11/02/2021 - AGENDA ITEM 3 - CONSIDERATION OF THE ADOPTION OF ORDINANCE NOS. 2489 AND 2490AGENDA ITEM NO. 3
AGENDA STAFF REPORT
City of West Covina I Office of the City Manager
DATE: November 2, 2021
TO: Mayor and City Council
FROM: David Carmany
City Manager
SUBJECT: CONSIDERATION OF THE ADOPTION OF ORDINANCE NOS. 2489 AND 2490
RECOMMENDATION:
It is recommended that the City Council adopt the following Ordinances:
ORDINANCE NO. 2489 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
WEST COVINA, CALIFORNIA, APPROVING ZONE CHANGE NO.20-04 TO CHANGE THE
ZONING DESIGNATION AT 1211 E. BADILLO STREET TO MANUFACTURING (M-1)
ORDINANCE NO. 2490 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
WEST COVINA, CALIFORNIA APPROVING DEVELOPMENT AGREEMENT NO. 21-01, A
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF WEST COVINA AND AG WEST
COVINA OWNERS LLC FOR THE DEVELOPMENT OF THE AMAZON DELIVERY
STATION DAX9 PROJECT
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The request for Zone Change No. 20-04 (Ordinance No. 2489) to change the zoning designation for 1211 E.
Badillo Street from SP-11 Faith Community Church to Manufacturing (M-1), and Development Agreement
No. 21-01 (Ordinance No. 2490) to vest applicants rights to development and to provide to the City
commitments for enhanced community benefits, was processed with an application package involving the
following entitlements:
• General Plan Amendment to change the land -use designation to Industrial
• Precise Plan to allow the development of the site
• Tentative Parcel Map to combine to existing separate lots into one
• Tree Removal Permit to allow the removal of three ficus trees located in front of the existing building.
The project involves re -purposing an existing 177,240 square foot building (Faith Community Church) on a
21.22-acre site for a last mile delivery station. Delivery stations power the last mile of the order fulfillment
process and help speed up deliveries for customers. Packages are transported to delivery stations via trailer
trucks (18 wheelers) from larger Amazon fulfillment centers and are sorted, picked, and loaded into delivery
vehicles. The packages would go through the following process:
CITY
Achieve Fiscal Sustainability and Financial Stability
COUNCIL
Enhance the City Image and Effectiveness
GOALS &
Engage in Proactive Economic Development
OBJECTIVES:
1:11W1 T .AI ► ► 1 I
ORDINANCE NO. 2489
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF WEST COVINA, CALIFORNIA, APPROVING ZONE
CHANGE NO. 20-04 TO CHANGE THE ZONING
DESIGNATION AT 1211 E. BADILLO STREET TO
MANUFACTURING (M-1)
WHEREAS, there was filed with this City a verified application on the forms prescribed
in Section 26-153 and 26-199 of the West Covina Municipal Code, for the following
reclassification:
From SP-11: Faith Comrnnity Church to Manufacturing (M-1), on that certain
property generally described as follows:
Assessor's Parcel Number 8434-015-018 in the records of the Los Angeles County Assessor;
and
WHEREAS, the Amazon Delivery Station project implements the policies of the General
Plan by providing an orderly, functional and compatible land use pattern; and
WHEREAS, consistent with the request, the applicant has also requested a General Plan
Amendment (No. 20-03) to amend the designation of the Land Use Element on the subject property
from "Civic: Public Institution to Industrial;" and
WHEREAS, consistent with this request, the applicant has also requested the approval of
Precise Plan 20-08, which would allow for the development of an Amazon Delivery Station on the
site; and
WHEREAS, the Planning Conmission, upon giving the required notice, did on
September 28, 2021 and October 4, 2021, conduct a duly noticed public hearing to consider said
application and did give all persons interested therein an opportunity ity to be heard; and
WHEREAS, the City Council upon giving the required notice, did on October 19, 2021,
conduct a duly noticed public hearing to consider the zone change application; and
WHEREAS, studies and investigations made by the City Council and in its behalf reveal
the following facts:
1. The project includes a general plan amendment requesting to change the land use
designation of the property located at 1121 W. Badillo Street from Civic: Public
Institution to hidustriaal to allow for the development of an Amazon Delivery
Station
2. The project includes a zone change requesting to amend the zoning of the property
located at 1211 W. Baddlo Street from SP-11: Faith Comrnniity Church to
Manufacturing (1\4-1), to allow for development ofanAmazon Delivery Station.
3. The project includes a Tentative Parcel Map (83444) to combine two existing lots
into one.
4. The project includes a precise plan to repurpose an existing 177,440 square foot
budding and related parking lot for use as an Amazon Delivery Station on a 21.22
acre site.
5. The project includes a tree removal permit to remove 3 significant trees on the site
(3 Ficus trees).
6. The project includes a Development Agreement to vest the applicants rights to
development and to provide to the City commitments for enhanced comnnmity
benefits..
Pursuant to the requirements of the California Environmental Quality Act (CEQA) of 1970, a
MITIGATED NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT has been
prepared indicating the project will not have a significant effect on the environment.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF WEST COVINA,
CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Based on the evidence presented, Zone Change No. 20-04 is found to be
consistent with the City's General Plan (as amended) and the land uses permitted within said zone
classification.
SECTION 2. The City Council does hereby approve Zone Change No. 20-04, changing
the zoning designation for subject property as set forth on Exhibit A and amending the Zoning Map
of the City of West Covina.
SECTION 3. The City Clerk shall certify passage of this ordinance and shall cause the
same to be published as required by law.
SECTION 4. This ordinance shall take effect and be in force thirty (30) days from and
after the date of its passage.
PASSED, APPROVED AND ADOPTED on this 2nd day of November, 2021.
Letty Lopez-Viado
Mayor
APPROVED AS TO FORM
Thomas P. Duarte
City Attorney
ATTEST
Lisa Sherrick
Assistant City Clerk
I, LISA SHERRICK, Assistant City Clerk of the City of West Covina, CaWmia, do
hereby certify that the foregoing Ordinance No. 2489 was introduced at a regular meeting of the
City Council held on the 19th day of October, 2021, and adopted at a regular meeting of the City
Council held on the 2nd day of November, 2021, by the following vote of the City Council:
AYES:
NOES:
ABSENT:
ABSTAIN:
Lisa Sherrick
Assistant City Clerk
Subject Property: SP-11:Faith Community Church
1211 E. BadiHo Street
-W,Badfll.S=' .—
W,RIdlllo St
Indicatesthe area to be changedfrom "SP-11: Faith Community
Church to Manufacturing (M-1) "
ATTACHMENT NO.2
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF WEST COVINA, CALIFORNIA APPROVING
DEVELOPMENT AGREEMENT NO. 21-01, A
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
WEST COVINA AND AG WEST COVINA OWNERS LLC
FOR THE DEVELOPMENT OF THE AMAZON DELIVERY
STATION DAX9 PROJECT
WHEREAS, Scott Murray of Greenlaw Partners submitted a letter and an application
requesting a development agreement under the authority of the California Government Code Section
65864 through 65869.5 to vest applicants' rights to development and to provide to the City
commitments for enhanced community benefits for the following project:
Repurpose an existing 177,440 square foot building and parking lot on a 21.22-acre site for
use as an Amazon Delivery Station and to remove significant trees on -site;
WHEREAS, an application for a General Plan Amendment to change the designation from
Civic: Public Institution to Industrial on has been submitted for the development of the project;
and
WHEREAS, an application for a Zone Change from SP-11: Faith Community Church to
Manufacturing (M-1) has been submitted for the project; and
WHEREAS, an application for a Precise Plan has been submitted for the site plan and
architectural review; and
WHEREAS, an application for a Tentative Parcel Map (No. 83444) has been submitted to
combine two existing lots into one lot; and
WHEREAS, a Mitigated Negative Declaration was prepared for the proposed project
pursuant to the requirements of the CEQA in support of the finding that there will not be a
significant effect on the environment as a result of this project and based on the environmental
analyses, with compliance with applicable regulatory requirements and/or the implementation of
mitigation measures, the project would have less than significant impacts on humans, as it relates
to the following environmental issue areas: aesthetics, agriculture and forestry resources, air
quality, energy, GHG emissions, hazards and hazardous materials, hydrology and water quality,
land use and planning, mineral resources, noise, population and housing, public services,
recreation, tribal resources, utilities and service systems, and wildfire.
The proposed project's impacts on the following issue areas would require the implementation of
mitigation measures: biological resources, cultural resources, geology/soils, and transportation.
All impacts would be avoided or reduced to less than significant levels after mitigation.
Therefore, the proposed project would not result in environmental effects that would cause
substantial adverse effects on human beings, either directly or indirectly, with the implementation
of mitigation measures. All impacts would be less than significant after mitigation; and
WHEREAS, on September 28, 2021, the Planning Commission conducted a duly noticed
public hearing as prescribed by law regarding proposed Development Agreement No. 21-01 and
approved Planning Commission Resolution No. 21-6098, recommending that the City Council
approve Development Agreement No. 21-01; and
WHEREAS, on October 19, 2021, the City Council conducted a duly noticed public hearing
as prescribed by law regarding this ordinance approving Development Agreement No. 21-01; and
WHEREAS, the City Council has duly considered all information presented to it,
including written staff reports and any testimony provided at the public hearing, with all testimony
received being made a part of the public record.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF WEST COVINA,
CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein as if set
forth herein in full.
SECTION 2. The Development Agreement is attached as Exhibit "A."
SECTION 3. Studies and investigations made by the City Council and on its behalf reveal
the following facts:
1. The Development Agreement will provide a clear and substantial benefits to the City
and its residents. The Development Agreement proposes a total community benefit
payment of $4 million dollars ($1 million due within 30 days after effective date of
Development Agreement, $1 million due prior to issuance of final certificate of
occupancy for the tenant, and $200,000 per year for ten years). This payment will help
offset the fact that the delivery station will not generate sales tax for the City. In
addition, since the project does not require a Conditional Use Permit, which would
allow the City to place conditions on the operational aspects of the delivery station,
operational conditions will be made part of the Development Agreement.
2. The Development Agreement complies with the requirements of the California
Government Code Sections 65864-65869.5
SECTION 4. Based on the evidence presented, Development Agreement No. 21-01 is
hereby found to be consistent with the West Covina General Plan (as amended) and the
implementation thereof, and that the public necessity, convenience, general welfare, and good zoning
practices require Development Agreement No. 21-01.
SECTION 5. The City Clerk shall certify to the passage of this ordinance and shall cause
the same to be published as required by law. The City Clerk shall record a copy of the Agreement.
SECTION 6. This ordinance shall take effect and be in force thirty (30) days from and
after the date of its passage.
PASSED, APPROVED AND ADOPTED this 2nd day of November, 2021.
APPROVED AS TO FORM
Thomas P. Duarte
City Attorney
Letty Lopez-Viado
Mayor
ATTEST
Lisa Sherrick
Assistant City Clerk
I, LISA SHERRICK, Assistant City Clerk of the City of West Covina, California, do hereby
certify that the foregoing Ordinance No. 2490 was introduced at a regular meeting of the City Council
held on the 19th day of October, 2021, and adopted at a regular meeting of the City Council held on
the 2nd day of November, 2021, by the following vote of the City Council:
AYES:
NOES:
ABSENT:
ABSTAIN:
Lisa Sherrick
Assistant City Clerk
EXHIBIT A
DEVELOPMENT AGREEMENT
RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL
TO:
CITY OF WEST COVINA
1444 West Garvey Avenue South
West Covina, CA91790
Attn: City Clerk
SPACE ABOVE THIS LINE FOR RECORDER'S USE
EXEMPT FROM RECORDING FEE PER GOVERNMENT CODE SECTION 6103
DEVELOPMENT AGREEMENT NO. 21-01
REGARDING DEVELOPMENT OF THE AMAZON DELIVERY STATION
DAX9 PROJECT, WEST COVINA, CALIFORNIA
This Development Agreement ("Agreement" or "Development Agreement") is made and entered
into as of the "Effective Date" set forth herein, by and among AG WEST COVINA OWNERS, LLC,
a Delawueli nitedliabilitycompany, as the master lessor and owner of the property ("Property Owner")
and the City of West Covina, a California municipal corporation ("City").
RECITALS
1. On October _, 2021, the City Council of the City of West Covina ("Council") adopted
Resolution No's. , approving General Plan Amendment No. 20-03, Zone Change
No. 20-04, Precise Plan No. 20-08, and Tentative Parcel Map No. 21-01 (83444), and a Mitigated
Negative Declaration ("MND") and Mitigation Monitoring Program pursuant to the California
Environmental Quality Act (CEQA), collectively the Entitlements for the Amazon Delivery Station
DAX9 Project. Resolution No's. and all attachments and
exhibits thereto are hereby incorporated by this reference. For purposes of this Agreement, the
proposed development as approved and defined by Resolution No's. is referred to
herein as the "Project," and Resolution No's are referred to as the
"Project Approvals."
2. California Government Code Section 65864, et seq. (the "Development Agreement
Statute") authorizes cities to enter into binding development agreements with persons having legal
or equitable interests in real property for the development of such property.
3. City and Property Owner mutually desire to enter into this Development Agreement
pursuant to the Development Agreement Statute in order to implement the Project.
4. On , City adopted its Ordinance No. (the "Ordinance"), thereby
approving this Development Agreement among the City and Property Owner, which is effective as
of All of the requirements of the California Environmental Quality Act have
been met with respect to the Project, Project Approvals, and this Agreement, and this Agreement is
consistent with the City's General Plan.
Page 1 of 15
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions. In this Agreement, unless the context otherwise requires, the following
terms shall have the following meaning:
"City" means the City of West Covina.
"Community Benefits" means benefits previously provided by the prior owner of the Property (the
Church) such as low income assistance, youth programs, educational programs, food assistance and
other similar benefits.
"Effective Date" shall mean the later of, the date the Ordinance becomes effective or,
the date the Property Owner records the deed evidencing fee ownership of the
Property.
"Entitlements" means General Plan Amendment No. 20-03, Zone Change No. 20-04,
Precise Plan No. 20-08, and Tentative Parcel Map No. 21-01.
"Municipal Code" means the West Covina Municipal Code, as amended from time
to time.
"Ordinance" means Ordinance No. , which approved this Agreement.
"Project" means the proposed development of the Subject Property and the Amazon Delivery
Station DAX9 Project as defined in the Recitals to this Agreement by reference to Resolution_.
"Project Approvals" means Resolution No's. which are also referenced in
the Recitals to this Agreement.
"Property Owner" means AG WEST COVINA OWNERS, LLC, 18301 Von Karman, Suite 250,
Irvine, CA 92612.
"Subject Property" means the real property that is the subject of the Project Approvals and as
legally described in Exhibit A to this Agreement.
"Term" shall have the meaning ascribed to it in Section 6 below.
Section 2. Recitals. The recitals are part of this Agreement and shall be enforceable as any other
provision of this Agreement.
Section 3. Interest of Property Owner. Property Owner warrants and represents that, as of the
Effective Date, it has or will have legal title to or an equitable interest in all of the Subject Property;
that it has full legal right to enter into this Agreement; and that the persons executing this
Agreement on behalf of each Property Owner have been duly authorized to do so.
Section 4. Binding Effect of Agreement. Property Owner hereby subjects the Project and the
Subject Property to the covenants, reservations, and restrictions as set forth in this Agreement. The
City and the Property Owner hereby declare their specific intent that the covenants, reservations
Page 2 of 15
and restrictions as set forth herein shall be deemed covenants running with the land and shall pass
to and be binding upon each Property Owner's successors and assigns in title or interest to the
Subject Property. Each and every contract, deed or other instrument hereinafter executed, covering
or conveying the Subject Property or any portion thereof shall conclusively be held to have been
executed, delivered, and accepted subject to the covenants, reservations and
restrictions expressed in this Agreement, regardless of whether such covenants, reservations, and
restrictions are set forth in such contract, deed or other instrument.
The City and Property Owner hereby further declare their understanding and intent that the benefit
of such covenants touch and concern the land by enhancing and increasing the enjoyment anduse
of the Subject Property by Property Owner and the future occupants of the Subject Property, the
intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public
purposes for which this Agreement is adopted.
Section 5. Relationship of Parties. It is understood that the contractual relationship between City
and Property Owner is such that City and each Property Owner are each an independent party and
neither is the agent or partner of the other for any purpose whatsoever and neither shall be
considered to be the agent or partner of the other for any purpose whatsoever.
Section 6. Term of Agreement. The initial term of this Agreement (the "Term") shall commence
on the Effective Date and shall expire twenty (20) years thereafter. If any litigation affecting
development of the Property is filed challenging the Entitlements or this Agreement, including, but
not limited to, any environmental determinations related to any of the foregoing, or challenging the
validity and binding nature of this Agreement, the term of this Agreement shall be extended for the
period of time such litigation is pending and Developer obligations to pay the Sales Tax In -Lieu
Fee shall be tolled until the conclusion of such litigation by dismissal or entry of final judgment.
Upon the conclusion of such litigation by dismissal or entry of final judgment, Developer and the
City shall indicate the period of such extension by amendment to this Agreement and by recording
a notice of such effect.
Section 7. Timing of Development. Because the California Supreme Court held in Pardee
Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that failure of the parties to provide
for the timing of development resulting in a later adopted initiative restricting the timing of
development to prevail over such parties' agreement, it is the City's and Property Owner' intent
here to cure that deficiency by acknowledging and providing that Property Owner shall have the
right (without obligation), subject to the provisions of this Development Agreement, to complete
the Project in such order and at such rate and at such times as Property Owner deems appropriate
within the exercise of their subjective business judgment.
Section 8. Transfer of Subject Property. If Property Owner should sell, mortgage, hypothecate,
assign, or transfer (collectively "transfer" in this Section) the Subject Property or any portion thereof
to any person or entity at any time during the Term of this Agreement, such transfer shall be deemed
to include an assignment of all rights, duties and obligations created by this Development
Agreement with respect to all or any portion of the Subject Property so transferred. Following not
less than thirty (30) days prior, written notice to the City, the written assumption by the assignee of
all of the obligations of Property Owner under this Agreement pursuant to any such transfer shall
relieve Property Owner, without any act or concurrence by the City, of its legal duty to perform
under this Agreement except to the extent that Property Owner is in default (subject to applicable
notice and cure periods) with respect to any such obligations that accrued prior to the proposed
transfer.
Page 3 of 15
Section 9. General Rights, Standards and Restrictions Pertaining to Development of the
Project. The following specific rights and restrictions shall apply to the use of the Subject Property
pursuant to this Development Agreement:
A. Property Owner shall have the right to develop the Project on the Subject Property
in accordance with the terms and conditions of the Project Approvals and this Agreement, and City
shall have the right to control development of the Subject Property in accordance with the
provisions of the Project Approvals and this Agreement.
B. The type, density, intensity, configuration of uses allowed, size, height, and location
of buildings and other improvements and provisions for the reservation or dedication of land for
public purposes, location of public improvements, including, but not limited to landscaping,
irrigation, sidewalk, and drive approaches, together with other terms and conditions of
development applicable to the Project, shall be as set forth in the Project Approvals and this
Agreement.
Section 10. Effect of City Regulations on Development of Project. Except as expressly provided
in this Agreement, all substantive and procedural requirements and provisions contained in City's
ordinances, specific plans, rules and regulations, including, but not limited to, the West Covina
Municipal Code, in effect as of the Effective Date of this Development Agreement, shall apply to
the construction and development of the Project and Subject Property.
A. The provisions of this Section shall not preclude the application to the development
of the Project and the Subject Property of those changes in City ordinances, regulations, plans, or
specifications that are (i) specifically mandated and required by changes in state or federal laws or
regulations as provided in California Government Code Section 65869.5 or any successor provision
or provisions, (ii) required to ensure public safety and are made applicable throughout the City, or
(iii) are required to ensure access under the Americans with Disabilities Act. In the event such
changes prevent or preclude compliance with one or more of the provisions of this Agreement,
such provisions of this Agreement shall be modified or suspended or performance thereof delayed,
as may be necessary to comply with such changes in the law.
B. Except as provided below, the payment of fees associated with the construction of
the Project, including land use approvals, development fees, building permits, etc., shall be in the
amounts in effect at the time application is made for such approvals or permits and such amounts
may increase over time.
C. City may apply to the Project any and all new health and safety regulations (e.g.,
fire, building, and seismic, plumbing, and electric codes) that become applicable to the City as a
whole after the Effective Date.
Section 11. Property Owner's Obligations. In consideration of the rights and benefits Property
Owner is granted under this Agreement, Property Owner agrees to provide each and every one of the
community benefits set forth in this Section.
A. Development Fee. The Subject Property will be concurrently re -zoned to permit the
Project's proposed use, and City and Property Owner agree that due to the fact that the prior use of
the Project site has provided certain Community Benefits that will no longer be provided by the
Project, Property Owner shall contribute to the City a Development Fee, a portion of which will be
used to provide Community Benefit to compensate the City for the loss of certain Community
Page 4 of 15
Benefits. The Project is located at 1211 East Badillo Street (current address) and involves the
repurposing of a former 177,440 square foot building. Property Owner agrees to pay a total of
$5,600,000 as the total Development Fee during the term of the agreement. The Development Fee
shall be paid in the following manner:
i. Property Owner shall pay a one-time lump sum
Development Fee in the amount of $2,000,000 to the City at issuance of
the Final Certificate of Occupancy, which is to be used to provide
Community Benefits.
ii. Property Owner shall pay twelve (12) annual payments
of $100,000 to the City, starting with issuance of the Final Certificate
of Occupancy, which are to be used to provide Community Benefits.
iii. Property Owner shall pay twelve (12) annual payments of
$200,000 to the City General Fund starting with issuance of the Final Certificate of Occupancy..
B. Operational Conditions Imposed.
i. Per the Traffic Impact Study conducted by NV5 and the Initial
Study/Mitigated Negative Declaration document, the facility shall not
generate more than 914 trips per day (602 passenger vehicles, 284 delivery
vans, and 28 tractor -trailer trucks). The facility operator shall retain the
services of a Traffic Engineering firm on the City's list of service providers
to conduct an annual 72-hour (consecutive) driveway count recording all
trucks, vans, and passenger vehicles going into and out of the four driveways
serving the site (three on San Bernardino Road and four on Badillo Avenue).
The driveway count occurrence shall take place during the calendar year of
every year the development agreement is in full effect. The Driveway Count
report shall be submitted directly to the City by the Traffic Engineering firm.
If the operations exceed the number of allowable trips per day, City and
Property Owner shall meet, develop and implement a resolution satisfactory
to both parties.
ii. The operator shall maintain a complaint hotline on a 24/7 status and shall post
a publicly visible sign with the 24/7 hotline telephone number, email address,
and contact person's name where complaints about the operation of the
facility can be received. The operator shall maintain a written log of all
complaints and actions taken in connection with the complaints and to inform
complainants of the actions taken. The operator shall provide to the City
within ten (10) days of receiving a written request for such information from
the City a report of complaints received within the prior 6 months and actions
taken in response.
iii. Should any product delivery truck or van's California OSHA required back-
up warning alarm disrupt the peaceful quality of life for adjoining residents
to the property, beyond the thresholds set forth in the MND, the business
operator shall diligently pursue operational changes or vehicle alarm
Page 5 of 15
modification to reduce and/or eliminate any disturbing noise heard by
adjoining residents.
iv. The operator shall ensure that the left turn pocket on San Bernardino Road
shall not have more than one tractor -trailer truck waiting to turn on to the
property in any given time. Should the left turn pocket/lane have more than
one truck in queue that traffic is backed -up and becomes a problem, the
operator shall diligently work with the City of Covina and West Covina to
resolve the issue. The operator shall be responsible for reimbursing the
impacted cities for the cost of enforcement (staff time including police
officers and/or code enforcement officers). If traffic becomes an on -going
issue/problem due to trucks crowding the left turn lane, the City and Property
Owner shall meet, develop and implement a resolution satisfactory to both
parties.
V. The public and/or customers shall not be allowed to pick up packages on the
site at any time.
vi. The operator shall ensure that all individual consultants, contractors, and/or
self-employed drivers maintain a City business license.
vii. The operator shall, in good faith, purchase supplies and services from City of
West Covina based businesses and request all consultants and contractors to
patronize City of West Covina businesses in performing their tasks, including
the purchase of fuel and maintenance for delivery vans.
viii. The Project shall install a sound barrier in the form of a 8-foot high masonry
wall along the entire length of the Project's eastern property line or keep the
existing wall with increased landscaping and screening.
ix. The Project shall comply with external lighting standards and limitations that
the Property has been subject to since the implementation of Specific Plan-
t 1, if such standards are more restrictive that the proposed lighting.
X. Any light pole replaced along the property line with Lark Ellen Village shall
be no taller than existing light poles along the property line with the Lark
Ellen Village and shall contain shields to ensure lighting is directed away
from Lark Ellen Village.
xi. The operator shall post signs prohibiting smoking and playing music in cars
or vans with the windows open or otherwise outside within fifty (50) feet of
the eastern property line and shall make reasonable efforts to enforce the
prohibitions.
xii. No speakers or megaphones shall be used on the exterior of the Property in
excess of the on -site operational noise thresholds outlined in the MND (see
Section 3.3 of Appendix F of the MND), except in the case of emergencies.
xiii. The operator shall offer all employees working at the Project the option of
setting aside up to 5270/month of their before -tax pay to be used to subsidize
Page 6 of 15
alternative transportation expenses. The operator shall also offer preferential
parking for car /vanpools close to the building entrance with the number of
available spaces varying by demand. The operator shall provide
kiosks/bulletin boards where transit and ridesharing options are posted. The
operator shall provide a ride -matching platform such as Waze and assign an
employee transportation coordinator to encourage the use of alternative
transportation options.
xiv. The operator shall not allow van activity in the eastern parking lot, as shown
in Exhibit A, daily during the hours of IIpm - 6am and shall make all
reasonable efforts to minimize all vehicle activity in the eastern parking lot
during that same time period.
C. Apprenticeship Program. The Property Owner and/or his successor shall implement
its best efforts to develop and maintain an Apprentice/Intern Program with West Covina Unified
School District (West Covina High School), Covina -Valley Unified School District (South Hills
High School), and Rowland Unified School District (Nogales High School) to assist high school
students who may desire a career in business to learn job skills and earn at the same time.
Section 12. Timing of Property Owner's Obligations. Unless otherwise stated herein, any and
all sums outlined in Section 11 shall become due and payable within 30 days of receipt of the
Project's Certificate of Occupancy. Notwithstanding the above, Property Owner shall have the
right to pay any and all sums outlined in Section 11 prior to the date they become due without any
penalty to Property Owner.
Section 13. City's Obligations. The City shall expedite review of all plans and issuance of all
permits associated with the project, including the improvements set forth in the Project Approvals.
For Plans submitted prior to City Council approval, the City and Property Owner shall work
together in good faith to issue permits, or provide written details of corrections necessary for the
issuance of the permits within two (2) business days of the effective date of the Ordinance. For all
other plans and permits submitted after City Council approval, for the project or offsite
improvements required by this Agreement, the City shall conduct an expedited review process with
initial review of all permit sets and issuance of any comments to the Property Owner within 8 days
(2 working weeks) of submittal. The City shall issue subsequent review comments within 4 days
(1 working week) ofresubmittal. The issuance of any permits shall not occur until the effective
date of the Ordinance. All submittals made by the developer shall note the time limits and
specifically reference this Agreement and this Section
Section 14. Annual Review. In accordance with Government Code section 65865.1, the City shall,
at least every twelve (12) months during the tern of this Agreement, review the extent of good
faith compliance by Developer with the terns of this Agreement. Failure of the City to conduct an
annual review shall not constitute a waiver by the City or Developer to conduct a future annual
review or to otherwise enforce the provisions of this Agreement, nor shall a party have or assert
any defense to such enforcement by reason of any such failure. The failure of the City to
undertake such review shall not, in itself, invalidate the terms of this Agreement or excuse any
party hereto from performing its obligations under this Agreement.
At least ten (10) days prior to the commencement of any annual review, the City shall deliver to
Developer a copy of any public staff reports and other documents to be used or relied upon in
conducting the review. Developer shall be permitted an opportunity to respond to the City's
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evaluation of Developer's performance by written and oral testimony at the public hearing to be
held before the City Council.
At the conclusion of the annual review, the City shall make written findings and determinations on
the basis of substantial evidence, as to whether or not Developer or its successors have complied in
good faith with the terms and conditions of this Agreement.
Section 15. Indemnification and Legal Challenge.
A. To the maximum extent permitted by law, Property Owner must defend, indemnify,
and hold City and its elected officials, officers, contractors serving as City officials, agents, and
employees ("Indemmitees") harmless from liability for damage and/or claims for damage for
personal injuries, including death, and claims for property damage, and with respect to all other
actions and liabilities for damages caused or alleged to have been caused by reason of the Property
Owner's activities in connection with the development and/or construction of the Project on the
Project site, and which may arise from the direct or indirect operations of the Property Owner or
those of the Property Owner's contractors, agents, tenants, employees or any other persons acting
on Property Owner's behalf, which relate to the development and/or construction of the Project. This
indemnity provision applies to all damages and claims for damage, as described above, regardless
of whether or not the City prepared, supplied, or approved the plans, specifications, or other
documents for the Project.
B. In the event of any legal action challenging the validity, applicability, or
interpretation of any provision of this Agreement, any of the Entitlement documents pertaining to the
Project including, without limitation, the City's General Plan, Zoning Ordinance, or any other
supporting document relating to the Project, the applicable Property Owner must indemnify, defend
and hold harmless the Indemnitees, and each of them, with respect to all liability, costs and expenses
incurred by, and/or awarded against, the City or any of the Indenu itees in relation to such action.
The City shall have the right to select counsel of its choice that the Property Owner reasonably
approves. The parties hereby agree to cooperate in defending such action. The City will cooperate in
any such third -party challenge and will not take any position adverse to the Property Owner in
connection with such third -party challenge.
C. In the event of any litigation challenging the effectiveness ofthis Agreement, or any
portion hereof, this Agreement shall remain in full force and effect while such litigation, including
any appellate review, is pending, unless otherwise ordered by the court. Absent issuance of an
injunction, the Property Owner may elect to continue development under this Agreement pending
completion of the litigation but it shall do so at its sole risk, and the City shall not be liable for any
loss suffered as a result thereof.
D. If any litigation results in a judgment wherein the courts order the City to reconsider
any matter pertaining to this Agreement or the Entitlements, the City and Developer agree that such
reconsideration shall be expeditiously performed to remedy any defects noted in the judgment. If
such remedy includes the need to re -approve any or all of the Entitlements, the City agrees to
expeditiously re -approve any or all of the Entitlements in a manner consistent with the requirements
of the judgment and to the extent re -approval is in harmony with the spirit and intent of this
Agreement, the original Entitlements, and the public welfare.
E. This Section shall survive the expiration or earlier termination of this Agreement.
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(1) enter the facility through the loading dock positions
(2) be sorted from a conveyor area
(3) be stored on mobile "Baker Racks"
(4) be rolled to the delivery van loading area
The project was reviewed by the Planning Commission on September 28, 2021 and October 4, 2021. The
Planning Commission voted 4-1 to recommend that the City Council approve the project with added
implementation/operational conditions to the Development Agreement.
The City Council held a Public Hearing on October 19, 2021 and voted 4-1 to approve the project, which
included the introduction of Ordinances Nos. 2489 and 2490.
DISCUSSION:
Ordinance Nos. 2489 and 2490 were first introduced at the October 19, 2021 City Council meeting. During the
meeting October 19, 2021 meeting, the City Council directed staff to make the following revisions to the
Development Agreement:
Increase the developer's community benefit contribution to the City and earmark a portion of the
contribution towards the community enhancement fund.
Decrease the height of the required wall along the east property line from 12 feet to 8 feet, or keep the
existing 9-foot wall and add enhanced landscaping and screening.
The operator shall not allow van activity in the eastern parking lot, as shown in Exhibit A of the
Development Agreement, daily during the hours of 1 Ipm - 6am and shall make all reasonable efforts to
minimize all vehicle activity in the eastern parking lot during that same time period.
The Development Agreement has been revised in accordance with the City Council's direction.
Ordinance Nos. 2489 and 2490 will take effect on the 31 st day after their adoption, which is on or about
December 3, 2021.
LEGAL REVIEW:
The City Attorney's Office has reviewed the ordinances and approved them as to form.
OPTIONS:
The City Council has the following options:
1. Conduct the second reading and adopt Ordinance Nos. 2489 and 2490; or
2. Provide alternative direction.
ENVIRONMENTAL REVIEW:
Pursuant to the requirements of the California Environmental Quality Act (CEQA), a Mitigated Negative
Declaration of Environmental Impact was prepared and certified by the City Council on October 19, 2021
(Resolution No. 2021-103).
Prepared by: Jo -Anne Burns, Planning Manager
Attachments
Attachment No. 1 - Ordinance No. 2489
Attachment No. 2 - Ordinance No. 2490 and Development Agreement
Section 16. Amendments. This Agreement may be amended or canceled, in whole or in part, only
by mutual written consent of the parties and then in the manner provided for in California
Government Code § 65868, et seq., or successor provisions thereto.
Section 17. Enforcement. In the event of a default under the provisions of this Agreement by a
Property Owner, City shall give written notice to the Property Owner (or its successor) by
registered or certified mail addressed at the address stated in this Agreement, and if such violation
is not corrected to the reasonable satisfaction of City within sixty (60) days after such notice is
served on the Property Owner, or if not corrected within such reasonable time as may be required
to cure the breach or default if said breach or default cannot be cured within said sixty (60) days
(provided that acts to cure the breach or default must be commenced within said sixty (60) days
and must thereafter be diligently pursued by Property Owner), then City may, without further
notice, declare a default under this Agreement and, upon any such declaration of default, City may
bring any action necessary to specifically enforce the obligations of the Property Owner growing
out of the operation of this Development Agreement, apply to any court, state or federal, for
injunctive relief against any violation by the Property Owner of any provision of this Agreement,
or apply for such other relief as may be appropriate.
Section 18. Event of Default. A Property Owner is in default under this Agreement upon the
happening of one or more of the following events or conditions:
A. If a material warranty, representation or statement made or furnished by the
Property Owner to City set forth herein or in any document incorporated by reference herein is
false or proved to have been false in any material respect when it was made;
B. If a finding and determination is made by City following an annual review pursuant
to this Agreement, upon the basis of substantial evidence, that the Property Owner has not complied
in good faith with any material terms and conditions of this Agreement, after notice and opportunity
to cure as provided by this Agreement; or
C. A breach by the Property Owner of any of the provisions or terms of this Agreement,
after notice and opportunity to cure as provided in this Agreement.
Section 19. No Waiver of Remedies. City does not waive any claim of defect in performance by
a Property Owner if on periodic review City does not enforce this Agreement. Nonperformance by
a Property Owner shall not be excused because performance by the Property Owner of the
obligations herein contained would be unprofitable, difficult, or expensive, or because of a failure
of any third party or entity, other than City. Subject to the provisions of Section 19, all other
remedies at law or in equity which are not otherwise provided for in this Agreement are available
to each party to pursue in the event that there is a breach of this Development Agreement by the
other party (subject to applicable notice and cure periods). No waiver by City or Property Owner
of any breach or default under this Development Agreement by the other party shall be deemed to
be a waiver of any other subsequent breach thereof or default hereunder.
Section 20. City Not Liable For Damages. It is acknowledged by the parties that the City would
not have entered into this Agreement if it could be held liable in damages under or with respect to
this Agreement or the application thereof. Consequently, and except for the payment of attorney's
fees in accordance with this Agreement, the City shall not be liable in damages to the Property
Owner, or to any assignee, transferee, or any other person, and the Property Owner covenants on
behalf of itself and its successors in interest not to sue for or claim anydamages:
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A. For any breach of this Agreement;
B. For the taking, impairment or restriction of any right or interest conveyed or
provided hereunder or pursuant hereto;
C. Arising out of or connected with any dispute, controversy or issue regarding the
application or interpretation or effect of the provisions of this Agreement; or
D. For any injury to or interference with the rights of the property owner, allegedly or
actually arising out of, or incurred in connection with, the parties entering this Agreement, or their
exercise of any rights under this Agreement.
The parties hereby warrant that each enters into this Agreement with the understanding that if the
City defaults on its obligations under this Agreement due to an action taken by the electorate of the
City in the exercise of the reserved powers of initiative and referendum, this Agreement shall be
modified or suspended to the extent required by Government Code Section 65869.5 and Property
Owner's right to seek specific performance, a writ of mandate, or other mandatory relief shall be
limited by such force as the action taken by the electorate may have in light of state law as
determined by any court of competent jurisdiction, in which case the Property Owner' principal
remedy shall lie in reformation of this Agreement
Section 21. Rights of Lenders Under this Agreement. Should a Property Owner place or cause
to be placed any encumbrance or lien on the Project, or any part thereof, the beneficiary ("Lender")
of said encumbrance or lien shall have the right at any time during the term of this Agreement and
the existence of said encumbrance or lien to:
A. Do any act or thing required of the Property Owner under this Agreement, or cure
any default of the Property Owner under this Agreement within the time limits set forth in this
Agreement, and any such act or thing done or performed by Lender or cure shall be as effective as
if done by Property Owner;
B. Realize on the security afforded by the encumbrance or lien by exercising
foreclosure proceedings or power of sale or other remedy afforded in law or in equity or by the
security document evidencing the encumbrance or lien (hereinafter referred to as "a trust deed");
C. Transfer, convey or assign the title of the Property Owner to the Subject Property
to any purchaser at any foreclosure sale, whether the foreclosure sale be conducted pursuant to
court order or pursuant to a power of sale contained in a trust deed; and
D. Acquire and succeed to the interest of the Property Owner by virtue of any
foreclosure sale, whether the foreclosure sale is conducted pursuant to a court order or pursuant to
a power of sale contained in a trust deed.
Should any Lender require or request an amendment of this Agreement in respect of the rights and
remedies granted to a Lender, City hereby agrees to consider such an amendment in good faith and
in accordance with state and local law so long as the proposed amendment does not materially and
adversely affect the rights, powers, and remedies of the City in respect of a default by the Property
Owner hereunder.
Section 22. Notice to Lender. City shall give written notice of any default or breach under this
Agreement by Property Owner to Lender (if known by City) simultaneously with such notice of
default City gives to Property Owner and afford Lender the opportunity after receipt of service of
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the notice to:
A. Cure the breach or default within thirty (30) days after service of said notice, where
the default can be cured by the payment of money;
B. Cure the breach or default within thirty (30) days after service of said notice where
the breach or default can be cured by something other than the payment of money and can be cured
within that time; or
C. Cure the breach or default in such reasonable time as may be required where
something other than payment of money is required to cure the breach or default and cannot be
performed within thirty (30) days after said notice, provided that acts to cure the breach or default
are commenced within a thirty (30) day period after service of said notice of default on Lender by
City and are thereafter diligently continued by Lender.
Section 23. Action by Lender. Notwithstanding any other provision of this Agreement, a Lender
may forestall any action by City for a breach or default under the terms of this Agreement by a
Property Owner by commencing proceedings to foreclose its encumbrance or lien on the Subject
Property. The proceedings so commenced may be for foreclosure of the encumbrance by order of
court or for foreclosure of the encumbrance under a power of sale contained in the instrument
creating the encumbrance or lien. The proceedings shall not, however, forestall any such action by
the City for the default or breach by the Property Owner unless:
A. They are commenced within thirty (30) days after service on Property Owner (and
on Lender if Lender's address is provided by notice to the City pursuant this Agreement) of the
notice described hereinabove;
B. They are, after having been commenced, diligently pursued in the manner required
by law to completion; and Lender keeps and performs all of the terms, covenants, and conditions
of this Agreement requiring the payment or expenditure of money by the Property Owner until the
foreclosure proceedings are complete or are discharged by redemption, satisfaction, orpayment.
Section 24. Notice. Any notice required to be given by the terms of this Agreement shall be
provided by certified mail, return receipt requested, at the address of the respective parties as
specified below or at any other such address as may be later specified by the parties hereto.
To Property Owner: AG WEST COVINA OWNERS, LLC
18301 Von Karman, Suite 250
Irvine, CA 92612
To City: City of West Covina
1444 West Garvey Avenue South
West Covina, CA91790
Attention: City Manager
Section 25. Attorneys' Fees. In any proceedings arising from the enforcement of this Development
Agreement or because of an alleged breach or default hereunder, the prevailing party shall be entitled
to recover its costs and reasonable attorneys' fees and experts' fees incurred during the proceeding
(including appeals) as may be fixed within the discretion of the court.
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Section 26. Binding Effect. This Agreement shall bind, and the benefits and burdens hereof shall
inure to, the respective parties hereto and their legal representatives, executors, administrators,
successors and assigns, wherever the context requires or admits.
Section 27. Applicable Law and Venue. This Agreement shall be construed in accordance with
and governed by the laws of the State of California. Venue for any action or litigation brought for
breach or to enforce any provision of this Agreement shall be the County of Los Angeles,
California.
Section 28. Partial Invalidity. If any provisions of this Agreement shall be deemed to be invalid,
illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions hereof
shall not in any way be affected or impaired thereby.
Section 29. Recordation. The City Clerk shall record this Agreement in the Official Records of
the County Recorder of the County of Los Angeles within ten (10) business days following the
Effective Date. Upon the expiration of the terms of this Agreement and the request of the Property
Owner, the City will execute and deliver, in recordable form, an instrument confirming that this
Agreement is terminated and of no further force or effect.
Section 30. Force Majeure. In the event that any party hereto shall be delayed or hindered or
prevented from performance of any act required hereunder by reason of acts of God, strikes,
lockouts, labor troubles, inability to procure materials, riots, insurrection, terrorism, war or other
reason of similar nature not the fault of the party delayed in performing the work or doing the acts
required under the terms of this Agreement, then the performance of such act shall be excused for
the period of the delay caused by the foregoing. Financial inability shall not be deemed an excuse
for delay under this Section 30.
Section 31. Integrated Agreement. This Development Agreement consists of this Agreement
together with all Exhibits attached hereto, and all of the same are hereby incorporated by reference.
The provisions of this Agreement shall govern over any inconsistent or conflicting provisions set
forth in the Exhibits. No representation or promise, verbal or written, not expressly set forth herein
shall be binding or have any force or effect.
Section 32. Termination. This Agreement shall be deemed terminated and of no further effect
upon the occurrence of any of the following events:
A. Expiration of the stated Term of this Agreement as set forth in Section 6.
B. Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance
approving this Agreement.
C. The adoption of a referendum measure overriding or repealing the ordinance approving
this Agreement.
Termination of this Agreement shall not constitute termination of any other land use entitlements
approved for the Property including but not limited to, all conditions and mitigation measures
imposed as part of such entitlements prior to the date of termination. Upon the termination of this
Agreement, no party shall have any further right or obligation hereunder except with respect to any
obligation to have been performed prior to such termination or with respect to any default in the
performance of the provisions of this Agreement that has occurred prior to such termination or with
Page 12 of 15
respect to any obligations that are specifically set forth as surviving this Agreement.
Section 33. Time of Essence. Time is of the essence in every provision hereof in which time is
a factor.
Section 34. Headings. Headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
Section 35. No Third Party Rights. No third party shall be deemed to have any rights hereunder
against either party as a result of this Agreement.
Section 36. Operating Memoranda. The provisions of this Agreement require a close degree of
cooperation between the City and Property Owner. The anticipated refinements to the Project may
demonstrate that clarifications to this Agreement and the Project Approvals are appropriate with
respect to the implementation of this Agreement and the Project Approvals. If, when, and as it
becomes necessary or appropriate to take implementing actions or make such changes, adjustments
or clarifications, the Parties may effectuate such actions, changes, adjustments or clarifications
through an operating memorandum ("Operating Memorandum") approved by the parties in writing
which references this Section. Such Operating Memorandum shall not require public notices and
hearings or an amendment to this Agreement unless it is required by Section 16 above. The City
Manager shall be authorized, after consultation with and approval of Property Owner, to determine
whether a requested adjustment, clarification or implementing action (i) may be effectuated
pursuant to this Section 33 and is consistent with the intent and purpose of this Agreement and the
Project Approvals or (ii) is of the type that would constitute an amendment to this Agreement and
thus would require compliance with the provisions of Section 16 above. The authority to enter into
such Operating Memorandum is hereby delegated to the City Manager, and the City Manager is
hereby authorized to execute any Operating Memorandum hereunder without further City Council
action.
IN WITNESS WHEREOF, this Agreement has been executed by the parties and shall be effective
on the Effective Date set forth hereinabove.
CITY OF WEST COVINA,
a Municipal Corporation
Dated:
Letty Lopez-Viado, Mayor
ATTEST:
Lisa Sherrick
Asst. City Clerk
Approved as to form:
Thomas P. Duarte
City Attorney
Page 13 of 15
Developer: AG WEST COVINA OWNERS, LLC
18301 Von Karman, Suite 250
Irvine, CA 92612
By: _
Name:
Title:
Dated:
Page 14 of 15
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Page 15 of 15