
(i) General Plan Amendment (changing General Plan designation from Office/Light
Industrial to Commercial) as approved by City Council Resolution No. 2004-38.
(ii) Tentative Parcel Map No. 26287.
(iii) Conditional. Use Permit No. 03-939 (allowing alcohol sales inside the Wal-Mart
building).
0 (iv) Conditional Use Permit No. 02-882 (allowing operation of a "mini-mall" on
Parcel 2 of the property).
B. The land use entitlements and approvals which have yet to be granted by the City for
the Project on the Effective Date are as follows:
(i) All approvals, other than those specified in Paragraph A, above, required by the
Rosemead Zoning Ordinance, the Rosemead Subdivision Ordinance, or the
provisions of this Agreement for any future development on the Property.
(ii) Design review of any future development on the Property.
•
N:\W598-000\Developv zit Agmt 0S
08/31/04
EXHIBIT DA-E
TENTATIVE PARCEL MAP 26827
CONDITIONAL USE PERMIT 02-882
CONDITIONAL USE PERMIT 03-939
DEVELOPMENT AGREEMENT 04-01
1827 WALNUT GROVE AVENUE
(ROSEMEAD COMMERCIAL RETAIL CENTER)
CONDITIONS OF APPROVAL
AS AFFIRMED BY THE CITY COUNCIL
0 PLANNING CONDITIONS
1. The Site shall be developed and parcelized in accordance with the Tentative
Parcel Map for the Project Design Alternative marked Exhibit "D" dated
August 05, 2004, the Development Plans (Site Plan, Floor Plans, Elevations,
and Landscape Plans) marked Exhibit "E" and submitted colored elevations
and color and material sample boards, marked Exhibit "F". Any revisions to
the approved plans must be resubmitted for review and approval by the
Planning Department.
2. Approval of Development Agreement 04-01, Tentative Parcel Map 26827,
and Conditional Use Permits 02-882 and 03-939 shall not take effect for any
purpose until the Developer has filed with the City of Rosemead an affidavit
stating that they are aware of and accept all of the conditions set forth in this
• list of conditions.
3. The rights granted by Tentative Parcel Map 26827 and Conditional Use
Permits 02-882 for the mini-mall and 03-939 for the sale of alcohol shall be
exercised within the time set forth in the Development Agreement.
4. The Developer shall comply with all Federal, State and local laws relative to
the approved uses including all requirements of the Planning, Building,
Engineering, Fire, Sheriff and Health Departments and obtaining all operating
permits from State and local agencies prior to issuance of a Certificate of
Occupancy.
5. A final certificate of occupancy will not be granted until all improvements
required by this approval have been completed, inspected, and approved by
the appropriate department(s); except for off-site improvements for which
bonds are acceptable as approved by the Planning Department. However, a
temporary certificate of occupancy may be issued so interior work can be
completed. Nothing herein requires all improvements to be built at the same
time, nor does it prohibit the phasing of the major tenant anchor store,
provided that the landscaping and parking lot improvements are installed with
the first phase.
6. The Developer shall develop and implement a Site and Facilities Security
Plan which is to be approved by the Sheriffs Department, in its reasonable
discretion, prior to the issuance of building permits for Parcel 1. At a
minimum the plan shall include private security guards, or other as approved
by the Sheriff's Department, parking lot patrols, videotaping of the parking lot
with signs informing the public of such, and security cameras inside the major
anchor store.
• 7. The Developer shall obtain a Certificate of Occupancy permit and any
applicable City of Rosemead business licenses prior to beginning business
operations. The Planning Director may issue a temporary Certificate of
Occupancy to allow the store to be set up and stocked prior to opening if all
safety conditions have been satisfied. A final Certificate of Occupancy shall
be required prior to the store being opened to the public.
8. Building permits will not be issued in connection with any project until such
time as all plan check fees, and all other applicable fees are paid in full for
improvements on each parcel as such parcel is developed.
9. The Developer shall be required to complete all of the parking and
landscaping on Parcel 1 with the first phase of construction.
10. Prior to issuance of building permits for improvements on each parcel, all
school fees shall be paid. The Developer shall provide the City with written
verification of compliance from the Garvey School District.
11. The hours of construction shall be limited from 7 a.m. to 8 p.m. Monday -
Saturday. No construction shall take place on Sundays or on any legal
holidays without prior approval by the City.
12. Developer and its successors shall be required to meet with staff for a pre-
construction meeting prior to the beginning of any site work.
13. City staff shall have access to the subject property during construction hours
to monitor progress.
2
14. The conditions listed on this Exhibit "A" shall be copied directly onto
development plans submitted to the Planning and Building Departments for
review.
15. Driveways and parking areas shall be surfaced and improved with asphalt
cement and thereafter maintained in good serviceable condition. Driveway
entrances shall be improved with a decorative, stamped, colored concrete
surface, subject to the review and approval of the Planning Director.
16. Sufficient off-street parking shall be provided on-site to meet the requirements
of the Rosemead Municipal Code, including parking for persons with
disabilities (in accordance with the most current edition of the Americans With
Disabilities Act Accessibility Guidelines).
• 17. A wall and fence plan will be required if any perimeter fencing or walls are
proposed. The colors and materials of the proposed fence shall be consistent
or compliment the submitted color and material board and first be approved
by the Planning Department prior to installation.
18. Prior to issuance of building permits, a detailed landscape and irrigation plan
prepared by a licensed landscaped architect shall be submitted to the
Planning Department for review and approval for the Parcel being improved;
said plan shall reflect the landscape and site plans contained in Exhibit C.
a. The plan shall include automatic timers and rain shutoff valves;
b. Landscaping irrigation systems shall be designed for high efficiency and
irrigation timers programmed for minimized water usage;
• c. All landscape planters shall be surrounded by 4 - 6 inch high curbs.
d. A landscape edge treatment of approximately 32 feet shall be provided
along the westerly Delta St. project boundary.
e. Perimeter landscaping along Walnut Grove Avenue and Rush Street shall
continue the landscaping themes of those corridors.
f. Additional landscape and hardscape features shall be developed along
the Rush Street perimeter to provide additional visual interest and
enhancement.
19. All landscaping and irrigation shall be installed and completed prior to final
Planning Department approval. Perimeter landscaping shall be installed
concurrent with the development of Parcel 1; landscaping on the interior of
3
Parcels 2 and 3 need not be implemented until building permits are taken out
for the improvements on each of those parcels.
20. All ground level mechanical/utility equipment (including meters, back flow
preservation devices, fire valves, A/C condensers, furnaces and other
equipment) shall be located away from public view or adequately screened by
landscaping or screening walls so as not to be seen from the public right-of-
way. The Director of Planning shall approve said screening prior to
installation.
21. All loading areas, mechanical equipment and trash disposal areas shall be
screened from view with materials approved by the Planning Department.
• 22. All trash enclosures shall be constructed to City Standards.
23. There shall be no roof mounted equipment extending above the parapet wall
of the building. A line of sight analysis to ensure zero visibility of roof top
equipment shall be submitted to the Planning Division for review and
approval.
24. There shall be no outside storage of shipping containers, other than in
screened areas indicated on the approved site plan. All trash and debris shall
be contained within a trash enclosure or compactor.
25. There shall be no outdoor sales activity, on the site except as allowed by
temporary sales as set forth in condition 26 below; no outside vending
machines shall be allowed.
26. Except for the outside display and storage of Christmas trees and pumpkins
which is a permitted use under the Municipal Code, the. outdoor seasonal
and/or promotional sales displays shall only be allowed when issued a
temporary outdoor sales license by the City (an over-the-counter
administrative approval). All requirements of the temporary outdoor sales
ordinance shall be followed. .
27. Electronic Shopping Cart wheel locks shall be installed on all carts that are
utilized on the site to contain all carts within the perimeter property lines of the
shopping center.
28. "No overnight camping" and "No Loitering" signs shall be installed throughout
the parking lot area on signs acceptable to the Planning Department.
4
29. Developer shall post signs stating "possession of open alcoholic beverages
on the premises prohibited by law", along sidewalks and parking lots. Size,
location and material of signs shall be to the satisfaction of the Planning
Department.
30. Conditional Use Permit No. 03-939 is for the issuance of an Off Sale alcohol
license for a Type 21 (general alcohol). The appropriate license from the
California Alcoholic Beverage Control shall be maintained and all conditions
of the ABC license are hereby incorporated as conditions of this CUP
approval. Violation of either the conditions of this approval or the ABC
conditions shall be grounds for revocation of the CUP approval.
31. A uniform sign plan shall be submitted for review.
• 32. Any proposed signage must be reviewed and approved by the Planning
Division and must comply with City Sign Regulations.
33. Signs shall reflect material and design elements of the project and shall be
compatible with the streetscape elements of adjoining areas.
34. The numbers of the address signs shall be at least 6" tall with a minimum
character width of 1/4", contrasting in color and easily visible at driver's level
from the street. Materials, colors, location and size of such address numbers
shall be approved by the Director of Planning prior to installation.
35. All utilities shall be placed underground including facilities and wires for the
supply and distribution of electrical energy, telephone, cable television etc.
The underground conversion of these utilities shall consider all future
connections to the satisfaction of the Director of Planning.
36. Violation of the conditions of approval may result in citation and/or initiation of
revocation proceedings. ,
37. Minor modifications of the approved plans, except for the plans for the mini-
mall on Parcel 2, may be approved by the Planning Director. The Rosemead
Planning Commission must act on any substantial changes to the approved
plans, to any changes of these conditions of approval and to any changes of
plans approved for the mini-mall on Parcel 2.
38. The Developer shall pay the required "Document Handling Fee" in order to
file the Notice of Determination with the County of Los Angeles.
39. The Developer shall install the type of lights identified in the mitigation
monitoring program. Downlit fixtures shall be used to shield light emissions
5
onto adjoining properties. The overall height of the light pole and fixture shall
not exceed 24 feet. The poles shall be steel, aluminum, or other similar
approved material. The style of the poles shall compliment the fixture design.
All wall pack fixtures must be cutoff (shielded) fixtures.
40. A lighting plan (photometric plan), addressing parking lot security lighting on-
site, shall be submitted in conjunction with the Final Site Plan application for
review and approval by the City Planning Department.
41. A 14-foot high decorative block wall shall be constructed along the northern
and western boundary and along the southern boundary to the depth of the
truck well with the development of Parcel 1.
• 42. All mitigation measures set forth in the Mitigation Monitoring Program are
incorporated as conditions of approval. Unless otherwise specified, any
mitigation measure listed in the EIR which was not included in the Mitigation
Monitoring Program shall be deemed to have been included as a mitigation
measure as though included in the Mitigation Monitoring Program and
incorporated as a condition of approval. In the case of any conflict between
the mitigation measures and these conditions, the wording that provides the
most protections to the City shall apply. Mitigation Measure 4.4.9 is
specifically excluded as the CUP for the gasoline station is not approved.
43. Truck deliveries shall not occur between 10 p.m. to_6 a.m. the following day
and routing shall be approved by the Planning Department.
44. No portion of the parking lot area shall be used by or sublet for any other
business activity not associated with general merchandise/grocery activities.
45. CC&Rs requiring maintenance of the parking lots, landscaped areas and
parkway landscaping on parcels 1, 2 and 3 shall be recorded. The CC&Rs
shall be submitted for review and approval by the City prior to recordation of
the parcel map. These provisions of the CC&Rs may not be amended or
deleted without the prior written consent of the City. The City shall be a third
party beneficiary to the CC&Rs and shall have the right to enforce these
requirements.
46. No access to the site shall be provided from Delta Avenue.
47. Bollards shall be located adjacent to all pedestrian service doors in locations
approved by the Building Division in order to prevent vehicles from blocking
access.
6
48. During construction, all roads shall be kept free of nails or other construction
debris that may pose a hazard to emergency and other city vehicles.
49. An as-built set of plans shall be submitted upon completion of the project.
50. The walls on the outside of the Project Site shall be coated with graffiti-
resistant materials or landscaping treatments such as wall-climbing vines
shall be planted to help deter graffiti. Tenants shall be responsible for
cleaning graffiti on their buildings within 48 hours of notification of such
graffiti; the major tenant shall be responsible for cleaning graffiti on the
perimeter walls of the Project Site within this same time period. Complaints
regarding graffiti on the perimeter walls or on the major tenant's building may
be made to the customer service department of the major tenant.
• 51. Developer shall file arNotice of Intent with the State Regional Water Quality
Board.
52. In the event of any administrative, legal or equitable action or other
proceeding instituted by any person, entity or organization challenging the
validity of the project approvals to which these conditions attach or
challenging the sufficiency of any environmental review, the Developer shall
cooperate with the City in the defense of any such challenge. Developer
agrees that City may, at its sole option, tender the complete defense of any
such third party challenge to the Developer, and upon acceptance of such
tender by Developer, Developer shall indemnify and hold harmless City
against any and all fees and costs arising out of the defense of such
challenge and shall control the defense. Should Developer refuse to accept
such a tender by the City, City may defend such action or proceeding and if
City so defends, Developer shall indemnify and hold City harmless from all
attorneys' fees related to such defense.
53. The Developer shall pay for all of the City's costs, including the costs of
outside consultants, incurred in working on the CEQA and project entitlement
review and shall pay for all costs related to the Mitigation Monitoring Program.
Prior to beginning construction, the Developer shall pay all fees incurred to
date and shall deposit $10,000 toward the Mitigation Monitoring Program.
The City shall keep track of the actual costs of the Mitigation Monitoring
Program and in the case of a difference between the deposit and the actual
cost, the Developer shall either pay for any additional costs or the City shall
refund the difference.
54. Until such time as the grocery store component is opened, the hours of
operation of the major tenant shall be limited to 8 a.m. to 10 p.m., except
7
during Christmas season, in which case the hours of operation may be
extended to midnight. At such time as the grocery store component is
opened, the major tenant may operate on a 24 hour basis.
55. The parking lot lights shall be dimmed two hours after closing.
56. No single can sales of alcohol shall be allowed; the liquor department shall
not be located near an entrance.
57. All references to the "Developer" shall include any successors in interest.
58. The cart storage area in front of the stores shall be fully screened from view.
• 59. The Planning Commission shall conduct an annual review of the major
tenant's operation to insure that it is complying with all conditions of approval.
The first review shall take place one year after a certificate of occupancy, or
temporary certificate of occupancy, is issued.
60. No guns, handguns, rifles, or other types of firearms or ammunition shall be
sold from any business on the Project Site.
8
CITY ENGINEER'S CONDITIONS OF APPROVAL
Details shown on the tentative map are not necessarily approved. Any details
which are inconsistent with requirements of ordinances, general conditions of
approval, or City Engineer's policies must be specifically approved in the final
map or improvement plan approvals. .
2. A final parcel map prepared by, or under the direction of a Registered Civil
Engineer authorized to practice land surveying, or a Licensed Land Surveyor,
must be processed through the City Engineer's office prior to being filed with the
County Recorder.
. 3. A preliminary subdivision guarantee is required showing all fee interest holders
and encumbrances. An updated title report shall be provided before the final
parcel map is released for filing with the County Recorder.
4. Monumentation of parcel map boundaries, street centerline and lot boundaries is
required for a map based on afield survey.
5. Final parcel map shall be filed with the County Recorder and one (1) mylar copy
of filed map shall be submitted to the City Engineer's office. Prior to the release
of the final map by the City, a refundable deposit in the amount of $1,000 shall be
submitted by the developer to the City, which will be refunded upon receipt of the
mylar copy of the filed map.
6. Unless superseded by the provisions of the Development Agreement, the
developer shall comply with all requirements of the Subdivision Map Act.
• 7. Developer shall obtain a public works permit for all work in or adjacent to the
public right-of-way.
8. Developer shall install and complete all necessary public improvements,
including but not limited to street, curbs, gutters, sidewalks, handicap ramps, and
storm drains, along the entire street frontage of the development site as required
by the City Engineer. i
9. The project proponent shall dedicate appropriate right-of-way or easements to
accommodate improvements adjacent to and on the project site, if applicable.
10. A precise grading and drainage plan, prepared by a civil engineer registered in
the State of California, shall be submitted to the Building Department for approval
prior to the issuance of building permits, which shall conform to all requirements
of the City of Rosemead Grading Ordinances. The grading plan shall include,
9
but not be limited to:
a. Prior to the recordation of the final map, grading and drainage plans must
be approved to provide for contributory drainage from adjoining properties
as approved by the City Engineer, including dedication of the necessary
easements.
b. The grading and drainage plan must provide for each lot having an
independent drainage system to the public street, to a public drainage
facility, or by means of an approved drainage easement.
c. Historical or existing storm water flow from adjacent lots must be received
and directed by gravity to the street, a public drainage facility,• or an
• approved drainage easement.
d. The proposed drainage system shall be constructed and connected to the
existing storm drain in Walnut Grove Avenue. Developer shall process the
storm drain plans through Los Angeles County Department of Public
Works.
e. Surface water generated from each lot shall not drain over the sidewalk or
driveway into the gutter on Delta Avenue, Rush Street and Walnut Grove
Avenue.
f. Developer must comply with the City's storm water ordinance and SUSMP
requirements.
0 11. For parcels 1, 2 and 3 only, Developer shall prepare and record a covenant,
subject to City Engineer's approval, to allow cross lot drainage.
12. For parcels 1, 2 and 3 only, Developer shall prepare and record a covenant,
subject to City Engineer's approval, for ingress and egress, utility and drainage
easement, fire lane, to the extent not provided on the parcel map, and
maintenance of the private driveways.
13. Developer shall prepare and record a covenant, subject to City Engineer's
approval, for reciprocal vehicular and pedestrian access between parcels 1, 2
and 3.
14. Roadways shall be improved as required by the City Engineer.
15. The final layout and site driveway design, shall be subject to the review and
approval of the City Engineer.
10
16. New drive approaches shall be constructed at least 5' from any above-ground
obstructions in the public right-of-way to the top of "x" or the obstruction shall be
relocated.
17. Drive approaches shall be at least 20' wide.
18. Clear unobstructed sight distances shall be provided at all unsignalized site
driveways.
19. Clear visibility of pedestrians approaching on-site intersection crosswalks shall
be provided; signage and other objects shall not obstruct clear views between
drivers and pedestrians.
• 20. The project proponent shall coordinate with the City of Rosemead and the
County Fire Department during the development review process to ensure the
adequacy of the proposed: (1) driveway vertical profiles, to ensure a smooth
transition between the roadway and the driveway change in grade, (2)
designation of the curb at the building face as a fire lane, to ensure that
emergency vehicles have access to all building faces, and (3) the internal
circulation system relative to emergency access.
21. The project proponent shall comply with the requirements of the applicable
transportation agencies regarding the public transit facilities required on or
off-site, as set forth by the City Engineer.
22. Damaged curb, gutter and sidewalk along Delta Avenue, Rush Street and Walnut
Grove Avenue shall be reconstructed.
• 23. Developer shall construct handicapped access ramps at all on-site intersections
and site driveways.
24. Developer shall modify the existing traffic signal at the intersection of Walnut
Grove Avenue and Rush Street to include north/south left-turn phasing in
conjunction with the proposed development. Pedestrian crossing improvements
at this intersection shall be provided to the satisfaction of the City.
25. The north site access on Walnut Grove shall be signalized in conjunction with the
construction of the initial phase of the proposed commercial center. At the
construction stage, the developer shall provide signal timing plans and
interconnect the closely adjoining signalized intersections to provide adequate
coordination. Pedestrian crossing improvements at this intersection shall be
provided to the satisfaction of the City.
26. Developer shall provide two (2) entering, and two (2) exiting lanes at the north
site access driveway on Walnut Grove. To provide efficient signal operation at
the north site access on Walnut Grove, separate sensing of the driveway's
right-turn and left-turn exit lanes shall be provided. The left turn exiting lane at
this location shall be a minimum of 100 feet in length.
27. A median break with a minimum 225-foot recessed left-turn bay shall be provided
for NB Walnut Grove at the north Walnut Grove driveway access.
28. The customer entrance on Rush Street shall be signalized in conjunction with the
construction of the initial phase of the proposed commercial center and provide
separate right-turn and left-turn lanes for vehicles leaving the site. At the
construction stage, the developer shall provide signal timing plans and
• interconnect the closely adjoining signalized intersections to provide adequate
coordination.
29. The existing EB left-turn bay on Rush Street at Walnut Grove shall be lengthened
to a minimum of 325 feet.
30. A left-turn bay shall be provided at the median openings for the customer access
on Rush Avenue.
31. There shall be no delivery truck driveway on Rush Street; delivery trucks shall
take access off of Walnut Grove Avenue.
32. The developer shall install all street name signs, stop signs, and all other
miscellaneous signage as deemed necessary-by the City Engineer, regardless of
whether such signs are shown on the street improvement plans. All signs must
• be installed to City of Rosemead, County and/or Caltrans standards, as
applicable, prior to utility clearances and occupancy certification of the first
development phase.
33. The developer shall be responsible for installing or repairing all centerline
striping, traffic legends, raised reflective pavement markers and other traffic
delineation required by the City Engineer, including signal loops damaged or
required to be installed as a requirement of the project.
34. All on-site parking and circulation areas shall be paved as required by a
pavement engineering or geotechnical report prepared by a civil engineer,
subject to review and approval of the City Engineer.
35. Developer shall construct handicapped access ramps per City standards at the
corners of Walnut Grove Avenue and Rush Street, and Rush Street and Delta
Avenue.
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36. Vehicle storage space in all left-turn bays associated with site access points and
the adjacent intersection shall be provided to the satisfaction of the City
Engineer.
37. The site design shall provide the facilities necessary to safely integrate alternate
transportation modes such as bicycle usage, pedestrian access, and transit
operations into the site access and circulation system on-site and minimize the
area where vehicle conflicts with bicyclists and pedestrians can occur.
38. Bicycle rack(s) shall be installed pursuant to Chapter 12.32 of the Rosemead
Municipal Code.
. 39. Left-turn site egress shall be prohibited at the proposed southern site access on
Walnut Grove Avenue.
40. Street trees sized at a minimum of 24 inch boxed, shall be installed within the
setback areas adjacent to the parkway of all streets. The type, size and location
of the street trees shall be approved and inspected prior to planting by the City
Engineer.
41. Prior to issuance of a certificate of occupancy for Phase 1 Improvements,
Developer shall deposit an amount determined by the City Engineer for the costs
of installing a flashing beacon at school crossing and funding a school crossing
guard program at the corner of Rush Street and Delta Avenue for a minimum of
20 years.
42. The Walnut Grove Avenue entry shall be 58 feet, providing four (4) 12-foot lanes,
• two inbound and two outbound, and a 10-foot wide landscaped median.
43. Approval of this land division is contingent upon the installation of local 8-inch
(minimum) main line public sewer within a dedicated (10 feet minimum)
easement to the City. Separate house laterals shall be constructed to serve
each lot of the land division.
44. The developer shall send a print of the sewer plans to the City and to the Los
Angeles County Department of Public Works for review. Approval must be
assured prior to filing this land division map.
45. The developer shall consult the City Engineer to determine the sewer location
and design requirements.
46. Any utilities that are in conflict with the development shall be relocated at the
developer's expense.
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47. All lots shall be served by adequately sized water system facilities, which shall
include fire hydrants of the size, type and location as determined by the Fire
Chief.
48. The water mains shall be of sufficient size to accommodate the total domestic
and fire flow required for the land division. Domestic flows required are to be
determined by the City Engineer. Fire flows required are to be determined by the
Fire Chief.
49. Plans and specifications for the water system facilities shall be submitted for
approval to the water company serving this land division. The subdivider shall
submit an agreement and other evidence, satisfactory to the City Engineer,
. indicating that the subdivider has entered into a contract with the servicing water
purveyor guaranteeing payment and installation of the water improvements.
50. Prior to the filing of the final map, there shall also be filed with the City Engineer,
a statement from the water purveyor indicating subdivider compliance with the
Fire Chiefs fire flow requirements.
51. Any fast food restaurants proposed with drive-through facilities shall be designed
to provide safe on-site traffic circulation which does not conflict with entering or
exiting traffic to the site, on-site parking or pedestrian movements. Sufficient
reservoir space shall be provided to store four vehicles between the order board
and the pick-up window (not including the car at the order point or the car at the
pick-up window). Storage for at least four vehicles shall also be provided in
advance of the menu board.
• 52. If any oil, gas or injection wells are discovered within the Project Boundaries, the
Developer shall notify the Department of Conservation (Cypress office) and
comply with any necessary closure/remedial actions required by DOC.
53. Sidewalks shall be installed on the easterly side of Delta immediately adjacent to
the street frontage of the Project site; Delta shall be fully improved to City
standards to the satisfaction of the City Engineer.
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FIRE - CONDITIONS OF APPROVAL
1. An engineered automatic sprinkler system is required to be installed pursuant to
applicable Building and Fire Codes to the satisfaction of the County Fire
Department. Plans for such a system shall be submitted for review and approval
by the County Fire Department prior to the issuance of building permits.
2. The use or storage of any hazardous or flammable materials shall comply with
the requirements of the Fire Department and must be in compliance with the
Uniform Fire Code.
3. Underground fuel storage tanks and any associated tank connections shall be
submitted to the Los Angeles County Department of Health Services for approval
. prior to review/approval by the County Fire Department. Contractors performing
said work shall obtain a Fire Department Permit prior to commencement of work.
Access roadways shall be provided as per the current edition of the Uniform Fire
Code and property marking designating "No Parking" where necessary to ensure
an unobstructed clear width.
4. A water supply system shall be installed, capable of providing the required fire
flow for the proposed type of development as per requirements of the applicable
Fire Code.
5. Where access to or within a structure area is restricted because of secured
openings and immediate access is necessary for life saves or fire fighting
purposes, a Knox Box is to be installed in an accessible location as approved by
the Fire Department. The Knox box shall be of a type approved by the Fire
Department.
• 6. Fire apparatus access roads shall be required for any building constructed where
any portion of an exterior wall is located more than 150 feet from Fire
Department vehicle access point. Fire apparatus roads shall have an
unobstructed width of not less than twenty (20) feet and an unobstructed vertical
clearance of not less than thirteen (13) feet, six (6) inches.
7. All streets and access roadways as approved on the final tract map shall be
maintained in such a manner as to provide access for emergency vehicles at all
times during construction phase. All streets and/or access roadways shall be
constructed and maintained as to provide a smooth driving surface of not less
than twenty (20) feet of unobstructed width, capable of supporting the imposed
load of Fire Department apparatus and/or emergency rescue equipment to
within seventy-five (75) feet of all structures. Failure by the developer and the
persons responsible for the project site to comply with this provision or any of
the other requirements outlined in Rosemead Municipal Code and the applicable
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Fire Code, will be cause for the Fire Chief to require that all activity be
discontinued pending compliance.
8. If temporary fencing is used to enclose the construction site, at least two (2)
means of unobstructed access must be installed and maintained each of which is
to be located as to give maximum access to all parts of the site. Locking devices
shall be of materials which can be readily forced by equipment used by the Los
Angeles County Fire Department.
9. The storage or stacking of lumber, fabricated components or other combustible
materials is not permitted nor shall the storage of structure framing lumber be
initiated within the City limits until all water lines and hydrants, as set forth on
the approved water map for the project, have been installed and approved by the
Los Angeles County Fire Department.
10. To the extent not already covered by the conditions set forth herein, the
development shall conform to the regulations of the California State Fire Marshal
as contained within Title 19 and Title 24 of the California Code of Regulations.
11. The developer shall submit a list of hazardous or flammable materials used or
stored and the quantities of each to the Building Division prior to plan check. A
hazardous material management plan (HMMP) per UBC 307.1.6 shall be
prepared and submitted prior to plan check submittal. Additional fees incurred by
Building Division shall be paid for the analysis and review of the HMMC.
12. When required, permits from County Department of Health Services for use,
storage, or disposal of hazardous materials shall be obtained prior to final
approval of the project Certificate of Occupancy.
1013. The final development plans shall comply with all applicable code and ordinance
requirements for construction, access, water mains, fire flows and hydrants and
shall meet the following minimum requirements:
a. Development may require fire flows up to 5,000 gallons per minute at 20
pounds per square inch residual pressure for up to a five-hour duration;
final fire flows will be based on the size of buildings, its relationship to
other structures, property lines, and types of construction.
b. Fire hydrant spacing shall be 300 feet and shall meet the following
requirements:
i. No portion of lot frontage shall be more than 200 feet via vehicular
access from a public fire hydrant
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ii. Additional hydrants shall be required if hydrant spacing exceeds
specified distances;
c. Turning radii shall be not less than 32 feet;
d. A Fire Department approved turning area shall be provided for all
driveways exceeding 150 feet in length; all on-site driveways shall provide
a minimum unobstructed width of 28 feet, clear-to-sky. The on-site
driveway is to be within 150 feet of all portions of the exterior walls of the
first story of any building.
14. Specific fire and life safety requirement for the construction phase will be
imposed during building fire plan check.
15. All buildings shall be accessible to Fire Department apparatus by way of access
roadways, with an all weather surface of not less than the width prescribed by the
Fire Department, unobstructed, clear-to-sky. The roadway shall be extended to
within 150 feet of all portions of the exterior walls when measured by an
t unobstructed route around the exterior of the building.
16. Fire sprinklers shall be required in all buildings.
•
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ATTEST:
Nancy Vald rrama, CIVIC City Clerk
City of Rosemead, California
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