Planning Commission

Transcription

Planning Commission

AGENDA
REGULAR MEETING
DOWNEY CITY PLANNING COMMISSION
WEDNESDAY, DECEMBER 21, 2011
CITY COUNCIL CHAMBER, 11111 BROOKSHIRE AVENUE
DOWNEY, CALIFORNIA
6:30 P.M.
I.
CALL TO ORDER A REGULAR MEETING OF THE PLANNING COMMISSION AT 6:30 P.M.
II.
COMMISSIONERS:
III.
MINUTES:
IV.
AGENDA CHANGES:
V.
REPORT ON CITY COUNCIL ACTION:
VI.
CONSENT CALENDAR ITEMS:
No Consent Calendar items.
Michael Murray, District 1, Vice-Chairman
Hector Lujan, District 5
Ernie Garcia, District 4
Louis Morales, District 3
Robert Kiefer, District 2, Chairman
December 7, 2011
VII. PUBLIC HEARING ITEMS:
1.
2.
RECOMMENDED ACTIONS
PLN-11-00262 (CONDITIONAL USE PERMIT)
Location:
12000 Paramount Boulevard
Owner:
Craig Clausen
Applicant:
Kashmir Singh/Circle K
Staff:
David Blumenthal
CEQA:
As required by the California Environmental Quality Act (CEQA),
this request has been found to be Categorically Exempt from CEQA,
per CEQA Guidelines, Section 15301 (Class 1, Existing Facilities).
Request:
A request to operate a proposed Circle K convenience store with
an alcoholic beverage control, Type 21 (Off-sale, General) license
on property zoned C-1 (Neighborhood Commercial).
Approve
PLN-11-00136 (TIERRA LUNA MARKETPLACE: SPECIFIC PLAN AMENDMENT AND FEIR,
DEVELOPMENT AGREEMENT, TENTATIVE PARCEL NO 71543 AND TENTATIVE PARCEL
MAP NO. 71544)
Location:
Owner:
Applicant:
Staff:
CEQA:
12214 Lakewood Boulevard
Industrial Realty Group/City of Downey
Manarino Realty, LLC
Mark Sellheim
A Final Environmental Impact Report (Final EIR) has been prepared for the
proposed Tierra Luna Marketplace project, as well as the specific plan
amendment, development agreement and tentative parcel and tract maps.
Copies of the Final EIR are available for public review at the Planning Division
counter in City Hall at 11111 Brookshire Avenue and at the Reference Section in
the Downey City Library, located at 11121 Brookshire Avenue. The Final EIR will
also be available for review on the City’s website at http://www.downeyca.org.
Planning Commission Agenda
Page 2
VII.
PUBLIC HEARING ITEMS:
Requests:
December 21, 2011
RECOMMENDED ACTIONS
1. Specific Plan Amendment, Revision A: A request to amend the
Recommend
provisions of the Downey Landing Specific Plan that pertain to the
Approval to
central 77 acres of the 154-acre Downey Landing Specific Plan
City Council
are now occupied by Downey Studios, to permit the development
for:
of a mixed-use project called Tierra Luna Marketplace. The
1) FEIR,
contemplated project totals 1.5 million square feet and consists of
2) SP
1.1 million square feet of retail commercial floor area, 300,000
Amendment
square feet of office space and 116,000 square feet of hotel space
3) Development
(150 rooms). The 77-acre site under consideration is bounded by
Agreement
both Lakewood Boulevard and Columbia Way (formerly Clark Avenue)
on the west, Congressman Steve Horn Way on the south, and
Bellflower Boulevard and Downey Landing Retail Center on the east
and north, respectively.
2. Development Agreement: A contract between the City of Downey and
the project’s Authorized Agent, Manarino Realty, LLC, granting the realty
firm the vested right to redevelop the 77-acre project site into the
proposed 1.5-million square foot Tierra Luna Marketplace project.
3. Tentative Parcel Map No. 71543: An application to subdivide the
Approve
parcel that encompasses the easternmost part of the 77-acre Downey
Studios site, located at 12214 Lakewood Boulevard, into four (4) lots to
accommodate portions of the proposed Tierra Luna Marketplace project.
4. Tentative Tract Map No. 71544: An application to re-subdivide the two
Approve
(2) parcels that comprise the westerly 57.78 acres of the 77-acre
Downey Studios site, located at 12214 Lakewood Boulevard, into sixteen
(16) lots to accommodate the other components of the proposed Tierra
Luna Marketplace project.
VIII.
ORAL COMMUNICATIONS:
IX.
OTHER BUSINESS:
X.
ITEMS FOR FUTURE AGENDA:
XI.
ADJOURNMENT:
To January 4, 2012 at 6:30 p.m. at Downey City Hall, 11111 Brookshire
Avenue, Downey, Ca.
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in
this meeting, you should contact the Planning Division office at (562) 904-7154 (voice) or the California
Relay Service. Notification 48 hours prior to the meeting will enable the City to make reasonable
arrangements to assure accessibility to this meeting. Supporting data for items included in this agenda
is available for public review and inspection in the office of the Planning Division during regular workday
hours between 8:00 a.m. and 5:00 p.m., and in the City Library during regular hours and on the City’s
website at http://www.downeyca.org.
Planning Commission Agenda
Page 3
December 21, 2011
NOTICE: SECTION 9806 - APPEALS.
Any person aggrieved or affected by any final determinations of the Commission concerning an
application for action of an administrative nature, including a variance or a permit, or any condition
or requirement thereon, or upon the failure of the Commission to make its findings and
determinations within thirty (30)days after the closure of the hearing thereon, no later than fifteen
(15) calendar days, (Exception: subdivisions. no later than ten (10) calendar days) after the date of
the decision or of the Commission’s failure to make a determination, may file with the City Clerk a
written notice of appeal therefrom to the Council. Such appeal shall set forth specifically wherein it
is claimed the Commission’s findings were in error, and wherein the decision of the Commission is
not supported by the evidence in the matter, and wherein the public necessity, convenience, and
welfare require the Commission’s decision to be reversed or modified.
H:\Community Development\Planning Commission\Agendas\AGENDAS 2011 - PC\Dec 7\Dec. 21, 2011-Agenda.doc
STAFF REPORT
DATE:
DECEMBER 21, 2011
TO:
PLANNING COMMISSION
FROM:
BRIAN SAEKI, DIRECTOR OF COMMUNITY DIRECTOR
DAVID BLUMENTHAL, SENIOR PLANNER
SUBJECT:
PLN-11-00262 (CONDITIONAL USE PERMIT) – A REQUEST TO OPERATE A
PROPOSED CIRCLE K CONVENIENCE STORE WITH AN ALCOHOLIC
BEVERAGE CONTROL TYPE 21 (OFF-SALE, GENERAL) LICENSE ON
PROPERTY LOCATED AT 12000 PARAMOUNT BLVD, ZONED C-1
(NEIGHBORHOOD COMMERCIAL)
CEQA
Staff has reviewed the proposed addition for compliance with the California Environmental
Quality Act (CEQA). Upon completion of this review, it has been determined that this request is
categorically exempt from CEQA, pursuant to Guideline Section No. 15301 (Class 1, Existing
Facilities). Categorical Exemptions are projects, which have been determined not to have a
significant effect on the environment and have been exempted from the requirements of the
California Environmental Quality Act. Class 1 consists of projects that involve no or negligible
expansion of the existing use.
RECOMMENDATION
Staff recommends that the Planning Commission adopt the following titled resolution:
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DOWNEY APPROVING
A CONDITIONAL USE PERMIT (PLN-11-00262), THEREBY ALLOWING A CONVENIENCE
STORE TO OPERATE WITH AN ALCOHOLIC BEVERAGE CONTROL TYPE 21 (OFF-SALE
GENERAL) LICENSE ON PROPERTY LOCATED AT 12000 PARAMOUNT BLVD, ZONED C-1
(NEIGHBORHOOD COMMERCIAL).
CODE AUTHORITY
The applicant is making their request pursuant to the provisions of Municipal Code Section
9314.04, which allows the sale of alcohol for consumption off site, subject to the approval of a
Conditional Use Permit. The Planning Commission’s authority to consider the requested
Conditional Use Permit is set forth in Municipal Code Section 9824 (Conditional Use Permits).
PLANNING DIVISION
CITY OF DOWNEY, CALIFORNIA
SITE LOCATION
12000 Paramount Blvd
SITE DESCRIPTION
A.
Subject Property
1.
2.
Property Information
Site Location:
Applicant Information
Applicant:
12000 Paramount Blvd
(AIN 6259-003-016)
Kashmir Singh
Circle K
1150 N. Harbor Blvd, #170
Anaheim, CA 92801
Property Owner:
Craig Clausen
2795 W. Lincoln Ave, Ste F
Anaheim, CA 92801
3.
CEQA Determination:
Categorical Exemption (Class 1)
4.
Noticing Information
Applicant Notification:
December 1, 2011
Required Action Date:
January 30, 2012
Conditional Use Permit (PLN-11-00262) – 12000 Paramount Blvd
December 21, 2011 - Page 2
B.
Surrounding Properties
North - The property to the north of the subject site is located across Cole Street, has a
General Plan Land Use Designation of Neighborhood Commercial, and is zoned C-1
(Neighborhood Commercial). This property is improved with a restaurant.
South – The property to the south of the subject site has a General Plan Land Use
Designation of Office and is within the C-1 (Neighborhood Commercial) zoning district.
This parcel is improved with a multi-tenant commercial center.
East - The properties to the east have a General Plan Land Use Designation of Low
Density Residential and are zoned R-1 5,000 (Single Family Residential). These parcels
are improved with single family homes.
West – The properties to the west of the subject site are located across Paramount Blvd,
have a General Plan Land Use Designation of Office, are zoned C-1 (Neighborhood
Commercial). These properties are improved with retail and office uses.
C.
Site Photographs
View of parcel from Paramount Blvd
BACKGROUND
The subject site is an approximate 1.27 acre rectangular-shaped lot that is located on the
southeast corner of Paramount Blvd and Cole St. The site, which consists of two parcels,
measures 190’ wide by 290.75’ deep. The subject site is improved with two buildings, which
include an 8,400 s.f. multi-tenant building to the north and an approximate 5,200 square foot
restaurant (Shakey’s Pizzza). There are a total of 87 parking spaces, which are located to the east
and the west of the two buildings. Access to the site is provided from multiple driveways on
Paramount and Cole. This property has a General Plan Land Use Designation of Office and is
zoned C-1 (Neighborhood Commercial).
On November 3, 2011, the applicant submitted an application for a Conditional Use Permit, to allow
a proposed Circle K convenience store to be located in a 2,000 square foot tenant space on the
northernmost portion of the multi-tenant building. The Circle K will replace a insurance office and
hair salon. After a review by staff, the application was deemed complete on December 1, 2011.
On December 8, 2011, notice of the pending application was mailed to all property owners within
500’ of the subject site and published in the Long Beach Press-Telegram.
DISCUSSION/ANALYSIS
Circle K is requesting to operate with an ABC Type 21 license, which would allow them to offer all
types of alcoholic beverages to be sold for off-site consumption. Additionally, they are requesting
to open 24-hours a day, seven (7) days a week. If approved, Circle K is proposing to combine the
two tenant spaces into a single space and remodel the space with their current store prototype
(see attached plans). This includes standard merchandise racks, coolers, coffee bar, and fresh
food displays. Other than changing the signs, the applicant is not proposing to conduct any
exterior modifications.
In considering the request, staff has no issues of concern and is overall satisfied with the
applicant’s request.
Pursuant to Municipal Code Section 9824.06, there are four (4) findings that must be adopted prior
to the Planning Commission approving a Conditional Use Permit. A discussion of the findings
follows:
A.
The requested Conditional Use Permit will not adversely affect the purpose and
intent of this chapter or the City’s General Plan or the public convenience or
general welfare of persons residing or working in the neighborhood thereof.
The subject site is located within the C-1 (Neighborhood Commercial). It is the intent
and purpose of both the Zoning District to provide limited goods and services that are
needed by the immediate locality. It is staff’s opinion that allowing alcohol sales at the
subject site would serve the immediate area since markets of this size and type typically
draw customers from the adjoining residential areas in comparison to larger markets that
draw customers from the entire city. Furthermore, staff believes that approval of the
Conditional Use Permit will provide a convenience to people who live in the area and
enjoy alcoholic beverages, since it will provide a local market to obtain said beverages.
Taking this into consideration, staff is of the opinion that this approval will not have an
adverse affect on the purpose and intent of the Zoning Code or the City’s General Plan
or the public convenience or general welfare of persons residing or working in the
neighborhood thereof.
B.
The requested use will not adversely affect the adjoining land uses and the growth
and development of the area in which it is proposed to be located.
The subject site is in a fully developed area of the City, with little to no vacant properties
in the immediate area. Inasmuch as the proposed use will occupy an existing tenant
space (no additions to the building are being proposed), staff is of the opinion that this
use will not prevent surrounding properties from being developed/redeveloped.
Notwithstanding this, staff has proposed several conditions of approval to prevent the
use from being a burden onto others. Staff believes that these conditions are necessary
to avoid any adverse affects on the adjoining properties.
C.
The size and shape of the site proposed for the use is adequate to allow the full
development of the proposed use in a manner not detrimental to the particular
area.
The proposed use will be contained within an existing tenant space and does not require
an expansion of the building. Even though tenant improvements are being proposed in
order to accommodate the use, it is staff’s belief that these improvements will not impact
the existing uses on the site or other properties in the area. As such, staff believes that
the subject has sufficient shape and size to accommodate the proposed use and that
this finding can be adopted.
D.
The traffic generated by the proposed use will not impose an undue burden upon
the streets and highways in the area.
The subject site is on the southeast corner of Paramount Blvd and Cole St, with arterial
access being mainly provided from Paramount Blvd. Staff has reviewed the proposal and
any potential increase in traffic caused by operation of the business. It is staff’s opinion that
the surrounding streets and highways in the area have sufficient capacity to accommodate
the minimal increase in traffic that might be generated by the business. As such, staff
believes that this finding can be adopted.
CORRESPONDENCE
As of the date that this report was printed, staff has not received any correspondence regarding
this matter.
CONCLUSION
Based on the analysis contained within this report, staff is concluding that the proposed Circle K
operating with a Type 21 license can be a benefit to the area, provided all conditions of approval
are adhered to. Furthermore, as noted above, staff believes that all four findings required to
approve a Conditional Use Permit can be made in a positive manner. As such, staff is
recommending that the Planning Commission approve the Conditional Use Permit (PLN-1100262), subject to the recommended conditions of approval.
H:\Community Development\Blumenthal\Projects\Paramount_12000\Staff Report_2011-12-21.doc
Exhibit ‘A’ – Aerial Photograph
Subject Site
N
Exhibit ‘B’ – Zoning Map
Subject Site
N
RESOLUTION NO. 11-2743
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
DOWNEY APPROVING A CONDITIONAL USE PERMIT (PLN-11-00262),
THEREBY ALLOWING A CONVENIENCE STORE TO OPERATE WITH AN
ALCOHOLIC BEVERAGE CONTROL TYPE 21 (OFF-SALE GENERAL)
LICENSE ON PROPERTY LOCATED AT 12000 PARAMOUNT BLVD, ZONED
C-1 (NEIGHBORHOOD COMMERCIAL).
THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES RESOLVE AS FOLLOWS:
SECTION 1. The Planning Commission of the City of Downey does hereby find,
determine and declare that:
A. On November 3, 2011, the applicant submitted an application for a Conditional Use
Permit, to allow a proposed Circle K convenience store to be located in 2,000 square
foot tenant space on the subject site; and,
B. On December 1, 2011, staff deemed the application complete; and,
C. On December 8, 2011, notice of the pending application was mailed to all property
owners within 500’ of the subject site and published in the Downey Patriot; and,
D. The Planning Commission held a duly noticed public hearing on December 21, 2011
and after fully considering all oral and written testimony and facts and opinions
offered at the aforesaid public hearing adopted this resolution, subject to conditions
of approval (Exhibit A).
SECTION 2. The Planning Commission further finds, determines and declares the
environmental impact of the proposed development has been reviewed and has been found to
be in compliance with the California Environmental Quality Act (CEQA) and is categorically
exempt from CEQA, pursuant to Guideline Section No. 15301 (Class 1, Existing Facilities).
SECTION 3. Having considered all of the oral and written evidence presented to it at
said public hearings, the Planning Commission further finds, determines and declares that:
1. The requested Conditional Use Permit will not adversely affect the purpose and
intent of this chapter or the City’s General Plan or the public convenience or general
welfare of persons residing or working in the neighborhood thereof. The subject site
is located within the C-1 (Neighborhood Commercial). It is the intent and purpose of
both the Zoning District to provide limited goods and services that are needed by the
immediate locality. By allowing alcohol sales at the subject site, it would serve the
immediate area since markets of this size and type typically draw customers from the
adjoining residential areas in comparison to larger markets that draw customers from
the entire city. Furthermore, approval of the Conditional Use Permit will provide a
convenience to people who live in the area and enjoy alcoholic beverages, since it
will provide a local market to obtain said beverages.
2. The requested use will not adversely affect the adjoining land uses and the growth
and development of the area in which it is proposed to be located. The subject site
is in a fully developed area of the City, with little to no vacant properties in the
immediate area. Inasmuch as the proposed use will occupy an existing tenant space
(no additions to the building are being proposed), this use will not prevent
surrounding properties from being developed/redeveloped. Notwithstanding this,
Resolution No. 11-2743
Downey Planning Commission
several conditions of approval are being imposed to prevent the use from being a
burden onto others. These conditions are necessary to avoid any adverse affects on
the adjoining properties.
3. The size and shape of the site proposed for the use is adequate to allow the full
development of the proposed use in a manner not detrimental to the particular area.
The proposed use will be contained within an existing tenant space and does not
require an expansion of the building. Even though tenant improvements are being
proposed in order to accommodate the use, these improvements will not impact the
existing uses on the site or other properties in the area.
4. The traffic generated by the proposed use will not impose an undue burden upon the
streets and highways in the area. The subject site is on the southeast corner of
Paramount Blvd and Cole Street, with arterial access being mainly provided from
Paramount Blvd. The surrounding streets and highways in the area have sufficient
capacity to accommodate the minimal increase in traffic that might be generated by the
business.
SECTION 4. Based upon the findings set forth in Sections 1 through 3 of this
Resolution, the Planning Commission of the City of Downey hereby approves the Conditional
Use Permit (PLN-11-00262), subject to conditions of approval attached hereto as Exhibit A,
which are necessary to preserve the health, safety and general welfare of the community and
enable the Planning Commission to make the findings set forth in the previous sections. The
conditions are fair and reasonable for the accomplishment of these purposes
SECTION 5. The Secretary shall certify the adoption of this Resolution.
PASSED, APPROVED AND ADOPTED this 21st day of December, 2011
Robert Kiefer, Chairman
City Planning Commission
I HEREBY CERTIFY that the foregoing is a true copy of a Resolution adopted by the Planning
Commission of the City of Downey at a regular meeting thereof, held on the 21st day of
December, 2011 by the following vote, to wit:
AYES:
ABSENT:
NOES:
ABSTAIN:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
Theresa Donahue, Secretary
CONDITIONAL USE PERMIT (PLN-11-00262)
EXHIBIT A - CONDITIONS
PLANNING
1)
The approval of Conditional Use Permit (PLN-11-00262) permits the operation of a
convenience store with a Department of Alcoholic Beverage Control Type 21 (off-sale
general) license.
2)
Approval of this Conditional Use Permit shall not be construed to mean any waiver of
applicable and appropriate zoning regulations, or any Federal, State, County, and City
laws and regulations. Unless otherwise expressly specified, all other requirements of
the City of Downey Municipal Code shall apply.
3)
The City Planner is authorized to make minor modifications to the approved preliminary
plans or any of the conditions if such modifications shall achieve substantially the same
results as would strict compliance with said plans and conditions.
4)
The Owner/Applicant agrees, as a condition of approval of this resolution, to indemnify,
defend and hold harmless, at Applicant's expense, City and City's agents, officers and
employees from and against any claim, action or proceeding commenced within the time
period provided in Government Code Section 66499.37 to attack, review, set aside, void
or annul the approval of this resolution, to challenge the determination made by City
under the California Environmental Quality Act or to challenge the reasonableness,
legality or validity of any condition attached hereto. City shall promptly notify Applicant of
any such claim, action or proceeding to which City receives notice, and City will
cooperate fully with Applicant in the defense thereof. Applicant shall reimburse the City
for any court costs and attorney's fees that the City may be required to pay as a result of
any such claim, action or proceeding. City may, in its sole discretion, participate in the
defense of any such claim, action or proceeding, but such participation shall not relieve
Applicant of the obligations of this condition.
5)
All conditions of approval set forth in this resolution shall be complied with before the
Conditional Use Permit becomes valid.
6)
The convenience store shall be permitted to operate 24-hours a day, seven (7) days a
week.
7)
Alcohol sales shall not be permitted between 2:00 a.m. and 6:00 a.m. every day.
8)
Alcohol shall not be sold to persons under the age of 21.
9)
The business operator shall not allow alcohol to be consumed on site.
10)
The business operator shall not allow customers, or other persons, to loiter in front of the
business.
11)
Noise generated from the business shall comply with Municipal Code Section 4600 et.
seq. In any case, noise shall not exceed 65 dBA, as measured at the property line.
12)
All signs shall comply with the requirements set forth in the Downey Municipal Code.
13)
The applicant shall comply with and strictly adhere to all conditions of any permit issued
by the Alcohol Beverage Control (“ABC”) to the applicant and any applicable regulations
of ABC.
14)
The rear (east) door of the business shall remain closed at all times, except to allow
employee ingress/egress.
15)
Prior to the issuance of building permits, the owner shall record a reciprocal
access/parking agreement between the two parcels (AIN 6259-003-016 & 6259-003015). Said agreement shall be reviewed and approved by the City Attorney prior to
being recorded.
16)
A copy of the Conditional Use Permit and Police Permit shall be prominently posted on
the premises at all times. The applicant shall make available said copies upon request
by any Police Officer or other City official charged with the enforcement of the City’s
laws, ordinances, or regulations.
BUILDING
17)
All construction shall comply with the 2010 California Building Code and Title 24 of the
California Energy Code.
18)
Prior to the commencement of construction, the applicant shall obtain all required
permits. Additionally, the applicant shall obtain all necessary inspections and permit
final prior to beginning operation of the site.
19)
The applicant shall clearly post the maximum occupancy, as determined by the Building
Official. The applicant shall not permit the actual occupancy of the building to exceed
the maximum allowed.
FIRE
20)
21)
All construction shall comply with the 2010 California Fire Code.
Based on the permit valuation of the submitted plans the following may be required:
a)
Fire Sprinkler System
b)
Fire Alarm System.
PUBLIC WORKS
22)
The applicant shall install any new utilities associated with this project underground.
23)
Prior to issuance of Certificate of Occupancy, all broken, uneven, or sub-standard curb,
gutter, sidewalk, driveway, disabled ramps and pavement across the property frontage,
shall be replaced to the satisfaction of the Public Works Department. Please contact the
Public Works Inspection Office at (562) 904-7110 to have these areas identified on the
plans just prior to applying for a Building Permit. The owner/ applicant shall obtain all
necessary plan approvals and permits and shall provide that the standards of
improvements, construction materials, and methods of construction shall be in
conformance with the Standard Plans and Specification for Public Works Construction
and as modified by the City of Downey’s Standard Plans and Specifications.
24)
Any construction activity within the scope of work of this project shall comply with the
National Pollutant Discharge Elimination System (NPDES) requirements of the Federal
Clean Water Act; the General Construction Activities Stormwater Permit (GCASP) of the
State, the Stormwater Quality Management Plan (SQMP) of the Los Angeles County
Department of Public Works, and Ordinance 1142 of the Downey Municipal Code.
25)
Prior to final of building permits, the applicant shall remove all construction graffiti
created as part of this project from the public right of way and on the subject site.
MANAGER, STORAGE &
UTILITY
TEA
12/6/2011 11:17:33 AM, 1:62.3534
10 DOOR WALK-IN COOLER
VENDO
SANDEN
GLASS SNEEZE
GUARD
STAFF REPORT
DATE:
DECEMBER 21, 2011
TO:
PLANNING COMMISSION
FROM:
BRIAN SAEKI, DIRECTOR OF COMMUNITY DEVELOPMENT
MARK SELLHEIM, PRINCIPAL PLANNER
SUBJECT:
Developing Tierra Luna Marketplace at 12214 Lakewood Boulevard (Currently
Downey Studios) — Applications under consideration include 1) Specific Plan
Amendment SP-01-Revision A, 2) Development Agreement PLN-11-00136,
3) Tentative Parcel Map No. 71543, 4) Tentative Tract Map No. 71544 and the
Final EIR for the project.
CEQA
Staff reviewed the Amended Downey Landing Specific Plan for compliance with the California
Environmental Quality Act (CEQA). Upon completing its review, Staff caused an environmental
impact report (EIR) to be prepared for the proposed specific plan amendment, which provided
detailed information about the potentially significant environmental impacts that the project is likely
to produce, developed mitigation measures to reduce the anticipated effects, acknowledged
circumstances where impacts cannot be reduced to a level of insignificance through mitigation or
the adoption of alternatives, and analyzed six (6) alternatives to the project.
RECOMMENDATIONS:
Staff recommends the Planning Commission adopt the following five resolutions:
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DOWNEY
RECOMMENDING CERTIFICATION OF THE FINAL ENVIRONMENTAL
IMPACT REPORT FOR THE TIERRA LUNA SPECIFIC PLAN, A PROPOSED AMENDMENT
TO THE DOWNEY LANDING SPECIFIC PLAN.
RECOMMENDING THE CITY COUNCIL AMEND THE DOWNEY LANDING SPECIFIC PLAN
FOR THE TIERRA LUNA MARKETPLACE.
RECOMMENDING THE CITY COUNCIL APPROVE DEVELOPMENT AGREEMENT PLN –
11- 00136 FOR THE DEVELOPMENT OF THE 77- ACRE SITE AT 12214 LAKEWOOD
BOULEVARD BY MANARINO REALTY, LLC, ON PROPERTY ZONED AMENDED DOWNEY
LANDING SPECIFIC PLAN.
APPROVING TENTATIVE PARCEL MAP N0. 71543, AN APPLICATION TO SUBDIVIDE THE
19.67-ACRE PARCEL THAT ENCOMPASSES THE EASTERNMOST PART OF THE 77-
PLANNING DIVISION
CITY OF DOWNEY, CALIFORNIA
Downey Landing Specific Plan Amendment
Parcel Map No. 71543/Tract Map No. 71544/
Development Agreement - 00136
ACRE DOWNEY STUDIOS SITE, LOCATED AT 12214 LAKEWOOD BOULEVARD, INTO
FOUR (4) LOTS ON PROPERTY ZONED AMENDED DOWNEY LANDING SPECIFIC PLAN.
APPROVING TENTATIVE TRACT MAP NO. 71544, AN APPLICATION TO RE-SUBDIVIDE
THE TWO (2) PARCELS THAT COMPRISE THE WESTERLY 57.78 ACRES OF THE
DOWNEY STUDIOS SITE, LOCATED AT 12214 LAKEWOOD BOULEVARD, INTO SIXTEEN
(16) LOTS ON PROPERTY ZONED AMENDED DOWNEY LANDING SPECIFIC PLAN.
PUBLIC HEARING DATE:
December 21, 2011
SITE LOCATION
(Downey Studios)
I. SITE DESCRIPTION
Site Location:
Applicant:
Mailing Address:
Applicant:
Mailing Address:
Authorized Agent:
Mailing Address:
Applicant Notification:
Legal Notices Date:
Required Action Date:
Industrial Realty Group
12214 Lakewood Boulevard, Downey, CA 90242
City of Downey
11111 Brookshire Avenue, Downey, CA 90241
Manarino Realty, LLC
8105 Irvine Center Drive, #1110, Irvine, CA 92618
December 8, 2011
December 9, 2011
June 20, 2012
Planning Commission Meeting - December 21, 2011
Page 2
Neighboring Properties
Neighboring Properties
North
East
Zoning
Downey Landing
Specific Plan
R-3 and M-2
South
Downey Landing
Specific Plan
West
C-2 and R-1
General Plan
Mixed Use
Medium Density Residential
Commercial Manufacturing
Mixed Use
Low Density Residential &
General Commercial
Use
Downey Landing
Retail Center
Apartment Complexes,
Kaiser Administrative
Office Buildings
Kaiser Hospital Complex,
Columbia Memorial
Space Center/Discovery
Sports Complex
S-F residences, auto
repair businesses,
church and used car
dealership
II. INTRODUCTION/BACKGROUND
Specific Plan Amendment SP-01-1, Revision A is a request to modify the provisions of the Downey
Landing Specific Plan that regulate the central 77 acres of the 154-acre Downey Landing site to
permit the development of a mixed-use project called the Tierra Luna Marketplace (also referred to
as the 2011 Alternative, Alternative F in the Final EIR for the project ). The Tierra Luna
Marketplace will total slightly more than 1.5 million square feet and consist mostly of retail uses,
ranging from small shops to big-box stores, along with restaurants, offices, a multiplex theater and
a 150-room hotel.
The Downey Landing Specific Plan, which has been in effect since 2002, is a customized zoning
ordinance that governs the central 77 acres, as well as the rest of the 154-acre Downey Landing
site. Exhibit 1 shows the boundaries of the Downey Landing Specific Plan site, plus the limits of
the requested amendment. Downey Studios occupies the central 77 acres and the Specific Plan
designates the easterly part of the studios site as “Commerce Center” and the other portion “Media
Center”; under the existing plan, these designations are intended to accommodate a business park
and motion picture/television production studio. The requested amendment would change the
existing land use designations, along with their accompanying development standards and design
guidelines, to allow the site to be redeveloped into the mixed-use Tierra Luna Marketplace project.
As noted, the amendment encompasses only the central portion of the Downey Landing site;
regulations governing the balance of the site (i.e., Kaiser Downey Medical Center and Downey
Landing Retail Center) will remain unchanged. Staff also has updated, as part of the amendment
process, the plan’s outdated passages so they reflect the development projects that were built after
the plan was adopted in 2002.
The applicant filed three other applications in conjunction with the Specific Plan Amendment
application: (1) Development Agreement No. PLN –11 -- 00136, (2) Tentative Parcel Map No.
71543, and (3) Tentative Tract Map No. 71544. Briefly, the Development Agreement is a
negotiated contract between the City of Downey and the applicant granting the applicant the vested
right to redevelop the 77-acre site into the 1.5-millon square foot project in exchange for the
provision of a series of public benefits to the City. The tentative tract map and parcel map
applications are requests to subdivide the site to accommodate the project. An assessment of
each application is provided in Section V (Analysis) of this report.
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Stewart & Gray Rd.
Tierra Luna Marketplace
Bellflower Blvd.
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Downey Landing Specific Plan (2002)
Specific Plan Amendment (Tierra Luna Marketplace)
Exhibit 1
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By way of background, in 2009, Industrial Realty Group, submitted the original request to amend
the Downey Landing Specific Plan to the City. The requested amendment was known as the
“Tierra Luna Specific Plan.” Like the Tierra Luna Marketplace (the currently proposed project), the
Tierra Luna Specific Plan was a mixed-use development. The Tierra Luna Specific Plan included
3.9 million square feet of development and 1,500 multi-family residences. At the City’s request,
CAJA Environmental Services (CAJA) prepared a Draft Environmental Impact Report (EIR) for the
2009 project, but the applicant put the project on hold shortly after the draft EIR was circulated for
public review because of the recession.
Then, in June, 2011, the applicant modified the project to adjust for changed economic and market
conditions. The revised project – the Tierra Luna Marketplace – pared down the commercial
development from 3.9 million square feet to 1.5 million square feet, and removed the residential
component.
The EIR was modified to include the Tierra Luna Marketplace as a new alternative. The revised
EIR quantitatively analyzes the potential impacts of the Tierra Luna Marketplace, and recommends
measures to lessen those impacts. Because of the differences in scale between the projects, the
Tierra Luna Marketplace is expected to have fewer and less intense impacts, yet it will still meet the
project objectives that the 2009 Proposed Project was expected to achieve. In short, the Tierra
Luna Marketplace is an environmentally superior alternative.
More specifically, the Tierra Luna Marketplace would, like the Tierra Luna Specific Plan, have
significant and unavoidable impacts to construction and operational air quality and construction
noise. However, these impacts would be less severe due to the reduction in office space, retail
space, and hotel rooms, and the elimination of the residential component. In addition, the Tierra
Luna Marketplace would generate fewer daily trips, which would reduce impacts to public services,
and also reduce consumption of utility capacity. Therefore, Staff recommends that the Planning
Commission support the Tierra Luna Marketplace, i.e., requested specific plan amendment, and
adopt the “2011 Revised Project Alternative.” A complete discussion of the projects’ environmental
review process is provided in Section VI.
The balance of the Staff Report is organized in the following manner: Section III describes the land
uses and improvements on the properties that are adjacent to the project site; Section IV describes
the proposed Tierra Luna Marketplace project; Section V evaluates the applicant’s discretionary
applications for approval of the Specific Plan Amendment, the Development Agreement, Parcel
Map No. 71543 and Tract Map No. 71544; and Section VI outlines the environmental review
process conducted for the project.
III. NEIGHBORING LAND USES
Properties adjacent to the 77-acre project site support a variety of uses, among them a regional
shopping center, service commercial businesses, single-family neighborhoods and apartment
complexes. Other neighboring uses include, manufacturing businesses, administrative offices, a
hospital/medical center, a city park and museum and senior health care facilities.
Streets defining the project site include Lakewood Boulevard and Columbia Way on the west,
Congressman Steve Horn Way on the south, Bellflower Boulevard on the east and Downey
Landing Retail Center on the north (see Exhibit 1). Neighboring uses and bordering roadways are
described in greater detail in the following paragraphs.
Page 4
Downey Landing Retail Center, categorized as a power center with its category-dominant anchors,
occupies the 34-acre rectangular-shaped parcel site immediately north of the project site; the
shopping center contains about 380,000 square feet of floor space and provides nearly 2,000
parking spaces. In terms of site layout, the center’s buildings are placed in an L-shaped
configuration with a row or inline spaces backing up to the site’s southerly boundary (i.e., the
common property line with the project site), while the other backs up to Bellflower Boulevard (see
Exhibit 1). For building size, the larger of the tenant spaces range from 20,000 to 45,000 square
feet, while there are also a number of smaller spaces that measure less than 2,000 square feet.
And like the project site, the Downey Landing Specific Plan is the regulatory document that
governs all development activity at the shopping center.
Apartment complexes, a semi-trailer repair business, and two Kaiser Permanente administrative
office buildings occupy the properties across Bellflower Boulevard, east of the project site. One of
the administrative offices is housed in a 2-story building that totals156,000 square feet, while the
other occupies a single-story building that measures 52,000 square feet. For zoning, the
properties that support the apartment complexes are classified R-3 (Multiple-Family Residential),
while the others are zoned General Manufacturing (M-2). The section of Bellflower Boulevard
abutting the project site has an 80-foot right-of-way that holds two lanes in each direction, plus a
raised landscaped median. Bellflower Boulevard is a secondary arterial, according to the General
Plan; its posted speed is 40 miles per hour and it carries about 21,500 vehicles per day.
Bellflower Boulevard Southbound Lanes -- Adjacent to the Project Site
Three large facilities are located south of the project site, across Congressman Steve Horn Way:
Kaiser Downey Medical Center, the City’s Discovery Sports Complex and Columbia Memorial
Space Center. The abutting section of Steve Horn Way has a 96-foot right-of-way that
accommodates two lanes in each direction, along with a raised landscaped median. Kaiser’s
medical complex sits on a 30-acre parcel that features a 6-story, 680,000 square foot hospital (with
352 beds, a 49-bed emergency department, and an 8-bed pediatric intensive care unit), a 4-story,
116,000 square foot medical office building and the hospital’s 30,000 square foot supporting
central plant. This Kaiser facility is also entitled, under the Downey Landing Specific Plan to
develop another 4-story medical office building with up to 173,000 square feet, plus a 752-space,
multi-level parking structure. West of the Kaiser complex is a 13-acre city-owned parcel that
supports the 20,000 square foot Columbia Memorial Space Center and the Discovery Sports Park,
replete with two soccer fields and two ball diamonds.
Page 5
Properties west of the project site, across Lakewood Boulevard support a mix of uses, including a
single-family neighborhood, a used car dealership and a Shree Swami Narayan Mandir Hindu
Temple. Other uses include three adjoining senior health care facilities and a commercial center
housing automobile-related businesses: an automobile repair business, an automobile parts and
supply business and a lube and tune shop. Also, Lakewood Boulevard, which defines the western
edge of the project site, is a Major Arterial with a 100-foot right-of-way that holds three lanes in
each direction, plus a raised landscaped median. The posted speed limit on Lakewood is 40 miles
per hour and the section next the project site carries about 32,000 vehicles per day.
Lakewood Boulevard Southbound Lanes – Adjacent to the Project Site
Columbia Way (formerly Clark Avenue) serves as the westerly boundary of the southernmost
portion of the project site (see Exhibit 1); it has an 80-foot right-of-way and contains one lane in
each direction. It also provides diagonal parking on the east side of the street, which is used
primarily by people visiting the Columbia Memorial Space Center. This section of Columbia Way
carries slightly more than 5,500 vehicles daily and has a posted speed of 30 miles per hour.
Properties along the west side of Columbia Way, across from the project site support a motel and
automobile repair business and are zoned General Commercial (C-2).
IV. PROJECT DESCRIPTION
Tierra Luna Marketplace (also known as the 2011 Revised Project) is planned as a phased, mixeduse development contemplated to replace Downey Studios. Implementing the 2011 Revised
Project involves amending only those provisions of the Downey Landing Specific Plan that pertain
to the central 77 acres in order to accommodate its development plan, as well as its prospective
uses, development standards and design guidelines. A conceptual plan of the project is shown on
Exhibit 2. The applicant has indicated the submitted plan is an illustrative document, meaning
there may be some changes to it involving the location of Jr. anchor stores, but the project, for the
most part, will be developed in accordance with the submitted plan and not exceed the 1.5-million
square feet. For example, the location of the large format stores is fixed, as well as the buildings
and uses that comprise the pedestrian village in the southwestern part of the site. Also fixed is the
portion of existing Building 1 that will be retained and converted into project floor space. The
potential for change in the development plans, and the consequence of that change, are further
addressed within this Section IV under the heading “Future Amendment to the Site Plan” and in
Section V.B. below
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EXHIBIT 2
Best characterized as a life-style center, the 2011 Revised Project will feature a mix of retail uses
of varying sizes and configurations, along with providing office buildings, a multiplex theater and
hotel. Combined, the proposed retail uses will total 1,100,000 square feet and they’ll be divided
among two large format retailers (big-box stores), Jr. anchor stores, small shops, stand-alone
restaurants, a food court and a multiplex theatre. The other uses proposed include office space
totaling 300,000 square feet, along with a 116,000 square foot hotel housing 150 rooms. Lastly,
5,712 parking spaces are planned that will distributed among surface lots and two parking
structures.
The project in total will contain 1,516,000 square feet, which (when considering the 77-acre site)
translates into a floor area ratio (FAR) of .45. FAR is a method of measuring a property’s building
intensity by dividing total floor area by total lot area. By comparison, the adjoining 34-acre Downey
Landing Retail Center has an FAR of .25 with its 380,000 square feet of retail space. On the other
side, the 30-acre Kaiser Downey Medical Center, with its recently-completed buildings (i.e., a 6story hospital, a 4-story medical office building and central plant) that total 826,000 square feet, has
a .63 FAR. Kaiser Permanente is also entitled, under the Downey Landing Specific Plan, to
develop another 4-story medical office building, which will increase FAR to .77 and building area to
1,000,000 million square feet.
Site Plan
According to the submitted site plan, the project’s principal internal street (Aviation Boulevard)
halves the 77-acre site with the two big-box stores and their parking fields covering most of the
north side (see Exhibit 2). Also planned for the upper part are four Jr. anchors, two stand-alone
restaurants and the portion of Building 1 that will be retained and converted into office or retail
space, depending on market conditions (a Jr. anchor is retail store ranging from 13,000 to 50,000
square feet). Development south of Aviation Boulevard will also consist of Jr. anchors, along with
office buildings, restaurants, and a pedestrian village, featuring a multiplex theater, a food court
and a 150-room hotel. In essence, the site plan shows the project’s buildings ringing the periphery
of the site, with parking fields occupying the center. An advantage of developing the site in this
manner is the interest it provides passing motorists and pedestrians: the development’s
architecture is the focus rather than parking lots.
Aviation Boulevard, which will be developed as a private street, will be aligned in an east/west
direction and extend from Lakewood Boulevard on the west to Bellflower Boulevard on the east.
The project’s major entrances will be located where Aviation terminates at these two streets. A
traffic signal is already in place at the proposed Lakewood entrance, while another is proposed for
the entrance at Bellflower. Besides the major entrances, the project will provide a number of
secondary entrances. One is planned for Columbia Way, 7 will be provided along Congressman
Steve Horn Way and three on Bellflower Boulevard. The project’s longest frontage faces
Congressman Steve Horn Way, followed by Bellflower Boulevard.
In terms of capacity, Aviation Boulevard will contain four lanes – two in each direction with left-turn
pockets, plus a median and parkways. The street’s curb-to-curb width is 64 feet that will consist of
13-foot outside lanes, 12-foot inside lanes and a 14-foot raised landscape median (usually a lane is
10 or 11 feet wide). Adding a 12-foot parkway on each side of the street will result in an 88-foot
right-of-way. Also proposed as part of the onsite circulation network are four north/south driveways
that will link Aviation Boulevard to Congressman Steve Horn Way. Each will contain one lane in
each direction.
Page 7
As discussed previously, two big box stores are planned for the area north of Aviation, while a
variety of uses are intended for the area south of it, including Jr. anchor retailers, small retail
spaces, a hotel, restaurants, office buildings and a multiplex theater. A more detailed description of
these components is provided in the following paragraphs.
Preserving the Front Portion of Building 1 – Office/Retail
According to the applicant’s proposed development plan, project implementation involves razing all
of the buildings onsite, except the front portion of Building 1. It is the largest of the site’s buildings,
maintaining frontage on Lakewood Boulevard and extending east approximately 1,200 feet.
Building 1 was constructed between 1929 and 1966 and totals slightly more than 913,000 square
feet. The front portion (the part paralleling Lakewood Boulevard) must be retained and
incorporated into any future development, pursuant to the Memorandum of Agreement (MOA) the
City of Downey and NASA entered into in 2001 when Downey Landing (former NASA Industrial
Plant) was conveyed to the City.
The environmental assessment that was prepared for the conveyance identified Building 1 as
potentially eligible for listing in the National Register of Historic Places. Thus, due to its historic
value, the MOA acknowledged that transferring Downey Landing to the City may have an adverse
effect on the building. As a consequence, the MOA stipulates that the front portion shall be
preserved and rehabilitated, in accordance with the Secretary of Interior’s Standards for the
Treatment of Historic Buildings. The part to be preserved includes the front section of the EMSCO
building, (E.M. Smith Company -- 1929), and two building wings attributed to Gordon Kaufmann.
Gordon Kaufmann was an architect who practiced in Southern California from 1914 until his death
in 1949. During his early career he worked in the Mediterranean Revival architectural style, while
later working primarily in the Art Deco style, with an emphasis on massively thick, streamlined
concrete walls, which gave his buildings a very distinctive appearance. Some of his more notable
buildings include the powerhouse and spillways at Hoover Dam, the Los Angeles Times’
headquarters building, the Hollywood Palladium, and Santa Anita race track.
In conformance with the MOA, the project envisions converting the front portion into office or retail
space, together totaling nearly 74,000 square feet. According to the site plan, the converted
portion will consist of three spaces; the northerly and southerly parts will provide 30,945 square
feet and 34,207, respectively, with an 8,500 space in between (see attached site plan).
Large Format Retailers
The site plan’s most prominent features are the two large format retailers (commonly known as bigbox stores) planned for the northerly portion of the site. The store nearest Lakewood Boulevard
will contain 125,601 square feet (building dimensions are approximately 360’ x 520’), with the
second measuring 152,015 square feet (560’ x 400’); together they’ll total 277,616 square feet. By
comparison, 380,000 square feet is the combined floor space of the buildings that comprise
Downey Landing Retail Center.
As the plan also illustrates, the front of the stores will face south towards the center of the
development, and their expansive parking lots, while they’ll back up to the site’s northerly property
line. A service driveway is shown separating the back of the stores from the adjoining property,
which will lead directly to both Lakewood and Bellflower Boulevards. In addition, each building and
its accompanying parking lot will sit on its own parcel, according to the tentative tract map that was
submitted in conjunction with this project. The parcel supporting the smaller of the two buildings is
Page 8
9.44 acres, while the other is 11.78 acres. Lastly, Aviation Boulevard will serve as the principal
means of access to these stores from the project’s perimeter highways.
Junior (Jr.) Anchor Retailers
Thirteen (13) Jr. anchor retail stores, ranging in size from 13,000 to 50,000 square feet are also
shown as project components. Seven (7) will parallel the site’s Bellflower boundary, with the
others distributed throughout the southerly part, between Aviation Boulevard and Congressman
Steve Horn Way. For those paralleling Bellflower, six will be paired side by side, with the seventh
developed as a stand-alone building in the southeastern corner of the site. These stores will
alternate between 25,000 and 30,000 square feet and face inwards, towards the center of the
development and the parking field, while backing up to Bellflower Boulevard. To address having
the backs of the buildings visible from Bellflower Boulevard, a 6-foot decorative masonry wall will
straddle the Bellflower property line, pursuant to the amended specific plan, to screen them from
vehicular and pedestrian traffic. This same measure was used at Downey Landing Retail Center
for its buildings along Bellflower Boulevard.
The other Jr. anchors are proposed for the center of the southerly part of the site and the
pedestrian village in the southwestern part. Exhibit 2 shows two Jr. anchors sited side by side,
next to Congressman Steve Horn Way. They too will face the development’s centrally-located
parking areas and back up to Steve Horn Way. The bigger of the two totals 50,000 square feet,
with the other measuring 25,000 square feet. For access, two secondary driveways are shown
framing the stores, providing direct access to Steve Horn Way. These stores are the part of the
project that is closest to Kaiser hospital and the site plan shows a crosswalk linking them to the
hospital parking lot.
The other Jr. anchors are located in the southwestern portion of the site. One is a stand-alone
building that’s shown anchoring the project’s Lakewood Boulevard entrance. The others are
integrated into the hotel/ food court/multiplex development and range in size from 15,000 to 50,000
square feet.
Restaurants
Four (4) stand-alone restaurants, as well as a food court are also planned as part of the project
mix. They’ll range in size from 4,200 square feet to 6,900 square feet and the site plan shows
them fronting Aviation Boulevard; two of them will be sited next to the project’s Lakewood entrance,
while the others will be located at the other end of Aviation, near the Bellflower entrance. Siting the
restaurants at these locations seems ideal in regards to visibility and access. One of the
restaurants will anchor the Lakewood Boulevard entrance, while another will anchor the northerly
end of the nearby pedestrian village. The other two will occupy the corners of the first intersection
drivers come to when they access the site from Bellflower. Lastly, the project’s subdivision maps
show each stand-alone restaurant occupying a separate individual lot, allowing for ground leasing.
Office Space
Project plans indicate that office space is the project’s next largest component after retail uses.
According to the application, the Tierra Luna Marketplace will provide up to 300,000 square feet of
office space distributed among three buildings. Two of them will be sited and configured so they
complement each other, while the other is the westernmost portion of Building 1 that’s slated to be
retained and repurposed, pursuant to the above-mentioned MOA. The project envisions
Page 9
converting the front portion of Building 1 into office space (or retail if the market dictates), while the
balance of the structure is slated to be demolished.
The other two buildings will be located in the middle of the site below the big-box properties. Both
are shown as L-shaped structures placed next to each other, which should provide a greater
presence. In addition, each measures four stories and holds 120,000 square feet, with parking
distributed among two small surface lots and a 5-level parking structure (see Exhibit 2). And each
office building, like the freestanding restaurants, will sit on its own parcel, according to the
concurrently-filed tentative tract map application. Lastly, the buildings are shown fronting Aviation
Boulevard and Congressman Steve Horn Way, while two north/south driveways will separate them
from the adjoining hotel and Jr. anchor stores.
It is also worth noting that the requested specific plan amendment involves granting the applicant
the flexibility to develop slightly more office space and less retail floor area, if market conditions
dictate. According to the amendment, the applicant could develop up to 200,000 square feet of
additional office space instead of retail space, at the discretion of the Community Development
Director. Thus, rather than developing the originally requested 1,100,000 square feet of retail
space and 300,000 square feet of office, the applicant could develop 900,000 square feet of retail
and 500,000 square feet of office space.
Allowing for this flexibility is similar to the way that the Downey Landing Specific Plan is currently
structured. It designates the westerly portion of the central 77 acres as Media Center and the
balance as Commerce Center (e.g., business park); and the size of each depends on the
continuing financial feasibility of movie and television production. If for example, the studio proves
successful, it could expand into the area designated Commerce Center, while the reverse is true if
the studio is unsuccessful.
Food Court/Multiplex Theater/Hotel
A food court is planned for the southwest corner of the site (see Exhibit 2) that will be part of a
compact, pedestrian-oriented development tied together by a paseo. The paseo will stretch from
the historical building at one end, through the pedestrian development, and terminate at the
Columbia Memorial Space Center. Among the components comprising this development include a
multiplex theater, several Jr. anchor department stores, a handful of small retail shops and a
boutique hotel. The hotel, which will hold 150 rooms and total 116,000 square feet, will anchor the
northerly end, while a 2-level building housing the multiplex, two Jr. anchors (totaling 15,000 and
50,000 square feet) and the food court anchors the other. The 24,000 square foot food court and
abutting Jr. anchor stores will occupy the ground floor, and serve as the footprint for the 16-screen,
65,000 square foot movie theatre located on the second level. The site plan also shows a handful
of small retail shops lining the paseo, filling the space between the two anchors and totaling nearly
60,000 square feet. Finally, an adjoining 3-level parking structure and several surface lots will
provide parking for these uses.
Future Amendments to Site Plan
It should be noted that the Specific Plan amendments provide the flexibility for the applicant to
proceed with the project in a manner that varies significantly from that described above. However,
the development agreement proposed for the project provides substantial incentives to the
applicant that may only be realized if the development occurs (i) in a manner that is substantially
consistent with the site plan description provided above, and (ii) with a list of retailers and hoteliers
that is acceptable to the City.
Page 10
V. ANALYSIS
Section V. of this report assesses the four (4) discretionary actions that the applicant filed to
implement the Tierra Luna Marketplace project: 1) Specific Plan Amendment No. 01-1A; 2)
Development Agreement No. 10; Tentative Tract Map No. 71543 and Tentative Parcel Map No.
71543. Each application is evaluated in the following paragraphs.
A. SPECIFIC PLAN AMENDMENT SP- 01-1A
As briefly discussed above, Specific Plan Amendment 10-1 (SP-10-1A) is a request to amend the
provisions of the Downey Landing Specific that govern the central 77 acres of the 154-acre
Downey Landing planning area so it can be redeveloped into the Tierra Luna Marketplace. In
considering the amendment, please note that it proposes to change only the provisions that
regulate the central part, whereas the controls and regulations governing the balance of Downey
Landing (i.e., Downey Landing Retail Center and Kaiser Downey Medical Center) will remain intact.
In addition to amending the regulations that involve the central 77 acres, Staff went ahead and
updated those passages in the Plan that were outdated. That is, Staff modified the passages that
did not recognize the projects that were built after the plan was adopted in 2002 on the other parts
of the 154-acre site. Examples include the retail center and Kaiser medical center.
Downey Studios
Since 2004, television and film production companies have used the buildings and parking lots at
Downey Studios as sets and production facilities. The owners of the studios have concluded,
however, that the market for studio uses does not support these activities. In fact, the overall
economics of the studios is weak. Nearly 75% of the property’s revenue comes from the television,
film and commercial industry, but because of a combination of industry tax credits provided by
other states, which makes it difficult for California to compete, and the industry’s ever-increasing
practice of using computer-generated images, the need for large stage space in Southern
California has declined dramatically. These changing trends help explain why Downey Studios has
shown a $13 million loss over the past seven years (turning out to be economically infeasible) and
the studios’ finances are expected to continue to deteriorate in the future.
In response to the downturn, the applicant proposes to redevelop the site with the Tierra Luna
Marketplace project. To do so, however, requires amending parts of the Specific Plan. The
current land use plans for the central portion do not recognize mixed-use developments, In
addition, the specific plan’s existing list of permitted uses for the central 77 acres (i.e., Media and
Commerce Centers) does not include the kind of activities that comprise a project such as Tierra
Luna Marketplace.
The westerly portion of the 77-acre project site is currently designated Media Center, while the
easterly part is slated Commerce Center. The intent of the Media Center designation is to host a
movie and television production studio complex, just like Downey Studios; while the Commerce
Center designation envisions a business park housing a mix of office and light industrial uses.
Similarly, the land use controls currently in place for the central portion are designed to
accommodate these project-types. Also, the maximum development potential for the central part
under the plan’s existing regulations is 1,637,000 square feet, which translates into a floor area
ratio (FAR) of .48 (the FAR of the Tierra Luna Marketplace is .45).
Page 11
However, like the studios, market studies indicate that the kind of project the Commerce Center
envisions, a business park, does not reflect today’s economic realities. Thus, there is little
likelihood that the property owner or a developer will build in accordance with the current
designation so the site will continue to be underutilized. Costs involved in developing a business
park would substantially exceed current market-rate rents. This can be attributed primarily to the
ever increasing costs for building materials in recent years (such as cement and steel) due to
worldwide demand for these commodities. In most cases, the buildings that make up business
parks are concrete tilt-up structures, whose construction materials are principally cement and steel.
In short, economic conditions have changed since the Specific Plan was prepared in 2001.
Therefore, Staff suggests the plan should be modified so the property owner/developers can take
advantage of today’s development opportunities. In addition, one of the findings that decisionmakers must make to amend the Downey Landing Specific Plan is recognizing that conditions
have changed since the plan was adopted, thus warranting an amendment.
Market studies also indicate that the City of Downey, coupled with its neighboring communities
could support a life-style center like the Tierra Luna Marketplace, especially in light of the project’s
proposed big-box stores. In Downey to date an economic leakage is occurring in connection with
big-box stores. That is, because there are so few large format stores here, Downey residents must
travel beyond its borders to take advantage of this retail type. As a result, the City loses out on the
benefits of large format stores: sales taxes, property taxes and a gathering place for the
community. Further supporting the project’s big box stores is the extent of their trade areas; the
trade area of the typical big-box store would extend beyond the city limits, thus further benefiting
the City.
Besides the large format stores, Downey residents, plus the nearby employee population and
residents of neighboring communities are expected to support its retail and entertainment complex,
which is being designed as a pedestrian-oriented gathering place. Activities acting as a magnet
include a 24,000 square foot food court, a 16-screen multiplex theater, a fitness center, restaurants
and nearly 200,000 square feet of retail uses, of various sizes, concentrated around a paseo.
Lastly, the prospective tenants at Tierra Luna Marketplace are expected to complement
neighboring Downey Landing Retail Center and vice versa.
Similarly, the proposed uses at Tierra Luna Marketplace will be compatible with the uses in the
vicinity of the project site, according to the Final EIR for the project. That is, the proposed project is
expected to be compatible with neighboring uses in that it will not hinder the ability of existing uses
to carry on as they do now: maintain and provide services, amenities and/or environmental quality.
The project site and the Downey Landing planning area currently support a regional shopping
center, a hospital, medical offices, media uses along with sports fields and a museum. Properties
surrounding the project site also support retail and medical uses, along with service commercial,
recreational businesses, office space, a religious institution, a motel and senior health care
facilities. The project’s proposed uses are also similar to those of the surrounding area. And
because their similarity with respect to intensity and use, the project will be compatible with the
uses surrounding the project site. Moreover, the Marketplace and its components are more similar
in nature to the surrounding uses than Downey Studios and its activities.
Compatibility between uses is also another finding that is necessary to amend the specific plan.
Basically, decision makers must make the finding that the requested amendment will be
compatible and complementary to existing conditions and adjoining property in the surrounding
area. The above paragraphs indicate that will be the case.
Page 12
In addition, the architectural style, building heights, massing and proposed signage of Tierra Luna
Marketplace will transform the visual character of the project site, resulting in marked contrast to its
existing improvements and studio uses. Yet, Staff suggests the visual change will be an
improvement over the existing metal clad industrial buildings, expansive asphalt parking lots,
absent of landscaping, and the studios’ back lots. Moreover, the Amended Plan’s proposed
development standards and architectural guidelines are designed to insure that the project does
not interfere with neighboring uses.
Downey General Plan – Vision 2025
In relation to the General Plan--Vision 2025, the project’s mix of uses and design will help it
achieve consistency with many of the plan’s policies and programs; plus, it will provide the benefits
that result from multiple uses in one location. Briefly, the General Plan, which is required by state
law, serves as a guide to the long-term physical development and growth of a community. It
outlines goals that address the issues facing a community and identifies policies and programs to
accomplish those goals.
One example of how the Tierra Luna Marketplace project will implement a General Plan policy is
the manner in which it carries out the Livable Communities concept. By combining retail, office,
hotel and entertainment uses, the marketplace is consistent with the intent of the affected site’s
“Mixed Use” General Plan designation. This land use designation is designed to promote the
Livable Communities concept, which encourages the use of flexibility in addressing land use
needs; it also focuses on areas in the community where Livable Communities’ concepts are most
likely to encourage similar projects in the city. The concept also provides alternatives to the
traditional separation of land uses by advancing the development of mixed-use areas with special
characteristics that create a “sense of place” for visitors and employees, which the project is
proposing.
Another General Plan policy is the related concept of Smart Growth. The concept is based on the
idea that growth does not necessarily negatively impact a community. One aspect of Smart
Growth advances the practice of mixing land uses with the intent of reducing dependency on cars
by providing convenient access to jobs, shopping and entertainment. Reducing vehicle miles
traveled lessens traffic congestion, which in turn, improves air quality and decreases energy use.
And reducing vehicle use is one of the anticipated benefits that the project will provide. By
combining uses on the same site next to each other, as shown on Exhibit 2, visitors, shoppers and
employees will park once, rather than re-parking as they move from use to use. There also is a
General Plan program that is aligned with reducing dependency on vehicles through project
design: Program 1.2.1.1. Promote project designs that reduce dependency on vehicles and
promote pedestrian, transit, and alternate modes of travel.
Other General Plan programs and policies that the requested specific plan amendment and Tierra
Luna Marketplace project will implement include:
•
Program 1.2.1.4. Provide dining opportunities within walking distance of employment
centers. As described above, a 24,000 square foot food court is planned for the Tierra
Luna Marketplace, along with several stand-alone restaurants, while the project is expected
to create approximately 3,286 new jobs opportunities at build-out. In addition, the Kaiser
medical complex, with its hospital and medical office buildings across the street from the
project site employs about 3,200 people.
Page 13
•
Program 1.3.2.2. Adjust the codes, policies and regulations in response to changes in land
use trends. As pointed out above, the site’s two existing land use designations, Commerce
and Media Center, do not reflect economic trends in the area. In Southern California, the
need for large studio space has waned in recent years due to the increased use of
computer generated imagery for production purposes, coupled by the economic incentives
that other states provide. Meanwhile, developing a project in accordance with the
Commerce Center designation is unlikely since project development costs will substantially
exceed asking rents. As these situations illustrate, conditions in the area have changed
since the specific plan was adopted in 2002. Therefore, amending the plan to allow for the
development of Tierra Luna Marketplace recognizes this General Plan program of adjusting
land use policy in response to changing land use trends.
•
Policy 9.2.1. Promote job-generating land uses; and its related program: Program 9.2.1.3.
Promote employment that increases the daytime population of the city creating customer
demand for other businesses. As identified above, the project at build-out is anticipated to
provide a net increase of 3,286 employment opportunities. Downey Studios by contrast
employs about 45 people.
Finally, with the approval of the requested amendment, the development plan for Tierra Luna
Marketplace will replace the two existing land use plans for the central 77 acres: Media Center and
Commerce Center. Again, the Marketplace development is a 1.5 million square foot project,
consisting mostly of retail uses, along with office, restaurants, a multiplex theatre and a hotel (see
Exhibit 2). Coincidentally, the maximum development potential of the project is about 90,000
square feet less than the combined potential of the Media and Commerce Centers: 1,637,000
square feet. The uses that will make up the Marketplace and their accompanying square footages
are listed below:
TIERRA LUNA MARKETPLACE
•
•
•
•
Retail ………………… 1,100,00 square feet
Multiplex Theater……. 65,000 square feet
Office………………… 300,000 square feet
Hotel………………….. 116,000 square feet (150 rooms)
Also incorporated into the requested amendment is the flexibility to develop up to 200,000 square
feet as office space instead of retail, if market conditions warrant. That is, rather than developing
1.1 million square feet of retail and 300,000 square feet of office space, the applicant can
exchange retail with office and develop up to 500,000 square feet of office space and 900,000
square feet of retail floor area. However, maximum development is still capped at 1.5 million
square feet.
Other provisions of the Specific Plan that the requested amendment proposes to modify or add
include development standards, design guidelines, permitted uses and the addition of sign
regulations. The existing standards, guidelines and uses for the central portion are no longer
applicable since they were tailored for a film studio and business park. These changes are
provided in the attached Specific Plan document and are essentially designed for the Marketplace
project.
Page 14
Findings
In order to approve the requested specific plan amendment, the following findings must be
adopted:
1. The revised Specific Plan Amendment, Tierra Luna Marketplace (2011 Revised Project), is
necessary and desirable for the development of the community, in harmony with the
objectives of the General Plan and is in the interests of furtherance of the public health,
safety, and general welfare, since the affected site’s current land use designations under
the Downey Landing Specific Plan, Media Center and Commerce Center, do not represent
the highest and best uses for the site. As a consequence, and because of changing
economic and development conditions, coupled with the uniqueness of both the project site
and its neighboring properties, the Planning Commission supports the Tierra Luna
Marketplace, which will implement the provisions of the affected site’s “Mixed Use” General
Plan category.
2. The Specific Plan Amendment and its resulting development will be compatible with and
complement neighboring properties’ existing conditions, since the uses that comprise the
prospective project are similar to the neighboring uses. For example, retail uses make up
the bulk of the proposed project (1,100,000 square feet), while a 380,000 square foot retail
center occupies the contiguous 34.5-acre site to the north. Further, a 1,000,000 square
foot hospital/medical office complex occupies the neighboring 30-acre site to the south,
while the proposed amendment will entitle 300,000 square feet of professional office space.
Additionally, development standards have been designed for the proposed amendment that
not only serve the project, but safeguard neighboring activities. Also insuring compatibility
between project components and neighboring activities are the mitigation measures that
have been developed for the 2011 Revised Project included in the Final EIR.
3. The Project Site is adequate in size to accommodate the amendment’s permitted and
conditionally permitted uses and all applicable development standards can be complied
with. At build-out the project will result in a .45 floor area ratio (FAR), which is below the 5.0
FAR authorized by the site’s “Mixed Use” General Plan designation, thereby demonstrating
that the 77-acre project site will not be overbuilt.
4. The site properly relates to streets and highways and is capable of carrying the type and
quantity of traffic and utility demands that are expected to be generated in the area. The
traffic impact analysis prepared for Alternative F, the Tierra Luna Marketplace, concluded
that, with mitigation, the roadway network that currently serves the site, and which will
serve the project, will adequately accommodate project-generated traffic. Streets bordering
the project site and providing access to it, include Columbia Way (formerly Clark Avenue)
and Lakewood Boulevard, Bellflower Boulevard and Congressman Steve Horn Way. All of
these streets are fully improved to date. Additionally, the Specific Plan Amendment
established requirements with respect to providing access points to the project that will be
accomplished to the satisfaction of the City of Downey. The Final EIR also concluded that
the existing utility network presently serving the site, as well as the improvements that will
accompany project development will adequately serve the project.
5. Changed conditions since the original approval of the specific plan warrant the proposed
amendment. The highest and best land uses for the project site have changed since the
Page 15
City Council adopted the Downey Landing Specific Plan in 2002. Studies then indicated
the project site could successfully support both a business park, e.g., commerce park and
multi-media companies, such as Downey Studios. However, since then, film and television
production activities at Downey Studios has diminished steadily due to (i) the common
practice by television and film production companies of using computer-generated imagery
to assist in production, thus reducing the need for large studio space, and (ii) the practice
by other states of offering tax credits to production companies as an inducement to film
there. As a consequence, Downey Studios has lost $13 million dollars since starting
operations in 2004. On the other hand, recent market studies concluded that the City of
Downey, together with its neighboring communities can successfully support a mixed-use
project, such as Tierra Luna Marketplace. Consequently, the site’s two development/land
use plans, as well as their accompanying development regulations need to be amended to
accommodate the prospective project.
6. The proposed amendment is in general conformance with the General Plan. The Specific
Plan Amendment will permit the development of the proposed multiple-use project, which is
consistent with the site’s “Mixed Use” General Plan category. This category, as the name
implies, was designed to accommodate a wide variety of commercial and office uses. The
uses requested in the Specific Plan Amendment fall under those headings. Activities that
comprise the proposed development plan include retail, office, entertainment and hotel.
In addition, because of Downey Landing’s unique characteristics, the rare situation of the
availability of a large, developable site, approximately 154 acres, the City Council
designated it “Mixed Use,” as part of the 1992 General Plan Update. According to the
General Plan’s Land Use Chapter, the site’s designation was changed from “Industrial” to
“Mixed Use” in an effort to promote its reuse as an employment center. Before the site
became available for development in 1998, the Boeing Company/North American Rockwell
occupied it and the company was the largest employer in Downey at the time. With
employment as a goal, the Tierra Luna Marketplace project is forecast to provide 3,286
employment opportunities at build-out. Additionally, the mixed-use development plan in the
proposed Specific Plan Amendment will foster the kind of development that will reduce
dependency on cars by providing convenient access to shopping, jobs, services and
entertainment, also known as smart growth practices. Fittingly, the project’s land use mix
and quantities will implement these goals. Its uses will create employment opportunities;
plus, they are proximate to each other so employees and customers can walk rather than
drive to neighboring uses.
B.
DEVELOPMENT AGREEMENT PLN – 11 – 00136
The development agreement under consideration, Development Agreement No. PLN – 11 –
00136, is a negotiated contract between the City of Downey and the applicant that grants the
applicant the vested right to develop the project site into the Tierra Luna Marketplace in exchange
for the provision of providing pubic benefits to the City. Under the development agreement, the
applicant guarantees to develop the site in accordance with existing land use regulations. In
exchange, the City will not change the affected property’s planning and zoning regulations during
the development process. In this instance, the guaranty to maintain the existing land use
regulations expires after seven (7) years unless the applicant agrees to an operating covenant on
the property that commits to development of the Large Format Retail development (and other
development that is substantially consistent with the site plan description provided above). A copy
of the development agreement proposal is attached to the Planning Commission resolution
recommending the City Council approve it.
Page 16
In brief, a development agreement is a contract between a municipality and property owner (or a
party having an interest in the property) that’s executed as part of the project’s approval process.
Reasons for entering into an agreement include, (1) reducing the uncertainty of the planning
process for each party, (2) providing for the orderly development of the property, (3) ensuring the
installation of necessary public improvements, (4) providing for public services appropriate to the
development of the property, and generally (5) serving the purposes for which development
agreements are authorized, under the California Government Code.
Enabling legislation for development agreements is provided in the California Government Code,
Sections 65865 through 65869. According to Section 65865, cities are given express authorization
to enter into a development agreement, while Section 6865.2 stipulates they specify: (1) the
duration of the agreement, (2) the affected site’s permitted uses, (3) the density or intensity of the
use(s), (4) the maximum height and size of the buildings, and (5) the provisions for dedication of
land for pubic purposes.
Development agreements are legislative acts and Government Code Section 65867
requires that both the Planning Commission and City Council consider them. The Planning
Commission reviews agreements as an advisory body, while the City Council is the decisionmaking body. Both the Commission and Council review agreements for conformance with the
General Plan.
Relationship to the General Plan
Section 65867.5 of the Government Code requires that the Planning Commission and City Council
adopt findings stating that the provisions of a development agreement are consistent with the
General Plan and its policies and programs. In terms of Tierra Luna Marketplace, the 77-acre
project site (as well as the balance of the 154-acre Downey Landing planning area) maintains the
“Mixed Use” General Plan category, which envisions a mix of retail uses, commercial activities and
multi-family units developed on the same site, or occupying the same building. In addition to
combining uses, 5.0 is the maximum floor area ratio (FAR) (building intensity) that this General
Plan category allows.
With the “Mixed Use” designation envisioning a broad mix of commercial uses, the contemplated
development agreement appears consistent with this designation, given that the activities planned
for the Marketplace include a variety of retail uses and commercial activities. Retail uses proposed
include big-box and Jr. anchor stores, along with small shops, a multiplex theater, a food court,
fitness center, hotel and office buildings. Further, adding to the project’s consistency is its
contemplated FAR; the project’s FAR is .45, compared to 5.0, which as noted above, is the upper
limit for the “Mixed Use” category.
Other General Plan policies and programs that the development agreement implements are
underlined below:
Program 1.1.3.1 Encourage land uses that generate jobs. Employment generation rates estimate
the Tierra Luna Marketplace will create approximately 3,286 permanent employment opportunities.
Program 1.2.1.4 Provide dining opportunities within walking distance of employment centers. The
project will feature a number of dining opportunities such as a 24,000 square foot food court along
with several stand-alone restaurants. These food uses will be within walking distance of several
employment generators such as the Kaiser medical complex with its hospital and medical office
Page 17
buildings; also located across the street from the project site are two Kaiser Permanente
administrative office buildings. Another nearby employment center is the neighboring Downey
Landing Retail Center.
Policy 1.1.4 Provide an appropriate amount of land area for people to acquire goods and services.
Approving the development agreement will markedly increase the likelihood that Downey residents
will have the opportunity to shop at big-box stores, junior anchors and small shops; all together, the
project will provide 1.1 million square feet of retail space.
Program 1.1.4.1 Establish “General Commercial” areas for land uses that draw from a customer
base not necessarily limited to those within the city. As discussed previously, a companion
application to the development agreement is a specific plan amendment that will allow the
development of retail uses that may include the development of big-box stores; the trade areas of
the project’s big-box stores extend beyond the city’s borders.
Program 1.1.5.2 Promote recreation and entertainments uses that serve the needs of the public. A
major project component is a pedestrian-oriented entertainment/shopping district that will feature a
16-screen multiplex theater.
Program 1.2.1.1 Promote project designs that reduce dependency on vehicles and promote
pedestrian, transit, and alternate modes of travel. By combining uses such as the project
proposes, it is expected to reduce dependency on vehicles and promote pedestrian travel. Further
reducing the dependency on vehicle use is the proximity of the project to neighboring employment
centers.
C.
TENTATIVE PARCEL MAP No. 71543/TENTATIVE TRACT MAP No. 71544
The two subdivision applications together, Tentative Parcel Map No. 71543 and Tentative Tract
Map No.71544, make up the 77-acre project site. Tentative Tract Map No. 71544 (TPM No.
71544) encompasses the bulk of the site, westerly 57.78 acres, and is a request to re-subdivide
two lots into 16 parcels. Tentative Parcel Map No. 71543 encompasses the balance and it
proposes to subdivide the easternmost 19 acres from one lot into four parcels. The proposed
lots that comprise the tentative maps are configured to accommodate the components that
make up Tierra Luna Marketplace and its improvements.
Downey Studios currently occupies the 77-acre project, which is a media facility that provides
sound stages for television and film production. However, with the approval of the Amended
Specific Plan, the studios will discontinue operations, according to the development proposal,
(which includes razing the existing improvements, except the front portion of Building 1) to make
way for the Tierra Luna Marketplace.
Improvements that currently occupy the project site consist of seven buildings of varying sizes,
which together total approximately 1.5 million square feet. Of those structures, Building 1 is the
most prominent with its 65-foot ceiling and 913,000 square feet of floor space. Downey Studios
operates about 350,000 square feet of media and film production space and more than 300,000
square feet of space for production-related activities. The site also has a 20-acre back lot with
an outdoor suburban street movie set.
For the analysis of the proposed tentative maps, TPM No. 71543 is evaluated first, followed by
TTM No. 71544.
Page 18
Tentative Tract Parcel No. 71543
As noted above, Tentative Parcel Map No. 71543 is a request to subdivide the easternmost
19.67 acres into four lots (See Exhibit 3). Currently the parcel map site consists of one (1) lot
that is mostly unimproved, except for an outdoor suburban movie set and a few outlying
buildings The City of Downey holds title to this portion of the 77-acre project site and ground
leased it to Downey Studios for 55 years. The size of the tentative map’s prospective parcels is
listed below:
• Parcel 1 – 10.81 acres
•
Total ------19.67 acres
Parcel Characteristics/Planned Improvements
As the above quantities show, Parcel 1 with 10.81 acres (471,045.20 square feet) is the largest
of the four and encompasses nearly all of the northerly portion of the tentative map. Four Jr.
anchor stores and their accompanying parking lots will be located within its boundaries,
according to the project site plan. Parcel 4 with 8.64 acres (351,259 square feet) is the next
largest and covers the southerly part. Among the improvements shown on the site plan for this
parcel include three Jr. anchor stores, along with a freestanding building housing small retail
shops that totals 10,000 square feet. In contrast to the above parcels are the sizes of Parcel 2
and Parcel 3. Both are rectangular in shape with Parcel 2 measuring 0.12 acres (5,221.67
square feet), while Parcel 3 totals 0.10 acres (4,589.15 square feet). The reason for their
reduced size, compared to the other two, can be attributed to the use that is planned for them -the site plan shows a stand-alone restaurant covering each one.
Property Development Standards
The Amended Specific Plan provides the standards for establishing new lots within the project
site (providing minimum dimensions and minimum area) and the tentative parcel map’s four lots
comply with those standards. Essentially, the parcel map and tract map are integral parts of the
development proposal in that they were developed to implement the site plan. Consequently,
both maps have been incorporated into the Amended Specific Plan as exhibits; and according
to provisions of the plan, new lots shall conform with the lot configurations shown on the
exhibits.
General Plan Implementation
In addition to conforming with the development standards, TPM No. 71543 is also consistent
with several provisions of the General Plan. The purpose of the tentative map, as noted above,
is subdivide the site’s easterly 19 acres in order to accommodate the Tierra Luna Marketplace;
and doing so will implement several General Plan programs whose focus is business attraction
and job creation. More specifically, the project at build-out is forecast to create 3,286 jobs
onsite. As such, the tentative map will help implement the following employment-related
General Plan goal and programs:
Page 19
TENTATIVE PARCEL MAP No. 71543
0
80’
120’
SCALE IN FEET
PARCEL 1
471,045.20 SF
10.81 AC
KE
LA
N
O
T
T
A
P
M
P
.
7
1
A
5
R
4
T
PARCEL 2
5,221.67 SF
0.12 AC
4
PARCEL 3
4,589.15 SF
0.10 AC
CONGRESSMAN STEVE HORN
LEGEND:
TPM. 71543
TIERRA LUNA
MARKETPLACE
EXHIBIT 3
PARCEL 4
351,259 SF
8.64 AC
BELLFLOWER BLVD.
OD
T.
WO
RY
S
COLUMBIA WAY
MO
BL
VD
.
AL
AM
ED
A
WASHBURN
160’
•
•
•
•
Goal 9.1. Attract and retain businesses.
General Plan Program 1.1.3.1. Encourage land uses that generate jobs.
General Plan Program 9.2.1.3. Promote employment that increases the daytime
population of the city creating customer demand for other businesses.
General Plan Program 9.2.2.1. Promote a diversified employment base with jobs in
sectors in addition to retail sales.
Findings
In accordance with Section 66474 of the Subdivision Map Act, the following factors have been
considered in making findings of approval for Tentative Parcel Map No. 71543.
1. Proposed Tentative Parcel Map No. 71543 is consistent with the General Plan. The
Amended Downey Landing Specific Plan, which regulates all development activities on
the19.67-acre project site, is consistent with the General Plan with respect to permitted
uses and floor area ratio; and Tentative Parcel Map No. 71543 complies with the
Amended Plan’s development standards. Tentative Parcel Map No. 71543 complies
with the Amended Plan’s requirements regarding lot size and lot dimensions. Therefore,
the requested tentative parcel map is consistent with the General Plan. Tentative Parcel
Map No. 71543 is also consistent with the General Plan from the standpoint that
approving the tentative map and developing the project associated with it, the Tierra
Luna Marketplace, will implement several General Plan programs whose purpose is job
creation, and which in turn will beneficially impact the local economy. They include: (1)
Program 1.1.3.1 Encourage land uses that generate jobs; (2) Program 9.2.1.3 Promote
employment that increases the daytime population of the city thus creating customer
demand for other businesses; and (3) Program 9.2.2.1 Promote a diversified
employment base with jobs in sectors in addition to retail sales.
2. The site is physically suitable for the type of development proposed. Together, the
parcels that make up Tentative Parcel Map No. 71543 are physically suited for the
development proposal that is planned for the requested tentative parcel map site. The
project site is nearly level and no active earthquake faults have been identified at the
ground surface of any properties within Downey, according to the Safety Chapter of the
General Plan. And although the state Division of Mines has designated the City of
Downey as a liquefaction hazard zone, a requirement of the City’s plan check process
for construction requires submission of a geotechnical report in conjunction with the
project ‘s architectural plans in order to mitigate the possibility of undermining a structure
during an earthquake. Further, infrastructure, fire protection, and water supply
improvements are readily, or will be provided as conditions of the application’s approval
in order to support the project that is planned for the tentative map site.
3. The site is physically suitable for the proposed density of development. The four parcels
that comprise Tentative Parcel Map No. 71543 and which are intended to support part of
the Tierra Luna Marketplace development are physically suited to accommodate this
project. The tentative parcel map’s proposed lots conform with the size and dimension
requirements of the regulatory specific plan that oversees project development at the
site. Moreover, the site is large enough, slightly larger than 19 acres, so the
improvements that comprise the planned project will comply with the development
standards of the Amended Specific Plan.
Page 20
4. The design of the tentative parcel map or its proposed improvements will not cause
substantial environmental damage or substantially and avoidably injure fish or wildlife or
their habitat. The site of Tentative Parcel Map No. 71543 is part of the community’s built
environment and has supported the affected site’s existing improvements since the early
1930s. The 19-acre tentative map site is part of a larger 77-acre site that supports
seven buildings of various sizes, which together total 1.5 million square feet. Further, an
environmental impact report (Final EIR) was prepared for Tentative Parcel Map No.
71543, along with companion Tentative Tract Map No. 71544 and the Amended Downey
Landing Specific Plan, which indicates that although the planned development of
Tentative Parcel Map No. 71543 may have a significant and unavoidable impact on
construction-related emissions, long-term operational emissions and construction-related
noise, there are specific social, economic and other considerations which make it
infeasible to implement the mitigation measures for those impacts or to select one of the
other project alternatives identified in the Final EIR.
5. The design of the tentative parcel map or type of improvements will not cause serious
public health problems. The design of Tentative Map No. 71543 has been carefully laid
out to avoid conditions that could result in serious public health problems. Additionally,
the prospective lots are of sufficient size to enable them to comply with building setback
requirements, yard requirements, fire separation areas and satisfy parking requirements.
Moreover, conditions of approval have been imposed on the requested tentative parcel
map to insure that project development will not result in health problems.
6. The design and configuration of Tentative Parcel Map No. 71543 and its accompanying
improvements will not conflict with the easements acquired by the public at large for
access through or use of the property within the proposed subdivision. All such
easements have been noted on the tentative map, reserved or made a condition of
tentative map approval, including vehicular and pedestrian easements and access
easements to public utilities on private property for inspection and maintenance
purposes.
8. The design and configuration of Tentative Parcel Map No. 71543 will result in parcels
that are more than adequate in size to enable the orientation of future buildings to take
advantage of natural and passive cooling opportunities. The tentative map’s four parcels
are more than adequate in size to take advantage of passive cooling opportunities.
Tentative Tract Map No. 71544
Parcel Characteristics/Planned Improvements
Tentative Tract Map No. 71544 (TTM No. 71544) is an application to re-subdivide the westerly
57.78 acres of the 77-acre project site into 16 lots (see Exhibit 4). The size of the proposed lots
ranges from 0.16 acres to 11.78 acres and the 16 lots, together with previously-discussed
Tentative Parcel Map No. 71543 are designed to accommodate the improvements that
comprise Tierra Luna Marketplace.
The two largest of the proposed lots, Lots 2 and 3, are sized to support the project’s large
format retail buildings and their associated parking areas; while the smallest lot, Lot 14,
measures 0.12 acres and the site plan shows a free-standing restaurant covering it. Lot 12 and
Lot 11 are the next largest, 6.00 acres and 5.43 acres, respectively, and the tentative map
shows them as contiguous parcels in the southwest portion of the project site. Among the
Page 21
TENTATIVE TRACT MAP No. 71544
0
80’
120’
SCALE IN FEET
BL
VD
.
OD
WO
T.
LOT 14
6,966 SF
0.16 AC
COLUMBIA WAY
LA
KE
RY
S
RT
DA
LOT 15
187,333.97 SF
4.14 AC
MO
WASHBURN
LOT 3
513,102.72 SF
11.78 AC
LOT 2
411,342.84 SF
9.44 AC
LOT 13
106,492.91 SF
2.44 AC
LOT 12
261,32.08 SF
6.00 AC
P A5 4 3
LOT 16
55,064.73 SF
1.26 AC
LOT 10
101,492.91 SF
2.34 AC
LOT 9
74,459.15 SF
1.72 AC
LOT 6
52,668 SF
1.21 AC
LOT 7
89,454.73 SF
2.05 AC
LOT 11
236,613.11 SF
5.43 AC
N
LOT 8
93,732.79 SF
2.15 AC
LOT 5
161,695 SF
3.71 AC
LOT 4
100,776 SF
2.31 AC
CONGRESSMAN STE VE HORN
LEGEND:
TPM. 71543
TIERRA LUNA
MARKETPLACE
EXHIBIT 4
A 1
T M. 7
OT P
BELLFLOWER BLVD.
AL
AM
E
LOT 1
65,913 SF
1.51 AC
160’
improvements planned for Lot 12 is a 16-screen multiplex theatre, a food court and Jr. Anchor
stores. Lot 11’s proposed improvements include a 3-level parking structure, retail shops and
another Jr. Anchor store. Lot 15 is the next largest with 4.22 acres; it is located next to the
project’s Lakewood Boulevard entrance and the improvements planned for it include part of
Building 1, approximately 34,000 square feet, and a parking area. The balance of the tentative
map’s proposed lots hover between 1 and 4 acres. The size of each one and its planned
improvements are listed in the table below (also see Exhibits 2 and 4).
Lot No
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Total
Acreage
Proposed Land Use
1.51
Office/Retail
9.67
Large Format
11.78
Large Format
3.71
Jr. Anchor
3.71
Jr. Anchor
1.21
Parking Structure - 5 Levels
2.05
Office Building
2.15
Office Building
1.72
Hotel - 150 Rooms
2.34
Retail
5.43
Jr. Anchor
6
Multiplex/Food Court
2.44
Jr. Anchor
0.16
Restaurant
4.22
Office/Retail
1.07
Office/Retail
57.651 Acres
Property Development Standards
As is the case with TPM No. 71543, the Amended Specific Plan provides the standards for
establishing new lots within the area that Tentative Tract Map No. 71544 encompasses. One of
the changes that is proposed for the Downey Landing Specific Plan, as part of the specific plan
amendment, is to incorporate TTM No. 71544 into the Amended Specific Plan; so with the
adoption of the amended plan, the tract map and the specific plan’s land use regulations will
serve as the development code for the project site. In that context, all subdivision proposals
shall be developed in accordance with the tentative map.
General Plan Implementation
Approving TTM No. 71544 will also implement a handful of General Plan programs designed to
encourage business attraction and promote job creation. Like TPM No. 71543, the purpose in
filing the tract map is to help implement the Tierra Luna Marketplace -- the proposed parcels are
configured to conform with the project’s improvements. In doing so, the tentative tract map is an
integral part of the project, which is estimated to provide approximately 3,286 employment
opportunities. As such, the tentative map will implement the following General Plan programs
which are related to business attraction and job creation.
Page 22
•
•
•
•
General Plan Program 1.1.3.1. Encourage land uses that generate jobs.
General Plan Program 9.2.1.3. Promote employment that increases the daytime
population of the city creating customer demand for other businesses.
General Plan Program 9.2.2.1. Promote a diversified employment base with jobs in
sectors in addition to retail sales.
Goal 9.1. Attract and retain businesses.
Findings
In accordance with Section 66474 of the Subdivision Map Act, the following factors have been
considered in making findings of approval for Tentative Tract Map No. 71544.
1. Proposed Tentative Tract Map No. 71544 is consistent with the General Plan. The
Amended Downey Landing Specific Plan is the regulatory document that oversees all
development activities involving the tentative map’s proposed parcels and the amended
plan’s provisions conform with the “Mixed Use” General Plan category assigned to the
site. Further, the shape and design of Tentative Tract Map No. 71544’s lots are
consistent with the provisions of the amended specific plan; consequently, the requested
tentative tract map is consistent with the General Plan. In addition, approving Tentative
Tract Map No. 71544 and developing the project site in accordance with the tentative
map will implement several General Plan programs and a General Plan goal. The
tentative map is an integral part of the Tierra Luna Marketplace, and the project is
expected to generate employment opportunities that will have a beneficial effect
throughout the local economy. Related General Plan programs and a General Plan goal
include: (1) Goal 9.1 Attract and retain businesses; (2) Program 1.1.3.1 Encourage land
uses that generate jobs; (3) Program 9.2.1.3 Promote employment that increases the
daytime population of the city creating customer demand for other businesses; and (4)
Program 9.2.2.1 Promote a diversified employment base with jobs in sectors in addition
to retail sales.
2. The site is physically suitable for the type of development proposed. No active
earthquake faults have been identified along the ground surface of any of the properties
within Downey, according to the Safety Chapter of the General Plan. And although the
state Division of Mines has designated Downey as a liquefaction hazard zone, a
standard condition of the City’s architectural plan check process requires the submittal
of a geotechnical report in conjunction with a project’s architectural plans in order to
mitigate the possibility of undermining structures during earthquakes.
3. The site is physically suitable for the proposed density of development proposed. The
parcels that comprise Tentative Tract Map No. 71544 are physically suited to
accommodate the intensity and density of development that the amended specific plan
will permit, since they are of sufficient size to accommodate the plan’s permitted uses,
as well as satisfy its applicable development standards.
4. The design of the tentative tract map or its proposed improvements will not cause
substantial environmental damage or substantially and avoidably injure fish or wildlife or
their habitat. The site of Tentative Tract Map No. 71544 is part of the community’s built
environment and has supported the affected site’s existing improvements since the early
1930s. The 57-acre tentative map site is part of a larger 77-acre site that supports
seven (7) buildings of various sizes, which together total approximately 1.5 million
Page 23
square feet. Further, a environmental impact report ( EIR) was prepared for Tentative
Tract Map No. 71544, along with a companion parcel map (TPM No. 71543) and the
proposed amendment to the Downey Landing Specific Plan, which indicates that
although the planned development of the tentative tract map may have significant and
unavoidable impacts in regards to construction-related emissions, long-term operational
emissions and construction-related noise, there are specific social, economic and other
considerations which make infeasible the mitigation measures for those impacts or the
other project alternatives indentified in the EIR.
5. The design of the subdivision or type of improvements will not cause serious public
health problems. The design of Tentative Tract Map No. 71544 has been carefully laid
out to avoid conditions that could result in serious public health problems. Further, each
proposed lot is large enough to comply with building setback, yard and fire separation
areas. Additionally, conditions of approval have been imposed on the tentative map to
insure that it will not result in health problems.
6. The design and configuration of Tentative Tract Map No. 71544 and its accompanying
improvements will not conflict with the easements, acquired by the public at large for
access through or use of property within the proposed subdivision. All such easements
have been noted and reserved on the tentative map, including vehicular and pedestrian
and access easements to public utilities on private property for the purpose of
maintenance and inspection.
7. The design and configuration of the Tentative Tract Map No. 71544 and its
accompanying improvements will result in parcels that are more than adequate in size to
enable the orientation of future buildings to take advantage of natural and passive
cooling opportunities. The tentative map’s 16 parcels are more than adequate in size to
take advantage of passive cooling opportunities.
VI. ENVIRONMENTAL REVIEW PROCESS
The environmental impacts that the Tierra Luna Marketplace project is anticipated to produce were
analyzed through the environmental impact report (EIR) process. Briefly, the purpose of an EIR is
to provide decision makers, other governmental agencies and the public with detailed information
about the impacts(s) a project is likely to have on the environment, describe ways to minimize the
significant impacts and analyze project alternatives to the development proposal.
Tierra Luna Marketplace is evaluated as a “Project Alternative” (Alternative F) in the Final EIR that
was prepared for the Tierra Luna Specific Plan, the original proposed project and which the Final
EIR indentifies as the 2009 Proposed Project. The Tierra Luna Marketplace is essentially a pared
down revision to the original project. Like the Tierra Luna Marketplace, the 2009 Proposed Project
was a mixed-use project, but it envisioned the development of a town center, totaling
approximately 3.9 million square feet that featured a residential component with 1,500 multi-family
units. However, due to the recession and continuing economic concerns, the size of the project
was reduced and that included the elimination of the residential component.
The Draft EIR for the 2009 project was circulated for public comment in May 2009, but the project
was withdrawn shortly afterwards. When the Tierra Luna Marketplace project was filed with the
City in June, 2011, it was incorporated into the Final EIR as a “Project Alternative” giving decisionmakers and the public the opportunity to compare differences in impacts between it and the 2009
Proposed Project (as well as other five project alternatives).
Page 24
CEQA Guidelines Section 15126(a) mandates that an EIR compare the effects of a “reasonable
range of alternatives” to the impacts of the proposed project. It also requires EIRs to discuss a
range of reasonable alternatives to the proposed project that would achieve the same objectives as
the project, but produce fewer impacts. “Project Alternatives” are devised for the purpose of
attaining the project’s basic objectives, but avoiding or substantially lessening one or more of the
project’s significant effects. The number of alternatives that an EIR analyzes is governed by the
“rule of reason”, which mandates that EIRs set forth only those alternatives necessary to permit an
informed and reasoned choice by the Lead Agency (the City of Downey in this case) and foster
meaningful public participation. The objectives of the 2009 Proposed Project are listed below:
•
•
•
•
•
•
•
•
•
•
Create a new and unique regional destination for Downey.
Transform the central portion of the former NASA Industrial site by facilitating
redevelopment that creates new hotel, office, retail, restaurant, and, to the extent
permitted by environmental conditions, residential uses.
Facilitate development that is compatible with surrounding land uses.
Achieve an environment reflecting a high level of concern for architecture, landscape,
and urban design principles by developing a high-quality, comprehensively-designed
project.
Provide community amenities such as new community gathering places, new
restaurants, and new and unique entertainment opportunities in a manner that confers a
public benefit, while still adequately addressing the economic viability of the project.
Create a pedestrian-friendly environment with well-designed and connected spaces in
the public realm.
Provide unique, new retail opportunities for Downey residents.
Facilitate development of new unique hotel uses that include conference and meeting
space.
Create new and good-paying jobs by facilitating development of modern office space.
Positively impact the City’s fiscal tax base.
These objectives will also be achieved with the development of the Tierra Luna Marketplace.
Attaining them is possible because the Marketplace’s mix of uses is nearly identical to the 2009
Proposed Project, coupled with its comprehensively-designed site plan. Unlike the original
proposal, the Marketplace omitted residential uses because of the environmental constraints the
site poses for residential development, along with the recent downturn in the housing market.
In comparing the size and characteristics of the 2009 Proposed Project to the Tierra Luna
Marketplace, the original contemplated about 2.4 million square feet more than the revised project;
the original totaled 3,950,000 square feet, compared to Marketplace’s 1,516,000 square feet. The
following table shows the intended uses and quantities of each:
COMPARISON – 2009 PROPOSED PROJECT TO TIERRA LUNA MARKETPLACE
Land Use
Office
Retail
Hotel
Residential
Total
2009 Proposed Project
675,000 sf
1,200,000 sf
450 rooms (375,000 sf)
1,700,000 sf (1,500 units)
3,950,000
Net Change
300,000 sf
1,100,000 sf
150 rooms (116,000 sf)
-375,000
-100,000
-259,000
-1,700,000
-2,434,000
1,516,000
Page 25
In summary, the most notable differences between the two are the number of uses proposed and
their quantities. Four uses comprised the original project, retail, office, hotel, and residential, while
the Marketplace consists of three uses: retail, office and hotel. With respect to residential, the
original proposal contemplated a dwelling unit component with up to 1,500 units, occupying roughly
1.7 million square feet, whereas the Marketplace project omits residential all together.
The next biggest difference is the size of the office component; the 2009 Proposed Project
contemplated 675,000 square feet of office space, compared to the Marketplace’s proposed
300,000 square feet. Next is the size of the hotel component. The original project contemplated
450 rooms encompassing 375,000 square feet, whereas Tierra Luna Marketplace proposes 150
rooms that total 116,000 square feet. Overall, the revised project is approximately 68% smaller
with respect to square footage than the original.
It is also important to note that as part of this application, the Applicant is proposing that up to
200,000 square feet of the project’s retail space may instead be developed as office space,
depending on market conditions at the time. In other words, rather than developing 1,100,000
square feet of retail floor space and 300,000 square feet of office space as proposed initially, the
applicant is seeking the flexibility to develop 900,000 square feet of retail and 500,000 square feet
of office. Please keep in mind that even with this exchange, the project’s overall total still will not
exceed 1,516,000 square feet. Further, the final EIR in assessing this request concluded the
impacts would be the same in either case.
In comparing the anticipated impacts of the two projects, the Draft EIR concluded both are
expected to adversely impact the same environmental areas, but the severity of the Marketplace’s
potential impacts will be less because of its reduced size. In both cases, three (3) environmental
areas are expected to experience significant, unavoidable impacts. They include 1) constructionrelated emissions; 2) long-term operational emissions and 3) construction noise. The three areas
anticipated to impacted are discussed in the following paragraphs.
Construction-Related Emissions
With respect to construction-related emissions, nitrogen oxide (NOx) and reactive organic
compounds (ROG), both smog-forming pollutants, are two of the five criteria pollutants that
construction activities emit [the others are carbon monoxide (CO), particulate matter 10 microns or
less (PM10) and particulate matter 2.5 microns or less (PM2.5)]. Project construction activities
consist of demolition, site preparation, earth moving, and general construction; earth moving
activities include cut-and -fill operations, trenching, soil compaction, and grading. Estimates
indicate the levels of NOx and ROG that the two projects’ construction activities are expected to
emit will exceed the significance thresholds for these pollutants, even after implementing the Final
EIR’s suggested mitigation measures (the significance levels are established by the South Coast
Air Quality Management District). As a consequence, the impacts are considered significant and
unavoidable; although the effects of the Tierra Luna Marketplace to a lesser extent than the 2009
Proposed Project. However, when considering this impact it is worth noting that like construction
activities, a project’s NOx and ROG impacts will be intermittent and temporary and will end when
construction is completed.
Operational Emissions
Operational emissions are long-term impacts generated by stationary and mobile sources that
result from normal, day-to-day activities at the project site after construction is completed and the
Page 26
project is occupied. Stationary source emissions are generated by the onsite consumption of
electricity and natural gas (cooking, space heating, cooling and water heating), while mobile source
emissions are generated by motor vehicles traveling to and from the site. Like the analysis
assessing emissions from construction-related activities, the Final EIR evaluated operational air
impacts using the five criteria pollutants. It concluded that the 2009 Proposed Project would
generate emission levels of ROG, NOx, CO, PM10, and PM2.5 in excess of the SCAQMD’s
significance thresholds and therefore the impacts would be significant and unavoidable. Likewise,
the Marketplace project will generate ROG, NOx, CO, PM10, and PM2.5 emissions that exceed
the standards set by the SCAQMD, and they too would be significant and unavoidable, although to
a lesser degree than the original project.
Construction-Related Noise Impacts
For construction-related noise, the impacts of both projects are expected to be nearly the same
since the same kind of equipment would be used and the same construction activities would take
place. In the case of both projects, the Final EIR concluded construction noise levels are likely to
exceed 85 decibels across property lines, which is the city’s standard for construction noise
(Municipal Code Section 4606.5). Because of the anticipated exceedances, the impacts are
considered significant and unavoidable; the environmental document further concluded that the
anticipated noise levels could not be reduced below the standard, even by implementing the
suggested mitigation measures. However, the impact is expected to be less severe for Tierra Luna
Marketplace since it is smaller than the original and will take less time to complete.
In summary, the Tierra Luna Marketplace project is considered to be the environmentally superior
project in comparison to the 2009 Proposed Project, as well as the other project alternatives,
according to the Final EIR. The Marketplace will have similar significant and unavoidable impacts
to the 2009 Proposed Project with respect to construction-related and operational air quality
impacts and construction-related noise. However, the extent of these impacts will be to a lesser
degree with the Tierra Luna Marketplace proposal due to the reduction in retail and office space
and hotel rooms. Additionally, the Marketplace project will generate fewer daily vehicle trips, plus it
will not include residents, which will lessen impacts to public services, and also lessen the amount
of utilities (water, wastewater, solid waste, electricity and natural gas) consumed and generated.
The amount and intensity of the impacts (air quality; construction noise; population; housing; and
employment; public services and utilities) under Tierra Luna Marketplace would also be less than
the other project alternatives. Moreover, the 2011 Revised Project will be able to meet the same
objectives that were proposed for the 2009 project.
Yet, despite a project’s potential significant unavoidable impacts, a local agency’s decision-makers
can still approve a project under the provisions of the California Environmental Quality Act, if they
first adopt a Statement of Overriding Considerations, which sets forth the reasons why the Lead
Agency finds that the project’s benefits render its adverse effects acceptable. To do so, decisionmakers determine, as part of their findings, that the project’s economic, social and other benefits
outweigh the adverse impacts. The benefits of Tierra Luna Marketplace project are provided in the
Findings of Fact and Statement of Overriding Considerations, which are attached as exhibits
(Exhibits D and E) to the Planning Commission resolution recommending certification of the Final
EIR. In this resolution, Planning Commissioners recommend the City Council certify the Final EIR
as being adequate and complete in that the environmental document has sufficiently identified and
assessed the project’s potential impacts. Documents that comprise the Final EIR include the (1)
Draft EIR, (2) the City of Downey’s responses, as the Lead Agency, to the comments received on
the Draft EIR during its public comment period, (3) a list of the entities/interested parties
commenting on the Draft EIR (4) and the environmental document’s mitigation, monitoring, and
Page 27
reporting program (MMRP). An MMRP consists of measures that decision makers adopt when
they approve the project that are designed to avoid or substantially reduce a project’s significant
environmental effects to a level of insignificance. A copy of the MMRP is also attached to the
Planning Commission resolution recommending the City Council certify the Final EIR.
Page 28
RESOLUTION NO.
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DOWNEY RECOMMENDING CERTIFICATION
OF THE FINAL ENVIRONMENTAL IMPACT REPORT
FOR THE TIERRA LUNA SPECIFIC PLAN, A PROPOSED AMENDMENT TO THE DOWNEY
LANDING SPECIFIC PLAN
THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES HEREBY RESOLVE AS
FOLLOWS:
SECTION 1. The Planning Commission of the City of Downey hereby finds, determines
and resolves that:
A. In March, 2002, the City Council of the City of Downey adopted the Downey Landing
Specific Plan (DLSP), which is the zoning ordinance for the 154-acre planning area
known as Downey Landing. The Downey Landing planning area is bounded by:
Stewart & Gray Road on the north, Bellflower Boulevard on the east, Imperial
Highway on the south, and Columbia Way (formerly Clark Avenue) and Lakewood
Boulevard on the west.
B. In April, 2008 Mr. Tom Messmer filed a petition on behalf of the Applicants, Industrial
Realty Group and the City of Downey, to amend the provisions of the Downey
Landing Specific Plan that pertain to the portion of the 154-planning area that
Downey Studios currently occupies, the central 77 acres, and which is located at
12214 Lakewood Boulevard. Under the proposed amendment, the provisions of the
DLSP regulating the balance of the 154-acre planning area would remain
unchanged. The 77-acre central portion is bounded by Bellflower Boulevard on the
east, Congressman Steve Horn Way on the south, Columbia Way and Lakewood
Boulevard on the west, and the Downey Landing Retail Center on the north. The
requested amendment, better known as the Tierra Luna Specific Plan and the 2009
Proposed Project, was intended to guide the development of a comprehensivelyplanned, mixed-use project that would contain up to 3.9 million square feet of
commercial/office uses, commercial/retail uses, 450 hotel rooms and up to 1,500
residential units, featuring live/work, for-sale and for-rent units.
C. The City of Downey, as the Lead the Agency for the proposed Tierra Luna Specific
Plan project, i.e., DLSP amendment, caused a Draft Environmental Impact Report
(Draft EIR -- State Clearinghouse Number 2008051022) to be prepared for the
project, pursuant to the California Environmental Quality Act (CEQA) of 1970, as
amended, State CEQA Guidelines and the City of Downey‘s Revised Procedures for
Implementing CEQA, adopted by City Council Resolution No. 5646.
D. The Draft EIR evaluated the Tierra Luna Specific Plan’s potential environmental
effects, devised measures to minimize the potentially significant impacts and
considered six (6) alternatives (designated Alternative A through Alternative F, to the
proposed project.
E. The City of Downey conducted a public scoping meeting on the May 15, 2008 for
the purpose of soliciting input on the content of the environmental analysis to be
Resolution No.
included in the Draft EIR, in accordance with CEQA Guidelines (“Guidelines “), 14
Cal. Code Regs §15082(c)(1).
F. Under Guidelines 15105, the Draft EIR was circulated to the appropriate state,
regional and county agencies, neighboring cities, interested parties and was made
available to the public for review and comment for a 45-day period: April 2, 2009 to
May 18, 2009.
G. After circulation of the Draft EIR, the applicant withdrew the application due to the
downturn in the economy and comments received on the Draft EIR. In June, 2011,
the authorized agent for the Applicant, Manarino Realty, LLC, submitted a revised
amendment to the DLSP. The revised amendment, better known as the Amended
Downey Landing Specific Plan, or Tierra Luna Marketplace encompasses the same
77-acre site as the original amendment, but is smaller in scale. It totals slightly more
than 1.5 million square feet and is described as a mixed-use development that
consists of a variety of retail formats, stand-alone restaurants, office buildings, a
multiplex theater and a hotel.
H. The authorized agent filed three (3) related applications in conjunction with Tierra
Luna Marketplace, also for the purpose of developing the 1.5 million square foot
mixed-use project. The applications included Development Agreement PLN – 11 –
00136, Tentative Parcel Map No. 71543 and Tentative Tract Map No. 71544. These
applications are associated with the development of Tierra Luna Marketplace and
the Final EIR for the Tierra Luna Specific Plan will serve as the environmental
document for them.
I.
The Amended Downey Landing Specific Plan, 2011 Alternative will guide the
redevelopment of the underutilized 77-acre planning area, and ultimately create a
vibrant, pedestrian-oriented development (Tierra Luna Marketplace), that will serve
as a place for shopping, dining, employment and as a entertainment destination.
The Tierra Luna Marketplace is identified as 2011 Alternative in the Final EIR for the
Tierra Luna Specific Plan.
J. The Planning Commission conducted a public hearing on December 21, 2011, at
which time evidence was heard on the Final EIR prior to considering the four
applications.
K. Written and oral comments on the Draft EIR were received by the City during the
environmental document’s 45-day public review period and were fully and
adequately responded to in accordance with CEQA and the Guidelines, including
Guideline 15088(a).
L. The comments and responses to comments regarding the Draft EIR have been
included in the Final EIR for the Tierra Luna Specific Plan.
M. The Planning Commission has fully reviewed and carefully considered the Draft EIR,
the comments, and responses to comments regarding the DEIR and all other
environmental documents that comprise the Final EIR.
Tierra Luna Project
Resolution No.
N. Although the Final EIR was prepared by an environmental consultant firm, the
document reflects the independent judgment and analysis of the Planning
Commission of the City of Downey.
SECTION 2. The Planning Commission of the City of Downey hereby adopts
and incorporates herein by reference the following documents attached hereto as exhibits: (1)
Exhibit A - Findings of Fact for the Tierra Luna Project; (2) Exhibit B – Statement of Overriding
Considerations for the Tierra Luna Project; (3) Exhibit C – Mitigation Monitoring and Reporting
Program for the Tierra Luna Project; (4) Exhibit D – Findings of Fact for the Tierra Luna
Marketplace; (5) Exhibit E – Statement of Overriding Considerations for the Tierra Luna
Marketplace; and (6) Exhibit F – Mitigation Monitoring and Reporting Program for the Tierra
Luna Marketplace.
SECTION 3. That the Planning Commission of the City of Downey hereby recommends
the City Council certify the Final EIR, as the environmental document is complete and adequate
and determines that the Final EIR was prepared in compliance with the requirements of CEQA,
State CEQA Guidelines and the City’s Revised Procedures for Implementing CEQA.
SECTION 4. That the Planning Commission of the City of Downey further resolves that
a copy of the Resolution be transmitted to the City Council of the City of Downey.
APPROVED AND ADOPTED this 21st day of December, 2011, by the affirmative vote of
the majority of the full membership of the City Planning Commission of the City of Downey,
California.
I hereby certify that the foregoing Resolution was duly adopted by the City Planning
Commission of the City of Downey at a meeting thereof held on the 21st day of December, 2011,
by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
H:\PLANNING\MSELL\Tierra Luna Marketplace\PC Reso Certifying FEIR
Tierra Luna Project
Resolution No. 11Downey Planning Commission
Exhibit A
FINDINGS OF FACT
1.
INTRODUCTION AND BACKGROUND
This document provides the Findings of Facts required for the approval of the Tierra Luna Project (2009
Proposed Project), as defined in the Final EIR.
As required by the California Environmental Quality Act (CEQA), a Notice of Preparation (NOP) to
prepare the Tierra Luna EIR was distributed on May 5, 2008, to responsible and trustee agencies, as well
as private organizations and parties that may have an interest in the Project. The NOP provided
notification that the Lead Agency, i.e., the City of Downey (City), planned to prepare an Environmental
Impact Report (EIR) and to solicit guidance on the scope and content of the EIR. The NOP included a
brief description of the Project and identified those environmental areas where the Project could have
potentially significant environmental effects, as well as those areas where the Project would have no
potentially significant environmental effects. The NOP is included in Appendix I-1 of the Draft EIR.
On April 2, 2009, the City circulated the Draft EIR for public review for a period of 45 days ending on
May 18, 2009. A Notice of Availability (Notice) was circulated, that announced the release of the Draft
EIR, identified where it was available for review, described the project and its location, and summarized
the significant environmental effects of the project. The Notice stated where documents referenced in the
Draft EIR were available for review, and stated the period for submittal of comments on the contents of
the Draft EIR. The City distributed the Draft EIR to interested individuals, adjacent cities, county,
regional, and state agencies. Copies of the Draft EIR were also made available for public review at the
Downey City Library, the City’s Planning Division office, and on the City’s website. The City received
14 letters commenting on the Draft EIR during the public review period.
The Draft EIR included a detailed description of the proposed project, an analysis of its potential
environmental effects, and an analysis of the effects of five alternatives to the project:
Alternative A: No Project/No Development
Alternative B: No Project/Existing Specific Plan Build-Out
Alternative C: Reduced Density
Alternative D: Reduced Site
Alternative E: All-Commercial
The Draft EIR also described cumulative impacts, growth-inducing impacts, significant irreversible
environmental effects, and significant and unavoidable impacts.
On December 12, 2011 the City released the Final EIR for the project. The Final EIR incorporates by
reference the text of the Draft EIR and includes an Introduction, Summary, Corrections and Additions to
the Draft EIR, responses to the letters commenting on the Draft EIR, and a Mitigation Monitoring and
Reporting Program.
2.
PROJECT OBJECTIVES AND DESCRIPTION
The objectives of the City (i.e., the Lead Agency) for the Project are as follows:
Tierra Luna Project
December, 2011 - Page 7
•
•
•
•
•
•
•
•
•
•
Transform the central portion of the former NASA Industrial site by facilitating redevelopment that
creates new hotel, office, retail, restaurant, and, to the extent permitted by environmental conditions,
residential uses.
Achieve an environment reflecting a high level of concern for architecture, landscape, and urban
design principles by developing a high-quality, comprehensively-designed project.
Provide community amenities such as new community gathering places, new restaurants, and new
and unique entertainment opportunities in a manner that confers a public benefit, while still
adequately addressing the economic viability of the project.
Create a pedestrian-friendly environment with well-designed and connected spaces in the public
realm.
Provide unique new retail opportunities for Downey residents.
Facilitate development of new and unique hotel uses that include conference and meeting space.
Positively impact the City of Downey’s fiscal tax base.
The Proposed Project consists of the development of 77 acres of land located at 12214 Lakewood
Boulevard in Downey, California. The Project Site is generally bound by the Downey Landing Retail
Center to the north, Bellflower Boulevard to the east, the City Park Learning Center, the Kaiser Downey
Medical Center, medical offices and an associated Central Plant located on the northwest corner of
Imperial Highway and Bellflower Boulevard to the south, and Columbia Way (formerly Clark Avenue)
and Lakewood Boulevard to the west.
Development would involve the construction of up to 3,950,000 square feet of commercial, office,
residential and public open space uses, including up to 675,000 square feet of commercial/office uses, up
to 1,200,000 square feet of commercial/retail uses, up to 450 hotel rooms, and up to 1,700,000 square
feet (up to 1,500 dwelling units) of residential uses to include live/work units, for-sale units, and for-rent
units. The Project would also develop up to 125,000 square feet of public open space (public parks and
plazas), and would feature 850,000 square feet of parking facilities dispersed among several multi-level
parking structures, on-street parking, and surface parking lots.
Discretionary Approvals
Implementation of the Proposed Project would require the following discretionary approvals by the
agencies listed below. This EIR would be used by these agencies as a basis for such approvals.
City of Downey
• Amendment to the existing Downey Landing Specific Plan;
• Development Agreement;
• Subdivision Map Act Approvals;
• SUSMP as well as Specific Plan Water, Wastewater, and Recycled Water Master Plan Approval;
• Conditional Use Permit(s);
• Other Actions from local regional, state, and federal agencies; and
• Any additional actions as may be necessary.
Tierra Luna Project
3.
RECORD OF PROCEEDINGS
For purposes of CEQA and the findings set forth herein, the record of proceedings for the City of
Downey’s decision on the project consists of the following documents:
The NOP prepared for the Project;
Other public notices prepared in conjunction with the Project;
The Draft EIR;
All written comments submitted by agencies or members of the public during the public
comment period on the Draft EIR;
The Final EIR for the Project;
The Mitigation Monitoring and Reporting Program for the Project;
All findings and resolutions adopted by the City of Downey in connection with the Project, and
all documents cited or referred to therein;
All reports, studies, memoranda, maps, and other planning documents relating to the project
prepared by the City of Downey, the City of Downey's consultants, or Responsible or Trustee
agencies with respect to the City’s compliance with the requirements of CEQA and with respect
to the City of Downey action on the Project;
All documents submitted to the City of Downey by agencies or members of the public in
connection with the project;
Minutes of public hearings held by the City of Downey in connection with the project;
Any documentary or other evidence submitted to the City of Downey at public hearings; and
Matters of common knowledge to the City of Downey, including, but not limited to federal,
State, and local laws and regulations.
The custodian of the documents is the City of Downey Community Development Department.
4.
FINDINGS REQUIRED UNDER CEQA
Under CEQA, for each significant environmental effect identified in an EIR for a Proposed Project, the
approving agency must issue a written finding reaching one or more of three allowable conclusions:
Changes or alterations have been required in, or incorporated into, the project which avoid or
substantially lessen the significant effects on the environment (Public Resources Code (PRC)
§21081, subd. [a]);
Changes or alterations are within the responsibility and jurisdiction of another public agency and
have been, or can and should be, adopted by the other agency (PRC §21081, subd. [b]); and
Specific economic, legal, social, technological, or other considerations, including considerations
for the provision of employment opportunities for highly trained workers, made infeasible the
mitigation measures or alternatives identified in the environmental impact report (PRC §21081,
subd. [c]).
CEQA requires that the lead agency adopt mitigation measures or alternatives, where feasible, to avoid or
substantially reduce significant environmental impacts that would otherwise occur as a result of a project.
Project modification or alternatives are not required, however, where they are infeasible or where the
responsibility for modifying the project lies with some other agency (State CEQA Guidelines §15091,
subd. (a)[3]). Public Resources Code Section 21061.1 defines “feasible” to mean “capable of being
accomplished in a successful manner within a reasonable period of time, taking into account economic,
environmental, social and technological factors.” State CEQA Guidelines Section 15364 adds another
factor: “legal” considerations.
Tierra Luna Project
Only after fully complying with the findings requirement can an agency adopt a statement of overriding
considerations.
In cases in which significant impacts are not at least “substantially mitigated,” the agency, after adopting
the findings, may approve the project if it first adopts a statement of overriding considerations setting
forth the specific reasons why the agency found that the project’s “benefits” rendered “acceptable” its
“unavoidable adverse environmental effects” (State CEQA Guidelines §15093 and §15043, subd. [b]).
The California Supreme Court has stated that, “the wisdom of approving any development project, a
delicate task which requires a balancing of interests, is necessarily left to the sound discretion of the local
officials and their constituents who are responsible for such decisions. The law as we interpret and apply
it simply requires that those decisions be informed, and therefore balanced” (Goleta II, 52 Cal.3d 553,
576 [276 Cal. Rptr. 401]).
This document presents the City’s findings as required by CEQA, cites substantial evidence in the record
in support of each of the findings, and presents an explanation to supply the logical step between the
finding and the facts in the record (State CEQA Guidelines §15091).
5.
LEGAL EFFECTS OF FINDINGS
To the extent that these findings conclude that various proposed mitigation measures outlined in the EIR
are feasible and have not been modified, superseded or withdrawn, the City, in adopting the findings,
commits to implementing these measures through the imposition of conditions on the project applicant.
In other words, these findings are not merely informational, but rather constitute a binding set of
obligations that will go into effect when the City of Downey approves the project.
The mitigation measures are referenced in the Mitigation Monitoring and Reporting Program (MMRP)
(Exhibit C) adopted concurrently with these findings, and will be affected through the process of
constructing and implementing the project.
6.
MITIGATION MONITORING AND REPORTING PROGRAM
A MMRP has been prepared for the Project, as required by PRC Section 21081.6, and included as
Exhibit C to this resolution. The City will use the MMRP to track compliance with adopted mitigation
measures. The City will consider the MMRP during the approval of the Amended Specific Plan and
related current and future entitlements for the Tierra Luna Marketplace. The final MMRP will
incorporate all mitigation measures adopted for the project under separate cover.
7.
SIGNIFICANT EFFECTS, MITIGATION MEASURES, AND FINDINGS
7.1
Effects Determined to be Mitigated to Less than Significant Levels
The potentially significant adverse environmental impacts that can be mitigated to less than significant
levels are listed below. The City finds that these potentially significant impacts can be mitigated to a
level that is considered less than significant after implementation of the Mitigation Measures identified in
the EIR.
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Biological Resources
Impact
Impact BIO-1: The 2009 Proposed Project has the potential to impact nesting birds. (Draft EIR p. IV.A-2)
Facts in Support of Findings
The Project Site does not contain any species identified as a candidate, sensitive, or special status species
in local or regional plans, policies, or regulations, or by the California Department of Fish and Game
(Fish and Game) or U.S. Fish and Wildlife Service (USFWS). Furthermore, review of the National
Wetlands Inventory identified no protected wetlands on the Project Site or in the immediate area as
defined by Section 404 of the Clean Water Act. There are no known locally designated natural
communities on the Project Site or in the project vicinity; therefore, the Proposed Project would not
conflict with the provisions of an adopted or proposed Habitat Conservation Plan, Natural Conservation
Community Plan, or other approved local, regional, or State habitat conservation plan.
Due to the urbanized surroundings, there are no wildlife corridors or native wildlife nursery sites in the
project vicinity. The Proposed Project would not interfere with the movement of any resident or
migratory fish or wildlife species. Nevertheless, the approximately 30 existing trees on the Project Site
that will be removed could possibly serve as nesting areas for migratory birds under The Migratory Bird
Treaty Act (“MBTA”). Compliance with the MBTA typically prohibits demolition and construction
within certain distances of trees during nesting season and prohibits tree removal during nesting season,
unless trees are surveyed for active nests prior to construction, demolition or tree removal during nesting
season.
Findings
Implementation of Mitigation Measure A-1 would reduce impacts with respect to nesting birds to less
than significant.
A-1. To avoid impacting nesting birds, one of the following must be implemented:
(a)
Conduct vegetation removal and/or grading activities from September 1 through January 31,
when birds are not likely to be nesting on the site;
- OR (b)
Conduct pre-construction surveys for nesting birds if construction is to take place during the
nesting season. A qualified wildlife biologist shall conduct a pre-construction nest survey no
more than five days prior to initiation of grading to provide confirmation on presence or absence
of active nests in the vicinity (at least 300 feet around the Project Site). If active nests are
encountered, species-specific measures shall be prepared by a qualified biologist in consultation
with the CDFG and implemented to prevent abandonment of the active nest. At a minimum,
grading in the vicinity of the nest shall be deferred until the young birds have fledged. A
minimum exclusion buffer of 100 feet shall be maintained during construction, depending on the
species and location. The perimeter of the nest-setback zone shall be fenced or adequately
demarcated with staked flagging at 20-foot intervals, and construction personnel and activities
restricted from the area. A survey report by the qualified biologist verifying that (1) no active
nests are present, or (2) that the young have fledged, shall be submitted to the City prior to
initiation of grading in the nest-setback zone. The qualified biologist shall serve as a construction
monitor during those periods when construction activities will occur near active nest areas to
ensure that no inadvertent impacts on these nests will occur.
Tierra Luna Project
Aesthetics
Impact
Impact AES-1: The 2009 Proposed Project would increase onsite light. (Draft EIR, p. IV.B-14)
The potential impacts associated with light are discussed in Section IV.B (Aesthetics) of the Draft EIR.
As the Proposed Project would increase the amount of development on the Project Site, project
implementation therefore would incrementally increase the amount of nighttime lighting emanating from
the Project Site over existing conditions. The Project Site would be illuminated with lighting from the
office, retail, residential, and hotel portions of the Proposed Project, as well as from roadway lighting
along the new internal road network, security lighting along pedestrian routes and in parking facilities,
and lighting associated with the Central Plaza and the Neighborhood Green. In compliance with the
lighting requirements of the Tierra Luna Specific Plan, these lights would be required to be permanently
shielded and focused on the Project Site to prevent spillover and light pollution upon the nearby lightsensitive uses (i.e., residences).
Further, the Project Site is located along several major commercial corridors and adjacent to a large retail
center already exhibiting moderate ambient lighting levels. As the Tierra Luna Specific Plan would
require the containment of all possible light pollution, urban glow emanating from the Proposed Project
would be reduced to the maximum extent possible. However, as there are minimal light sources currently
onsite, development of the Proposed Project would constitute a substantial source of additional light in
the area. To the maximum extent feasible, all lighting would be shielded and focused on the Project Site
and directed away from the neighboring land uses.
Findings
Implementation of Mitigation Measures B-1 and B-2 would reduce impacts related to lighting to less than
significant.
B-1.
Project lighting shall be directed onto the Project Site, and all lighting shall be shielded from
adjacent roadways and off-site properties.
B-2.
Atmospheric light pollution shall be minimized by utilizing lighting fixtures that cut-off light
directed to the sky.
Impact
Impact AES-2: The 2009 Proposed Project includes glass windows, which could result in some
transitory conditions of glare during the day. (Draft EIR, p. IV.B-14)
The Proposed Project would construct many new buildings with glass windows that have the potential to
reflect light. The increased amount of building development onsite may result in a higher level of glare
emanating from onsite structures depending on the type of building surfaces, while the demolition and
replacement of the existing expansive surface parking lots with smaller lots and street parking would
result in a reduction in the amount of glare existing at the Project Site. Further, the Proposed Project
includes a detailed street tree program intended to plant trees throughout the Project Site. The location of
trees throughout the Project Site would assist in the reduction of glare derived from onsite cars and
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windows. Development of the Proposed Project may include architectural features and facades that have
a low level of reflectivity depending on the type of building surfaces.
Findings
Implementation of Mitigation Measure B-3 would ensure that impacts related to glare would be less than
significant.
B-3.
The proposed buildings shall incorporate non-reflective exterior building materials (such as
plaster and masonry) in their design. Any glass to be incorporated into the façade of the building
shall be either of low-reflectivity, or accompanied by a non-glare coating. Reflective materials
such as mirrored glass shall not be permitted.
Air Quality
[Impacts AIR-1, 2, and 3 and Mitigation Measures C-1 through C-4 are described in Section 7.2, below,
because despite mitigation, impacts would be significant and unavoidable.]
Impact
Impact AIR-4: The construction-related daily emissions generated during the building phase at the
Project Site would exceed the regional emission threshold recommended by the SCAQMD for ROG,
while the other criteria pollutants (CO, NOx, SOx, PM10, and PM2.5) would not exceed their respective
SCAQMD regional significance thresholds. (Draft EIR, p. IV.C.1-28)
During the building phase, the Proposed Project’s impacts on regional air quality resulting from
construction activities would be potentially significant for ROG emissions. The exceedance of the
SCAQMD significance threshold for ROG during the building phase is primarily due to the emissions
generated during the application of architectural coatings for the new on-site buildings on an estimated
peak construction day at the Project Site. Implementation of Mitigation Measure C-5, which would
require that all paints and primer used at the Project Site during construction to have a VOC rating of 125
grams per liter or less and that only a maximum of 214 liters (57 gallons) of such paints can be used on
any given day, would reduce the amount of ROG emissions generated during the building phase.
Findings
The total amount of ROG emissions would be reduced with implementation of Mitigation Measure C-5
to a level that would not exceed the SCAQMD’s threshold of significance. As such, this impact would
be reduced to less than significant.
C-5.
The Project Developer(s) shall include in construction contracts the required application of
paints and primer at the Project Site during construction to have a VOC rating of 125 grams per
liter or less, and that only a maximum of 214 liters (57 gallons) of such paints can be used on any
given day.
Cultural Resources
Impact
Impact CUL-1: The Proposed Project could adversely affect recorded historic architectural resources
directly through demolition. (Draft EIR, p. IV.D-18)
Tierra Luna Project
All of the historic resources on the site would be demolished, with the exception of the front portion of
Building 1. The historic resources to be demolished include Buildings 6, 11, 36, 39, 108, 123, 125, 126,
127, 128, 130, and 290. The portion of Building 1 that will be preserved includes the front section of the
original EMSCO building (1929), the Kauffman wing (1939-41), and another wing attributed to
Kauffman (1941). Some has already been rehabilitated according to Secretary of the Interior’s Standards
and the rest will be reused as office or retail. However, additional alterations on this portion of Building
1 would need to be mitigated by compliance with the Secretary of the Interior’s Standards.
As a federal agency and as the property owner of the 160-acre NASA Industrial Plant, NASA was
required under Section 106 of the National Historic Preservation Act (NHPA) to evaluate potential
effects on structures on-site that are older than 50 years or that may have been associated with significant
events in the past. This required study of NASA’s transfer of the Project Site to the City of Downey
included an evaluation of the buildings’ historic significance and potential eligibility for the National
Register of Historic Places. The Final Historic Buildings and Structures Inventory and Evaluation was
prepared for NASA by Earthtech (2000) for the purposes described above and determined, based on a
review of historical literature (e.g., text maps and photographs), interviews with individuals having
knowledge of the property’s/plant’s history and physical inspection and evaluation of the entire plant and
its associated properties, that a complex of 19 structures and features on the Project Site, identified as
property numbers 1, 6, 10, 11, 25, 36, 39, 41, 42, 108, 120, 123, 125, 126, 127, 128, 130, 288 and 290, is
potentially eligible for listing in the National Register based on their individual merit as principal historic
resources of the property.
The California State Office of Historic Preservation (SHPO) concurred with the findings of the Earthtech
evaluation. Consequently, the project’s potential effects on some of these structures (i.e., demolition)
were regarded as adverse effects, pursuant to Section 106 of the National Historic Preservation Act.
These effects would also constitute a significant impact under Section 15064.5 of the State CEQA
Guidelines. To mitigate this impact, NASA previously entered into a Memorandum of Agreement
(MOA)with the City of Downey, the federal General Services Administration (GSA) and SHPO, as
discussed in the Final EIR.
The HAER documentation was done in 2006 by Onyx Architects and was accepted by the National Park
Service in 2007. The educational program was supposed to be done within 5 years of the MOA. The
Columbia Memorial Space Science Learning Center has been opened in Downey and provides
educational programs. The MOA was executed by NASA, GSA, SHPO and the City.
Findings
Implementation of Mitigation Measures D-1 and D-2 would reduce the potential impacts related to
historic resources to less than significant.
D-1.
Historic American Engineering Record (HAER) reports were prepared for all of the historic
resources on the Project Site in 2006. These reports were prepared as mitigation pursuant to the
Memorandum of Agreement (MOA). However, the HAER report for Building 1 did not
document that portion planned for preservation. Although the Project will preserve that same
portion of Building 1, the report should be completed so that the entirety of Building 1 is
documented. Prior to the commencement of the Project, Level II Historic American Buildings
Survey (HABS) documentation shall be prepared for that portion of Building 1 planned for
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preservation. One original copy of the report as specified above shall be assembled and offered
to the National Park Service, State Office of Historic Preservation, and the City of Downey.
D-2.
The rehabilitation of the remaining historic resources on the Project Site shall comply with the
Secretary of the Interior’s Standards. According to the schematic plans, the Project appears to
comply with the Standards. However, the plans are expected to evolve to a greater level of
detail, including construction materials and treatment of features. As such, a qualified historic
architect shall monitor the design and the construction of the Project to ensure that it continues to
comply with the Standards. The historic architect shall prepare a report at the conclusion of the
design and development phase of the Project analyzing compliance with the Standards. That
report shall be submitted to the City of Downey for review and approval.
Impact
Impact CUL-2: Construction could result in the disturbance of previously unidentified archaeological
resources, paleontological resources, and human remains. (Draft EIR, p. IV.D-24)
Archaeological Resources
The Project Site is located in an urbanized area and has been previously disturbed by development. Any
archaeological resources that may have existed on the Project Site have likely been previously unearthed
or disturbed. Excavation for the Proposed Project would be required for the installation of future
foundations, utilities, subterranean parking, and stormwater infrastructure. While it is unlikely that
archaeological resources would be discovered during project development activities, should any such
resources be encountered, full realization of the Proposed Project would result in significant impacts to
archaeological resources.
Paleontological Resources
There are no known paleontological resources on the Project Site. Any paleontological resources that
may have existed on the Project Site have likely been previously unearthed or disturbed. The anticipated
excavation activities associated with the Proposed Project would be required for the installation of future
paleontological resources would be discovered during project development activities, should any such
paleontological resources.
Human Remains
No known human burials have been identified on the Project Site. The anticipated excavation activities
associated with the Proposed Project would be required for the installation of future foundations,
utilities, subterranean parking, and stormwater BMP infrastructure, including stormwater retention
facilities, identified in the Tierra Luna Specific Plan. While it is possible that human remains could be
discovered during construction activities, with the implementation of mitigation measures listed below,
impacts from the realization of the Proposed Project on the human remains would be reduced to a less
than significant level.
Findings
Implementation of Mitigation Measure D-3, D-4, and D-5 would reduce these potential impacts to a less
Tierra Luna Project
D-3.
D-4.
D-5.
If any archaeological materials are encountered during the course of development of all future
projects constructed pursuant to the Tierra Luna Specific Plan, the project shall be halted. The
services of an archaeologist shall be secured by contacting the Center for Public Archaeology –
California State University at Fullerton, or a member of the Society of Professional
Archaeologists (SOPA) or a SOPA-qualified archaeologist to assess the resources and evaluate
the impact. Copies of the archaeological survey, study or report shall be submitted to the UCLA
Archaeological Information Center. A covenant and agreement shall be recorded before grading
resumes.
If any paleontological materials are encountered during the course of development of all future
services of a paleontologist shall be secured by contacting the Center for Public Paleontology –
University of Southern California (USC), University of California at Los Angeles (UCLA),
California State University at Los Angeles, California State University at Long Beach, or the Los
Angeles County Natural History Museum to assess the resources and evaluate the impact.
Copies of the paleontological survey, study, or report shall be submitted to the Los Angeles
County Natural History Museum.
If human remains are discovered at the Project Site during construction for future projects
pursuant to the Tierra Luna Specific Plan, work at the respective construction site shall be
suspended, and the City of Downey and County Coroner shall be immediately notified. If the
remains are determined by the County Coroner to be Native American, the Native American
Heritage Commission (NAHC) shall be notified within 24 hours, and the guidelines of the
NAHC shall be adhered to in the treatment or disposition of the remains.
Hazardous Materials and Hazards
Impact
Impact HAZ-1: It is possible that polychlorinated biphenyls, asbestos-containing materials, and leadbased paint could be present on-site. (Draft EIR, p. IV.F-14 to 15)
Local overhead electricity power poles, which could potentially contain pole mounted transformers or
capacitors, were observed on the Project Site. In addition, PCBs may be present in the fluorescent light
ballasts present inside structures scheduled for demolition. Therefore, it is possible that PCBs could be
present on-site.
The existing buildings on-site could potentially contain asbestos containing materials (ACMs); however,
under various federal and state laws and regulations, including the Clean Air Act provisions setting
National Emissions Standards for Hazardous Air Pollutants (NESHAP) and OSHA, standards have been
set for the removal and disposal of ACMs in connection with building demolition and renovation work.
The South Coast Air Quality Management District (SCAQMD) has also adopted a rule (Rule 1403)
requiring notice to SCAQMD and monitoring provisions in connection with most ACM abatement and
removal operations. Compliance with the applicable legal and regulatory requirements, which will be
incorporated into the mitigation measures listed below, will reduce the potential presence of ACMs and
its abatement or removal and impacts would be less than significant.
It is currently unknown if LBP is present on the exterior or interior of the existing on-site buildings;
however, due to the age of the structures, they are presumed to contain LBP. As such, prior to
mitigation, construction workers may have the potential to be exposed to LBP during the demolition of
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building walls. Therefore, impacts associated with the accidental release of LBP during construction
would be a potentially significant impact prior to mitigation.
Findings
Compliance with Mitigation Measure F-1 would ensure that the potential impact related to accidental
release of PCBs would be reduced to a less than significant level.
release of asbestos would be reduced to a less than significant level.
release of LBP would be reduced to a less than significant level.
F-1.
Prior to the issuance of a demolition permit for any existing on-site structure, the structure shall
undergo a survey to document the presence of any potential (PCBs) within any equipment or
otherwise on or beneath the structure. Any PCBs identified as part of this survey shall be
properly disposed of in accordance with all applicable regulations.
F-2.
Prior to the issuance of a demolition permit for any existing on-site structure not previously
surveyed, the structure shall undergo an asbestos survey to document the presence of any
potential asbestos-containing materials (ACMs) within the structure. Any ACMs identified as
part of this survey shall be abated in accordance with all applicable laws and regulations
including without limitation applicable NESHAP provisions, OSHA worker safety regulations,
and SCAQMD Rule 1403 as well as any other applicable city, state, and federal regulations.
F-3.
undergo a lead-based paint (LBP) survey to document the presence of any potential LBP within
the structure. Any LBP identified as part of this survey shall be abated in accordance with all
applicable city, state, and federal regulations.
Impact
Impact HAZ-2: The Project Site could contain underground storage tanks. (Draft EIR, p. IV.F-12)
The former NASA Industrial Plant is under the regulatory oversight of the Regional Water Quality
Control Board-Los Angeles Region (LARWQCB). During the 1990s and continuing until 2002, NASA
conducted a number of site assessment and remediation activities under the oversight of the LARWQCB,
Department of Toxic Substances Control (DTSC), and the Los Angeles County Department of Public
Works (LACDPW). LACDPW was the permitting agency for diesel underground storage tank removals
and closures.
Findings
Implementation of Mitigation Measure F-4 would reduce potential impacts associated with underground
storage tanks to a less than significant level.
F-4.
Should any future operation of the Project include the construction, installation, modification, or
removal of underground storage tanks, the County of Los Angeles Department of Public Works’
Environmental Programs Division shall be contacted at the start of the planning phase for
required approvals and operating permits.
Tierra Luna Project
Impact
Impact HAZ-3: The Project Site contains soil contamination. (Draft EIR, p. IV-F-5)
Facts in Support of Finding
Soil contamination was discovered north of the Project Site in two sections of the parking lot of the
adjacent Downey Landing commercial center, in an area that is not part of the Project Site. Two soil
contamination source areas were identified in the vicinity of former NASA Buildings 287 and 244.
Before 2003, NASA began corrective action of the VOC contamination to the north of the Project Site in
the shallow soils of the source areas i.e., soils approximately 40 feet below the surface. LARWQCB
previously accepted NASA’s remedial action plan for the shallow soils to the north of the Project Site,
but required that an additional corrective action program be implemented to address VOCs in the deeper
soils of the Downey Landing portion of the former NASA Industrial Plant site, not on but to the north of
the Project Site.
Findings
Implementation of Mitigation Measure F-5 would reduce soil contamination impacts to a less than
significant level.
F-5.
Should any excavated soil be contaminated by or classified as hazardous waste by an appropriate
agency, the soil shall be managed and disposed in accordance with applicable Federal, State, and
local laws and regulations.
Noise
[Impact NOI-1 and Mitigation Measures I-1 to I-8 are described in Section 7,2, below because despite
mitigation, construction noise impacts would be significant and unavoidable]
Impact
Impact NOI-2: Operational noise generated by the HVAC units and other noise-generating sources has
the potential to disturb proposed residential units. (Draft EIR, p. IV.I-20)
The design of the on-site HVAC units and other noise-generating mechanical equipment associated with
the Proposed Project would be prohibited from exceeding three (3) dBA above the ambient noise level at
any period during the course of a twenty-four (24) hour day. This would apply to noise from air
conditioning, refrigeration, heating, pumping, and filtering equipment. Thus, the on-site equipment is
required to be designed such that it would be shielded and appropriate noise muffling devices would be
installed on the equipment to reduce noise levels that affect nearby noise-sensitive uses. In addition,
nighttime noise limits would be applicable to any equipment items required to operate between the hours
of 10:00 P.M. and 7:00 A.M. On this basis, a significant acoustical impact on the proposed residential
uses on the Project Site from on-site operations of the HVAC units is not predicted. As such, this impact
would be less than significant.
Findings
Implementation of Mitigation Measure I-9 prohibits noise sources not operating within a public right-ofway from exceeding the ambient noise level on the premises of other occupied properties by more than
three decibels. In addition, implementation of Mitigation Measures I-10 and I-11, which would require
the Proposed Project to be constructed in compliance with Title 24 noise insulation standards as well as
Tierra Luna Project
requiring that sufficient sound insulation be provided such that the interior noise levels at the proposed
residential units on-site would be below a CNEL of 45 dBA in any habitable room, would ensure that
impacts associated with interior noise levels would be less than significant
I-9.
All new mechanical equipment shall not exceed the ambient noise level on the premises of other
occupied properties by more than three decibels.
I-10.
The Project Applicant shall comply with the Noise Insulation Standards of Title 24 of the
California Code Regulations, which ensure an acceptable interior noise environment.
I-11.
All exterior windows within the residential units on the Project Site shall be constructed with
double-pane glass and use exterior wall construction which provides a Sound Transmission Class
of 50 or greater as defined in UBC No. 35-1, 1979 edition or any amendment thereto. The
applicant, as an alternative, may retain an acoustical engineer to submit evidence, along with the
application for a building permit, any alternative means of sound insulation sufficient to mitigate
interior noise levels below a CNEL of 45 dBA in any habitable room.
Public Services
Impact
Impact PUB-1: The Proposed Project has the potential to result in adverse impacts to fire protection.
(Draft EIR, p. IV.K-7)
Demolition of the majority of the existing structures and development of the Proposed Project would
increase the potential for accidental onsite fires from such sources as the operation of mechanical
equipment and use of flammable construction materials. In most cases, the implementation of “good
housekeeping” procedures by the construction contractors and the work crews would minimize these
hazards. Good housekeeping procedures that would be implemented during construction of the Proposed
Project include: the maintenance of mechanical equipment in good operating condition; careful storage
of flammable materials in appropriate containers; and the immediate and complete cleanup of spills of
flammable materials when they occur.
Development of the Proposed Project would also increase the number of site visitors (i.e., at the proposed
residences, retail, restaurant, and cinema uses) within the Project Site. While the number of site visitors
cannot be calculated with accuracy, it should be noted that the estimated 4,883 net new onsite residents is
a conservative projection of the number of persons expected to be onsite at any given time. This is
because many project residents would be employed at offsite locations during the daytime hours.
Nonetheless, this increase in residents, employees, and site visitors would generate an increase in the
demand for fire protection services.
Findings
With implementation of the Measures K-1 to K-5, project impacts on fire protection service would be
less than significant.
K-1.
The Applicant of the Proposed Project and all development projects constructed under the Tierra
Luna Specific Plan’s framework shall submit a Master Plan to the Downey Fire Department prior
to issuing building permits, for review and approval, which shall provide the capacity of the fire
Tierra Luna Project
mains serving the Project Site. Any required upgrades shall be identified and implemented prior
to the issuance of building permits for the Proposed Project and future developments.
K-2.
The Proposed Project and all future development projects pursuant to the Tierra Luna Specific
Plan shall comply with all fire code and ordinance requirements for building construction,
emergency access, water mains, fire flows, onsite automatic sprinklers, and hydrant placement.
Prior to issuing permits for any phase of the project, the Applicants shall implement all fire code
and ordinance requirements to the satisfaction of the Downey Fire Department.
K-3.
The design of the Proposed Project and all development projects constructed within the Tierra
Luna Specific Plan framework shall provide adequate access for Downey Fire Department
equipment and fire fighters onto and throughout the Project Site and future structures.
K-4.
The Proposed Project and all development projects constructed within the Tierra Luna Specific
Plan’s framework shall provide adequate offsite public and onsite private fire hydrants as
determined necessary by the Downey Fire Department.
K-5.
The project applicant shall provide for additional fire fighting equipment including one aerial
ladder truck and fire fighters for the truck, one paramedic unit and two paramedics.
Impact
Impact PUB-2: The Proposed Project has the potential to result in adverse impacts to police protection.
(Draft EIR, p. IV.K-14)
Construction sites can be sources of attractive nuisance, providing hazards and inviting theft and
vandalism. Therefore, when not properly secured, construction sites can become a distraction for local
law enforcement from more pressing matters that require their attention. Consequently, developers
typically take precautions to prevent trespassing through construction sites. Most commonly, temporary
fencing is installed around the construction site to keep out the curious. Deployment of roving security
guards is also an effective strategy in preventing problems from developing. The project Applicant and
developers of future projects constructed within this Specific Plan’s framework will employ construction
security features, such as fencing, which would minimize the need for DPD services. Therefore, demand
for DPD services during construction periods would be less than significant.
Implementation of the Proposed Project would generate residents and increase the number of site visitors
to the Project Site, thereby, increasing the demand for police services. As discussed in Draft EIR Section
IV.J. Population, Housing, and Employment, residential development on the Project Site would consist of
up to 1,500 multi-family units which would generate up to an estimated 4,883 permanent residents. As
most of the employee positions at the new onsite commercial uses are expected to be filled by people
already residing in the City of Downey and the current officer-to-population ratio is based on citywide
total officers and citywide population, the provision of new commercial space is not expected to increase
the service population of the Downey Police Department. The increase in onsite residents would result
in an increase in the number of visitors to the Project Site. While the number of site visitors cannot be
calculated with accuracy, it should be noted that the estimated 4,883 project residents is a conservative
projection of the number of persons onsite at a given time. This is because some of project residents
would be employed at offsite locations during the daytime hours. Although there is no direct
proportional relationship between increases in land use activity and increases in demand for police
Tierra Luna Project
protection services, the number of calls for police response to home burglaries, vehicle burglaries,
damage to vehicles, traffic-related incidents, and crimes against persons would be anticipated to increase
with the increase in onsite activity and increased traffic on adjacent streets and arterials. Such calls are
typical of problems experienced in existing residential neighborhoods and commercial districts in the
project area and do not represent unique law enforcement issues specific to the Proposed Project.
Nonetheless, development on the Project Site under the Tierra Luna Specific Plan would be denser and
more heavily populated than what currently exists on-site.
Findings
With implementation of the Mitigation Measures K-6 to K-9, project impacts on police protection
services would be less than significant.
K-6.
The Proposed Project design shall be reviewed and approved by the Downey Police Department
pursuant to General Plan Program 5.4.2.6. prior to the issuance of a building permit.
K-7.
Prior to issuance of building permits, the Applicant shall complete an analysis of projected
employee populations over two 24-hour (one day during the week and one during the weekend)
periods. The number of projected employees will be added to the projected number of residents
(approximately 4,883) and will be used to determine applicable shifts/periods of time to which
police personnel could be added to ensure that a sufficient number of officers is on staff for the
total projected population at the Project Site. The project Applicants shall pay fees for any
additional police personnel determined to be required after such determination is made and shall
enter into an agreement with the City of Downey and DPD for payment of such fees.
K-8.
Prior to the issuance of building permits, the Applicant shall provide an onsite security plan for
the development, to be approved by the City of Downey and the Downey Police Department.
K-9.
Prior to the issuance of building permits, the Applicant shall provide an onsite police substation,
and the project Applicant shall pay fees for any additional police personnel determined to be
required after such determination is made and shall enter into an agreement with the City of
Downey and DPD for payment of such fees.
Impact
Impact PUB-3: The Proposed Project has the potential to result in adverse impacts to schools. (Draft
EIR, p. IV.K-22)
Based on available student generation rates, the residential component of the Proposed Project would
generate a total of approximately 911 students: 365 elementary, 225 middle, and 321 high school
students. It is likely that some of the students generated by the Proposed Project would already reside in
areas served by Downey Unified School District (DUSD) and would already be enrolled in DUSD
schools.
However, for a conservative analysis, it is assumed that all students generated by the Proposed Project
would be new to DUSD. Currently, none of the schools serving the Project Site are operating over
capacity. In total, Alameda Elementary, Lewis Elementary, Carpenter Elementary, and Gauldin
Elementary currently exhibit excess student capacity of approximately 184 students. With the addition of
365 new elementary school students, these schools would exceed their capacities. Additionally, Sussman
Middle School and East Middle School currently have excess student capacity of approximately 52
Tierra Luna Project
students. With the addition of 225 new middle school students, these schools would exceed their
capacities. Further, Downey High School currently exhibits an excess student capacity of approximately
57 students. With the addition of 321 new high school students, Downey High School would exceed its
capacity.
Findings
The Proposed Project, and all future development projects constructed pursuant to it, would be required
to pay School Facility Fees to the sum of $2.97 per square-foot of residential development and $0.47 per
square-foot of commercial/industrial development. Therefore, upon compliance with Mitigation Measure
K-10, impacts to schools services would be less than significant.
K-10. The Applicant of the Proposed Project and all developments constructed therein shall pay school
fees to the satisfaction of the Downey Unified School District.
Impact
Impact PUB-4: The Proposed Project has the potential to result in adverse impacts to recreation facilities
and parks. (Draft EIR, p. IV.K-28)
The Proposed Project would generate an estimated 4,883 residents. Pursuant to the National Recreation
and Parks Association ratio of 1.5 acres per 1,000 residents, the Proposed Project would require 7.5 acres
of park space. The inclusion of 125,000 square feet of open space in the Proposed Project, to include
fountains and landscaped outdoor areas throughout the Project Site, as well as an internal roadway
network with a street tree program designed to encourage pedestrian activity, equates to approximately
2.87 acres of open space for residents. Because the Proposed Project would include only up to 2.87 acres
of public open space (125,000 square feet), insufficient acreage would be available to achieve the goal of
the NRPA necessitating the inclusion of 7.5 acres of park space.
In addition to new onsite residents, there would be new employees at the Project Site, creating an
increased demand on parks and recreational facilities. Approximately 5,307 employees would be
generated by the proposed commercial uses. As discussed in Draft EIR Section IV.J. Population,
Housing, and Employment, the existing uses at the Project Site currently provide employment for an
estimated 45 people.
Therefore, buildout of the Proposed Project would result in a net increase of 5,262 employees onsite,
potentially increasing the demand upon the City of Downey’s public park space. However, it is expected
that most of the employees at the Project Site are anticipated to already reside within the City. As such,
these individuals have are already accounted for in the City’s provision of public open space. Therefore,
it is considered unlikely that future onsite employment would result in a significant impact to park space
and recreation resources.
Findings
Pursuant to the Subdivision Map Act, Division 2, Chapter 4, Article 3, Section 66477, payment of in-lieu
park fees would contribute to a development achieving its required park space dedication. As such, the
payment of such fees would mitigate the Proposed Project’s impacts upon park space. Therefore, with
payment of in-lieu fees, project-related impacts upon parks and recreation services would be reduced to a
level of less than significant.
Tierra Luna Project
K-11. The project Applicant shall pay the applicable in-lieu park fees as determined by the City of
Downey, which shall scale up on an annual basis with the increase in the Consumer Price Index
(CPI) for the Los Angeles metropolitan area.
Impact
Impact PUB-5: The Proposed Project has the potential to result in adverse impacts to libraries. (Draft
EIR, p. IV.K-34)
The Proposed Project would be developed with up to 3,950,000 square feet of residential, commercial,
and office uses, including up to 675,000 square feet of commercial/office use; 1,200,000 square feet of
commercial/retail use; approximately 450 hotel rooms; and 1,700,000 square feet (approximately 1,500
units) of residential use, including live-work units, for-sale units, and for-rent units. Full buildout of the
Proposed Project would increase demand for library services by introducing approximately 4,883 new
residents and 5,307 jobs to the Project Site (see Section IV.J. Population, Housing, and Employment of
the Draft EIR). This increase in onsite residential population would require an additional 2,442 square
feet of library space (4,883 persons x 0.5 square feet) and 9,766 volumes of permanent collection (4,883
persons x 2 volumes each of permanent collections) to meet the State standards.
Unlike project-generated residents, project-generated employees at commercial sites are not expected to
patronize libraries during working hours, as they are more likely to use libraries near their homes during
non-work hours. Nonetheless, the additional employees associated with the Proposed Project are
considered for purposes of a conservative analysis. The Project Site is located approximately 1.4 miles
southwest of the Downey Public Library. As such, project-generated employees may utilize the Library
during work breaks. However, because the current development on the Project Site generates
approximately 45 jobs, buildout of the Proposed Project would result in a net increase of 5,262 jobs.
However, it is expected that most of the people to be employed on the Project Site already reside in the
City of Downey.
Therefore, project buildout would not be expected to significantly increase the demand on library
facilities and resources from future onsite employees, although some employees would be expected to
utilize nearby library facilities. However, as stated above, the Proposed Project would need to increase
the size of the Downey Library facility and the number of volumes available to the facility, a collection
that is already deficient pursuant to State of California standards, in order to accommodate the projected
increase in onsite employee and residential population. Therefore, buildout of the Proposed Project
would result in significant impacts upon City of Downey Library resources.
Findings
With implementation of mitigation measure K-12, impacts on library services would be reduced to a
level of less than significant.
K-12. The Proposed Project Applicant shall pay a mitigation fee as determined by the City of Downey
Public Library, based upon the projected employee and residential population of the
development. The funds will be used for books, computers, and other library materials and
information services.
Tierra Luna Project
Traffic/Transportation/Parking
Impact
Impact TRAF-1: The Proposed Project has the potential to significantly impact various intersections in
the City of Downey and City of Norwalk. (Draft EIR, p. IV.L-48)
Upon project buildout, two intersections during the AM peak hour and four intersections during the PM
peak hour would be significantly impacted by the Proposed Project. These intersections include:
•
•
•
•
Lakewood Boulevard/Gallatin Road – AM and PM Peak Hours
Lakewood Boulevard/Stewart and Gray Road – PM Peak Hour
Bellflower Boulevard/Imperial Highway – AM and PM peak Hours
I-605 Southbound Ramps/Firestone Boulevard – PM Peak Hour
Findings
The recommended improvements contained in Mitigation Measures L-1 through L-7 would fully mitigate
the project-related impacts at the four impacted intersections.
L-1.
Lakewood Boulevard/Gallatin Road – Option 1: The improvement at this intersection includes a
separate northbound right-turn lane. This improvement can be achieved by widening Lakewood
Boulevard by two feet on the east side of the street for approximately 200 feet. The northbound
approach would provide a left-turn lane, two through lanes, and a separate right-turn lane.
L-2.
Option 2: This improvement includes a second eastbound left-turn lane. This improvement can be
achieved by restriping the existing eastbound through lane to a shared left-through lane. The
eastbound approach would provide a left-turn lane, a shared left-through lane and a separate rightturn lane. The traffic signal would be modified to include split phasing operations for the
eastbound and westbound Gallatin Road approaches.
L-3.
Lakewood Boulevard/Stewart & Gray Road – The improvement at this intersection includes a
separate eastbound right-turn lane. This improvement can be achieved by removing the median
island on the west leg of the intersection and widening on the south side of Stewart & Gray Road by
two to four feet for approximately 125 feet. The eastbound approach would provide a left-turn lane,
two through lanes and a separate right-turn lane.
L-4.
Bellflower Boulevard/Imperial Highway – The improvement at this intersection includes dual leftturn lanes on the northbound and southbound approaches. This improvement can be achieved by
widening on the west side of Bellflower Boulevard (north of Imperial Highway) and on the east side
of Bellflower Boulevard (south of Imperial Highway) by approximately two to twelve feet for
approximately 250 feet. The northbound and southbound approaches would provide dual left-turn
lanes, two through lanes and a separate right-turn lane.
L-5.
I-605 Southbound Ramps/Firestone Boulevard – The improvement at this intersection includes a
second westbound left-turn lane. This improvement can be achieved by restriping the existing
painted chevron on the westbound approach. The westbound approach would provide dual left-turn
lanes and two through lanes.
L-6.
Bellflower Boulevard/Washburn Road – As part of the Tierra Luna Specific Plan, a fourth leg of
Tierra Luna Project
the intersection, the west leg, will be constructed. The eastbound approach would provide a leftturn lane and a shared through-right turn lane.
L-7.
Applicant shall contact the Metro Bus Operations Control Special Events Coordinator and other
Municipal Bus Service Operators prior to the start of construction.
Utilities
Impact
Impact UTIL-1: The Proposed Project would consume more electricity than the existing uses. (Draft
EIR, IV.M-41)
The Proposed Project would consume approximately 129,555 KW-Hours of electricity per day. This
represents a net increase of approximately 103,305 KW-Hours of electricity per day over existing uses.
Additionally, energy conservation standards established by Title 24 of the California Code of
Regulations, including but not limited to, glazing, lighting, shading, and water and space heating systems,
would be incorporated into new buildings. As part of the building permit process, the Proposed Project
will incorporate and exceed the Title 24 standards by five percent in order reduce the amount of
electricity consumed by the Proposed Project.
As the City of Downey is located within the western United States power grid, SCE is required to meet
certain operational, supply, and reliability criteria as established by the WECC and the NERC. These
criteria establish certain reserve margin requirements that SCE must meet to accommodate any
unforeseen contingencies. Additionally, energy conservation standards established by Title 24 of the
California Code of Regulations, including, but not limited to, glazing, lighting, shading, and water and
space heating systems, would be incorporated into new buildings. As part of the building permit process,
the Proposed Project will incorporate and exceed the Title 24 standards by five percent in order to reduce
the amount of electricity consumed by the Proposed Project.
Findings
Impacts on electricity supplies would be less than significant with implementation of Mitigation
Measures M-1 through M-5.
M-1.
Design windows (e.g., tinting, double pane glass, etc.) to reduce thermal gain and loss and thus
cooling loads during warm weather, and heating loads during cool weather.
M-2.
Install thermal insulation in walls and ceilings that exceed requirements established by the State
of California Energy Conservation Standards.
M-3.
Install high-efficiency lamps for all outdoor security lighting.
M-4.
Time control interior and exterior lighting. These systems must be programmed to account for
variations in seasonal daylight times.
M-5.
Finish exterior walls with light-colored materials and high-emissivity characteristics to reduce
cooling loads. Finish interior walls with light-colored materials to reflect more light and thus
increase lighting efficiency.
Tierra Luna Project
7.2
Environmental Effects Which Would Remain Significant and Unavoidable After
Mitigation
Air Quality
Impact
Impact AIR-1: Project construction emissions could violate air quality standards or contribute
substantially to an existing or projected air quality violation. (Draft EIR, p. IV.C.1-25)
Construction activities associated with each new development at the Project Site would generate
pollutant emissions from the following construction activities: (1) demolition, grading, and excavation;
(2) construction workers traveling to and from the Project Site; (3) delivery and hauling of construction
supplies to and debris from the Project Site; (4) the fuel combustion by onsite construction equipment;
and (5) building construction, including the application of architectural coatings. These construction
activities would temporarily create emissions of dust, fumes, equipment exhaust, and other air
contaminants. Construction activities involving site preparation and grading would primarily generate
PM10 emissions. Mobile source emissions (use of diesel-fueled equipment onsite, and traveling to and
from the Project Site) would primarily generate NOx emissions. The application of architectural coatings
would primarily result in the release of ROG emissions. The amount of emissions generated on a daily
basis would vary, depending on the amount and types of construction activities occurring at the same
time.
Findings
Implementation of Mitigation Measure C-1 would serve to reduce the potential emissions associated with
construction activities to the maximum extent feasible, while implementation of Mitigation Measure C-2
would ensure that the fugitive dust control measures associated with SCAQMD Rule 403 would be
implemented at the Project Site.
C-1.
The Project Developer(s) shall implement measures to reduce the emissions of pollutants
generated by heavy-duty diesel-powered equipment operating at the Project Site throughout the
Project construction phases. The Project developer(s) shall include in construction contracts the
control measures required and recommended by the SCAQMD at the time of development.
Examples of the types of measures currently required and recommended include the following:
•
Keep all construction equipment in proper tune in accordance with manufacturer’s
specifications.
•
Use late model heavy-duty diesel-powered equipment at the Project Site to the extent
that it is readily available in the South Coast Air Basin (meaning that it does not have to
be imported from another air basin and that the procurement of the equipment would not
cause a delay in construction activities of more than two weeks).
•
Limit truck and equipment idling time to five minutes or less.
•
Rely on the electricity infrastructure surrounding the construction sites rather than
electrical generators powered by internal combustion engines to the extent feasible.
Tierra Luna Project
C-2.
The Project Developer(s) shall implement fugitive dust control measures in accordance with
SCAQMD Rule 403. The Project Developer(s) shall include in construction contracts the control
measures required and recommended by the SCAQMD at the time of development. Examples of
the types of measures currently required and recommended include the following:
•
Use watering to control dust generation during demolition of structures or break-up
of pavement.
•
Water active grading/excavation sites and unpaved surfaces at least three times daily.
•
Cover stockpiles with tarps or apply non-toxic chemical soil binders.
•
•
Limit vehicle speed on unpaved roads to 15 miles per hour.
Sweep daily (with water sweepers) all paved construction parking areas and staging
areas.
•
Provide daily clean-up of mud and dirt carried onto paved streets from the site.
•
Install wheel washers for all exiting trucks, or wash off the tires or tracks of all
trucks and equipment leaving the site.
•
Suspend excavation and grading activity when winds (instantaneous gusts) exceed
15 miles per hour over a 30-minute period or more.
•
An information sign shall be posted at the entrance to each construction site that
identifies the permitted construction hours and provides a telephone number to call
and receive information about the construction project or to report complaints
regarding excessive fugitive dust generation. Any reasonable complaints shall be
rectified within 24 hours of their receipt.
Impact
Impact AIR-2: The Project’s construction-related NO2 emissions would exceed the SCAQMD’s 0.18
ppm threshold of significance at all of the surrounding off-site receptors during all construction activities,
while the PM10 and PM2.5 emissions would exceed the SCAQMD’s 10.4 µg/m3 threshold of significance
at some of the off-site receptors primarily during the grading and excavation activities. (Draft EIR, p.
IV.C.1-42)
Mitigation Measure C-3 would require that all heavy-duty diesel-powered construction equipment used
onsite be retrofitted with either lean-NOx or diesel oxidation catalysts to the extent that it is economically
feasible and the equipment are readily available in the South Coast Air Basin. Mitigation Measure C-4
would require that all heavy-duty diesel-powered equipment operating and refueling at the Project Site
(excluding haul trucks) be equipped with diesel particulate filters to the extent that it is economically
feasible and the equipment is readily available in the South Coast Air Basin. Implementation of
Mitigation Measures C-3 and C-4 would reduce the overall pollutant concentrations of NO2, PM10, and
PM2.5 emissions during Project construction.
Tierra Luna Project
Findings
Despite the reductions in NO2 concentrations due to implementation of Mitigation Measure C-3, the NO2
concentrations would still exceed the SCAQMD’s threshold of 0.18 ppm at all of the off-site receptors.
As such, the localized air quality impact associated with NO2 concentrations at the off-site receptors
would be significant and unavoidable.
C-3.
C-4.
The Project Developer(s) shall require by contract specifications that all heavy-duty dieselpowered construction equipment used onsite would be retrofitted with either lean-NOx or diesel
oxidation catalysts that would reduce NOx emissions by 40 percent to the extent that it is
economically feasible and the equipment are readily available in the South Coast Air Basin
(meaning that the cost of the equipment use is not more than 20 percent greater than the cost of
standard equipment and that the equipment does not have to be imported from another basin). (This
measure does not apply to diesel-powered trucks traveling to and from the Project Site.)
The Project Developer(s) shall require by contract specifications that all heavy-duty diesel-powered
equipment operating and refueling at the Project Site, excluding haul trucks, would be equipped
with diesel particulate filters that would reduce PM10 and PM2.5 emissions by 85 percent to the
extent that it is economically feasible and the equipment are readily available in the South Coast Air
Basin (meaning that the cost of the equipment use is not more than 20 percent greater than the cost
of standard equipment and that the equipment does not have to be imported from another basin).
(This measure does not apply to diesel-powered trucks traveling to and from the Project Site.)
Impact
Impact AIR-3: Operational impacts would significantly impact localized air quality with respect to PM10
concentrations at Off-Site Receptor Locations 1, 6, 7, 8, and 9. (Draft EIR, p. IV.C.1-44)
With implementation of Mitigation Measure C-4, the PM10 concentrations would be reduced at Off-Site
Receptor Locations 7, 8, and 9 to levels below the SCAQMD’s 10.4 µg/m3 threshold for PM10, while the
concentrations at Off-Site Receptor Locations 1 and 6 would remain above 10.4 µg/m3. As such, the
localized air quality impact associated with PM10 concentrations at these off-site receptors would be
significant and unavoidable. However, under the circumstances where implementation of Mitigation
Measure C-4 is determined to be infeasible (i.e., meaning that the cost of the equipment use is more than
20 percent greater than the cost of standard equipment and that the equipment has to be imported from
another basin), then the localized air quality impact associated with PM10 concentrations at Off-Site
Receptor Locations 7, 8, and 9 would be significant and unavoidable.
Findings
In terms of PM2.5, implementation of Mitigation Measure C-4 would reduce the concentration at Off-Site
Receptor Location 6, which was found to be significant prior to mitigation, to below the SCAQMD’s
10.4 µg/m3 threshold. As such, the localized air quality impact associated with PM2.5 concentrations
during Project construction would be less than significant. However, under the circumstances where
implementation of Mitigation Measure C-4 is determined to be infeasible (i.e., meaning that the cost of
the equipment use is more than 20 percent greater than the cost of standard equipment and that the
equipment has to be imported from another basin), then the localized air quality impact associated with
PM2.5 concentrations at Off-Site Receptor Location 6 would be significant and unavoidable.
C-4.
The Project Developer(s) shall require by contract specifications that all heavy-duty diesel-powered
equipment operating and refueling at the Project Site, excluding haul trucks, would be equipped
with diesel particulate filters that would reduce PM10 and PM2.5 emissions by 85 percent to the
Tierra Luna Project
extent that it is economically feasible and the equipment are readily available in the South Coast Air
Basin (meaning that the cost of the equipment use is not more than 20 percent greater than the cost
of standard equipment and that the equipment does not have to be imported from another basin).
Noise
Impact
Impact NOI-1: Construction noise would exceed thresholds. (Draft EIR, p. IV.I-15)
Based on the noise levels, it is likely that construction noise would exceed 85 dBA across the property
boundary of the Project Site, and noise levels at adjacent uses could experience noise levels above 85
dBA. It should be noted, however, that the increase in noise levels at the off-site locations during
construction at the Project Site would be temporary in nature, and would not generate continuously high
noise levels, although occasional single-event disturbances from grading and construction are possible.
Findings
Project compliance with Section 4606.5 of the DMC and the implementation of the Mitigation Measures
I-1 through I-8, would reduce construction-related noise impacts associated with the Proposed Project to
the greatest extent feasible. Nevertheless, because construction noise levels are likely to exceed 85 dBA
across property boundaries, construction noise impacts would be significant and unavoidable.
I-1.
The Proposed Project shall comply with the City of Downey Municipal Code, Article IV,
Chapter 6, and any subsequent ordinances, which prohibit the emission or creation of noise
beyond certain levels at adjacent uses unless technically infeasible.
I-2.
Construction activities shall be restricted to the hours of 7:00 A.M. to 7:00 P.M and no
construction on Sundays and holidays.
I-3.
Noise and groundborne vibration construction activities whose specific location on the Project
Site may be flexible (e.g., operation of compressors and generators, cement mixing, general truck
idling) shall be conducted as far as possible from the nearest noise- and vibration-sensitive land
uses.
I-4.
Construction activities shall be scheduled so as to avoid operating several pieces of equipment
simultaneously, which causes high noise levels.
I-5.
To the extent feasible, the use of those pieces of construction equipment or construction methods
with the greatest peak noise generation potential shall be minimized. Examples include the use
of drills, jackhammers, and pile drivers.
I-6.
Project contractor(s) shall exert commercially reasonable efforts to use power construction
equipment with state-of-the-art noise shielding and muffling devices.
I-7.
Barriers such as plywood structures or flexible sound control curtains shall be erected around the
Project Site to minimize the amount of noise on the surrounding off-site sensitive receptors to the
maximum extent feasible during construction.
Tierra Luna Project
I-8.
All construction truck traffic shall be restricted to truck routes approved by the City of Downey,
which shall avoid residential areas and other sensitive receptors to the extent feasible.
8.
FEASIBILITY OF PROJECT ALTERNATIVES
Because the Project will potentially cause unavoidable, significant environmental effects, as outlined
above, the City must consider the feasibility of any environmentally superior alternatives to the Proposed
Project. The City must evaluate whether one or more of these alternatives could avoid or substantially
lessen the Project’s unavoidable significant environmental effects (See Citizens for Quality Growth v.
City of Mount Shasta [1988] 198 Cal.App.3d 433, 443-445 [243 Cal.Rptr. 727]; see also PRC § 21002.).
In preparing and adopting findings, a Lead Agency need not necessarily address the feasibility of both
mitigation measures and environmentally superior alternatives when contemplating approval of a
Proposed Project with significant impacts. When a significant impact can be mitigated to an acceptable
level solely by the adoption of mitigation measures, the agency, in drafting its findings, has no obligation
to consider the feasibility of environmentally superior alternatives, even if their impacts would be less
severe than those of the Proposed Project as mitigated (See Laurel Hills Homeowners Association v. City
Council [1978] 83 Cal.App.3d 692, 730-731 [270 Cal.Rptr. 650]; and Laurel Heights Improvement
Association v. Regents of the University of California [1988] 47 Cal.3d 376, 400-403 [253 Cal.Rptr.
426]). Accordingly, in adopting findings concerning project alternatives, the City considers only those
environmental impacts that for the project are significant and cannot be avoided through mitigation.
Section VI of the Draft EIR examines five alternatives to the Proposed Project to determine whether any
of these alternatives could meet the Project’s objectives, while avoiding or substantially lessening its
significant, unavoidable impacts. The following alternatives were examined:
Alternative A:
Alternative B:
Alternative C:
Alternative D:
Alternative E:
No Project/No Development Alternative
No Project/Existing Specific Plan Build-out Alternative
Reduced Density Alternative
Reduced-Site Alternative
All-Commercial Alternative
These findings examine the alternatives to the extent they lessen or avoid the project’s significant
environmental effects. Although presented here and in the Draft EIR, the City is not required to consider
those alternatives in terms of environmental impacts that are insignificant or avoided through mitigation.
In addressing the No Project/No Project Alternative, the City followed the direction of the State CEQA
Guidelines that:
The no project analysis shall discuss the existing conditions, as well as what would be
reasonably expected to occur in the foreseeable future if the project were not approved,
based on current plans and consistent with available infrastructure and community
services (State CEQA Guidelines Section 15126[d][4]).
8.1
No Project/No Development Alternative
Description
The No Project/No Development Alternative assumes the project does not proceed and that the Project
Site remains in its current state. Under the No Project/No Development Alternative, the buildings and
Tierra Luna Project
surface parking lots currently located on the Project Site would remain at their current levels of
operation. Although no new development would occur on the Project Site under the No Project/No
Development Alternative, this Alternative assumes the development of the related projects in the area of
the Project Site.
Attainment of Project Objectives
The No Project/No Development Alternative would avoid most of the environmental impacts associated
with the Proposed Project. However, the No Project/No Development Alternative would not satisfy any
of the project objectives. Specifically, the No Project/No Development Alternative would not meet the
following objectives:
•
•
•
•
•
•
•
•
•
•
8.2
To create a new and unique regional destination for Downey.
To transform the central portion of the former NASA Industrial site by facilitating redevelopment
that creates new hotel, office, retail, restaurant, and, to the extent permitted by environmental
conditions, residential uses.
To facilitate development that is compatible with surrounding land uses.
To achieve an environment reflecting a high level of concern for architecture, landscape, and urban
design principles by developing a high quality, comprehensively-designed project.
To provide community amenities such as new community gathering places, new restaurants, and new
To create a pedestrian-friendly environment with well-designed and connected spaces in the public
realm.
To provide unique new retail opportunities for Downey residents.
To facilitate development of new and unique hotel uses that include conference and meeting space.
To create new and good-paying jobs by facilitating development of modern office space.
To positively impact the City of Downey’s fiscal tax base.
No Project/Existing Specific Plan Build-out Alternative
Description
Under the No Project/Existing Specific Plan Build-out Alternative, the proposed Tierra Luna Specific
Plan area is assumed to be built out in accordance with the existing Downey Landing Specific Plan,
specifically in accordance with Option 2 identified in that Specific Plan. Pursuant to State CEQA
Guidelines section 15126.6, subdivision (e)(2):
“The ‘no project’ analysis shall discuss the existing conditions at the time the notice of
preparation is published, or if no notice of preparation is published, at the time the
environmental analysis is commenced, as well as what would reasonably be expected to
occur in the foreseeable future if the Proposed Project were not approved, based on
current plans, and consistent with available infrastructure and community services.”
Under the existing Downey Landing Specific Plan, Option 2, the proposed Tierra Luna Specific Plan area
corresponds to Planning Areas IIA, IIB, IIC, and IID and totals 83 acres, compared to 79 acres for the
Proposed Project. The existing Specific Plan would permit development in this area of up to 1,345,500
square feet of technology and business park uses (including media and studio uses), and up to 243,000
square feet of industrial uses. Unlike the Proposed Project, the No Project/Existing Specific Plan Buildout Alternative would not include retail, residential, or hotel uses. The combination of uses, when
Tierra Luna Project
contrasted with the Proposed Project, represents an overall reduction of approximately 2,361,500 square
feet (or 60 percent) of development. All other land use regulations and mitigation measures established
by the Downey Landing Specific Plan and its associated Mitigation Monitoring and Reporting Program
would continue to apply to the Project Site under this alternative.
The No Project/Existing Specific Plan Build-out Alternative would not avoid the significant and
unavoidable environmental impacts associated with the Proposed Project, but would have reduced
significant and unavoidable impacts compared to the Proposed Project with respect to regional
operational air emissions because of its reduced scale. The No Project/Existing Specific Plan Buildout
would have greater impacts than the Proposed Project with respect to traffic and transportation impacts.
The No Project/Existing Specific Plan Build-out Alternative would not satisfy many of the project
objectives. Specifically, the No Project/Existing Specific Plan Build-out Alternative would not meet the
following objectives:
•
•
•
•
•
•
•
8.3
To create a new and unique regional destination for Downey.
realm.
To facilitate development of new and unique hotel uses that include conference and meeting space.
Expand the supply of housing and housing types.
Reduced Density Alternative
Description
Under the Reduced Density Alternative, the Project Site build-out would be similar to the Proposed
Project and would occur over the same area as the Proposed Project. However, the development size
would be reduced by approximately 25 percent for a total of 2,962,500 square feet of development. Of
the reduced development size, a total of 1,125 residential units totaling 1,275,000 square feet would be
developed. Office space would be reduced to 506,250 square feet. Similarly, retail space would be
reduced by 25 percent to 900,000 square feet. The Reduced Density Alternative would include 281,250
square feet of hotel use. Open space would be reduced by 20 percent to 93,750 square feet. Building
heights would also be reduced by 25 percent under this Alternative. Parking would continue to be
located in parking facilities between several multi-level parking structures, on-street parking, and surface
parking lots throughout the Project Site and a total of 637,500 square feet would be provided. This
alternative would be implemented through an amendment to the Downey Landing Specific Plan that
would apply solely to the 77-acre Project Site.
The Reduced Density Alternative would not avoid the significant and unavoidable environmental impacts
associated with the Proposed Project, but would have reduced significant and unavoidable impacts
compared to the Proposed Project with respect to regional operational air emissions because of its
Tierra Luna Project
reduced scale. However, due to the significant reduction in the scale of the uses proposed by this
alternative, it is anticipated that this alternative would not satisfy to a sufficient degree the following
project objectives:
•
•
•
•
•
8.4
To create a new and unique destination for Downey.
To facilitate development of new and unique hotel uses that includes conference and meeting space.
Reduced Site Alternative
Description
Under the Reduced-Site Alternative, the eastern 20 acres of the Project Site would be preserved as open
space. Under this alternative, the same amount of development would be permitted under the Tierra
Luna Specific Plan but would take place within the smaller, approximately 60 acre site. This alternative
would result in greater concentration of density in the western 60 acres, but would provide an open space
amenity as an offset to this increase in density. This alternative would be implemented through an
amendment to the Downey Landing Specific Plan that would apply solely to the 77-acre Project Site.
While it would adequately meet all of the Proposed Project’s objectives, the Reduced-Site Alternative
would not avoid or substantially lessen the significant and unavoidable effects of the Proposed Project.
8.5
All-Commercial Alternative
Description
Under the All-Commercial Alternative, development would occur on the same 77-acre Project Site as the
Proposed Project; however, the residential component of the Proposed Project would not be included in
the All-Commercial Alternative. The same buildings would be demolished and the same historic
buildings would be preserved in place as would occur under the Proposed Project. The same amount of
commercial and hotel development would be permitted as would occur under the Proposed Project. As
such, the All-Commercial Alternative would include development of up to 675,000 square feet of
commercial/office uses, up to 1,200,000 square feet of commercial/retail uses, up to 450 hotel rooms, and
up to 125,000 square feet of public open space. Overall development density would be reduced under
this Alternative as less total development would be permitted on the same Project Site compared to the
Proposed Project.
The All-Commercial Alternative would also include parking facilities dispersed among several multilevel parking structures, on-street parking, and/or surface parking lots. Because the residential
component of the Proposed Project would be eliminated from this Alternative, it would represent an
overall reduction in development by approximately 1,700,000 square feet (i.e., 1,500 residential units)
when compared to the Proposed Project. Development regulations pertaining to building height,
location, and setback would be the same as the Proposed Project, with one exception. Under this
Alternative, the development regulations for the easternmost 20 acres of the Project Site would be
modified to allow for the development of one-story, large-format retail uses facing Bellflower Boulevard,
Tierra Luna Project
including buildings of similar height, landscaping and set back from the street at the same distance as
buildings located within the other retail developments in the vicinity of the Project Site. Access to the
Project Site would be similar to the Proposed Project, with primary access provided from Lakewood and
Bellflower Boulevards. Internal streets would be provided to provide access to buildings located on the
interior of the Project Site, same as the Proposed Project. Signage regulations would be the same as
under the Proposed Project. This alternative would be implemented through an amendment to the
Downey Landing Specific Plan that would apply solely to the 77-acre Project Site.
The All-Commercial Alternative would not avoid the significant and unavoidable environmental impacts
associated with the Proposed Project, but would have reduced significant and unavoidable impacts
compared to the Proposed Project with respect to regional operational air emissions because of its
reduced scale. While this Alternative would meet most of the project objectives, it would not meet the
following project objective:
•
9.
STATEMENT OF OVERRIDING CONSIDERATIONS
When a project results in significant unavoidable adverse effects, CEQA requires the decision-making
body of the Lead Agency to balance the benefits of the project against its unavoidable adverse effects in
determining whether to approve the project. If the benefits of the project outweigh the unavoidable
adverse environmental effects, the adverse effects may be considered “acceptable.” CEQA requires the
Lead Agency to state in writing specific responses to support its actions based on the Final EIR and/or
information in the record. This written statement is known as the Statement of Overriding
Considerations.
Project-Specific Significant and Unavoidable Impacts
The Proposed Project would have the following significant unavoidable impacts:
Air Quality
Impact AIR-2: The Project’s construction-related NO2 emissions would exceed the SCAQMD’s 0.18
ppm threshold of significance at all of the surrounding off-site receptors during all the construction
activities, while the PM10 and PM2.5 emissions would exceed the SCAQMD’s 10.4 µg/m3 threshold of
significance at some of the off-site receptors primarily during the grading and excavation activities.
(Draft EIR, p. IV.C.1-42)
Impact AIR-3: Operational impacts would significantly impact localized air quality with respect to PM10
concentrations at Off-Site Receptor Locations 7, 8, and 9. (Draft EIR, p. IV.C.1-44)
Noise
Impact NOI-1: Construction noise would exceed thresholds. (Draft EIR, p. IV.I-15)
The City has adopted all feasible Mitigation Measures with respect to the unavoidable significant
impacts identified above. Although these Mitigation Measures may lessen the impacts, they would not
reduce the potential impacts to a level of insignificance.
Tierra Luna Project
As a result, to approve the Project, the City must adopt a Statement of Overriding Considerations
pursuant to CEQA Guidelines Sections 15043 and 15093. The Statement of Overriding Considerations
allows a Lead Agency to cite a project’s general economic, social, or other benefits as a justification for
choosing to allow the occurrence of specified significant environmental effects that have not been at least
substantially mitigated. The statement explains why, in the agency’s judgment, the project’s benefits
outweigh its unavoidable significant effects.
10.
INDEPENDENT REVIEW AND ANALYSIS
Under CEQA, the Lead Agency must: (1) independently review and analyze the EIR; (2) circulate draft
documents that reflect its independent judgment; and (3) as part of the certification of an EIR, find that
the report or declaration reflects the independent judgment of the Lead Agency.
The City independently reviewed and analyzed the Draft and Final EIR and determined that the Draft and
Final EIR reflects its independent judgment. Moreover, upon completing this review and making this
determination, the City circulated the Draft and Final EIR, as described above. With the adoption of these
findings, the City concludes that the Draft and Final EIR reflects its independent judgment.
Tierra Luna Project
Exhibit B
To the extent that the significant effects of the Project are not avoided or substantially lessened to a less
than significant level, the City, having reviewed and considered the information contained in the Final
EIR for the project, and having reviewed and considered the information contained in the public record,
and having balanced the benefits of the Project against the unavoidable effects which remain, finds such
unmitigated effects to be acceptable in consideration of the following overriding considerations
discussion (in accordance with CEQA Guidelines Section 15093).
The City finds that all feasible mitigation measures have been imposed to lessen project impacts to the
greatest extent possible, and furthermore, that alternatives do not meet the complete objectives of the
Project, and do not provide the overall benefits of the Project.
The benefits of the Proposed Project include, but are not limited to, the following:
•
Creatinga new and unique regional destination for Downey.
•
Transforming the central portion of the former NASA Industrial site by facilitating
redevelopment that creates new hotel, office, retail, restaurant, and, to the extent permitted by
environmental conditions, residential uses.
•
Facilitating development that is compatible with surrounding land uses.
•
Achieveing an environment reflecting a high level of concern for architecture, landscape, and
urban design principles by developing of a high-quality, comprehensively-designed project.
•
Providing community amenities such as new community gathering places, new restaurants, and
new and unique entertainment opportunities in a manner that confers a public benefit, while still
•
Creating a pedestrian-friendly environment with well-designed and connected spaces in the
public realm.
•
Providing unique new retail opportunities for Downey residents.
•
Facilitating development of new and unique hotel uses that include conference and meeting
space.
•
Creating new and good-paying jobs by facilitating development of modern office space.
•
Positively impacting the City of Downey’s fiscal tax base.
Tierra Luna Project
EXHIBIT C
MITIGATION MONITORING AND REPORTING PROGRAM MATRIX (PROPOSED PROJECT)
Mitigation Measure
Impacts Found to Be Less Than Significant
(Biological Resources)
Measure A-1
To avoid impacting nesting birds, one of the following
must be implemented:
(a)
Conduct vegetation removal and/or grading
activities from September 1 through January 31, when
birds are not likely to be nesting on the site;
-OR(b) Conduct pre-construction surveys for nesting birds
if construction is to take place during the nesting
season. A qualified wildlife biologist shall conduct a
pre-construction nest survey no more than five days
prior to initiation of grading to provide confirmation on
presence or absence of active nests in the vicinity (at
least 300 feet around the Project Site). If active nests
are encountered, species-specific measures shall be
prepared by a qualified biologist in consultation with
the CDFG and implemented to prevent abandonment of
the active nest. At a minimum, grading in the vicinity
of the nest shall be deferred until the young birds have
fledged. A minimum exclusion buffer of 100 feet shall
be maintained during construction, depending on the
species and location. The perimeter of the nest-setback
zone shall be fenced or adequately demarcated with
staked flagging at 20-foot intervals, and construction
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Applicant/
Developer
City
Planning
Division
Ensure
that
vegetation
removal and/or grading only
occurs from September 1
through January 31.
On-site
inspection
during Pre-Construction
If construction will take place
during nesting season, ensure
that a survey for nesting birds
is conducted, according to
Measure A-1 (b).
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Applicant/
Developer
City
Planning
Division
Pre-Construction
Measure B-2
Atmospheric light pollution shall be minimized by
utilizing lighting fixtures that cut-off light directed to
the sky.
Applicant/
Developer
City
Planning
Division
Measure B-3
The proposed buildings shall incorporate non-reflective
exterior building materials (such as plaster and
masonry) in their design. Any glass to be incorporated
into the final façades of the building shall be either of
low-reflectivity, or accompanied by a non-glare
coating. Reflective materials such as mirrored glass
shall not be permitted.
Air Quality
Measure C-1
The Project Developer(s) shall implement measures to
Applicant/
Developer
City
Planning
Division
Ensure incorporation of this
mitigation measure at Site
Plan Review and during
building plan check
building plan check
building plan check
Applicant/
Developer
Building
Division;
Site inspections and review of
records
on
construction
On-site
inspections
during construction
personnel and activities restricted from the area. A
survey report by the qualified biologist verifying that
(1) no active nests are present, or (2) that the young
have fledged, shall be submitted to the City prior to
initiation of grading in the nest-setback zone. The
qualified biologist shall serve as a construction monitor
during those periods when construction activities will
occur near active nest areas to ensure that no
inadvertent impacts on these nests will occur.
Aesthetics
Measure B-1
Project lighting shall be directed onto the Project Site,
and all lighting shall be shielded from adjacent
roadways and off-site properties.
Tierra Luna Project
Pre-Construction
Pre-Construction
Verification
Mitigation Measure
Responsible
Entity
reduce the emissions of pollutants generated by heavyduty diesel-powered equipment operating at the Project
Site throughout the Project construction phases. The
Project developer(s) shall include in construction
contracts the control measures required and
recommended by the SCAQMD at the time of
development. Examples of the types of measures
currently required and recommended include the
following:
•
Keep all construction equipment in proper tune in
accordance with manufacturer’s specifications.
•
Use late model heavy-duty diesel-powered
equipment at the Project Site to the extent that it is
readily available in the South Coast Air Basin
(meaning that it does not have to be imported from
another air basin and that the procurement of the
equipment would not cause a delay in construction
activities of more than two weeks).
•
Limit truck and equipment idling time to five
minutes or less.
•
Rely on the electricity infrastructure surrounding
the construction sites rather than electrical
generators powered by internal combustion engines
to the extent feasible.
Measure C-2
The Project Developer(s) shall implement fugitive dust
control measures in accordance with SCAQMD Rule
Applicant/
Developer
Compliance
Check
Action by Monitor
SCAQMD
equipment
compliance
Building
Division;
SCAQMD
Site visual confirmation and
review of construction recordkeeping
Tierra Luna Project
to
Timing/Frequency
ensure
On-site
inspections
during construction
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
403.
The Project Developer(s) shall include in
construction contracts the control measures required
and recommended by the SCAQMD at the time of
following:
•
Use watering to control dust generation during
demolition of structures or break-up of pavement.
•
Water active grading/excavation sites and unpaved
surfaces at least three times daily.
•
Cover stockpiles with tarps or apply non-toxic
chemical soil binders.
•
Limit vehicle speed on unpaved roads to 15 miles
per hour.
•
Sweep daily (with water sweepers) all paved
construction parking areas and staging areas.
•
Provide daily clean-up of mud and dirt carried
onto paved streets from the site.
•
Install wheel washers for all exiting trucks, or wash
off the tires or tracks of all trucks and equipment
leaving the site.
•
Suspend excavation and grading activity when
winds (instantaneous gusts) exceed 15 miles per
hour over a 30-minute period or more.
•
An information sign shall be posted at the entrance
Tierra Luna Project
Timing/Frequency
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Measure C-3
The Project Developer(s) shall require by contract
specifications that all heavy-duty diesel-powered
construction equipment used onsite be retrofitted with
either lean-NOx or diesel oxidation catalysts that would
reduce NOx emissions by 40 percent to the extent that it
is economically feasible and the equipment are readily
available in the South Coast Air Basin (meaning that the
cost of the equipment use is not more than 20 percent
greater than the cost of standard equipment and that the
equipment does not have to be imported from another
basin). (This measure does not apply to diesel-powered
trucks traveling to and from the Project Site.)
Applicant/
Developer
Building
Division;
SCAQMD
Receipt
of
contract
specifications confirmation of
compliance
Prior to construction
Measure C-4
equipment operating and refueling at the Project Site,
excluding haul trucks, be equipped with diesel
particulate filters that would reduce PM10 and PM2.5
emissions by 85 percent to the extent that it is
Applicant/
Developer
Building
Division;
SCAQMD
Receipt
of
contract
compliance
to each construction site that identifies the
permitted construction hours and provides a
telephone number to call and receive information
about the construction project or to report
complaints regarding excessive fugitive dust
generation. Any reasonable complaints shall be
Tierra Luna Project
Verification
Mitigation Measure
economically feasible and the equipment is readily
available in the South Coast Air Basin (meaning that
the cost of the equipment use is not more than 20
percent greater than the cost of standard equipment and
that the equipment does not have to be imported from
another basin). (This measure does not apply to dieselpowered trucks traveling to and from the Project Site.).
Measure C-5
The Project Developer(s) shall include in construction
contracts the required application of paints and primer
at the Project Site during construction to have a VOC
rating of 125 grams per liter or less, and that only a
maximum of 214 liters (57 gallons) of such paints can
be used on any given day.
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Applicant/
Developer
Building
Division;
SCAQMD
Receipt
of
contract
compliance
Cultural Resources
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Verification
Measure D-1
Historic American Engineering Record (HAER) reports
were prepared for all of the historic resources on the
Project Site in 2006. These reports were prepared as
mitigation pursuant to the Memorandum of Agreement
(MOA). However, the HAER report for Building 1 did
not document that portion planned for preservation.
Although the Project will preserve that same portion of
Building 1, the report should be completed so that the
entirety of Building 1 is documented.
Applicant/
Developer
City
Planning
Division; State
Office
of
Historic
Preservation,
National Parks
Service
Confirm receipt of Level II
Historic American Buildings
Survey
(HABS)
documentation
shall
be
prepared for that portion of
Building 1 planned for
preservation.
Before
construction
permits are issued
Applicant/
Developer
City
Building
Division
Receive report from historic
architect at the conclusion of
design phase to ensure
compliance with Standards.
Pre-Construction
Construction
Prior to the commencement of the Project, Level II
Historic American Buildings Survey (HABS)
documentation shall be prepared for that portion of
Building 1 planned for preservation. One original copy
of the report as specified above shall be assembled and
offered to the National Park Service, State Office of
Historic Preservation, and the City of Downey.
Measure D-2
The rehabilitation of the remaining historic resources
on the Project Site shall comply with the Secretary of
the Interior’s Standards. According to the schematic
plans, the Project appears to comply with the Standards.
However, the plans are expected to evolve to a greater
level of detail, including construction materials and
Tierra Luna Project
and
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Applicant/
Developer
City
Planning
Division;
Building
Division
Ensure that a qualified
archaeologist assesses any
resources
found
during
construction and provides
report
to
UCLA
Archaeological Information
Center
During Construction
Applicant/
Developer
City
Planning
Division;
Building
Division
paleontologist assesses any
resources
found
during
report to the Los Angeles
During Construction
treatment of features. As such, a qualified historic
architect shall monitor the design and the construction
of the Project to ensure that it continues to comply with
the Standards. The historic architect shall prepare a
report at the conclusion of the design phase of the
Project analyzing compliance with the Standards. That
report shall be submitted to the City of Downey for
review and approval.
Measure D-3
If any archaeological materials are encountered during
the course of development of all future projects
constructed pursuant to the Amended Specific Plan for
the Tierra Luna Marketplace, the project shall be
halted. The services of an archaeologist shall be
secured by contacting the Center for Public
Archaeology – California State University at Fullerton,
or a member of the Society of Professional
Archaeologists (SOPA) or a SOPA-qualified
archaeologist to assess the resources and evaluate the
impact. Copies of the archaeological survey, study or
report shall be submitted to the UCLA Archaeological
Information Center. A covenant and agreement shall be
recorded before grading resumes
Measure D-4
If any paleontological materials are encountered during
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
halted. The services of a paleontologist shall be
Paleontology – University of Southern California
(USC), University of California at Los Angeles
(UCLA), California State University at Los Angeles,
California State University at Long Beach, or the Los
Angeles County Natural History Museum to assess the
resources and evaluate the impact. Copies of the
paleontological survey, study, or report shall be
submitted to the Los Angeles County Natural History
Museum.
Measure D-5
If human remains are discovered at the Project Site
during construction for future projects pursuant to the
Amended Specific Plan for the Tierra Luna
Marketplace, work at the respective construction site
shall be suspended, and the City of Downey and County
Coroner shall be immediately notified. If the remains
are determined by the County Coroner to be Native
American, the Native American Heritage Commission
(NAHC) shall be notified within 24 hours, and the
guidelines of the NAHC shall be adhered to in the
treatment or disposition of the remains.
Hazards and Hazardous Materials
Measure F-1
Prior to the issuance of a demolition permit for any
Action by Monitor
County
Museum
Natural
Timing/Frequency
History
Applicant/
Developer
City
Planning
Division;
Building
Division
Ensure that notification is
provided
to
appropriate
agencies if human remains are
discovered.
During Construction
Applicant/
Developer
Planning
Division;
Applicant/developer submits
plan for review as part of the
Prior
to
issuing
demolition permits
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
existing on-site structure, the structure shall undergo a
survey to document the presence of any potential
polychlorinated biphenyls (PCBs) within any
equipment or otherwise on or beneath the structure.
Any PCBs identified as part of this survey shall be
properly disposed of in accordance with all applicable
regulations.
Compliance
Check
Action by Monitor
Building
Division
plan check process
Timing/Frequency
City receives PCB survey and
any PCBs found are properly
disposed
Measure F-2
existing on-site structure not previously surveyed, the
structure shall undergo an asbestos survey to document
the presence of any potential asbestos-containing
materials (ACMs) within the structure. Any ACMs
identified as part of this survey shall be abated in
accordance with all applicable laws and regulations
including without limitation applicable NESHAP
provisions, OSHA worker safety regulations, and
SCAQMD Rule 1403 as well as any other applicable
city, state, and federal regulations.
Applicant/
Developer
Measure F-3
lead-based paint (LBP) survey to document the
presence of any potential LBP within the structure.
Any LBP identified as part of this survey shall be
abated in accordance with all applicable city, state, and
federal regulations.
Applicant/
Developer
Planning
Division;
Building
Division
plan check process
Prior
to
issuing
demolition permits
City receives ACM survey
and any ACM found are
properly abated
Planning
Division;
Building
Division;
plans for review as part of the
plan check process
City receives LBP survey and
any LBP found are properly
abated
Tierra Luna Project
Approve plans prior to
issuing
demolition
permits
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Measure F-4
Should any future operation of the Project include the
construction, installation, modification, or removal of
underground storage tanks, the County of Los Angeles
Department of Public Works’ Environmental Programs
Division shall be contacted at the start of the planning
phase for required approvals and operating permits.
Applicant/
Developer
County of Los
Angeles
Department
of
Public
Works
Environmental
Programs
Division
plan check process
Prior to the start of any
future
construction,
installation,
modification,
or
removal of underground
storage tanks
Measure F-5
Should any excavated soil be contaminated by or
classified as hazardous waste by an appropriate agency,
the soil shall be managed and disposed in accordance
with applicable Federal, State, and local laws and
regulations.
Applicant/
Developer
Planning
Division;
Building
Division
Provide documentation to
City that any contaminated
soil is properly disposed
Ongoing
Construction
Applicant/
Developer
Building
Division
Ensure compliance during
periodic on-site inspections
During construction
Applicant/
Developer
Building
Division; Code
Enforcement
During construction
Noise
Measure I-1
The Proposed Project shall comply with the City of
Downey Municipal Code, Article IV, Chapter 6, and
any subsequent ordinances, which prohibit the emission
or creation of noise beyond certain levels at adjacent
uses unless technically infeasible.
Measure I-2
Construction activities shall be restricted to the hours of
7:00 A.M. to 7:00 P.M and no construction on Sundays
Tierra Luna Project
during
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Measure I-3
Noise and groundborne vibration construction activities
whose specific location on the Project Site may be
flexible (e.g., operation of compressors and generators,
cement mixing, general truck idling) shall be conducted
as far as possible from the nearest noise- and vibrationsensitive land uses.
Applicant/
Developer
Building
Division
Building plan check
On-site
inspections
during construction
Measure I-4
Construction activities shall be scheduled so as to avoid
operating several pieces of equipment simultaneously,
which causes high noise levels.
Applicant/
Developer
Building
Division
Building plan check
At the time permits are
issued;
during
construction
Measure I-5
To the extent feasible, the use of those pieces of
construction equipment or construction methods with
the greatest peak noise generation potential shall be
minimized.
Examples include the use of drills,
jackhammers, and pile drivers.
Applicant/
Developer
Building
Division
Building plan check
issued;
during
construction
Measure I-6
Project contractor(s) shall exert commercially
reasonable efforts to use power construction equipment
with state-of-the-art noise shielding and muffling
devices.
Measure I-7
Barriers such as plywood structures or flexible sound
control curtains shall be erected around the Project Site
Applicant/
Developer
Building
Division
Building plan check
During on-site building
inspections and before
building permits are
finalized
Applicant/
Developer
Building
Division
mitigation measure during site
inspection
During construction
and holidays.
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Measure I-8
All construction truck traffic shall be restricted to truck
routes approved by the City of Downey, which shall
avoid residential areas and other sensitive receptors to
the extent feasible.
Measure I-9
All new mechanical equipment shall not exceed, by
more than three decibels, the ambient noise level on the
premises of other occupied properties.
Applicant/
Developer
Planning
Division
Plan Review.
At the time building
permits are finalized
Applicant/
Developer
Planning
Division;
Building
Division
Plan Review.
Measure I-10
The Project Applicant shall comply with the Noise
Insulation Standards of Title 24 of the California Code
Regulations, which ensure an acceptable interior noise
environment.
Applicant/
Developer
Building
Division
Plan Review.
Measure I-11
All exterior windows within the residential units on the
Project Site shall be constructed with double-pane glass
and use exterior wall construction which provides a
Sound Transmission Class of 50 or greater as defined in
UBC No. 35-1, 1979 edition or any amendment thereto.
The applicant, as an alternative, may retain an
acoustical engineer to submit evidence, along with the
application for a building permit, any alternative means
of sound insulation sufficient to mitigate interior noise
Applicant/
Developer
Planning
Division;
Building
Division
Plan Review.
to minimize the amount of noise on the surrounding offsite sensitive receptors to the maximum extent feasible
during construction.
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Applicant/
Developer
Public
Works
Department;
Downey
Fire
Department
Submission of Master Plan
for review and approval.
Implement
any
required
upgrades to fire mains
Prior to issuing building
permits
Applicant/
Developer
Downey
Fire
Department
Review that all fire code and
ordinance
requirements
applicable
have
been
implemented into building
plans
permits
Applicant/
Developer
Downey
Fire
Department
Review that adequate access
is incorporated into building
plans
permits
levels below a CNEL of 45 dBA in any habitable room.
Public Services
Measure K-1
The Applicant of the Proposed Project and all
development projects constructed under the Tierra Luna
Specific Plan’s framework shall submit a Master Plan
to the Downey Fire Department prior to issuing
building permits, for review and approval, which shall
provide the capacity of the fire mains serving the
Project Site. Any required upgrades shall be identified
and implemented prior to the issuance of building
permits for the Proposed Project and future
developments.
Measure K-2
The Proposed Project and all future development
projects pursuant to the Tierra Luna Specific Plan shall
comply with all fire code and ordinance requirements in
effect at the time for building construction, emergency
access, water mains, fire flows, onsite automatic
sprinklers, and hydrant placement. Prior to issuing
permits for any phase of the project, Applicant shall
implement all fire code and ordinance requirements
applicable at the time of development to the satisfaction
of the Downey Fire Department.
Measure K-3
The design of the Proposed Project and all development
projects constructed within the Tierra Luna Specific
Plan framework shall provide adequate access for
Downey Fire Department equipment and fire fighters
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Applicant/
Developer
Downey
Fire
Department
Review that adequate offsite
public and onsite private fire
hydrants are incorporated into
building plans
permits
Measure K-5
The project applicant shall provide for additional fire
fighting equipment including one aerial ladder truck
and fire fighters for the truck, one paramedic unit and
two paramedics.
Measure K-6
The Proposed Project design shall be reviewed and
approved by the Downey Police Department pursuant
to General Plan Program 5.4.2.6. prior to the issuance
of a building permit.
Applicant/
Developer
Downey
Fire
Department
Receive funds or commitment
of funds for compliance with
Measure K-5
Prior to operation
Applicant/
Developer
Downey Police
Department
Confirm that
approval of
occurred by
Department
review and
design has
the Police
permits
Measure K-7
Prior to issuance of building permits, the Applicant
shall complete an analysis of projected employee
populations over two 24-hour (one day during the week
and one during the weekend) periods. The number of
projected employees will be added to the projected
number of residents (approximately 4,883) and will be
used to determine applicable shifts/periods of time to
which police personnel could be added to ensure that a
sufficient number of officers is on staff for the total
Applicant/
Developer
Downey Police
Department
Receive analysis of projected
employee
population
to
determine adequate police
staffing. Receive
fees to
support any additional police
personnel in accordance with
Measure K-7
permits
onto and throughout the Project Site and future
structures.
Measure K-4
The Proposed Project and all development projects
constructed within the Tierra Luna Specific Plan’s
framework shall provide adequate offsite public and
onsite private fire hydrants as determined necessary by
the Downey Fire Department.
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Measure K-8
Prior to the issuance of building permits, the Applicant
shall provide an onsite security plan for the
development, to be approved by the City of Downey
and the Downey Police Department.
Applicant/
Developer
Downey Police
Department
Receive and approve onsite
security plan
permits
Measure K-9
shall provide an onsite police substation, and the
project Applicant shall pay fees for any additional
police personnel determined to be required after such
determination is made and shall enter into an agreement
with the City of Downey and DPD for payment of such
fees.
Applicant/
Developer
Downey Police
Department
Confirm receipt of funds to
provide for onsite police
substation and any additional
police personnel
permits
Measure K-10
The Applicant of the Proposed Project and all
developments constructed therein shall pay school fees
to the satisfaction of the Downey Unified School
District.
Applicant/
Developer
Downey Unified
School District;
Building
Division
Confirm receipt of payment
of school fees
permits
Measure K-11
The project Applicant shall pay the applicable in-lieu
Applicant/
Developer
Community
Services
of applicable in-lieu park fees
permits
projected population at the Project Site. The project
Applicants shall pay fees for any additional police
personnel determined to be required after such
determination is made and shall enter into an agreement
with the City of Downey and DPD for payment of such
fees.
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
park fees as determined by the City of Downey, which
shall scale up on an annual basis with the increase in the
Consumer Price Index (CPI) for the Los Angeles
metropolitan area.
Measure K-12
The Proposed Project Applicant shall pay a mitigation
fee as determined by the City of Downey Public
Library, based upon the projected employee and
residential population of the development. The funds
will be used for books, computers, and other library
materials and information services.
Measure L-1
Lakewood Boulevard/Gallatin Road – Option 1: The
improvement at this intersection includes a separate
northbound right-turn lane. This improvement can be
achieved by widening Lakewood Boulevard by two feet
on the east side of the street for approximately 200 feet.
The northbound approach would provide a left-turn lane,
two through lanes, and a separate right-turn lane.
Measure L-2
Lakewood Boulevard/Gallatin Road – Option 2: This
improvement includes a second eastbound left-turn
lane. This improvement can be achieved by restriping
the existing eastbound through lane to a shared leftthrough lane. The eastbound approach would provide a
left-turn lane, a shared left-through lane and a separate
right-turn lane. The traffic signal would be modified to
Compliance
Check
Action by Monitor
Timing/Frequency
Department;
Building
Division
Applicant/
Developer
Community
Services
Department;
Building
Division
of fees to Library
permits
Engineering
Division
Engineering
Division
Decide whether to plan, fund
and implement Option 1
(Measure L-1) or Option 2
(Measure L-2)
During Construction
Engineering
Division
Engineering
Division
and implement option 1
(Measure L-2)
During Construction
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Measure L-3
Lakewood Boulevard/Stewart and Gray Road – The
improvement at this intersection includes a separate
eastbound right-turn lane. This improvement can be
achieved by removing the median island on the west leg
of the intersection and widening on the south side of
Stewart and Gray Road by two to four feet for
approximately 125 feet. The eastbound approach would
provide a left-turn lane, two through lanes and a separate
right-turn lane.
Engineering
Division
Engineering
Division
Plan, fund, and implement the
improvement
defined
in
Measure L-3
During Construction
Measure L-4
Bellflower Boulevard/Imperial Highway – The
improvement at this intersection includes dual left-turn
lanes on the northbound and southbound approaches.
This improvement can be achieved by widening on the
west side of Bellflower Boulevard (north of Imperial
Highway) and on the east side of Bellflower Boulevard
(south of Imperial Highway) by approximately two to
twelve feet for approximately 250 feet. The northbound
and southbound approaches would provide dual left-turn
Engineering
Division
Engineering
Division
improvement
defined
in
Measure L-4
During Construction
Measure L-5
I-605 Southbound Ramps/Firestone Boulevard – The
improvement at this intersection includes a second
westbound left-turn lane. This improvement can be
City of Norwalk
Engineering
Division;
CALTRANS
City of Norwalk
Engineering
Division;
CALTRANS
improvement
defined
in
Measure L-5
During Construction
include split phasing operations for the eastbound and
westbound Gallatin Road approaches.
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Verification
Measure L-6
Bellflower Boulevard/Washburn Road – As part of the
Tierra Luna Specific Plan, a fourth leg of the
intersection, the west leg, will be constructed. The
eastbound approach would provide a left-turn lane and
a shared through-right turn lane.
Engineering
Division
Engineering
Division
improvement
defined
in
Measure L-6
During Construction
Measure L-7
The Applicant shall contact the Metro Bus Operations
Control Special Events Coordinator and other
Municipal Bus Service Operators prior to the start of
construction.
Los
Angeles
County Metro
Los
Angeles
County Metro
Confirm that contact has been
made
Prior
to
start
construction
Applicant/
Developer
Building
Division
Site Plan Review and building
plan check
Prior to issuance of
building permits and
prior to occupancy
Applicant/
Developer
Building
Division
plan check
On-site
building
inspections and review
Applicant/
Developer
Building
Division
plan check
On-site
building
achieved by restriping the existing painted chevron on the
westbound approach. The westbound approach would
provide dual left-turn lanes and two through lanes.
Utilities
Measure M-1
Design windows (e.g., tinting, double pane glass, etc.)
to reduce thermal gain and loss and thus cooling loads
during warm weather, and heating loads during cool
weather.
Measure M-2
Install thermal insulation in walls and ceilings that
exceed requirements established by the State of
California Energy Conservation Standards.
Measure M-3
Install high-efficiency lamps for all outdoor security
lighting.
Tierra Luna Project
of
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Measure M-4
Time control interior and exterior lighting. These
systems must be programmed to account for variations
in seasonal daylight times.
Measure M-5
Finish exterior walls with light-colored materials and
high-emissivity characteristics to reduce cooling loads.
Finish interior walls with light-colored materials to
reflect more light and thus increase lighting efficiency.
Applicant/
Developer
Building
Division
plan check
On-site
building
Applicant/
Developer
Building
Division;
Planning
Division
plan check
On-site
building
Tierra Luna Project
Verification
Exhibit D
FINDINGS OF FACT
1.
INTRODUCTION AND BACKGROUND
This document provides the Findings of Facts required for the approval of the 2011 Alternative Project,
as defined in the Final EIR.
As required by the California Environmental Quality Act (CEQA), a Notice of Preparation (NOP) to
prepare the Tierra Luna EIR was distributed on May 5, 2008 to responsible and trustee agencies, as well
as private organizations and parties that may have an interest in the Project. The NOP provided
notification that the Lead Agency, i.e., the City of Downey (City), planned to prepare an Environmental
Impact Report (EIR) and to solicit guidance on the scope and content of the EIR. The NOP included a
brief description of the Proposed Project and identified those environmental areas where the Project
could have potentially significant environmental effects, as well as those areas where the Project would
have no potentially significant environmental effects. The NOP is included in Appendix I-1 of the Draft
EIR.
On April 2, 2009, the City circulated the Draft EIR for public review for a period of 45 days ending on
May 18, 2009. A Notice of Availability (Notice) was circulated, that announced the release of the Draft
EIR, identified where it was available for review, described the project and its location, and summarized
the significant environmental effects of the project. The Notice stated where documents referenced in the
Draft EIR are available for review, and stated the period for submittal of comments on the contents of the
Draft EIR. The City distributed the Draft EIR to interested individuals, adjacent cities, county, regional
and state agencies. Copies of the Draft EIR were also made available for public review at the Downey
City Library, the City’s Planning Division office, and on the City’s website. The City received 14 letters
commenting on the Draft EIR during the public review period.
The Draft EIR included a detailed description of the Proposed Project, an analysis of its potential
environmental effects, and an analysis of the effects of five alternatives to the project:
Alternative A: No Project/No Development
Alternative B: No Project/Existing Specific Plan Build-Out
Alternative C: Reduced Density
Alternative D: Reduced Site
Alternative E: All-Commercial
The Draft EIR also described cumulative impacts, growth-inducing impacts, significant irreversible
environmental effects, and significant and unavoidable impacts.
2011 Alternative
The 2011 Alternative, which was drafted as Alternative F for the Final EIR, is the current preferred
project.
Shortly after the close of the comment period on the Draft EIR, the 2009 Proposed Project was put on
hold due to the recession. However, after the 2009 Proposed Project was put on hold, the property owner
and the City were approached by Tesla Motors who desired to adaptively reuse 50 acres of the Project
Site as a manufacturing site for the Model S Sedan. The property owner and the City negotiated with
Tesla Motors for approximately fifteen months, regarding terms for ground-leasing the majority of the
site.
As part of the ground lease, Tesla Motors planned to reuse Buildings 1, 11, and 6/290. After extensive
negotiations, Tesla Motors decided that a site in Fremont, California was more suitable for them and
terminated discussions. Shortly after that decision by Tesla Motors, the property owner decided to move
forward with a smaller project. The 2011 Alternative was developed because of the continuing effects of
the economy and based on the comment letters received. The 2011 Alternative is about 1/3 the size of the
2009 Proposed Project, does not include a residential component and is similar in impacts to the Reduced
Density Alternative (although it is not identical to the Reduced Density Alternative because the mix of
uses is not identical).
The 2011 Alternative would consist of a phased, mixed-use development for the 77-acre site to include:
•
•
•
1,100,000 square feet of commercial/retail floor area, including a 16 screen movie theater (which
would comprise approximately 65,000 square feet);
300,000 square feet of office floor area; and
116,000 square feet of hotel floor area (comprising 150 hotel rooms).
It is noted that the total project would not exceed 1,516,000 square feet of building floor area, which is
significantly less floor area than the 2009 Proposed Project. Also, in conjunction with this, the Applicant
proposes that up to 200,000 square feet of retail space may instead be developed as office space,
depending on market conditions. Vehicular access would be provided on Lakewood Boulevard,
Congressman Steven Horn Way, and Bellflower Boulevard.
On December 12, 2011, the City released the Final EIR for the Project. The Final EIR incorporates by
reference the text of the Draft EIR and includes an Introduction, Summary, Corrections and Additions to
the Draft EIR, responses to the letters commenting on the Draft EIR, and a Mitigation Monitoring and
Reporting Program.
2.
PROJECT OBJECTIVES AND DESCRIPTION
The objectives of the City (i.e., the Lead Agency) for the 2011 Alternative Project are as follows:
•
•
•
•
•
•
•
•
Transform the central portion of the former NASA Industrial site by facilitating redevelopment that
creates new hotel, office, retail, restaurant, and, to the extent permitted by environmental conditions,
residential uses.
Achieve an environment reflecting a high level of concern for architecture, landscape, and urban
design principles by developing a high-quality, comprehensively-designed project.
Provide community amenities such as new community gathering places, new restaurants, and new
Create a pedestrian-friendly environment with well-designed and connected spaces in the public
realm.
Provide unique new retail opportunities for Downey residents.
Facilitate development of new and unique hotel uses that include conference and meeting space.
Tierra Luna Project
•
•
Positively impact the City of Downey’s fiscal tax base.
Discretionary Approvals
Implementation of the 2011 Alternative Project would require the following discretionary approvals by
the agencies listed below. This EIR would be used by these agencies as a basis for such approvals.
City of Downey
•
•
•
•
•
•
•
3.
Amendment to the existing Downey Landing Specific Plan;
Development Agreement;
Subdivision Map Act Approvals;
SUSMP as well as Specific Plan Water, Wastewater, and Recycled Water Master Plan Approval;
Conditional Use Permit(s);
Other Actions from local regional, state, and federal agencies; and
Any additional actions as may be necessary.
RECORD OF PROCEEDINGS
For purposes of CEQA and the findings set forth herein, the record of proceedings for the City of
Downey’s decision on the project consists of the following documents:
The NOP prepared for the Project;
Other public notices prepared in conjunction with the Project;
The Draft EIR;
All written comments submitted by agencies or members of the public during the public
comment period on the Draft EIR;
The Final EIR for the Project;
The Mitigation Monitoring and Reporting Program for the Project;
All findings and resolutions adopted by the City of Downey in connection with the Project, and
all documents cited or referred to therein;
All reports, studies, memoranda, maps, and other planning documents relating to the project
prepared by the City of Downey, the City of Downey's consultants, or Responsible or Trustee
agencies with respect to the City’s compliance with the requirements of CEQA and with respect
to the City of Downey action on the Project;
All documents submitted to the City of Downey by agencies or members of the public in
connection with the project;
Minutes of public hearings held by the City of Downey in connection with the project;
Any documentary or other evidence submitted to the City of Downey at public hearings; and
Matters of common knowledge to the City of Downey, including, but not limited to federal,
State, and local laws and regulations.
The custodian of the documents is the City of Downey Community Development Department.
4.
FINDINGS REQUIRED UNDER CEQA
Under CEQA, for each significant environmental effect identified in an EIR for a proposed project, the
approving agency must issue a written finding reaching one or more of three allowable conclusions:
Tierra Luna Project
Changes or alterations have been required in, or incorporated into, the project which avoid or
substantially lessen the significant effects on the environment (Public Resources Code (PRC)
§21081, subd. [a]);
Changes or alterations are within the responsibility and jurisdiction of another public agency and
have been, or can and should be, adopted by the other agency (PRC §21081, subd. [b]); and
Specific economic, legal, social, technological, or other considerations, including considerations
for the provision of employment opportunities for highly trained workers, made infeasible the
mitigation measures or alternatives identified in the environmental impact report (PRC §21081,
subd. [c]).
CEQA requires that the lead agency adopt mitigation measures or alternatives, where feasible, to avoid or
substantially reduce significant environmental impacts that would otherwise occur as a result of a project.
Project modification or alternatives are not required, however, where they are infeasible or where the
responsibility for modifying the project lies with some other agency (State CEQA Guidelines §15091,
subd. (a)[3]). Public Resources Code Section 21061.1 defines “feasible” to mean “capable of being
accomplished in a successful manner within a reasonable period of time, taking into account economic,
environmental, social and technological factors.” State CEQA Guidelines Section 15364 adds another
factor: “legal” considerations.
Only after fully complying with the findings requirement can an agency adopt a statement of overriding
considerations.
In cases in which significant impacts are not at least “substantially mitigated,” the agency, after adopting
the findings, may approve the project if it first adopts a statement of overriding considerations setting
forth the specific reasons why the agency found that the project’s “benefits” rendered “acceptable” its
“unavoidable adverse environmental effects” (State CEQA Guidelines §15093 and §15043, subd. [b]).
The California Supreme Court has stated that, “the wisdom of approving any development project, a
delicate task which requires a balancing of interests, is necessarily left to the sound discretion of the local
officials and their constituents who are responsible for such decisions. The law as we interpret and apply
it simply requires that those decisions be informed, and therefore balanced” (Goleta II, 52 Cal.3d 553,
576 [276 Cal. Rptr. 401]).
This document presents the City’s findings as required by CEQA, cites substantial evidence in the record
in support of each of the findings, and presents an explanation to supply the logical step between the
finding and the facts in the record (State CEQA Guidelines §15091).
5.
LEGAL EFFECTS OF FINDINGS
To the extent that these findings conclude that various proposed mitigation measures outlined in the EIR
are feasible and have not been modified, superseded or withdrawn, the City, in adopting the findings,
commits to implementing these measures. In other words, these findings are not merely informational,
but rather constitute a binding set of obligations that will go into effect when the City of Downey
approves the project.
The mitigation measures are referenced in the Mitigation Monitoring and Reporting Program (MMRP)
(Exhibit F) adopted concurrently with these findings, and will be affected through the process of
constructing and implementing the project.
Tierra Luna Project
6.
MITIGATION MONITORING AND REPORTING PROGRAM
An MMRP has been prepared for the 2011 Alternative, as required by PRC Section 21081.6, and
included as Exhibit F to this resolution. The City will use the MMRP to track compliance with adopted
mitigation measures. The City will consider the MMRP during the approval of the Amended Specific
Plan for the Tierra Luna Marketplace. The final MMRP will incorporate all mitigation measures adopted
for the project under separate cover.
7.
SIGNIFICANT EFFECTS, MITIGATION MEASURES, AND FINDINGS
7.1
Effects Determined to be Mitigated to Less than Significant Levels
The potentially significant adverse environmental impacts that can be mitigated to less than significant
levels are listed below. The City finds that these potentially significant impacts can be mitigated to a
level that is considered less than significant after implementation of the Mitigation Measures identified in
the EIR.
Biological
Impact
Impact BIO-1: The 2011 Alternative has the potential to impact nesting birds. (Final EIR p. III-51)
The Project Site does not contain any species identified as a candidate, sensitive, or special status species
in local or regional plans, policies, or regulations, or by the California Department of Fish and Game
(Fish and Game) or U.S. Fish and Wildlife Service (USFWS). Furthermore, review of the National
Wetlands Inventory identified no protected wetlands on the Project Site or in the immediate area as
defined by Section 404 of the Clean Water Act. There are no known locally designated natural
communities on the Project Site or in the project vicinity; therefore, the Proposed Project would not
conflict with the provisions of an adopted or proposed Habitat Conservation Plan, Natural Conservation
Community Plan, or other approved local, regional, or State habitat conservation plan.
Due to the urbanized surroundings, there are no wildlife corridors or native wildlife nursery sites in the
project vicinity. The 2011 Alternative would not interfere with the movement of any resident or
migratory fish or wildlife species. Nevertheless, the approximately 30 existing trees on the Project Site
that will be removed could possibly serve as nesting areas for migratory birds under The Migratory Bird
Treaty Act (“MBTA”). The MBTA was enacted in the early Twentieth Century between the
governments of the United States and Great Britain (representing Canada), subsequently Mexico in 1936,
Japan in 1972, and the Union of Soviet Socialist Republics in 1976. The MBTA expanded the definition
of migratory birds to include virtually all birds found in the United States. It establishes provisions
regulating take, possession, transport, and import of migratory birds, including nests and eggs. Some
examples of work that may be subject to MBTA restrictions include tree trimming, ground or vegetation
disturbing activities, and tree removal during the bird breeding season. Compliance with the MBTA
typically prohibits demolition and construction within certain distances of trees during nesting season
and prohibits tree removal during nesting season, unless trees are surveyed for active nests prior to
construction, demolition or tree removal during nesting season.
Findings
Tierra Luna Project
Implementation of Mitigation Measure A-1 would reduce impacts with respect to nesting birds to less
than significant.
A-1.
To avoid impacting nesting birds, one of the following must be implemented:
(a) Conduct vegetation removal and/or grading activities from September 1 through January 31,
when birds are not likely to be nesting on the site;
OR
(b)
Conduct pre-construction surveys for nesting birds if construction is to take place during
the nesting season. A qualified wildlife biologist shall conduct a pre-construction nest survey no
more than five days prior to initiation of grading to provide confirmation on presence or absence
of active nests in the vicinity (at least 300 feet around the Project Site). If active nests are
encountered, species-specific measures shall be prepared by a qualified biologist in consultation
with the CDFG and implemented to prevent abandonment of the active nest. At a minimum,
grading in the vicinity of the nest shall be deferred until the young birds have fledged. A
minimum exclusion buffer of 100 feet shall be maintained during construction, depending on the
species and location. The perimeter of the nest-setback zone shall be fenced or adequately
demarcated with staked flagging at 20-foot intervals, and construction personnel and activities
restricted from the area. A survey report by the qualified biologist verifying that (1) no active
nests are present, or (2) that the young have fledged, shall be submitted to the City prior to
initiation of grading in the nest-setback zone. The qualified biologist shall serve as a
construction monitor during those periods when construction activities will occur near active nest
areas to ensure that no inadvertent impacts on these nests will occur.
Aesthetics
Impact
Impact AES-1: The 2011 Alternative would increase onsite light. (Final EIR, p. III-53)
Ambient lighting emanating from the existing uses on the Project Site contributes to the moderate
ambient lighting levels in the surrounding area. As the 2011 Alternative would increase the amount of
development on the Project Site, implementation of this alternative would therefore incrementally
increase the amount of nighttime lighting emanating from the Project Site over existing conditions
(although less than the 2009 Proposed Project as a significantly smaller development is proposed under
this alternative). The Project Site would be illuminated with lighting from the office, retail, and hotel
portions of the 2011 Alternative, as well as from roadway lighting along the new internal road network
and security lighting along pedestrian routes and in parking facilities. In compliance with Specific Plan
lighting requirements, these lights would be required to be permanently shielded and focused on the
Project Site to prevent spillover and light pollution upon the nearby light-sensitive uses. Further, the
potentially beneficial impact of removing existing sources of glare associated with surface parking lots
would occur under this Alternative.
Further, the Project Site is located along several major commercial corridors and adjacent to a large retail
center already exhibiting moderate ambient lighting levels. As the Tierra Luna Specific Plan would
require the containment of all possible light pollution, urban glow emanating from the Proposed Project
would be reduced to the maximum extent possible. However, as there are minimal light sources currently
onsite, development of the Proposed Project would constitute a substantial source of additional light in
Tierra Luna Project
the area. To the maximum extent feasible, all lighting would be shielded and focused on the Project Site
and directed away from the neighboring land uses.
Findings
Implementation of Mitigation Measures B-1 and B-2 would reduce potential lighting impacts to less than
significant.
B-1.
Project lighting shall be directed onto the Project Site, and all lighting shall be shielded from
adjacent roadways and off-site properties.
B-2.
Atmospheric light pollution shall be minimized by utilizing lighting fixtures that cut-off light
directed to the sky.
Impact
Impact AES-2: The 2011 Alternative includes glass windows, which could result in some transitory
conditions of glare during the day. (Final EIR, p. III-53)
The 2011 Alternative would construct many new buildings with glass windows that have the potential to
reflect light. The increased amount of building development onsite may result in a higher level of glare
emanating from onsite structures depending on the type of building surfaces; while, the demolition and
replacement of the existing expansive surface parking lots with smaller lots and street parking would
result in a reduction in the amount of glare existing at the Project Site. Further, the 2011 Alternative
includes a detailed street tree program intended to plant trees throughout the Project Site. The location of
trees throughout the Project Site would assist in the reduction of glare derived from onsite cars and
windows. Development may include architectural features and facades that have a low level of
reflectivity depending on the type of building surfaces.
Findings
Implementation of Mitigation Measure B-3 would reduce potential impacts associated with glare to a less
B-3.
The proposed buildings shall incorporate non-reflective exterior building materials (such as
plaster and masonry) in their design. Any glass to be incorporated into the façade of the building
shall be either of low-reflectivity, or accompanied by a non-glare coating. Reflective materials
such as mirrored glass shall not be permitted.
Air Quality
[Impact AIR-1, 2 and 3 and Measures C-1 to C-4 are described in Section 7.2, below, because despite
mitigation, impacts would be significant and unavoidable]
Impact
Impact AIR-4: The construction-related daily emissions generated during the building phase at the
Project Site would exceed the regional emission threshold recommended by the SCAQMD for ROG,
while the other criteria pollutants (CO, NOx, SOx, PM10, and PM2.5) would not exceed their respective
SCAQMD regional significance thresholds. (Draft EIR, p. IV.C.1-28)
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The exceedance of the SCAQMD significance threshold for ROG during the building phase is primarily
due to the emissions generated during the application of architectural coatings for the new on-site
buildings on an estimated peak construction day at the Project Site.
Findings
During the building phase, the 2011 Alternative’s impacts on regional air quality resulting from
construction activities would be potentially significant for ROG emissions. Implementation of
Mitigation Measure C-5, which would require that all paints and primer used at the Project Site during
construction to have a VOC rating of 125 grams per liter or less and that only a maximum of 214 liters
(57 gallons) of such paints can be used on any given day, would reduce the amount of ROG emissions
generated during the building phase. The total amount of ROG emissions would be reduced with
implementation of Mitigation Measure C-5 to a level that would not exceed the SCAQMD’s threshold of
significance. As such, this impact would be less than significant.
C-5.
The Project Developer(s) shall include in construction contracts the required application of
paints and primer at the Project Site during construction to have a VOC rating of 125 grams per
liter or less, and that only a maximum of 214 liters (57 gallons) of such paints can be used on any
given day.
Cultural Resources
Impact
Impact CUL-1: The 2011 Alternative could adversely affect recorded historic architectural resources
directly through demolition. (Final EIR, p. III-67)
The 2011 Alternative would result in the demolition of a portion of Building 1 and the 12 other
remaining buildings (Buildings 6, 11, 36, 39, 108, 123, 125, 126, 127, 128, 130, and 290). This would be
required to comply with the MOA with respect to buildings that may be demolished and those that would
be retained. Compliance with the terms of the MOA would reduce impacts to on-site historic resources
to a less than significant level. The 2011 Alternative would therefore result in the less than significant
impact with respect to historic resources.
As a federal agency and as the property owner of the 160-acre NASA Industrial Plant, NASA was
required under Section 106 of the National Historic Preservation Act (NHPA) to evaluate potential
effects on structures on-site that are older than 50 years or that may have been associated with significant
events in the past. This required study of NASA’s transfer of the Project Site to the City of Downey
included an evaluation of the buildings’ historic significance and potential eligibility for the National
Register of Historic Places. The Final Historic Buildings and Structures Inventory and Evaluation was
prepared for NASA by Earthtech (2000) for the purposes described above and determined, based on a
review of historical literature (e.g., text maps and photographs), interviews with individuals having
knowledge of the property’s/plant’s history and physical inspection and evaluation of the entire plant and
its associated properties, that a complex of 19 structures and features on the Project Site, identified as
property numbers 1, 6, 10, 11, 25, 36, 39, 41, 42, 108, 120, 123, 125, 126, 127, 128, 130, 288 and 290, is
potentially eligible for listing in the National Register based on their individual merit as principal historic
resources of the property.
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The California State Office of Historic Preservation (SHPO) concurred with the findings of the Earthtech
evaluation. Consequently, the project’s potential effects on some of these structures (i.e., demolition)
were regarded as adverse effects, pursuant to Section 106 of the National Historic Preservation Act.
These effects would also constitute a significant impact under Section 15064.5 of the State CEQA
Guidelines. To mitigate this impact, NASA previously entered into a Memorandum of Agreement
(MOA)with the City of Downey, the federal General Services Administration (GSA) and SHPO, as
discussed in the Final EIR.
The HAER documentation was done in 2006 by Onyx Architects and was accepted by the National Park
Service in 2007. The educational program was supposed to be done within 5 years of the MOA. The
Columbia Memorial Space Science Learning Center has been opened in Downey and provides
educational programs. The MOA was executed by NASA, GSA, SHPO and the City.
Findings
Implementation of Mitigation Measure D-1 and D-2 would reduce these potential impacts to a less than
significant level.
D-1.
Historic American Engineering Record (HAER) reports were prepared for all of the historic
resources on the Project Site in 2006. These reports were prepared as mitigation pursuant to the
Memorandum of Agreement (MOA). However, the HAER report for Building 1 did not
document that portion planned for preservation. Although the Project will preserve that same
portion of Building 1, the report should be completed so that the entirety of Building 1 is
documented. Prior to the commencement of the Project, Level II Historic American Buildings
Survey (HABS) documentation shall be prepared for that portion of Building 1 planned for
preservation. One original copy of the report as specified above shall be assembled and offered
to the National Park Service, State Office of Historic Preservation, and the City of Downey.
D-2.
The rehabilitation of the remaining historic resources on the Project Site shall comply with the
Secretary of the Interior’s Standards. According to the schematic plans, the Project appears to
comply with the Standards. However, the plans are expected to evolve to a greater level of
detail, including construction materials and treatment of features. As such, a qualified historic
architect shall monitor the design and the construction of the Project to ensure that it continues to
comply with the Standards. The historic architect shall prepare a report at the conclusion of the
design and development phase of the Project analyzing compliance with the Standards. That
report shall be submitted to the City of Downey for review and approval.
Impact
Impact CUL-2: Construction could result in the disturbance of previously unidentified archaeological
resources, paleontological resources, and human remains. (Final EIR, p. III-69)
Archaeological Resources
The Project Site is located in an urbanized area and has been previously disturbed by development. Any
archaeological resources that may have existed on the Project Site have likely been previously unearthed
or disturbed. Excavation for the 2011 Alternative would be required for the installation of future
archaeological resources would be discovered during project development activities, should any such
archaeological resources.
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Paleontological Resources
There are no known paleontological resources on the Project Site. Any paleontological resources that
may have existed on the Project Site have likely been previously unearthed or disturbed. The anticipated
excavation activities associated with the 2011 Alternative would be required for the installation of future
paleontological resources would be discovered during project development activities, should any such
resources be encountered, full realization of the 2011 Alternative would result in significant impacts to
paleontological resources.
Human Remains
No known human burials have been identified on the Project Site. The anticipated excavation activities
associated with the 2011 Alternative would be required for the installation of future foundations, utilities,
subterranean parking, and stormwater BMP infrastructure, including stormwater retention facilities,
identified in the Tierra Luna Specific Plan. While it is possible that human remains could be discovered
during construction activities, with the implementation of mitigation measures listed below, impacts from
the realization of the 2011 Alternative on the human remains would be reduced to a less than significant
level.
Findings
Implementation of Mitigation Measure D-3, D-4, and D-5 would reduce potential impacts with respect to
archaeological resources, paleontological resources, and human remains to a less than significant level.
D-3.
If any archaeological materials are encountered during the course of development of all future
services of an archaeologist shall be secured by contacting the Center for Public Archaeology –
California State University at Fullerton, or a member of the Society of Professional
Archaeologists (SOPA) or a SOPA-qualified archaeologist to assess the resources and evaluate
the impact. Copies of the archaeological survey, study or report shall be submitted to the UCLA
Archaeological Information Center. A covenant and agreement shall be recorded before grading
resumes.
D-4.
If any paleontological materials are encountered during the course of development of all future
services of a paleontologist shall be secured by contacting the Center for Public Paleontology –
University of Southern California (USC), University of California at Los Angeles (UCLA),
California State University at Los Angeles, California State University at Long Beach, or the Los
Angeles County Natural History Museum to assess the resources and evaluate the impact.
Copies of the paleontological survey, study, or report shall be submitted to the Los Angeles
County Natural History Museum.
D-5.
If human remains are discovered at the Project Site during construction for future projects
pursuant to the Tierra Luna Specific Plan, work at the respective construction site shall be
suspended, and the City of Downey and County Coroner shall be immediately notified. If the
remains are determined by the County Coroner to be Native American, the Native American
Heritage Commission (NAHC) shall be notified within 24 hours, and the guidelines of the
NAHC shall be adhered to in the treatment or disposition of the remains.
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Impact
Impact HAZ-1: It is possible that polychlorinated biphenyls, asbestos-containing materials, and leadbased paint could be present on-site. (Final EIR, p. III-74)
Local overhead electricity power poles, which could potentially contain pole mounted transformers or
capacitors, were observed on the Project Site. In addition, PCBs may be present in the fluorescent light
ballasts present inside structures scheduled for demolition. Therefore, it is possible that PCBs could be
present on-site.
The existing buildings on-site could potentially contain ACMs. As such, prior to mitigation, construction
workers may have the potential to be exposed to airborne ACM during the removal of interior walls,
roofs, floors, and ceilings, resulting in a potentially significant impact to human health or the
environment. However, under various federal and state laws and regulations, including the Clean Air Act
provisions, National Emissions Standards for Hazardous Air Pollutants (NESHAP) and OSHA, standards
have been set for the removal and disposal of ACMs in connection with building demolition and
renovation work. The South Coast Air Quality Management District (SCAQMD) has also adopted a rule
(Rule 1403) requiring notice to SCAQMD and monitoring provisions in connection with most ACM
abatement and removal operations.
It is currently unknown if LBP is present on the exterior or interior of the existing on-site buildings;
however, due to the age of the structures, they are presumed to contain LBP. As such, prior to
mitigation, construction workers may have the potential to be exposed to LBP during the demolition of
building walls. Therefore, impacts associated with the accidental release of LBP during construction
would be a potentially significant impact prior to mitigation.
Findings
release of PCBs would be reduced to a less than significant level.
release of asbestos would be reduced to a less than significant level.
release of LBP would be reduced to a less than significant level.
F-1.
undergo a survey to document the presence of any potential (PCBs) within any equipment or
otherwise on or beneath the structure. Any PCBs identified as part of this survey shall be
properly disposed of in accordance with all applicable regulations.
F-2.
Prior to the issuance of a demolition permit for any existing on-site structure not previously
surveyed, the structure shall undergo an asbestos survey to document the presence of any
potential asbestos-containing materials (ACMs) within the structure. Any ACMs identified as
part of this survey shall be abated in accordance with all applicable laws and regulations
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including without limitation applicable NESHAP provisions, OSHA worker safety regulations,
and SCAQMD Rule 1403 as well as any other applicable city, state, and federal regulations.
F-3.
undergo a lead-based paint (LBP) survey to document the presence of any potential LBP within
the structure. Any LBP identified as part of this survey shall be abated in accordance with all
applicable city, state, and federal regulations.
Impact
Impact HAZ-2: The Project Site could contain underground storage tanks. (Final EIR, p. III-74)
The former NASA Industrial Plant is under the regulatory oversight of the Regional Water Quality
Control Board-Los Angeles Region (LARWQCB). During the 1990s and continuing until 2002, NASA
conducted a number of site assessment and remediation activities under the oversight of the LARWQCB,
Department of Toxic Substances Control (DTSC), and the Los Angeles County Department of Public
Works (LACDPW). LACDPW was the permitting agency for diesel underground storage tank removals
and closures.
Findings
Implementation of Mitigation Measure F-4 would reduce potential impacts associated with underground
storage tanks to a less than significant level.
F-4.
Should any future operation of the Project include the construction, installation, modification, or
removal of underground storage tanks, the County of Los Angeles Department of Public Works’
Environmental Programs Division shall be contacted at the start of the planning phase for
required approvals and operating permits.
Impact
Impact HAZ-3: The Project Site contains soil contamination. (Draft EIR, p. IV-F-5)
Facts in Support of Finding
Soil contamination was discovered north of the Project Site in two sections of the parking lot of the
adjacent Downey Landing commercial center, in an area that is not part of the Project Site. Two soil
contamination source areas were identified in the vicinity of former NASA Buildings 287 and 244.
Before 2003, NASA began corrective action of the VOC contamination to the north of the Project Site in
the shallow soils of the source areas i.e., soils approximately 40 feet below the surface. LARWQCB
previously accepted NASA’s remedial action plan for the shallow soils to the north of the Project Site,
but required that an additional corrective action program be implemented to address VOCs in the deeper
soils of the Downey Landing portion of the former NASA Industrial Plant site, not on but to the north of
the Project Site.
Finding
Implementation of Mitigation Measure F-5 would reduce impacts related to soil contamination to a less
F-5.
Should any excavated soil be contaminated by or classified as hazardous waste by an appropriate
agency, the soil shall be managed and disposed in accordance with applicable Federal, State, and
local laws and regulations.
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Noise
[Impact NOI-1 and Mitigation Measures I-1 to I-8 are described in Section 7,2, below because despite
mitigation, construction noise impacts would be significant and unavoidable]
Impact
Impact NOI-2: Operational noise generated by the HVAC units and other noise-generating sources has
the potential to disturb proposed residential units. (Final EIR, p. III-86)
The design of the on-site HVAC units and other noise-generating mechanical equipment associated with
the 2011 Alternative would be prohibited from exceeding three (3) dBA above the ambient noise level at
any period during the course of a twenty-four (24) hour day. This would apply to noise from air
conditioning, refrigeration, heating, pumping, and filtering equipment. Thus, the on-site equipment is
required to be designed such that it would be shielded and appropriate noise muffling devices would be
installed on the equipment to reduce noise levels that affect nearby noise-sensitive uses. In addition,
nighttime noise limits would be applicable to any equipment items required to operate between the hours
of 10:00 P.M. and 7:00 A.M. On this basis, a significant acoustical impact on the proposed residential
uses on the Project Site from on-site operations of the HVAC units is not predicted. As such, this impact
would be less than significant.
Findings
Implementation of Mitigation Measure I-9 prohibits noise sources not operating within a public right-ofway from exceeding the ambient noise level on the premises of other occupied properties by more than
three decibels. In addition, implementation of Mitigation Measures I-10 would require the 2011
Alternative to be constructed in compliance with Title 24 noise insulation standards.
I-9.
All new mechanical equipment shall not exceed the ambient noise level on the premises of other
occupied properties by more than three decibels.
I-10.
The Project Applicant shall comply with the Noise Insulation Standards of Title 24 of the
California Code Regulations, which ensure an acceptable interior noise environment.
Public Services
Impact
Impact PUB-1: The 2011 Alternative has the potential to result in adverse impacts to fire protection.
(Final EIR, p. III-91)
Demolition of the majority of the existing structures and development of the 2011 Alternative would
increase the potential for accidental onsite fires from such sources as the operation of mechanical
equipment and use of flammable construction materials. In most cases, the implementation of “good
housekeeping” procedures by the construction contractors and the work crews would minimize these
hazards. Good housekeeping procedures that would be implemented during construction of the 2011
Alternative include: the maintenance of mechanical equipment in good operating condition; careful
storage of flammable materials in appropriate containers; and the immediate and complete cleanup of
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spills of flammable materials when they occur. Further, construction of the 2011 Alternative would
increase demand for fire protection services when compared to existing levels.
Findings
With implementation of the Measures K-1 to K-4, project impacts on fire protection services and
facilities would be less than significant.
K-1.
The Applicant of the 2011 Alternative and all development projects constructed under the Tierra
Luna Specific Plan’s framework shall submit a Master Plan to the Downey Fire Department prior
to issuing building permits, for review and approval, which shall provide the capacity of the fire
mains serving the Project Site. Any required upgrades shall be identified and implemented prior
to the issuance of building permits for the Proposed Project and future developments.
K-2.
The 2011 Alternative and all future development projects pursuant to the Tierra Luna Specific
Plan shall comply with all fire code and ordinance requirements for building construction,
emergency access, water mains, fire flows, onsite automatic sprinklers, and hydrant placement.
Prior to issuing permits for any phase of the project, the Applicants shall implement all fire code
and ordinance requirements to the satisfaction of the Downey Fire Department.
K-3.
The design of the 2011 Alternative and all development projects constructed within the Tierra
Luna Specific Plan framework shall provide adequate access for Downey Fire Department
equipment and fire fighters onto and throughout the Project Site and future structures.
K-4.
The 2011 Alternative and all development projects constructed within the Tierra Luna Specific
Plan’s framework shall provide adequate offsite public and onsite private fire hydrants as
determined necessary by the Downey Fire Department.
Impact
Impact PUB-2: The 2011 Alternative has the potential to result in adverse impacts to police protection.
(Final EIR, p. III-92)
Construction sites can be sources of attractive nuisance, providing hazards and inviting theft and
vandalism. Therefore, when not properly secured, construction sites can become a distraction for local
law enforcement from more pressing matters that require their attention. Consequently, developers
typically take precautions to prevent trespassing through construction sites. Most commonly, temporary
fencing is installed around the construction site to keep out the curious. Deployment of roving security
guards is also an effective strategy in preventing problems from developing. The project Applicant and
developers of future projects constructed within this Specific Plan’s framework will employ construction
security features, such as fencing, which would minimize the need for DPD services. Further,
construction of the 2011 Alternative would increase demand for police protection services over existing
levels.
Findings
With implementation of the Mitigation Measures K-5 and K-6, project impacts on police protection
services and facilities would be less than significant.
K-5.
The 2011 Alternative design shall be reviewed and approved by the Downey Police Department
pursuant to General Plan Program 5.4.2.6. prior to the issuance of a building permit.
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K-6.
Prior to the issuance of building permits, the Applicant shall provide an onsite security plan for
the development, to be approved by the City of Downey and the Downey Police Department.
Impact
Impact PUB-3: The 2011 Alternative has the potential to result in adverse impacts to schools. (Final
EIR, p. III-93)
The 2011 Alternative would have no residential uses and would therefore not generate any permanent
residents. The elementary, middle, and high schools serving the project site are all operating near
capacity (as described in the Draft EIR Section IV.K) but would be expected to be able to accommodate
any additional students generated from employees moving into the area. School fees would continue to
be paid at the current rate (at the time of permitting) for commercial/industrial development. Any
additional students generated from employees of the project moving to the area would not cause the need
for new school facilities to be constructed, which could impact the environment. Therefore, school
impacts would be less than significant.
Findings
The 2011 Alternative, and all future development projects constructed pursuant to it, would be required
to pay School Facility Fees to the sum of $2.97 per square-foot of residential development and $0.47 per
square-foot of commercial/industrial development. Therefore, upon compliance with Mitigation Measure
K-7, impacts to schools services would be less than significant.
K-7.
The Applicant of the 2011 Alternative and all developments constructed therein shall pay school
fees to the satisfaction of the Downey Unified School District.
Impact
Impact TRAF-1: The 2011 Alternative has the potential to significantly impact various intersections in
the City of Downey and City of Norwalk. (Final EIR, p. III-98)
The 2011 Alternative is forecast to result in significant traffic impacts at three intersections (one
intersection during both the AM and PM peak hours and two intersections during the PM peak hour
only):
Intersection No. 24: Bellflower Boulevard/Imperial Highway
o AM peak hour v/c ratio increase of 0.043 [to 1.216 (LOS F) from 1.173 (LOS F)]
o PM peak hour v/c ratio increase of 0.099 [to 1.323 (LOS F) from 1.224 (LOS F)]
Intersection No. 38: Lakewood Boulevard/Gallatin Road
o PM peak hour v/c ratio increase of 0.036 [to 1.113 (LOS F) from 1.077 (LOS F)]
Intersection No. 77: I-605 Freeway Southbound Ramps/Firestone Boulevard
o PM peak hour v/c ratio increase of 0.049 [to 1.019 (LOS F) from 0.970 (LOS E)]
Findings
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The implementation of Mitigation Measures L-1 through L-3 would reduce the intersection impacts to
less than significant.
L-1.
Intersection No. 24: Bellflower Boulevard/Imperial Highway – The improvement at this
intersection includes dual left-turn lanes on the northbound and southbound approaches. This
improvement can be achieved by widening on the west side of Bellflower Boulevard (north of
Imperial Highway) and on the east side of Bellflower Boulevard (south of Imperial Highway) by
approximately two to twelve feet for approximately 250 feet. The northbound and southbound
approaches would provide dual left-turn lanes, two through lanes and a separate right-turn lane.
L-2.
Intersection No. 38: Lakewood Boulevard/Gallatin Road – This improvement includes a second
eastbound left-turn lane. This improvement can be achieved by re-striping the existing eastbound
through lane to a shared left-through lane. The eastbound approach would provide one left-turn
lane, one shared left-through lane, and a separate right-turn lane. The traffic signal would be
modified to include split phasing operations for the eastbound and westbound Gallatin Road
approaches.
L-3.
Intersection No. 77: I-605 Freeway Southbound Ramps/Firestone Boulevard – The improvement
at this intersection includes a second westbound left-turn lane. This improvement can be
achieved by re-striping the existing painted chevron on the westbound approach. The westbound
approach would provide dual left-turn lanes and two through lanes.
L-4.
The Applicant shall contact the Metro Bus Operations Control Special Events Coordinator and
other Municipal Bus Service Operators prior to the start of construction.
Utilities
Impact
Impact UTIL-1: The 2011 Alternative would consume more electricity than the existing uses. (Final EIR,
III-109)
The 2011 Alternative would consume approximately 28,325 kwh/day. Southern California Edison has
reserve margins so that it can ensure adequate supply, and also periodically updates its infrastructure to
ensure delivery to customers.
As the City of Downey is located within the western United States power grid, SCE is required to meet
certain operational, supply, and reliability criteria as established by the WECC and the NERC. These
criteria establish certain reserve margin requirements that SCE must meet to accommodate any
unforeseen contingencies. Additionally, energy conservation standards established by Title 24 of the
California Code of Regulations, including, but not limited to, glazing, lighting, shading, and water and
space heating systems, would be incorporated into new buildings. As part of the building permit process,
the 2011 Alternative will incorporate and exceed the Title 24 standards by five percent in order to reduce
the amount of electricity consumed by the 2011 Alternative.
Findings
With implementation of the energy conservation measures identified in Mitigation Measures M-1
through M-5, impacts on electricity supplies would be less than significant.
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M-1.
Design windows (e.g., tinting, double pane glass, etc.) to reduce thermal gain and loss and thus
cooling loads during warm weather, and heating loads during cool weather.
M-2.
Install thermal insulation in walls and ceilings that exceed requirements established by the State
of California Energy Conservation Standards.
M-3.
Install high-efficiency lamps for all outdoor security lighting.
M-4.
Time control interior and exterior lighting. These systems must be programmed to account for
variations in seasonal daylight times.
M-5.
Finish exterior walls with light-colored materials and high-emissivity characteristics to reduce
cooling loads. Finish interior walls with light-colored materials to reflect more light and thus
increase lighting efficiency.
7.2
Environmental Effects Which Would Remain Significant and Unavoidable After
Mitigation
Air Quality
Impacts
Impact AIR-1: The 2011 Alternative’s construction-related ROG and NOx emissions would exceed the
SCAQMD significance thresholds. (Final EIR, p. III-56)
Impact AIR-2: The 2011 Alternative would generate localized emissions of NO2, PM10, and PM2.5 in
excess of SCAQMD’s significance thresholds. (Final EIR, p. III-57)
Impact AIR-3: The 2011 Alternative would generate ROG, NOx, CO, PM10, and PM2.5 emissions in
Construction of the 2011 Alternative would result in ROG and NOx emissions that would exceed the
SCAQMD regional significance thresholds for these emissions. Dispersion modeling conducted for the
2011 Alternative shows that the 2011 Alternative would also generate localized emissions of NO2, PM10,
and PM2.5 in excess of SCAQMD’s localized significance thresholds for these emissions. Further, the
2011 Alternative would generate operational emissions of ROG, NOx, CO, PM10, and PM2.5 in excess of
SCAQMD’s thresholds.
Findings
Implementation of Mitigation Measures C-1 through C-4 would reduce the emissions to the maximum
extent feasible, although emissions would still exceed the SCAQMD’s thresholds of significance. As
such, these impacts would be significant and unavoidable.
C-1.
The Project Developer(s) shall implement measures to reduce the emissions of pollutants
generated by heavy-duty diesel-powered equipment operating at the Project Site throughout the
Project construction phases. The Project developer(s) shall include in construction contracts the
Examples of the types of measures currently required and recommended include the following:
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•
•
•
•
C-2.
Keep all construction equipment in proper tune in accordance with
manufacturer’s specifications.
Use late model heavy-duty diesel-powered equipment at the Project Site to the
extent that it is readily available in the South Coast Air Basin (meaning that it
does not have to be imported from another air basin and that the procurement of
the equipment would not cause a delay in construction activities of more than
two weeks).
Limit truck and equipment idling time to five minutes or less.
Rely on the electricity infrastructure surrounding the construction sites rather
than electrical generators powered by internal combustion engines to the extent
feasible.
The Project Developer(s) shall implement fugitive dust control measures in accordance with
SCAQMD Rule 403. The Project Developer(s) shall include in construction contracts the
Examples of the types of measures currently required and recommended include the
following:
•
•
•
•
•
•
•
•
•
Use watering to control dust generation during demolition of structures or breakup of pavement.
Water active grading/excavation sites and unpaved surfaces at least three times
daily.
Cover stockpiles with tarps or apply non-toxic chemical soil binders.
Limit vehicle speed on unpaved roads to 15 miles per hour.
Sweep daily (with water sweepers) all paved construction parking areas and
staging areas.
Provide daily clean-up of mud and dirt carried onto paved streets from the site.
Install wheel washers for all exiting trucks, or wash off the tires or tracks of all
trucks and equipment leaving the site.
Suspend excavation and grading activity when winds (instantaneous gusts)
exceed 15 miles per hour over a 30-minute period or more.
An information sign shall be posted at the entrance to each construction site that
identifies the permitted construction hours and provides a telephone number to
call and receive information about the construction project or to report
complaints regarding excessive fugitive dust generation. Any reasonable
complaints shall be rectified within 24 hours of their receipt.
C-3.
The Project Developer(s) shall require by contract specifications that all heavy-duty dieselpowered construction equipment used onsite be retrofitted with either lean-NOx or diesel
oxidation catalysts that would reduce NOx emissions by 40 percent to the extent that it is
economically feasible and the equipment are readily available in the South Coast Air Basin
(meaning that the cost of the equipment use is not more than 20 percent greater than the cost of
standard equipment and that the equipment does not have to be imported from another basin).
C-4.
The Project Developer(s) shall require by contract specifications that all heavy-duty dieselpowered equipment operating and refueling at the Project Site, excluding haul trucks, be
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equipped with diesel particulate filters that would reduce PM10 and PM2.5 emissions by 85
percent to the extent that it is economically feasible and the equipment is readily available in
the South Coast Air Basin (meaning that the cost of the equipment use is not more than 20
percent greater than the cost of standard equipment and that the equipment does not have to
be imported from another basin). (This measure does not apply to diesel-powered trucks
traveling to and
from the Project Site.).
Noise
Impact
Impact NOI-1: Construction noise would exceed thresholds. (Final EIR, p. III-86)
Based on the noise levels, it is likely that construction noise would exceed 85 dBA across the property
boundary of the Project Site, and noise levels at adjacent uses could experience noise levels above 85
dBA. The sensitive receptors are listed in Table IV.I-9 of the Draft EIR and include a motel, single- and
multi-family residences, a care facility and hospital, located between 75 and 350 feet away. Table IV-I-9
refers to the Kaiser Downey Medical Center as the name it was known when the Draft EIR was produced
(Kaiser Hospital). The Kaiser Downey Medical Center was under construction when the Draft EIR was
released, but has since opened. This does not affect the sensitive receptor noise and vibration
conclusions. The nearby motel (75 feet from the Project Site) would still potentially be affected by the
2011 Alternative’s construction. It should be noted, however, that the increase in noise levels at the offsite locations during construction at the Project Site would be temporary in nature, and would not
generate continuously high noise levels, although occasional single-event disturbances from grading and
construction are possible.
Finding
Project compliance with Section 4606.5 of the DMC and the implementation of the Mitigation Measures
I-1 through I-8, would reduce construction-related noise impacts associated with the 2011 Alternative to
the greatest extent feasible. Nevertheless, because construction noise levels are likely to exceed 85 dBA
across property boundaries, construction noise impacts would be significant and unavoidable.
I-1.
The 2011 Alternative shall comply with the City of Downey Municipal Code, Article IV,
Chapter 6, and any subsequent ordinances, which prohibit the emission or creation of noise
beyond certain levels at adjacent uses unless technically infeasible.
I-2.
Construction activities shall be restricted to the hours of 7:00 A.M. to 7:00 P.M and no
construction on Sundays and holidays.
I-3.
Noise and groundborne vibration construction activities whose specific location on the Project
Site may be flexible (e.g., operation of compressors and generators, cement mixing, general truck
idling) shall be conducted as far as possible from the nearest noise- and vibration-sensitive land
uses.
I-4.
Construction activities shall be scheduled so as to avoid operating several pieces of equipment
simultaneously, which causes high noise levels.
Tierra Luna Project
I-5.
To the extent feasible, the use of those pieces of construction equipment or construction methods
with the greatest peak noise generation potential shall be minimized. Examples include the use
of drills, jackhammers, and pile drivers.
I-6.
Project contractor(s) shall exert commercially reasonable efforts to use power construction
equipment with state-of-the-art noise shielding and muffling devices.
I-7.
Barriers such as plywood structures or flexible sound control curtains shall be erected around the
Project Site to minimize the amount of noise on the surrounding off-site sensitive receptors to the
maximum extent feasible during construction.
I-8.
All construction truck traffic shall be restricted to truck routes approved by the City of Downey,
which shall avoid residential areas and other sensitive receptors to the extent feasible.
8.
FEASIBILITY OF PROJECT ALTERNATIVES
Because the Project will potentially cause unavoidable, significant environmental effects, as outlined
above, the City must consider the feasibility of any environmentally superior alternatives to the Proposed
Project. The City must evaluate whether one or more of these alternatives could avoid or substantially
lessen the Project’s unavoidable significant environmental effects (See Citizens for Quality Growth v.
City of Mount Shasta [1988] 198 Cal.App.3d 433, 443-445 [243 Cal.Rptr. 727]; see also PRC § 21002.).
In preparing and adopting findings, a Lead Agency need not necessarily address the feasibility of both
mitigation measures and environmentally superior alternatives when contemplating approval of a
proposed project with significant impacts. When a significant impact can be mitigated to an acceptable
level solely by the adoption of mitigation measures, the agency, in drafting its findings, has no obligation
to consider the feasibility of environmentally superior alternatives, even if their impacts would be less
severe than those of the proposed Project as mitigated (See Laurel Hills Homeowners Association v. City
Council [1978] 83 Cal.App.3d 692, 730-731 [270 Cal.Rptr. 650]; and Laurel Heights Improvement
Association v. Regents of the University of California [1988] 47 Cal.3d 376, 400-403 [253 Cal.Rptr.
426]). Accordingly, in adopting findings concerning project alternatives, the City considers only those
environmental impacts that for the project are significant and cannot be avoided through mitigation.
As described above under Exhibit D, the 2011 Alternative is an alternative to the 2009 Proposed Project,
as it provides a smaller project with no residential uses when compared to the 2009 Proposed Project. Six
total alternatives, including the 2011 Alternative, were analyzed for the 2009 Proposed Project. As the
2011 Alternative is an alternative to the 2009 Proposed Project, and as the other five alternatives have
been examined as part of Exhibit A(8), no additional discussion of project alternatives is required, and
the findings of fact with regard to those alternatives, as set forth in the findings of fact for the 2009
Proposed Project, are incorporated by reference. The 2011 Alternative is the current preferred project.
9.
When a project results in significant unavoidable adverse effects, CEQA requires the decision-making
body of the Lead Agency to balance the benefits of the project against its unavoidable adverse effects in
determining whether to approve the project. If the benefits of the project outweigh the unavoidable
adverse environmental effects, the adverse effects may be considered “acceptable.” CEQA requires the
Lead Agency to state in writing specific responses to support its actions based on the Final EIR and/or
information in the record. This written statement is known as the Statement of Overriding
Tierra Luna Project
Considerations.
Project-Specific Significant and Unavoidable Impacts
The 2011 Alternative would have the following significant unavoidable impacts:
Air Quality
Impact AIR-1: The 2011 Alternative’s construction-related ROG and NOx emissions would exceed the
SCAQMD significance thresholds. (Final EIR, p. III-56)
Impact AIR-2: The 2011 Alternative would generate localized emissions of NO2, PM10, and PM2.5 in
Impact AIR-3: The 2011 Alternative would generate ROG, NOx, CO, PM10, and PM2.5 emissions in
Noise
Impact NOI-1: Construction noise would exceed thresholds. (Final EIR, p. III-86)
The City has adopted all feasible Mitigation Measures with respect to the unavoidable significant
impacts identified above. Although these Mitigation Measures may lessen the impacts, they would not
reduce the potential impacts to a level of insignificance.
As a result, to approve the 2011 Alternative the City must adopt a Statement of Overriding
Considerations pursuant to CEQA Guidelines Sections 15043 and 15093. The Statement of Overriding
Considerations merely allows a Lead Agency to cite a project’s general economic, social, or other
benefits as a justification for choosing to allow the occurrence of specified significant environmental
effects that have not been at least substantially mitigated. The statement explains why, in the agency’s
judgment, the project’s benefits outweigh its unavoidable significant effects.
10.
INDEPENDENT REVIEW AND ANALYSIS
Under CEQA, the Lead Agency must: (1) independently review and analyze the EIR; (2) circulate draft
documents that reflect its independent judgment; and (3) as part of the certification of an EIR, find that
the report or declaration reflects the independent judgment of the Lead Agency.
The City independently reviewed and analyzed the Draft and Final EIR and determined that the Draft and
Final EIR reflects its independent judgment. Moreover, upon completing this review and making this
determination, the City circulated the Draft EIR, as described above. With the adoption of these findings,
the City concludes that the Draft and Final EIR reflects its independent judgment.
Tierra Luna Project
Exhibit E
To the extent that the significant effects of the project are not avoided or substantially lessened to a less
than significant level, the City, having reviewed and considered the information contained in the EIR for
the project (which includes the Draft EIR and Responses to Comments), and having reviewed and
considered the information contained in the public record, and having balanced the benefits of the Project
against the unavoidable effects which remain, finds such unmitigated effects to be acceptable in
consideration of the following overriding considerations discussion (in accordance with CEQA
Guidelines Section 15093).
The City finds that all feasible mitigation measures have been imposed to lessen project impacts to the
greatest extent possible, and furthermore, that alternatives, other than the 2011 Alternative, do not meet
the complete objectives of the project, or do not provide the overall benefits of the project.
The 2011 Alternative is identified as the environmentally superior alternative. The 2011 Alternative
would have similar significant and unavoidable impacts as the 2009 Proposed Project with respect to
construction and operational air quality and construction noise. However, the severity of these
significant and unavoidable impacts would be reduced due to the reduction in office and retail space, and
hotel rooms. In addition, the 2011 Alternative would generate fewer daily trips, and no residential
population which would lessen impacts to public services, and also lessen the amount of utilities (water,
wastewater, solid waste, electricity, and natural gas) consumed and generated. The amount and intensity
of the impacts (air quality; construction noise; population, housing, and employment; public services; and
utility impacts) under the 2011 Alternative would also be less than Alternative E (All-Commercial) due
to the reduction in square footage being developed. Moreover, the 2011 Alternative would provide the
following benefits:
•
To create a new and unique regional destination for Downey:
•
•
To facilitate development that is compatible with surrounding land uses.
•
To achieve an environment reflecting a high level of concern for architecture, landscape, and urban
design principles by developing a high quality, comprehensively-designed project.
•
•
realm.
•
Tierra Luna Project
•
To facilitate development of new and unique hotel uses that includes conference and meeting space.
•
•
Tierra Luna Project
EXHIBIT F
MITIGATION MONITORING AND REPORTING PROGRAM MATRIX (2011 ALTERNATIVE)
Mitigation Measure
Impacts Found to Be Less Than Significant
(Biological Resources)
Measure A-1
To avoid impacting nesting birds, one of the following
must be implemented:
(c)
Conduct vegetation removal and/or grading
activities from September 1 through January 31, when
birds are not likely to be nesting on the site;
-OR(b) Conduct pre-construction surveys for nesting birds
if construction is to take place during the nesting
season. A qualified wildlife biologist shall conduct a
pre-construction nest survey no more than five days
prior to initiation of grading to provide confirmation on
presence or absence of active nests in the vicinity (at
least 300 feet around the Project Site). If active nests
are encountered, species-specific measures shall be
prepared by a qualified biologist in consultation with
the CDFG and implemented to prevent abandonment of
the active nest. At a minimum, grading in the vicinity
of the nest shall be deferred until the young birds have
fledged. A minimum exclusion buffer of 100 feet shall
be maintained during construction, depending on the
species and location. The perimeter of the nest-setback
zone shall be fenced or adequately demarcated with
staked flagging at 20-foot intervals, and construction
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Applicant/
Developer
City
Planning
Division
Ensure
that
vegetation
removal and/or grading only
occurs from September 1
through January 31.
On-site
inspection
during Pre-Construction
If construction will take place
during nesting season, ensure
that a survey for nesting birds
is conducted, according to
Measure A-1 (b).
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Applicant/
Developer
City
Planning
Division
Pre-Construction
Measure B-2
Atmospheric light pollution shall be minimized by
utilizing lighting fixtures that cut-off light directed to
the sky.
Applicant/
Developer
City
Planning
Division
Measure B-3
The proposed buildings shall incorporate non-reflective
exterior building materials (such as plaster and
masonry) in their design. Any glass to be incorporated
into the final façades of the building shall be either of
low-reflectivity, or accompanied by a non-glare
coating. Reflective materials such as mirrored glass
shall not be permitted.
Air Quality
Measure C-1
The Project Developer(s) shall implement measures to
Applicant/
Developer
City
Planning
Division
building plan check
building plan check
building plan check
Applicant/
Developer
Building
Division;
Site inspections and review of
records
on
construction
On-site
inspections
during construction
personnel and activities restricted from the area. A
survey report by the qualified biologist verifying that
(1) no active nests are present, or (2) that the young
have fledged, shall be submitted to the City prior to
initiation of grading in the nest-setback zone. The
qualified biologist shall serve as a construction monitor
during those periods when construction activities will
occur near active nest areas to ensure that no
inadvertent impacts on these nests will occur.
Aesthetics
Measure B-1
Project lighting shall be directed onto the Project Site,
and all lighting shall be shielded from adjacent
roadways and off-site properties.
Tierra Luna Project
Pre-Construction
Pre-Construction
Verification
Mitigation Measure
reduce the emissions of pollutants generated by heavyduty diesel-powered equipment operating at the Project
Site throughout the Project construction phases. The
Project developer(s) shall include in construction
contracts the control measures required and
recommended by the SCAQMD at the time of
following:
•
Keep all construction equipment in proper tune in
accordance with manufacturer’s specifications.
•
Use late model heavy-duty diesel-powered
equipment at the Project Site to the extent that it is
readily available in the South Coast Air Basin
(meaning that it does not have to be imported from
another air basin and that the procurement of the
equipment would not cause a delay in construction
activities of more than two weeks).
•
Limit truck and equipment idling time to five
minutes or less.
•
Rely on the electricity infrastructure surrounding
the construction sites rather than electrical
generators powered by internal combustion engines
to the extent feasible.
Responsible
Entity
Compliance
Check
Action by Monitor
SCAQMD
equipment
compliance
Tierra Luna Project
to
Timing/Frequency
ensure
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Measure C-2
The Project Developer(s) shall implement fugitive dust
control measures in accordance with SCAQMD Rule
403.
The Project Developer(s) shall include in
construction contracts the control measures required
and recommended by the SCAQMD at the time of
following:
Applicant/
Developer
Building
Division;
SCAQMD
Site visual confirmation and
review of construction recordkeeping
On-site
inspections
during construction
•
Use watering to control dust generation during
demolition of structures or break-up of pavement.
•
Water active grading/excavation sites and unpaved
surfaces at least three times daily.
•
Cover stockpiles with tarps or apply non-toxic
chemical soil binders.
•
Limit vehicle speed on unpaved roads to 15 miles
per hour.
•
Sweep daily (with water sweepers) all paved
construction parking areas and staging areas.
•
Provide daily clean-up of mud and dirt carried
onto paved streets from the site.
•
Install wheel washers for all exiting trucks, or wash
off the tires or tracks of all trucks and equipment
leaving the site.
•
Suspend excavation and grading activity when
winds (instantaneous gusts) exceed 15 miles per
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Measure C-3
construction equipment used onsite be retrofitted with
either lean-NOx or diesel oxidation catalysts that would
reduce NOx emissions by 40 percent to the extent that it
is economically feasible and the equipment are readily
available in the South Coast Air Basin (meaning that the
cost of the equipment use is not more than 20 percent
greater than the cost of standard equipment and that the
equipment does not have to be imported from another
basin). (This measure does not apply to diesel-powered
trucks traveling to and from the Project Site.)
Applicant/
Developer
Building
Division;
SCAQMD
Receipt
of
contract
compliance
Measure C-4
equipment operating and refueling at the Project Site,
excluding haul trucks, be equipped with diesel
particulate filters that would reduce PM10 and PM2.5
emissions by 85 percent to the extent that it is
Applicant/
Developer
Building
Division;
SCAQMD
Receipt
of
contract
compliance
hour over a 30-minute period or more.
•
An information sign shall be posted at the entrance
to each construction site that identifies the
permitted construction hours and provides a
telephone number to call and receive information
about the construction project or to report
complaints regarding excessive fugitive dust
generation. Any reasonable complaints shall be
Tierra Luna Project
Verification
Mitigation Measure
economically feasible and the equipment is readily
available in the South Coast Air Basin (meaning that
the cost of the equipment use is not more than 20
percent greater than the cost of standard equipment and
that the equipment does not have to be imported from
another basin). (This measure does not apply to dieselpowered trucks traveling to and from the Project Site.).
Measure C-5
The Project Developer(s) shall include in construction
contracts the required application of paints and primer
at the Project Site during construction to have a VOC
rating of 125 grams per liter or less, and that only a
maximum of 214 liters (57 gallons) of such paints can
be used on any given day.
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Applicant/
Developer
Building
Division;
SCAQMD
Receipt
of
contract
compliance
Cultural Resources
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Verification
Measure D-1
Historic American Engineering Record (HAER) reports
were prepared for all of the historic resources on the
Project Site in 2006. These reports were prepared as
mitigation pursuant to the Memorandum of Agreement
(MOA). However, the HAER report for Building 1 did
not document that portion planned for preservation.
Although the Project will preserve that same portion of
Building 1, the report should be completed so that the
entirety of Building 1 is documented.
Applicant/
Developer
City
Planning
Division; State
Office
of
Historic
Preservation,
National Parks
Service
Confirm receipt of Level II
Historic American Buildings
Survey
(HABS)
documentation
shall
be
prepared for that portion of
Building 1 planned for
preservation.
Before
construction
permits are issued
Applicant/
Developer
City
Building
Division
Receive report from historic
architect at the conclusion of
design phase to ensure
compliance with Standards.
Pre-Construction
Construction
Prior to the commencement of the Project, Level II
Historic American Buildings Survey (HABS)
documentation shall be prepared for that portion of
Building 1 planned for preservation. One original copy
of the report as specified above shall be assembled and
offered to the National Park Service, State Office of
Historic Preservation, and the City of Downey.
Measure D-2
The rehabilitation of the remaining historic resources
on the Project Site shall comply with the Secretary of
the Interior’s Standards. According to the schematic
plans, the Project appears to comply with the Standards.
However, the plans are expected to evolve to a greater
level of detail, including construction materials and
treatment of features. As such, a qualified historic
architect shall monitor the design and the construction
of the Project to ensure that it continues to comply with
the Standards. The historic architect shall prepare a
report at the conclusion of the design phase of the
Tierra Luna Project
and
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Applicant/
Developer
City
Planning
Division;
Building
Division
archaeologist assesses any
resources
found
during
report
to
UCLA
Archaeological Information
Center
During Construction
Applicant/
Developer
City
Planning
Division;
Building
Division
paleontologist assesses any
resources
found
during
report to the Los Angeles
County
Natural
History
Museum
During Construction
Project analyzing compliance with the Standards. That
report shall be submitted to the City of Downey for
review and approval.
Measure D-3
If any archaeological materials are encountered during
halted. The services of an archaeologist shall be
Archaeology – California State University at Fullerton,
or a member of the Society of Professional
Archaeologists (SOPA) or a SOPA-qualified
archaeologist to assess the resources and evaluate the
impact. Copies of the archaeological survey, study or
report shall be submitted to the UCLA Archaeological
Information Center. A covenant and agreement shall be
recorded before grading resumes
Measure D-4
If any paleontological materials are encountered during
halted. The services of a paleontologist shall be
Paleontology – University of Southern California
(USC), University of California at Los Angeles
(UCLA), California State University at Los Angeles,
California State University at Long Beach, or the Los
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Applicant/
Developer
City
Planning
Division;
Building
Division
Ensure that notification is
provided
to
appropriate
agencies if human remains are
discovered.
During Construction
Applicant/
Developer
Planning
Division;
Building
Division
plan check process
Prior
to
issuing
demolition permits
Angeles County Natural History Museum to assess the
resources and evaluate the impact. Copies of the
paleontological survey, study, or report shall be
submitted to the Los Angeles County Natural History
Museum.
Measure D-5
If human remains are discovered at the Project Site
during construction for future projects pursuant to the
Amended Specific Plan for the Tierra Luna
Marketplace, work at the respective construction site
shall be suspended, and the City of Downey and County
Coroner shall be immediately notified. If the remains
are determined by the County Coroner to be Native
American, the Native American Heritage Commission
(NAHC) shall be notified within 24 hours, and the
guidelines of the NAHC shall be adhered to in the
treatment or disposition of the remains.
Measure F-1
survey to document the presence of any potential
polychlorinated biphenyls (PCBs) within any
equipment or otherwise on or beneath the structure.
Any PCBs identified as part of this survey shall be
properly disposed of in accordance with all applicable
regulations.
Measure F-2
City receives PCB survey and
any PCBs found are properly
disposed
Applicant/
Planning
Tierra Luna Project
Prior
to
issuing
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
existing on-site structure not previously surveyed, the
structure shall undergo an asbestos survey to document
the presence of any potential asbestos-containing
materials (ACMs) within the structure. Any ACMs
identified as part of this survey shall be abated in
accordance with all applicable laws and regulations
including without limitation applicable NESHAP
provisions, OSHA worker safety regulations, and
SCAQMD Rule 1403 as well as any other applicable
city, state, and federal regulations.
Developer
Division;
Building
Division
plan check process
demolition permits
Measure F-3
lead-based paint (LBP) survey to document the
presence of any potential LBP within the structure.
Any LBP identified as part of this survey shall be
abated in accordance with all applicable city, state, and
federal regulations.
Applicant/
Developer
Measure F-4
Should any future operation of the Project include the
construction, installation, modification, or removal of
underground storage tanks, the County of Los Angeles
Department of Public Works’ Environmental Programs
Division shall be contacted at the start of the planning
phase for required approvals and operating permits.
Applicant/
Developer
City receives ACM survey
and any ACM found are
properly abated
Planning
Division;
Building
Division;
plans for review as part of the
plan check process
Approve plans prior to
issuing
demolition
permits
City receives LBP survey and
any LBP found are properly
abated
County of Los
Angeles
Department
of
Public
Works
Environmental
Programs
Division
plan check process
Tierra Luna Project
Prior to the start of any
future
construction,
installation,
modification,
or
removal of underground
storage tanks
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Measure F-5
Should any excavated soil be contaminated by or
classified as hazardous waste by an appropriate agency,
the soil shall be managed and disposed in accordance
with applicable Federal, State, and local laws and
regulations.
Applicant/
Developer
Planning
Division;
Building
Division
Provide documentation to
City that any contaminated
soil is properly disposed
Ongoing
Construction
Applicant/
Developer
Building
Division
During construction
Measure I-2
Construction activities shall be restricted to the hours of
7:00 A.M. to 7:00 P.M and no construction on Sundays
and holidays.
Applicant/
Developer
Building
Division; Code
Enforcement
During construction
Measure I-3
Noise and groundborne vibration construction activities
whose specific location on the Project Site may be
flexible (e.g., operation of compressors and generators,
cement mixing, general truck idling) shall be conducted
as far as possible from the nearest noise- and vibrationsensitive land uses.
Applicant/
Developer
Building
Division
Building plan check
On-site
inspections
during construction
Measure I-4
Construction activities shall be scheduled so as to avoid
Applicant/
Developer
Building
Division
Building plan check
issued;
during
Noise
Measure I-1
The 2011 Alternative shall comply with the City of
Downey Municipal Code, Article IV, Chapter 6, and
any subsequent ordinances, which prohibit the emission
or creation of noise beyond certain levels at adjacent
uses unless technically infeasible.
Tierra Luna Project
during
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
operating several pieces of equipment simultaneously,
which causes high noise levels.
Timing/Frequency
construction
Measure I-5
To the extent feasible, the use of those pieces of
construction equipment or construction methods with
the greatest peak noise generation potential shall be
minimized.
Examples include the use of drills,
jackhammers, and pile drivers.
Applicant/
Developer
Building
Division
Building plan check
issued;
during
construction
Measure I-6
Project contractor(s) shall exert commercially
reasonable efforts to use power construction equipment
with state-of-the-art noise shielding and muffling
devices.
Measure I-7
Barriers such as plywood structures or flexible sound
control curtains shall be erected around the Project Site
to minimize the amount of noise on the surrounding offsite sensitive receptors to the maximum extent feasible
during construction.
Applicant/
Developer
Building
Division
Building plan check
During on-site building
inspections and before
building permits are
finalized
Applicant/
Developer
Building
Division
mitigation measure during site
inspection
During construction
Measure I-8
All construction truck traffic shall be restricted to truck
routes approved by the City of Downey, which shall
avoid residential areas and other sensitive receptors to
the extent feasible.
Measure I-9
All new mechanical equipment shall not exceed, by
more than three decibels, the ambient noise level on the
Applicant/
Developer
Planning
Division
Plan Review.
Applicant/
Developer
Planning
Division;
Building
Division
Plan Review.
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Applicant/
Developer
Building
Division
Plan Review.
Applicant/
Developer
Public
Works
Department;
Downey
Fire
Department
Submission of Master Plan
for review and approval.
Implement
any
required
upgrades to fire mains
permits
Applicant/
Developer
Downey
Fire
Department
Review that all fire code and
ordinance
requirements
applicable
have
been
implemented into building
plans
permits
premises of other occupied properties.
Measure I-10
The Project Applicant shall comply with the Noise
Insulation Standards of Title 24 of the California Code
Regulations, which ensure an acceptable interior noise
environment.
Public Services
Measure K-1
The Applicant of the 2011 Alternative and all
development projects constructed under the Tierra Luna
Specific Plan’s framework shall submit a Master Plan
to the Downey Fire Department prior to issuing
building permits, for review and approval, which shall
provide the capacity of the fire mains serving the
Project Site. Any required upgrades shall be identified
and implemented prior to the issuance of building
permits for the Proposed Project and future
developments.
Measure K-2
The 2011 Alternative and all future development
projects pursuant to the Tierra Luna Specific Plan shall
comply with all fire code and ordinance requirements in
effect at the time for building construction, emergency
access, water mains, fire flows, onsite automatic
sprinklers, and hydrant placement. Prior to issuing
permits for any phase of the project, Applicant shall
implement all fire code and ordinance requirements
applicable at the time of development to the satisfaction
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Applicant/
Developer
Downey
Fire
Department
Review that adequate access
is incorporated into building
plans
permits
Applicant/
Developer
Downey
Fire
Department
Review that adequate offsite
public and onsite private fire
hydrants are incorporated into
building plans
permits
Measure K-5
The 2011 Alternative design shall be reviewed and
approved by the Downey Police Department pursuant
to General Plan Program 5.4.2.6. prior to the issuance
of a building permit.
Applicant/
Developer
Downey Police
Department
Confirm that
approval of
occurred by
Department
review and
design has
the Police
permits
Measure K-6
shall provide an onsite security plan for the
development, to be approved by the City of Downey
and the Downey Police Department.
Applicant/
Developer
Downey Police
Department
Receive and approve onsite
security plan
permits
Measure K-7
The Applicant of the 2011 Alternative Project and all
developments constructed therein shall pay school fees
to the satisfaction of the Downey Unified School
Applicant/
Developer
Downey Unified
School District;
Building
Division
of school fees
permits
of the Downey Fire Department.
Measure K-3
The design of the 2011 Alternative and all development
projects constructed within the Tierra Luna Specific
Plan framework shall provide adequate access for
Downey Fire Department equipment and fire fighters
onto and throughout the Project Site and future
structures.
Measure K-4
The 2011 Alternative and all development projects
constructed within the Tierra Luna Specific Plan’s
framework shall provide adequate offsite public and
onsite private fire hydrants as determined necessary by
the Downey Fire Department.
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Engineering
Division
Engineering
Division
improvement
defined
in
Measure L-4
During Construction
Measure L-2
Intersection No. 38: Lakewood Boulevard/Gallatin Road
– This improvement includes a second eastbound leftturn lane. This improvement can be achieved by
restriping the existing eastbound through lane to a
shared left-through lane. The eastbound approach
would provide a left-turn lane, a shared left-through
lane and a separate right-turn lane. The traffic signal
would be modified to include split phasing operations
for the eastbound and westbound Gallatin Road
approaches.
Engineering
Division
Engineering
Division
and implement option 1
(Measure L-2)
During Construction
Measure L-3
Intersection No. 77: I-605 Southbound Ramps/Firestone
Boulevard – The improvement at this intersection
includes a second westbound left-turn lane. This
City of Norwalk
Engineering
Division;
CALTRANS
City of Norwalk
Engineering
Division;
CALTRANS
improvement
defined
in
Measure L-5
During Construction
District.
Measure L-1
Bellflower Boulevard/Imperial Highway – The
improvement at this intersection includes dual left-turn
lanes on the northbound and southbound approaches.
This improvement can be achieved by widening on the
west side of Bellflower Boulevard (north of Imperial
Highway) and on the east side of Bellflower Boulevard
(south of Imperial Highway) by approximately two to
twelve feet for approximately 250 feet. The northbound
and southbound approaches would provide dual left-turn
Tierra Luna Project
Verification
Mitigation Measure
Responsible
Entity
Compliance
Check
Action by Monitor
Timing/Frequency
Verification
Los
Angeles
County Metro
Los
Angeles
County Metro
Confirm that contact has been
made
Prior
to
start
construction
Applicant/
Developer
Building
Division
plan check
Prior to issuance of
building permits and
prior to occupancy
Applicant/
Developer
Building
Division
plan check
On-site
building
Applicant/
Developer
Building
Division
plan check
On-site
building
Applicant/
Developer
Building
Division
plan check
On-site
building
Applicant/
Developer
Building
Division;
plan check
On-site
building
improvement can be achieved by restriping the existing
painted chevron on the westbound approach. The
westbound approach would provide dual left-turn lanes
and two through lanes.
Measure L-4
The Applicant shall contact the Metro Bus Operations
Control Special Events Coordinator and other
Municipal Bus Service Operators prior to the start of
construction.
Utilities
Measure M-1
Design windows (e.g., tinting, double pane glass, etc.)
to reduce thermal gain and loss and thus cooling loads
during warm weather, and heating loads during cool
weather.
Measure M-2
Install thermal insulation in walls and ceilings that
exceed requirements established by the State of
California Energy Conservation Standards.
Measure M-3
Install high-efficiency lamps for all outdoor security
lighting.
Measure M-4
Time control interior and exterior lighting. These
systems must be programmed to account for variations
in seasonal daylight times.
Measure M-5
Finish exterior walls with light-colored materials and
Tierra Luna Project
of
Mitigation Measure
high-emissivity characteristics to reduce cooling loads.
Finish interior walls with light-colored materials to
reflect more light and thus increase lighting efficiency.
Responsible
Entity
Compliance
Check
Action by Monitor
Planning
Division
Tierra Luna Project
Timing/Frequency
Verification
RESOLUTION NO. 11A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
DOWNEY RECOMMENDING THE CITY COUNCIL AMEND THE DOWNEY
LANDING SPECIFIC PLAN FOR THE TIERRA LUNA MARKETPLACE
THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES RESOLVE AS FOLLOWS:
and declares that:
A. On March 26, 2002, the City Council of the City of Downey adopted the “Downey
Landing Specific Plan” (SP-01-1), which was designed to guide the redevelopment of
the 154-acre former NASA Industrial Plant by prescribing development plans,
permitted and conditionally permitted uses, development standards, design
guidelines, infrastructure and public service plans and implementation measures for
the specific plan planning area. The planning area is in the southeast part of the
community and is generally bounded by Stewart & Gray Road on the north,
Bellflower Boulevard on the east, Imperial Highway on the south and Columbia Way
(formerly Clark Avenue) and Lakewood Boulevard on the west.
B. In April, 2008, Mr. Tom Messmer filed a petition on behalf of Industrial Realty
Group, i.e., the Applicant, to amend the provisions of the Downey Landing Specific
Plan that regulate the portion of the site that Downey Studios occupies, i.e., the
central 77 acres of the 154-acre Downey Landing site, located at 12214 Lakewood
Boulevard. The 77-acre central portion and subject of the requested specific plan
amendment, also known as the Tierra Luna Specific Plan, is bounded by Bellflower
Boulevard on the east, Congressman Steve Horn Way on the south, Columbia Way
and Lakewood Boulevard on the west and the Downey Landing Retail Center on the
north.
C. The original Development Plan for the Downey Landing Specific Plan designated
the westerly part of the 77-acre central portion as “Media Center” and the easterly
part as “Commerce Center.” The “Media Center” designation was intended to
accommodate a movie and television production studio complex, while the
“Commerce Center” designation envisioned a business park. The requested
amendment for the Tierra Luna Specific Plan is intended to replace the “Media
Center” and “Commerce Center” designations with a comprehensively-planned,
mixed-use project that consisted of 3.9 million square feet of commercial/office uses,
commercial/retail uses, hotel rooms, and 1,500 residential units comprised of
live/work, for-sale and for-rent products.
D. The City of Downey, as Lead Agency for the proposed Tierra Luna Specific Plan
project, caused a Draft Environmental Impact Report with State Clearinghouse
Number 2008051022 (Draft EIR) to be prepared for the project, pursuant to the
California Environmental Quality Act of 1970, as amended (CEQA), the State CEQA
Guidelines (CEQA Guidelines), and the City of Downey’s Revised Procedures for
Implementing CEQA, adopted by City Council Resolution No. 5646.
E. The Draft EIR evaluated the potential environmental effects that the Tierra Luna
Specific Plan could have on the environment, and devised mitigation measures to
minimize and eliminate the potentially significant impacts.
F. Consistent with CEQA Guideline 15126.6, the Draft EIR also analyzed six (6)
alternatives to the proposed project, with a goal of identifying a reasonable range of
alternatives that would achieve the same objectives as the project, but produce
fewer impacts.
G. In April, 2009, the City of Downey circulated the Draft EIR to state, county, and
regional agencies, neighboring cities and interested parties for their review and
comment. The public comment period extended for 45 days, which began on April
2, 2009 and closed on May 18, 2009.
H. Shortly after the City of Downey circulated the Draft EIR, the applicant withdrew the
Tierra Luna Specific Plan amendment due to a downturn in the economy.
I.
In June, 2011, Mr. Robert A. Manarino, an authorized agent for the applicant,
submitted a revised amendment to the Downey Landing Specific Plan to the City.
The revised amendment, better known as the Tierra Luna Marketplace, or 2011
Revised Project, encompasses the same 77-acre site as the original amendment,
but is smaller in size and does not include residential uses. The Tierra Luna
Marketplace totals slightly more than 1.5 million square feet of mixed-use
development that consists of a variety of retail formats, along with stand-alone
restaurants, office buildings, a multiplex theater and a hotel.
J.
In conjunction with the revised Specific Plan Amendment, the applicant also filed
applications for approval of (i) a Development Agreement, (ii) Tentative Parcel Map
No. 71543 and (iii) Tentative Tract Map No. 71544.
K. The Planning Commission gave required notice and held a public hearing on the
revised amendment, Tierra Luna Marketplace, and its Final EIR on December 21,
2011.
and declares that:
A. The revised Specific Plan Amendment, Tierra Luna Marketplace (2011 Revised
Project), is necessary and desirable for the development of the community, in
harmony with the objectives of the General Plan and is in the interests of
furtherance of the public health, safety, and general welfare, since the affected
site’s current land use designations under the Downey Landing Specific Plan,
Media Center and Commerce Center, do not represent the highest and best uses
for the site. As a consequence, and because of changing economic and
development conditions, coupled with the uniqueness of both the project site and
neighboring properties, the Planning Commission supports the Tierra Luna
Marketplace, which will implement the provisions of the affected site’s “Mixed Use”
General Plan category.
B. The Specific Plan Amendment and its resulting development will be compatible with
and complement neighboring properties’ existing conditions, since the uses that
comprise the prospective project are similar to the neighboring uses. For example,
retail uses make up the bulk of the proposed project (1,100,000 square feet), while
a 380,000 square foot retail center occupies the contiguous 34.5-acre site to the
north. Further, a 1,000,000 square foot hospital/medical office complex occupies
the neighboring 30-acre site to the south, while the proposed amendment will entitle
300,000 square feet of professional office space. Additionally, development
standards have been designed for the proposed amendment that will not only serve
the project, but safeguard neighboring activities. Also insuring compatibility between
project components and neighboring activities are the mitigation measures that
have been developed for the 2011 Revised Project included in the Final EIR.
C. The Project Site is adequate in size to accommodate the amendment’s permitted
and conditionally permitted uses and all applicable development standards can be
complied with. At build-out the project will result in a .45 floor area ratio (FAR),
which is below the 5.0 FAR authorized by the site’s “Mixed Use” General Plan
designation, thereby demonstrating that the 77-acre project site will not be overbuilt.
D. The site properly relates to streets and highways and is capable of carrying the
type and quantity of traffic and utility demands that are expected to be generated in
the area. The traffic impact analysis prepared for Alternative F, the Tierra Luna
Marketplace, concluded that with mitigation, the roadway network that currently
serves the site, and which will serve the project, will adequately accommodate
project-generated traffic. Streets bordering the project site and providing access to
it, include Columbia Way (formerly Clark Avenue) and Lakewood Boulevard,
Bellflower Boulevard and Congressman Steve Horn Way. All of these streets are
fully improved to date. Additionally, the specific plan amendment established
requirements with respect to providing access points to the project that will be
accomplished to the satisfaction of the City of Downey. The Final EIR also
concluded that the existing utility network presently serving the site, as well as the
improvements that will accompany project development will adequately serve the
project.
E. Changed conditions since the original approval of the specific plan warrant the
proposed amendment. The highest and best land uses for the project site have
changed since the City Council adopted the Downey Landing Specific Plan in 2002.
Studies then indicated the project site could successfully support both a business
park, e.g., commerce park and multi-media companies, such as Downey Studios.
However, since then, film and television production activities at Downey Studios
has diminished steadily due to: (i) the common practice by television and film
production companies of using computer-generated imagery to assist in production,
thus reducing the need for large studio space, and (ii) the practice by other states of
offering tax credits to production companies as an inducement to film there. As a
consequence, Downey Studios has lost $13 million dollars since starting operations
in 2004. On the other hand, recent market studies concluded that the City of
Downey, together with its neighboring communities can successfully support a
mixed-use project, such as Tierra Luna Marketplace. Consequently, the site’s two
development/land use plans, as well as their accompanying development
regulations need to be amended to accommodate the prospective project.
F. The proposed amendment is in general conformance with the General Plan. The
Specific Plan Amendment Amending will permit the development of the proposed
multiple-use project, which is consistent with the site’s “Mixed Use” General Plan
category. This category, as the name implies, was designed to accommodate a
wide variety of commercial and office uses. The uses requested in the Specific
Plan Amendment fall under those headings. Activities that comprise the proposed
development plan include retail, office, entertainment and hotel.
In addition, because of Downey Landing’s unique characteristics, the rare situation
of the availability of a large, developable site, approximately 154 acres, the City
Council designated it “Mixed Use,” as part of the 1992 General Plan Update.
According to the General Plan’s Land Use Chapter, the site’s designation was
changed from “Industrial” to “Mixed Use” in an effort to promote its reuse as an
employment center. Before the site became available for development in 1998, the
Boeing Company/North American Rockwell occupied it and the company was the
largest employer in Downey at the time. With employment as a goal, the Tierra
Luna Marketplace project is forecast to provide 3,286 employment opportunities at
build-out. Additionally, the mixed-use development plan in the proposed Specific
Plan Amendment will foster the kind of development that will reduce dependency on
cars by providing convenient access to shopping, jobs, services and entertainment,
also known as smart growth practices. Fittingly, the project’s land use mix and
quantities will implement these goals.
Its uses will create employment
opportunities; plus, they are proximate to each other so employees and customers
can walk rather than drive to neighboring uses.
SECTION 3. The Planning Commission of the City of Downey hereby finds,
determines and declares that:
A. A Final EIR has been prepared for the Tierra Luna Specific Plan in accordance with
the provisions of CEQA, the CEQA Guidelines and the City of Downey’s Revised
Procedures for Implementing CEQA. Prior to recommending approval of the
amendment to the Downey Landing Specific Plan, the Planning Commission
independently considered the Final EIR, which consists of the Notice of Preparation
and Draft EIR, all submitted comments received during the environmental
document’s public review period, the City of Downey’s responses to the comments
and testimony at the public hearing. Based on the Final EIR, the Planning
Commission finds, determines and declares that implementing the Tierra Luna
Specific Plan will result in significant and unavoidable adverse impacts on three
environmental areas: construction-related emissions, long-term operational
emissions and construction-generated noise.
B. Therefore, the Planning Commission recommends the City Council instead select the
project alternative identified in the Final EIR as “Alternative F.” Alternative F is the
environmentally superior project identified in the Final EIR, since its potential
unavoidable adverse effects will be less severe than the anticipated impacts of the
Tierra Luna Specific Plan (original amendment), while at the same time it will satisfy
the objectives of the original project, as identified in the Final EIR.
C. “Alternative F” nonetheless is still expected to result in significant and unavoidable
impacts (albeit less severe than the impacts of the originally-proposed project) to
construction-related emissions, long-term operational emissions, and constructionrelated noise. The Planning Commission therefore recommends that the City
Council make the findings required by (i) Public Resources Code Section
21081(a)(3), that specific economic, legal, social, technological or other
considerations make infeasible the mitigation measures or the other project
alternatives identified in the Final EIR and (ii) Public Resources Code Section
21081(b) that specific economic, legal, social, technological or other benefits of the
project outweigh the significant effects on the environment.
D. The Planning Commission makes the findings contained in the Findings of Fact,
attached as Exhibit “D,” to the Resolution Recommending Certification of the Final
Environmental Impact Report for the Tierra Luna Specific Plan, with respect to
significant environmental impacts identified in the EIR, together with the finding that
each fact in support of the findings is true and is based upon substantial evidence in
the record, including the Final EIR.
E. The Final EIR has identified all the significant environmental effects that will result
from implementing the Tierra Luna Marketplace project, also identified as
“Alternative F” in the Final EIR for the Tierra Luna Specific Plan, and all significant
effects are set forth in the Findings of Fact.
F. The Findings of Fact and Final EIR have identified that if the Tierra Luna
Marketplace project is approved and implemented, it may have an unavoidable
adverse effect on short- and long-term air quality and construction-related noise.
However, all significant effects that can feasibly be avoided or mitigated will be
avoided or mitigated by implementing the mitigation measures as set forth in the
Final EIR, the Findings of Fact and the Mitigation Monitoring and Reporting Program
for the Tierra Luna Marketplace.
G. Except for impacts to short-and long-term air quality and construction-related noise,
the significant impacts that will result from the implementation of the Tierra Luna
Marketplace project identified in the Findings of Fact, which will be reduced to a level
of insignificance through the implementation of the mitigation measures set forth in
the Final EIR, the Findings of Fact, and the Mitigation Monitoring and Reporting
Program.
H. The significant and unavoidable impacts that will result from the implementation of
the Tierra Luna Marketplace project, which will not be reduced to a level of
insignificance as set forth in the Findings of Fact, are outweighed by the economic,
social, technological and other benefits of the Tierra Luna Marketplace project, as set
forth in the Statement of Overriding Considerations, attached as Exhibit “E.” to the
Resolution Recommending Certification of the Final Environmental Impact Report
For the Tierra Luna Specific Plan, A Proposed Amendment to the Downey Landing
Specific Plan. The facts and conclusions set forth in the Statement of Overriding
Considerations are true and are supported by substantial evidence in the record,
including the Final EIR.
I.
The Final EIR has described a reasonable range of feasible alternative projects to
the Tierra Luna Specific Plan project that could feasibly attain the basic objectives.
A reasonable range of alternatives was considered in the review process of the Draft
EIR and ultimate decisions on the project. Further, “Alternative F,” the Tierra Luna
Marketplace project, represents the environmentally superior project, which at the
same time could feasibly attain the basic objectives of the original project.
SECTION 5. The Planning Commission of the City of Downey hereby recommends that
the City Council adopt the following documents attached to the Resolution Recommending
Certification of the Final Environmental Impact Report for the Tierra Luna Specific Plan, A
Proposed Amendment to the Downey Landing Specific Plan: (1) Exhibit D – Statement of
Findings of Fact; (2) Exhibit E – Statement of Overriding Considerations and; and (3) Exhibit F –
Mitigation Monitoring and Reporting Program.
SECTION 6. The Planning Commission of the City of Downey hereby recommends the
City Council certify the Final EIR, since the actions are complete and adequate, and because
the Final EIR was prepared in compliance with the requirements of CEQA, the state CEQA
Guidelines, and the City of Downey’s Revised Procedures for Implementing CEQA.
SECTION 7. Based on the findings set forth above, the Planning Commission of the
City of Downey hereby recommends the City Council adopt the Amended Downey Landing
Specific Plan, better known as the Tierra Luna Marketplace project and described in the Final
EIR as “Alternative F.”
PASSED, APPROVED AND ADOPTED this 21st day of December, 2011.
I HEREBY CERTIFY that the foregoing is a true copy of a Resolution adopted by the Planning
Commission of the City of Downey at a regular meeting thereof, held on the 21st day of
December, 2011, by the following vote, to wit:
AYES:
NOES:
ABSTAIN:
ABSENT:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
RESOLUTION NO.
RECOMMENDING THE CITY COUNCIL APPROVE DEVELOPMENT
AGREEMENT PLN – 11 – 00136 FOR THE DEVELOPMENT OF THE 77- ACRE
SITE AT 12214 LAKEWOOD BOULEVARD BY MANARINO REALTY LLC, ON
PROPERTY ZONED AMENDED DOWNEY LANDING SPECIFIC PLAN.
DEVELOPMENT AGREEMENT PLN – 11- 00136
THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES RESOLVE AS
FOLLOWS:
WHEREAS, Mr. Robert A. Manarino, who is the authorized representative for the
PCCP IRG Downey, LLC, the Applicant, submitted a property development agreement
application, Development Agreement PLN – 11- 00136, to the City of Downey in
connection with the development of an approximately 1,516,000 square foot mixed-use
development, known as Tierra Luna Marketplace, (hereinafter the “project”) on the 77-acre
site at 12214 Lakewood Boulevard. Land uses that comprise the project may include
large format and junior anchor retail, stand-alone restaurants, a food court, office
buildings, a hotel and a multiplex theatre; and
WHEREAS, the Applicant also filed three other applications in conjunction with
Development Agreement PLN – 11 - 00136 for the purpose of developing the 1.5 million
square foot Tierra Luna Marketplace project. The three applications included an
amendment to the Downey Landing Specific Plan, Tentative Parcel Map No. 71543 and
Tentative Tract Map No. 71544; and .
WHEREAS, the City of Downey and the Applicant have negotiated the
Development Agreement; and a public hearing was held before this Planning Commission
on December 21, 2011, pursuant to the procedures described in Section 65867 of the
California Government Code, which authorizes cities to enter into development
agreements with persons having a legal or equitable interest in real property for the
development of such property; and
WHEREAS, at the hearing, the Planning Commission considered testimony
presented by the public regarding the Development Agreement between the City and the
Applicant; and
NOW THEREFORE, THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES
HEREBY RESOLVE AS FOLLOWS:
SECTION 1. A Notice of Preparation (NOP) and Final Environmental Impact
Report (Final EIR) have been prepared for Development Agreement PLN – 11- 00136, in
accordance with the provisions of the California Environmental Quality Act (CEQA), State
CEQA Guidelines and the City of Downey’s Revised Procedures for Implementing CEQA.
Prior to recommending approval of Development Agreement PLN – 11 – 00136, the
Planning Commission considered the Final EIR, the comments received during the
environmental document’s public review period and responses to the comments. The
Development Agreement is a part of the project studied in the Final EIR, and by separate
resolution, the Planning Commission has recommended that the City Council certify the
Final EIR.
SECTION 2. In connection with the certification of the Final EIR, the Planning
Commission of the City of Downey hereby recommends that the City Council adopt the
following documents attached to the Resolution Recommending Certification of the Final
Resolution No. 11 Planning Commission
Environmental Impact Report for the Tierra Luna Specific Plan, A Proposed Amendment to
the Downey Landing Specific Plan: (1) Exhibit D - Statement of Finding of Fact; (2) Exhibit
E - Statement of Overriding Considerations; and (3) Exhibit F - Mitigation Monitoring and
Reporting Program.
SECTION 3. The Planning Commission hereby recommends that the City Council
find that the Development Agreement between the City and Applicant conforms with the
policies and programs of the General Plan and the applicable provisions of the Amended
Downey Landing Specific Plan, which serves as the zoning ordinance for the 77- acre
project site.
SECTION 4. Based on the findings set forth above, the Planning Commission
hereby recommends the City Council approve Development Agreement PLN - 11- 00136
between the City and Manarino Realty, LLC in the form attached hereto as Exhibit A and
incorporated by this reference.
I HEREBY CERTIFY that the foregoing is a true copy of a Resolution adopted by
the Planning Commission of the City of Downey at a regular meeting thereof held on the
21st day of December, 2011, by the following vote, to wit:
AYES:
NOES:
ABSENT:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
Development Agreement PLN – 11- 00136 — Manarino Realty, LLC
December 21, 2011 Planning Commission Meeting
Page 2
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF DOWNEY
11111 Brookshire
Downey, CA 90241
Attn: City Clerk
(Space Above this Line is for Recorder’s Use Only)
This Development Agreement is recorded at the request
and for the benefit of the City of Downey and is exempt
from the payment of a recording fee pursuant to
Government Code § 27383.
TIERRA LUNA
DEVELOPMENT AGREEMENT
by and between
CITY OF DOWNEY
and
PCCP/IRG DOWNEY, LLC
a Delaware limited liability company
2698521.7/iManageDMS
028110-0002/12-14-11/JTM/
TABLE OF CONTENTS
Page
1. DEFINITIONS..................................................................................................................3 2. TERM .............................................................................................................................11 2.1 Term....................................................................................................................11 2.1.1 Term without Enhanced Project Election ...............................................11 2.1.2 Term with Enhanced Project Election ....................................................11 2.2 Provisions Surviving Expiration of Term ...........................................................11 3. DEVELOPMENT OF THE PROPERTY.......................................................................11 3.1 Applicable Regulations; Vested Right to Develop .............................................11 3.2 Tentative Subdivision Maps ...............................................................................12 3.3 Processing of Applications and Permits .............................................................12 3.4 Other Governmental Permits ..............................................................................12 3.5 Subsequent General Plan Amendments and Zone Changes ...............................12 3.6 Timing of Development......................................................................................13 3.7 Reservations of Authority ...................................................................................13 3.7.1 Consistent Future City Regulations ........................................................13 3.7.2 Overriding State and Federal Laws and Regulations..............................14 3.7.3 Public Health and Safety.........................................................................14 3.7.4 Uniform Construction Codes ..................................................................14 3.7.5 Police Power ...........................................................................................14 3.8 Large Format Retail Development Parking Easement........................................14 3.9 Signature Entrance ..............................................................................................15 3.10 City Infrastructure Improvements.......................................................................15 3.11 Flexible Office Space on Developer Leased Property........................................15 4. FEES, CONDITIONS, PUBLIC BENEFITS, AND AUDIT RIGHTS .........................15 4.1 Temporary Fee Rebate........................................................................................15 4.2 Other Fees and Charges ......................................................................................15 4.3 [RESERVED] .....................................................................................................16 4.4 Accounting and Review......................................................................................16 4.4.1 Maintenance of Books and Records .......................................................16 4.4.2 Allocation of Costs and Expenses...........................................................16 4.4.3 Non-Waiver By City ...............................................................................16 4.4.4 [RESERVED] .........................................................................................17 4.4.5 Survival of Audit Rights .........................................................................17 5. GENERAL DEVELOPER COVENANTS ....................................................................17 5.1 Commencement of Improvements and Completion ...........................................17 5.2 Large Format and Remaining Commercial Development Retailers...................17 5.3 [RESERVED] .....................................................................................................17 5.4 City Right to Inspect ...........................................................................................17 5.5 Developer Attendance at City Meetings .............................................................18 680/028110-0002
2698521.7 a12/14/11
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5.6 Maintenance Covenant........................................................................................18 5.6.1 General Maintenance of Property ...........................................................18 5.6.2 Graffiti.....................................................................................................18 5.6.3 Lien Rights..............................................................................................19 6. DEVELOPER COVENANTS RELATING TO THE ENHANCED PROJECT ...........19 6.1 Developer Election To Develop Enhanced Project ............................................19 6.2 Applicability of Base Project Covenants ............................................................19 6.3 Operating Covenant ............................................................................................19 6.3.1 Conduct of Required Operations ............................................................19 6.3.2 Annual Grant Payment............................................................................19 6.3.3 Certification ............................................................................................20 6.3.4 Use Restriction........................................................................................20 6.3.5 Covenant to Maintain Property on Tax Rolls .........................................20 6.3.6 No Conveyance to Tax Exempt Entity ...................................................20 6.3.7 Quality of Improvements ........................................................................20 6.4 Covenants Running with the Land......................................................................21 7. NON-DISCRIMINATION .............................................................................................21 7.1 Obligation to Refrain from Discrimination.........................................................21 7.2 Form of Non-discrimination and Non-segregation Clauses ...............................21 7.2.1 In deeds ...................................................................................................21 7.2.2 In leases...................................................................................................21 7.2.3 In contracts..............................................................................................21 8. FIRE STATION DEDICATION AND DEVELOPMENT............................................22 8.1 Election to Require Development of Fire Station Site........................................22 8.2 Design and Construction Costs...........................................................................22 8.3 Subdivision of Fire Station Site ..........................................................................22 8.4 Developer's Rental of Fire Station to City ..........................................................22 8.5 Conveyance of Fire Station and Fire Station Site to City...................................22 9. DEFAULT, REMEDIES, AND TERMINATION.........................................................23 9.1 Notice and Opportunity to Cure..........................................................................23 9.2 Default Remedies................................................................................................23 9.3 Developer’s Exclusive Remedy..........................................................................23 9.4 Force Majeure .....................................................................................................24 10. ANNUAL REVIEW .......................................................................................................24 10.1 Timing of Annual Review ..................................................................................24 10.2 Standards for Annual Review .............................................................................24 10.3 Certificate of Compliance ...................................................................................25 11. MORTGAGEE RIGHTS ................................................................................................25 11.1 Encumbrances on the Property ...........................................................................25 11.2 Mortgagee Protection..........................................................................................25 680/028110-0002
2698521.7 a12/14/11
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11.3 11.4 Mortgagee Not Obligated ...................................................................................25 Notice of Default to Mortgagee; Right of Mortgagee to Cure............................25 12. ASSIGNMENT...............................................................................................................26 12.1 Right to Assign ...................................................................................................26 12.2 Release Upon Transfer of Agreement.................................................................26 12.3 Assignee Subject to Terms of Agreement ..........................................................26 12.4 Release Upon Transfer of Interest in Leased Property .......................................26 13. INSURANCE AND INDEMNITY ................................................................................27 13.1 Insurance .............................................................................................................27 13.1.1 Base Project Insurance............................................................................27 13.1.2 Enhanced Project Insurance....................................................................27 13.1.3 Insurance Does Not Relieve Liability.....................................................27 13.1.4 Default for Failure to Maintain Insurance ..............................................27 13.2 Indemnities by Developer ...................................................................................27 13.2.1 General Indemnity ..................................................................................27 13.2.2 Prevailing Wage Indemnity and Notice to Developer of Labor
Code Section 1781. ................................................................................27 13.2.3 Environmental Indemnity .......................................................................28 13.3 Indemnification Procedures ................................................................................29 13.3.1 Prompt Notice .........................................................................................29 13.3.2 Cooperation.............................................................................................29 13.3.3 Settlement ...............................................................................................29 13.3.4 City Cooperation.....................................................................................29 13.3.5 Insurance Proceeds..................................................................................29 14. THIRD PARTY LEGAL CHALLENGE .......................................................................29 14.1 Developer Covenant to Defend this Agreement .................................................29 15. MISCELLANEOUS .......................................................................................................30 15.1 Compliance with Applicable Law ......................................................................30 15.2 Covenants............................................................................................................30 15.3 Mutual Covenants ...............................................................................................30 15.4 Recordation of Agreement..................................................................................30 15.5 Constructive Notice and Acceptance ..................................................................30 15.6 Successors in Interest..........................................................................................30 15.7 City Manager Implementation ............................................................................30 15.8 Political Reform Act ...........................................................................................31 15.9 Survival of Agreement........................................................................................31 15.10 Entire Agreement; Waivers and Amendments ...................................................31 15.11 Principles of Interpretation .................................................................................31 15.12 Incorporation of Recitals.....................................................................................32 15.13 Section Headings and Section and Article References .......................................32 15.14 Singular and Plural..............................................................................................32 15.15 Calculation of Time Periods ...............................................................................32 680/028110-0002
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15.16 15.17 15.18 15.19 15.20 15.21 15.22 15.23 15.24 15.25 15.26 15.27 15.28 15.29 15.30 15.31 15.32 15.33 15.34 680/028110-0002
2698521.7 a12/14/11
Time of Essence..................................................................................................32 Further Actions and Instruments.........................................................................32 Severability .........................................................................................................32 Legal Expenses ...................................................................................................32 No Third Party Beneficiaries ..............................................................................33 Relationship of Parties ........................................................................................33 Development as a Private Undertaking...............................................................33 Inspection of Books and Records .......................................................................33 Estoppel Certificate.............................................................................................33 Applicable Law; Venue ......................................................................................34 Non-Liability of City Officers and Employees...................................................34 Non-Liability of Developer’s Officers and Employees ......................................34 Notices ................................................................................................................34 Representation as to Ownership..........................................................................35 Representation as to Ownership..........................................................................35 Authority to Execute ...........................................................................................35 Authority to Execute ...........................................................................................35 Execution of Agreement; Counterparts ..............................................................35 Exhibits ...............................................................................................................35 -iv-
DEVELOPMENT AGREEMENT
This TIERRA LUNA DEVELOPMENT AGREEMENT ("Agreement") is entered into
this ___ day of _________, 2011, by and among the CITY OF DOWNEY, a California charter
city ("City") and PCCP/IRG DOWNEY, LLC, a Delaware limited liability company
("Developer"). City and Developer are collectively referred to herein as the "Parties" and
individually as a "Party."
RECITALS
A.
To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk of development, the Legislature of the
State of California adopted the "Development Agreement Statute," Sections 65864, et seq., of
the Government Code. The Development Agreement Statute authorizes City to enter into an
agreement with any person having a legal or equitable interest in real property and to provide for
the development of such property and to establish certain development rights therein.
B.
Developer owns that certain real property consisting of approximately 58 acres of
land area located at 12214 Lakewood Boulevard in the Downey Landing Specific Plan Area,
within the City of Downey, County of Los Angeles, State of California, as more particularly
described in the legal description attached hereto as Exhibit "A" and depicted on Exhibit "B" (the
"Developer Owned Property").
C.
Developer holds a leasehold interest in that certain real property consisting of
approximately 20 acres of land area located at 12214 Lakewood Boulevard in the Downey
Landing Specific Plan Area, within the City of Downey, County of Los Angeles, State of
California, as more particularly described in the legal description attached as Exhibit "C" and
depicted on Exhibit "D." (the "Developer Leased Property"). The Developer Owned Property
and the Developer Leased Property abut each other.
D.
The Developer Owned Property and the Developer Leased Property are
collectively described as the "Property." The Property is depicted on Exhibit "E."
E.
The Amended Downey Landing Specific Plan ("Specific Plan") allows for the
development of the Property with a mixed-use commercial development consisting of up to
1,035,000 square feet of non-theater commercial/retail floor area; an additional 65,000 square
feet of commercial/retail floor area for a theater use, 300,000 square feet of office floor area; and
116,000 square feet of hotel floor area (150 hotel rooms). The Specific Plan contemplates that,
subject to City's approval if placed on the Developer Owner Property, an additional 200,000
square feet of office floor area may be incorporated into the proposed development so long as the
retail floor area is decreased by 200,000 square feet and the total square footage of the proposed
development does not exceed 1,516,000 square feet. Development of the Property in any
manner consistent with the Specific Plan and the remaining Existing Land Use Regulations is
hereinafter referred to as the “Base Project.”
028110-0002/12-14-11/JTM/
F.
Through this Agreement, the City has committed to provide certain vested rights
to Developer in exchange for (i) the development of the Base Project on the Property, and (ii)
Developer’s provision of certain additional public benefits to City.
G.
Developer desires to develop the Property in a specific configuration that is
consistent with the Specific Plan, consisting of the Large Format Retail Development, the
Remaining Commercial Development, the Theater Development, the Office Development, and
the Hotel Development. Developer’s development of the Property within the parameters set
forth in this Recital, and in a manner consistent with the Existing Land Use Regulations, is
hereinafter referred to as the "Enhanced Project."
H.
Through this Agreement, the City has committed to provide certain additional
inducements and benefits to Developer in exchange for the development of the Enhanced Project
on the Property.
I.
This Agreement is intended to be, and shall be construed as, a development
agreement within the meaning of the Development Agreement Statute. This Agreement will
eliminate uncertainty in planning for and secure the orderly development of the Property, ensure
a desirable and functional community environment, provide effective and efficient development
of public facilities, infrastructure, and services appropriate for the development of the Property,
assure attainment of the maximum effective utilization of resources within City, and provide
other significant public benefits to City and its residents by otherwise achieving the goals and
purposes of the Development Agreement Statute. In exchange for these benefits to City,
Developer desires to receive the assurance that it may proceed with development of the Property
in accordance with the terms and conditions of this Agreement and the Existing Land Use
Regulations (as defined below), all as more particularly set forth herein.
J.
City has determined that the Base Project and the Enhanced Project are consistent
with the goals and policies of the General Plan and imposes appropriate standards and
requirements with respect to the development of the Property in order to maintain the overall
quality of life and of the environment within City. Prior to its approval of this Agreement, City
considered the environmental impacts of the Base Project and the Enhanced Project and
completed its environmental review of the Based Project and the Enhanced Project.
K.
On December 21, 2011, the Downey City Planning Commission ("Planning
Commission") held a public hearing on this Agreement, made certain findings and
determinations with respect thereto, and recommended to the City Council of the City of
Downey ("City Council") that the Agreement be approved.
L.
On ________, the City Council held a public hearing on this Agreement,
considered the recommendations of the Planning Commission, and found that this Agreement is
consistent with General Plan. In accordance with the Development Agreement Statute, the City
Development Agreement Regulations, and applicable law, on ________, the City Council
adopted Ordinance No. 05-10 approving this Agreement.
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AGREEMENT
Based upon the foregoing Recitals, which are incorporated herein by this reference, and
for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, City and Developer hereby agree as follows:
1.
DEFINITIONS.
The following terms when used in this Agreement shall have the meanings set forth
below:
1.1
The term "Action" shall mean any proceeding between City and Developer
seeking enforcement of any of the terms and provisions of this Agreement.
1.2
The term "Agreement" shall mean this Development Agreement by and among
City and Developer.
1.3
The term "Annual Review" shall have the meaning ascribed in Section 10.1 of
this Agreement.
1.4
The term "Bankruptcy Law" shall mean Title 11, United States Code, and any
other or successor state or federal statute relating to assignment for the benefit of creditors,
appointment of a receiver or trustee, bankruptcy, composition, insolvency, moratorium,
reorganization, or similar matters.
1.5
The term "Bankruptcy Proceeding" shall mean any proceeding, whether
voluntary or involuntary, under any Bankruptcy Law.
1.6
[RESERVED]
1.7
The term "Base Project" shall mean Developer's development of the Property
within the parameters set forth in Recital E, and in a manner otherwise consistent with the
Existing Land Use Regulations.
1.8
The term "CEQA" shall mean and refer to the California Environmental Quality
Act, Public Resources Code Sections 21000, et seq.
1.9
The term "Certificate of Occupancy" shall mean A Certificate of Occupancy as
defined in the Uniform Building Code, 2010 Edition, published by the International Conference
of Building Officials, as may be amended from time to time.
1.10 The term "Certification" shall mean a written certification provided on or before
February 15 of each year during the Term, signed by Developer's managing member (i)
certifying its compliance with the operating covenant and all other covenants and restrictions set
forth in Article 6 for each Compliance Year for which Developer seeks a Grant (if Developer
makes the election authorized by Section 6.1); provided, however, that this portion of the
Certification shall not be required unless Developer elects to develop the Enhanced Project under
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Section 6.1 of this Agreement, and (ii) demonstrating Developer’s good faith compliance all
terms of this Agreement for purposes of conducting the annual review required by Section 10.
1.11
The term "City" shall mean the City of Downey, a California Charter City.
1.12
The term "City Council" shall mean the City Council of the City of Downey.
1.13 The term "City Development Agreement Regulations" shall mean the
regulations establishing procedures and requirements for the consideration of development
agreements set forth in City's Resolution No. _____ adopted by the City Council on _______, as
the same may be amended from time to time.
1.14 The term "City Fees and Charges" shall mean Development Fees and City
Processing Fees, to the extent such fees are collected by and on behalf of City.
1.15
[RESERVED]
1.16 The term "City Parties" shall mean City, City Council, City officers, employees,
attorneys and agents.
1.17 The term "City Processing Fees" shall mean all fees charged by and on behalf of
the City in connection with the processing, review, and consideration of applications for
development, including any periodic updates thereto to reflect changes in the costs of processing,
review, and consideration of applications..
1.18 The term "Claim" shall mean any claim, loss, cost, damage, expense, liability,
lien, action, cause of action (whether in tort, contract, under statute, at law, in equity or
otherwise), charge, award, assessment, fine or penalty of any kind (including consultant and
expert fees, Legal Costs, and expenses and investigation costs of whatever kind or nature), and
any judgment. Without limiting the foregoing, “Claims” include any matter that results or arises
in any way from any of the following: (i) the noncompliance by Developer or its contractor with
any applicable local, state and/or federal law or regulation, including, without limitation, any
applicable federal and/or state labor laws or regulations (including, without limitation, if
applicable, the requirement to pay state and/or federal prevailing wages and hire apprentices); (2)
the implementation of Labor Code Section 1781 and/or Davis-Bacon, or any other similar law or
regulation; and/or (3) failure Developer to provide any required disclosure or identification as
required by Labor Code Section 1781 and/or Davis Bacon, as the same may be amended from
time to time, or any other similar law or regulation.
1.19
[RESERVED]
1.20 The term "Compliance Year" shall mean and refer to a period of one year. The
first Compliance Year commences on the Operation Period Commencement Date and ends on
the anniversary of the Operation Period Commencement Date. The second through twentieth
Compliance Years follow thereafter.
1.21
The term "Defaulting Party" shall have the meaning set forth in Section 9.1,
below.
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1.22 The term “Davis-Bacon” shall mean , 40 U.S.C. Section 3141, et seq., and the
regulations promulgated thereunder set forth at 29 CFR Part 1, as the same may be amended
from time to time, or any other similar law or regulation.
1.23 The term "Developer" shall mean the individual or entity which owns fee title to
the Developer Owned Property, or any portion thereof, and holds the leasehold interest in the
Developer Leased Property, or any portion thereof, and any permissible successor or assignee to
the rights, powers, and responsibilities of said individual or entity hereunder, in accordance with
Section 12 of this Agreement.
1.24 The term "Developer Leased Property" shall mean that certain real property that
abuts the Developer Owned Property, and consists of approximately twenty (20) acres of land
area located at 12214 Lakewood Boulevard in the Downey Landing Specific Plan Area, within
the City of Downey, County of Los Angeles, State of California, as more particularly described
in the legal description attached as Exhibit "C" and depicted on Exhibit "D."
1.25 The term "Developer Owned Property" shall mean that certain real property
consisting of approximately fifty eight (58) acres of land area located at 12214 Lakewood
Boulevard in the Downey Landing Specific Plan Area, within the City of Downey, County of
Los Angeles, State of California, as more particularly described in the legal description attached
hereto as Exhibit "A" and depicted on Exhibit "B" (the "Developer Owned Property").
1.26
Section 5.5.
The term "Developer Representative" shall have the meaning set forth in
1.27 The term "Development Agreement Statute" shall mean Sections 65864 through
65869.5 of the California Government Code, as the same may be amended from time to time.
1.28 The term "Development Fees" shall mean all fees collected by and on behalf of
the City that are enacted by the City at any time pursuant to the Mitigation Fee Act, Government
Code sections 66000 et seq.
1.29 The term "Effective Date" shall mean the date that this Agreement is recorded in
the Official Records of Los Angeles County, California.
1.30 The term “Enhanced Project” shall mean Developer's development of the
Property within the parameters set forth in Recital G, and in a manner otherwise consistent with
the Existing Land Use Regulations.
1.31 The term "Environmental Losses" means any and all claims, demands, damages,
losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits,
proceedings, costs, disbursements and expenses, including, without limitation, attorney fees,
disbursements and costs of attorneys, environmental consultants and other experts, and all
foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever that
may, at any time, be imposed upon, incurred or suffered by, or claimed, asserted or awarded
against, City directly or indirectly relating to or arising from any Environmental Matters arising
during or from Developer's ownership or use of the Property.
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1.32 The term "Environmental Matters" means (i) the presence of Hazardous
Substances on, in, under, from or affecting all or any portion or the Property; (ii) the storage,
holding, handling, release, threatened release, discharge, generation, leak, abatement, removal or
transportation of any Hazardous Substances on, in, under, from or affecting all or any portion of
Property; (iii) the violation of any law, rule, regulation, judgment, order, permit, license,
agreement, covenant, restriction, requirement or the like by Developer , its agents or contractors,
relating to or governing in any way Hazardous Substances on, in, under, from or affecting all or
any portion of tile Property; (iv) the failure of Developer, its agents or contractors, to properly
complete, obtain, submit and/or file any and all notices, permits, licenses, authorizations,
covenants and the like in connection with Developer's activities on all or any portion of the
Property; (v) the implementation and enforcement by Developer, its agents or contractors of any
monitoring, notification or other precautionary measures that may, at any lime, become
necessary to protect against the release, potential release or discharge of Hazardous Substances
on, in, under, from or affecting all or any portion of the Property; (vi) the failure of Developer, its
agents or contractors, in compliance with all applicable Environmental Laws, to lawfully
remove, contain, transport or dispose of any Hazardous Substances existing, stored or generated
on, in, under or from all or any portion of the Property; and (vii) any investigation, inquiry, order,
hearing, action or other proceeding by or before any Governmental Agency in connection with
any Hazardous Substances on, in, under, from or affecting all or any portion of the Property or
the violation of any Environmental Law relating to all or any portion of the Property.
1.33 The term "Existing Land Use Regulations" shall mean the General Plan, the
Specific Plan, the MOA (which is part of the Specific Plan) the Zoning Code, the Municipal
Code, Maps, and all other ordinances, resolutions, rules, and regulations of City governing
development and use of the Property in effect as of the Effective Date, including without
limitation the permitted uses of the Property, the density and intensity of use, maximum height
and size of proposed buildings, provisions for the reservation and dedication of land for public
purposes, and, subject to the following sentence, construction standards and specifications. The
term "Existing Land Use Regulations" does not include the Uniform Codes pertaining to
construction adopted for general application in City. The Specific Plan provides that in the event
of a conflict between the provisions of the Specific Plan and the provisions of the Zoning Code,
the provisions of the Specific Plan control.
1.34 The term "Equity Interest" shall mean all or any part of any direct or indirect
equity or ownership interest(s) (whether stock, partnership interest, beneficial interest in a trust,
membership interest, or other interest of an ownership or equity nature) in any entity at any tier
of ownership that directly or indirectly owns or holds any ownership or equity interest in a
Person.
1.35
[RESERVED]
1.36 The term "Fire Station" shall mean a minimum of an eight thousand (8,000)
square foot portion of Building 1 that is required to be preserved in place by the MOA, The Fire
Station shall be appointed with amenities and facilities that are the functional equivalent of those
at a typical fire station headquarters existing at the time of the development of the Fire Station.
028110-0002/12-14-11/JTM/
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1.37 The Term "Fire Station Construction Costs" shall mean an amount not to
exceed Four Million Four Hundred Thousand Dollars ($4,400,000), including but not limited to
construction costs, soft costs, financing costs and a developer fee of ten percent (10%).
1.38 The term "Fire Station Lease" shall mean a lease by Developer to City of the
Fire Station and the Fire Station Site upon the following material terms: (1) initial rental rate
under the Fire Station Lease shall equal five percent (5%) of the Fire Station Construction Costs
incurred by Developer in the construction of the Fire Station; and (2) City shall receive rights of
access over the Property sufficient to meet the reasonable access and response time needs of the
Downey Fire Department, as reasonably determined by the Fire Chief of the Downey Fire
Department.
1.39 The term "Fire Station Site" shall mean a site within that portion of the Property
comprising approximately 38,000 square feet, together with associated parking, depicted on
Exhibit "F."
1.40 The term "Floor Area" shall mean the total area of all floors contained within the
exterior walls of all buildings on the Property.
1.41 The term "General Plan" shall mean and refer to the City of Downey General
Plan, as said General Plan exists as of the Effective Date.
1.42 The term "Grant Amount" means up to One Million Dollars per year
($1,000,000.00) that, upon the satisfaction of certain conditions and requirements related to the
development of the Enhanced Plan, shall be paid by City to Developer, pursuant to the terms and
conditions of this Agreement, commencing on June 30 of the first year after which the Required
Operations are established and maintained on the Property, and continuing for nineteen years
thereafter; provided, however, that the Grant Amount shall not be payable on June 30 following
any calendar year during which the Required Operations are not maintained.
1.43 The term "Hotel Development" shall mean 116,000 square feet of floor area (150
hotel rooms) of development for hotel uses under the Enhanced Plan which shall be operated
under one of the brand names set forth in Exhibit "I" or such other brand name approved by City,
in its sole and absolute discretion; provided, however, that the City Manager shall have the
authority to grant up to a ten percent (10%) variance in the amount of hotel square footage and/or
the number of hotel rooms, and in the event such a variance is granted, the resulting development
shall constitute “Hotel Development” under this Agreement.
1.44 The term "Hazardous Substances" means and refers to, without limitation,
substances defined as "hazardous substances," "hazardous material," "toxic substance," "solid
waste," or "pollutant or contaminate" in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601, et seq.; the
Toxic Substances Control Act ("TSCA") [15 U.S.C. Sections 2601, et seq.]; the Hazardous
Materials Transportation Act, 49 U.S.C. Sections 1801, et seq.; the Resource Conservation and
Recovery Act, 42 U.S.C. Sections 6901, et seq.; those substances listed in the United States
Department of Transportation (DOT) Table [49 CFR 172.101], or by the EPA, or any successor
authority, as hazardous substances [40 CFR Part 302]; and those substances defined as
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"hazardous waste" in Section 25117 of the California Health and Safety Code or, as "hazardous
substances" in Section 25316 of the California Health and Safety Code; other substances,
materials, and wastes that are, or become, regulated or classified as hazardous or toxic under
federal, state, or local laws or regulations and in the regulations adopted pursuant to said laws,
and shall also include, without limitation, asbestos, polychlorinated biphenyl, flammable
explosives, radioactive material, petroleum products, and substances designated as a hazardous
substance pursuant to 33 U.S.C. Section 1321 or listed pursuant to 33 U.S.C. Section 1317.
1.45 The term "Improvements" shall mean all commercial improvements,
landscaping, parking, and other related appurtenances to be constructed on, under, about or
around the Property for the uses authorized by this Agreement.
1.46 The term "Institutional Lender" shall mean any of the following: (a) A bank
(State, Federal or foreign), trust company (in its individual or trust capacity), insurance company,
credit union, savings bank (State or Federal), pension, welfare or retirement fund or system, real
estate investment trust (or an umbrella partnership or other entity of which a real estate
investment trust is the majority owner), Federal or State agency regularly making or
guaranteeing mortgage loans, investment bank or a subsidiary of a Fortune 500 company (such
as AT&T Capital Corporation or General Electric Capital Corporation); (b) any Person that is a
wholly owned subsidiary of or is a combination of any one or more of the Persons described in
"(a)" of this Section.
1.47
[RESERVED]
1.48
[RESERVED]
1.49
[RESERVED]
1.50 The term "Large Format Retail Development" shall mean at least a total of
275,000 square feet of floor area of retail development spread over at least two retail
establishments, each of which comprises at least 90,000 square feet of floor area, which shall be
constructed if Developer makes the election under Section 6.1 to build the Enhanced Plan.
1.51 The term "Legal Costs" shall mean, for any Person, all actual and reasonable
costs and expenses such Person incurs in any legal proceeding (or other matter for which such
Person is entitled to be reimbursed for its Legal Costs), including reasonable attorneys' fees,
court costs and expenses, including in or as a result of any: (a) Bankruptcy Proceeding;
(b) litigation between the Parties; (c) negotiating or documenting any agreement with a third
party requested by the other Party; (d) requirement or request that such Person or its employees
act as a witness in any proceeding regarding this Agreement or the other Party; and (e) review or
approval that the other Party requests of such Person. All references to Legal Costs shall include
the salaries, benefits and costs of in-house or contract general counsel to City or Developer,
respectively, and the lawyers employed in the office of such general counsel who provide legal
services regarding a particular matter, adjusted to or billed at an hourly rate and multiplied by the
time spent on such matter rounded to increments of one-tenth of an hour, in addition to Legal
Costs of outside counsel retained by City or Developer, respectively, for such matter.
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1.52 The term "Maintenance Deficiency" shall mean an occurrence of an adverse
condition on any area of the Property that is subject to public view in contravention of the
general maintenance standard described in Section 5.6.1, below.
1.53 The term "Maximum Fee Sharing Amount" shall mean three million eight
hundred thousand dollars ($3,800,000).
1.54 The term "MOA" means that Memorandum of Agreement by and among
National Aeronautics and Space Administration, the General Services Administration, the
California State Historic Preservation Officer and the City of Downey.
1.55 The term "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback
arrangement, or any other form of conveyance in which the Property, or a portion thereof or
interest therein, is pledged as security, and contracted for in good faith and for fair value.
1.56 The term "Mortgagee" shall mean the holder of a beneficial interest under a
Mortgage, or any successor or assignee of any such Mortgagee.
1.57 The term "Municipal Code" shall mean and refer to the City of Downey
Municipal Code, as the Municipal Code exists as of the Effective Date.
1.58
[RESERVED].
1.59
The term "Non-Defaulting Party" shall have the meaning set forth in Section 9.1,
below.
1.60 The term “Office Development” shall mean 300,000 square feet of floor area of
development for office uses.
1.61 The term "Operating Period" shall mean the period commencing upon the
Operation Period Commencement Date and ending on the twentieth (20th) anniversary thereof.
1.62 The term "Operation Period Commencement Date" shall mean and refer to the
date on which the Required Operations are established.
1.63 The term "Parties" shall mean Developer and City, and their respective
successors and assigns.
1.64 The term "Person" shall mean any association, corporation, government,
individual, joint venture, joint-stock company, limited liability company, partnership, trust,
unincorporated organization or other entity of any kind.
1.65
The term “Political Reform Act” shall mean Government Code section 18000 et
seq.
1.66 The term "Property" shall mean the Developer Owned Property and the
Developer Leased Property, as jointly depicted on Exhibit "E."
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1.67 The term "Remaining Commercial Development" shall mean all retail,
commercial, restaurant development on the Property other than (i) the Large Format Retail
Development, and (ii) the Theater Development.
1.68 The term "Required Operations" shall mean and refer to operations conducted
or caused to be conducted by Developer on the Property that includes at least the opening for
sales to the public of 100% of the Large Format Retail Development. As part of the Required
Operations, all sales of taxable goods shall be subject to any and all sales and use taxes under the
laws of California, with the City designated as the point of sale for any and all such sales subject
to California sales and use taxes.
1.69 The term “Sales Tax Revenues” shall mean shall mean the total sales taxes under
the laws of California during a Compliance Year from sales on the Property that have the City
and the Property designated as the point of sale.
1.70 The term "Specific Plan" shall mean and refer to the Amended Downey Landing
Specific Plan, as it exists as of the Effective Date.
1.71 The term "Term" shall mean the period of time during which this Agreement
shall be in effect and bind the Parties and their respective successors and assigns, as set forth in
Section 2.1 of this Agreement; provided, however, that certain of the obligations described in
this Agreement shall be in effect and bind the Parties and their respective successors and assigns
for in perpetuity, as more particularly described in Sections 2.2.
1.72 The term "Theater Development" shall mean 65,000 square feet of development
for one or more theater uses.
1.73 The term "Transfer" shall mean with respect to any property, right or obligation
any of the following, whether by operation of law or otherwise, whether voluntary or
involuntary, and whether direct or indirect:
(i) any assignment, conveyance, grant,
hypothecation, mortgage, pledge, sale, or other transfer, whether direct or indirect, of all or any
part of such property, right or obligation, or of any legal, beneficial, or equitable interest or estate
in such property, right or obligation or any part of it (including the grant of any easement, lien, or
other encumbrance); (ii) any conversion, exchange, issuance, modification, reallocation, sale, or
other transfer of any direct or indirect Equity Interest(s) in the owner of such property, right or
obligation by the holders of such Equity Interest(s); (iii) any transaction described in "(ii)" of this
Section affecting any Equity Interest(s) or any other interest in such property, right or obligation
or in any such owner (or in any other direct or indirect owner at any higher tier of ownership)
through any manner or means whatsoever; or (iv) any transaction that is in substance equivalent
to any of the foregoing. A transaction affecting Equity Interests, as referred to in clauses "(i)"
through "(iv)" of this Section shall be deemed a Transfer by Developer even though Developer is
not technically the transferor. A "Transfer" shall not, however, include any of the following
(provided that the other Party to this Agreement has received notice of such occurrence) relating
to any Equity Interest: (i) A mere change in form of ownership with no material change in
beneficial ownership and constitutes a tax-free transaction under Federal income tax law and the
State real estate transfer tax; (ii) A conveyance to member(s) of the immediate family(ies) of the
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transferor(s) or trusts for their benefit; or (iii) a conveyance to any Person that, as of the Effective
Date, holds an Equity Interest in the entity whose Equity Interest is being transferred.
1.74 The term "Zoning Code" shall mean and refer to the City of Downey Zoning
Code, as said Zoning Code exists as of the Effective Date of this Agreement, and as it may
further be amended by City from time.
2.
TERM.
2.1
Term.
2.1.1 Term without Enhanced Project Election. Subject to Section 2.2, if
Developer does not make the election authorized by Section 6.1 within the time required by
Section 6.1, the Term shall commence on the Effective Date and shall continue thereafter for a
period of seven (7) years from and after the Effective Date, unless this agreement is terminated,
modified, or extended by circumstances set forth in this Agreement or by mutual written consent
of the Parties.
2.1.2 Term with Enhanced Project Election. Subject to Section 2.2, if
Developer makes the election authorized by Section 6.1 within the time required by Section 6.1,
the Term shall commence on the Effective Date and shall continue thereafter for a period of
twenty-five (25) years from and after the Effective Date, unless this Agreement is terminated,
modified, or extended by circumstances set forth in this Agreement or by mutual written consent
of the Parties.
2.2
Provisions Surviving Expiration of Term. The provisions, rights, and obligations
set forth in, Section 4.4.5 shall remain effective and binding on City and Developer (and/or its
successor(s) in interest) until the expiration of the time periods set forth in Section 4.4.5. The
provisions, rights, and obligations set forth in, Article 8 shall remain effective and binding on
City and Developer (and/or its successor(s) in interest) until the expiration of the time periods set
forth in Article 8. The provisions, rights, and obligations set forth in Section 12.4 shall remain
effective and binding on City and Developer (and/or its successor(s) in interest) until the
expiration or earlier termination of that certain Ground Lease By and Between City of Downey
and Industrial Realty Group, LLC, dated on or about December 4, 2003. The provisions, rights,
and obligations set forth in Section 13.2 shall remain effective and binding on the City and
Developer (and/or its successor(s) in interest) until the expiration of the statute of limitations on
any and every Claim. The provisions, rights, and obligations set forth in Article 5 shall remain
effective and binding on the City and Developer (and/or its successor(s) in interest) for a period
of twenty five (25) years from and after the Effective Date.
3.
DEVELOPMENT OF THE PROPERTY.
3.1
Applicable Regulations; Vested Right to Develop. Other than as expressly set
forth herein, during the Term, the terms and conditions of development applicable to the
Property, including but not limited to the permitted uses of the Property, the density and intensity
of use, maximum height and size of proposed buildings, and provisions for the reservation and
dedication of land for public purposes, shall be those set forth in the Existing Land Use
Regulations. In connection therewith, subject to the terms and conditions of this Agreement,
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Developer (and/or its successor(s) in interest) shall have the vested right to carry out and develop
the Base Project and/or the Enhanced Project on the Property in accordance with the Existing
Land Use Regulations. Developer shall also have a vested right to: (i) receive from City all
future development approvals for the Base Project and/or the Enhanced Project that are
consistent with, and implement, the Existing Land Use Regulations and this Agreement; (ii) not
to have such approvals for the Base Project and/or the Enhanced Project be conditioned or
delayed for reasons inconsistent with the Existing Land Use Regulations or this Agreement; and
(iii) develop the Base Project and/or the Enhanced Project in a manner consistent with such
approvals in accordance with the Existing Land Use Regulations and this Agreement.
3.2
Tentative Subdivision Maps. With respect to applications by Developer for
tentative subdivision maps for portions of the Property, City agrees that Developer may file and
process vesting tentative maps in accordance with Chapter 4.5 (commencing with
Section 66498.1) of Division 2 of Title 7 of the California Government Code and the applicable
provisions of City's subdivision ordinance, as the same may be amended from time to time. If
final maps are not recorded for an entire parcel before such tentative map(s) would otherwise
expire, the term of such tentative map(s) automatically shall be extended until the expiration of
the Term or the earlier termination of this Agreement. If final maps are not recorded prior to the
expiration of the Term or the earlier termination of this Agreement, but such maps have not
otherwise expired under State law, the Municipal Code and/or the Zoning Code, then such maps
shall remain effective until and to the extent otherwise required under State law, the Municipal
Code, and/or the Zoning Code.
3.3
Processing of Applications and Permits. Upon satisfactory completion by
Developer of all required preliminary actions and payment of appropriate City Fees and Charges,
if any, subject to the Maximum Fee Sharing Amount City shall proceed to process and check all
applications for Base Project and/or the Enhanced Project development and building approvals
within the times set forth in the Permit Streamlining Act (Chapter 4.5 (commencing with
Section 65920) of Division 1 of Title 7 of the California Government Code), the Subdivision
Map Act (Division 2 (commencing with Section 66410) of Title 7 of the California Government
Code), and other applicable provisions of law, as the same may be amended from time to time.
3.4
Other Governmental Permits. Provided that Developer pays the reasonable cost
of such cooperation, after City has approved the development of any portion of the Property,
City shall reasonably cooperate with Developer in its efforts to obtain such additional permits
and approvals as may be required by any other governmental or quasi-governmental agencies
having jurisdiction over such portion of the Property, which permits and approvals are consistent
with City's approval and which are consistent with applicable regulatory requirements. City does
not warrant or represent that any other governmental or quasi-governmental permits or approvals
will be granted.
3.5
Subsequent General Plan Amendments and Zone Changes. In consideration for
the benefits provided to Developer under this Agreement, including without limitation the
vesting of the right to develop the Base Project on the Property in accordance with the Existing
Land Use Regulations, Developer agrees that City shall have no obligation under this Agreement
to grant any subsequent application for any amendments to the General Plan and/or changes to
the zone designations for the Property which may be initiated by Developer. Notwithstanding
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the foregoing, this Section 3.5 shall not limit Developer’s statutory, constitutional, or common
law right(s) (if any) to seek future legislative approvals from City.
3.6
Timing of Development. City acknowledges that Developer cannot at this time
predict the timing or rate at which the Base Project and/or the Enhanced Project will be
developed. The timing and rate of development depend on numerous factors such as market
demand, interest rates, absorption, completion schedules, and other factors which are not within
the control of Developer or City. In Pardee Construction Co. v. City of Camarillo (1984) 37
Cal.3d 465, the California Supreme Court held that a construction company was not exempt from
a city's growth control ordinance notwithstanding that the construction company and the city
had, prior to the adoption of that ordinance, entered into a consent judgment (tantamount to a
contract under California law) establishing the company's vested rights to develop its property in
accordance with the existing zoning. The California Supreme Court reached this result on the
basis that the consent judgment failed to address the timing of development. It is the intent of
the Parties to avoid the result of the Pardee case by hereby acknowledging and providing in this
Agreement that Developer shall have the vested right to develop the Base Project and/or the
Enhanced Project on the Property in such order and at such rate and at such time as Developer
deems appropriate within the exercise of Developer's sole subjective business judgment,
notwithstanding the adoption of an initiative or any other measure after the Effective Date by
City's electorate to the contrary. In addition to and not in limitation of the foregoing, but except
as set forth in the following sentence, it is the intent of the Parties that no City moratorium or
other similar limitation relating to the rate or timing of the development of the Base Project
and/or the Enhanced Project on the Property or any portion thereof, whether adopted by initiative
or otherwise, shall apply to the Base Project and/or the Enhanced Project on the Property to the
extent such moratorium or other similar limitation is in conflict with the express provisions of
this Agreement. Notwithstanding the foregoing, Developer acknowledges and agrees that
nothing herein is intended or shall be construed as overriding any of the provisions relating to the
timing of and/or conditions to the provision of any benefit to Developer under Section 4.1,
Section 4.3, Section 6.1, Section 6.2 and Section 6.3, or any Section that otherwise requires that
Developer perform an obligation on or before a specified calendar date and/or event, and/or
within a specified period of time.
3.7
Reservations of Authority. Notwithstanding any provision set forth in this
Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this
Section 3.7 shall apply to and govern development of the Base Project and/or the Enhanced
Project on the Property:
City ordinances, resolutions,
3.7.1 Consistent Future City Regulations.
regulations, and official policies adopted or approved after the Effective Date pursuant to
procedures provided by law which do not conflict with the Existing Land Use Regulations shall
apply to and govern development of the Property. Any future City regulations which reduce the
intensity of the development of the Property below that permitted by the Existing Land Use
Regulations, or limit the rate, timing or sequencing of development of the Property in a manner
not otherwise provided for in the Existing Land Use Regulations, shall be deemed inconsistent
with this Agreement and shall not be applicable to the development of the Property.
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3.7.2 Overriding State and Federal Laws and Regulations. State and federal
laws and regulations which override Developer's vested rights set forth in this Agreement shall
apply to the Property, together with any City ordinances, resolutions, regulations, and official
policies which are necessary to enable City to comply with such overriding State and federal
laws and regulations; provided, however, that (i) Developer does not waive its right to challenge
or contest the validity of any such State, federal, or local laws, regulations or official policies;
and (ii) in the event that any such State or federal law or regulation (or City ordinance,
resolution, regulation, or official policy undertaken pursuant thereto) prevents or precludes
compliance with one or more provisions of this Agreement, the Parties agree to consider in good
faith amending or suspending such provisions of this Agreement as may be necessary to comply
with such State or federal laws, provided that no Party shall be bound to approve any amendment
to this Agreement unless this Agreement is amended in accordance with the procedures
applicable to the adoption of development agreements as set forth in the Development
Agreement Statute and each Party retains full discretion with respect thereto.
3.7.3 Public Health and Safety. Any City ordinance, resolution, regulation, or
official policy, which is necessary to protect persons on the Property or in the immediate
community, or both, from conditions dangerous to their health or safety, or both, notwithstanding
that the application of such ordinance, resolution, regulation, or official policy or other similar
limitation would result in the impairment of Developer's vested rights under this Agreement.
3.7.4 Uniform Construction Codes. Provisions of the building standards set
forth in the Uniform Construction Codes shall apply to the Property. As used herein, the term
"Uniform Construction Codes" collectively refers to the 2010 California Building Codes, the
2010 California Electric Code, the 2010 California Plumbing Code, the 2010 California
Mechanical Code, the 2009 Uniform Solar Energy Code, the 2009 Uniform Swimming Pool, Spa
and Hot Tub Code, the 2010 Green Plumbing and Mechanical Code, and the 2010 California
Fire Code (including amendments thereto by the Downey Fire Department), as modified and
amended by official action of City, and any modifications or amendments to any such Code
adopted in the future by City.
3.7.5 Police Power. In all respects not provided for in this Agreement, City
shall retain full rights to exercise its police power to regulate the development of the Property.
Any uses or developments requiring a site plan, tentative tract map, conditional use permit,
variance, or other discretionary permit or approval in accordance with the Existing Land Use
Regulations shall require a permit or approval pursuant to this Agreement, and, notwithstanding
any other provision set forth herein, this Agreement is not intended to vest Developer's right to
the issuance of such permit or approval nor to restrict City's exercise of discretion with respect
thereto; provided, however, that City acknowledges that it is obligated to process discretionary
and ministerial approvals consistent with the Existing Land Use Regulations in accordance with
the procedures set forth in the Specific Plan.
3.8
Large Format Retail Development Parking Easement. During the Term,
Developer may request in writing that City enter into negotiations for the provision, at no
additional charge to Developer, of a parking easement and/or license agreement to accommodate
up to twenty (20) parking spaces on no more than forty five one hundredths (0.45) acres of
property adjacent to the Property and owned by City. The Parties shall negotiate in good faith to
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determine the initial location and other terms and conditions for the provision of the easement or
license, with a shared objective of recording the easement or license within ninety (90) days after
Developer’s request to enter into negotiations. City shall have the right to terminate the
easement or license, and/or relocate the parking to a different location owned by City and
adjacent to the Property if, in City’s reasonable business and/or regulatory judgment, relocation
of the parking is necessary to allow for the sale, lease, or other use of any property owned by
City. If it elects to terminate or relocate the easement or license, City shall provide at least
ninety (90) days advanced notice to Developer. If it elects to relocate the easement or license,
Developer shall be responsible for all costs of improving the newly-designated parking area and
of removing improvements on the prior-designated parking area.
3.9
Signature Entrance. City and Developer agree to work together in good faith, at
no cost to City, toward the design, approval, and development of a signature entrance to the
property for the Base Project and/or the Enhanced Project.
3.10 City Infrastructure Improvements. To the extent required by applicable laws, the
City shall pay prevailing wages for intersection and groundwater well improvements that are
funded (in part or in whole) by Developer as conditions of approval of the Project. City makes
no representation or warranty to Developer concerning the legal effect, if any, of the City’s
construction of such improvements on Developer’s rights and responsibilities under state law,
federal law, and/or this Agreement.
3.11 Flexible Office Space on Developer Leased Property. Notwithstanding anything
to the contrary in this Agreement, Developer shall be permitted to develop the 200,000 square
feet of additional office floor area described in Recital E on the Developer Leased Property
without further discretionary action by the City, so long as the retail floor area is decreased by
200,000 square feet and the total square footage of the proposed development does not exceed
1,516,000 square feet.
4.
FEES, CONDITIONS, PUBLIC BENEFITS, AND AUDIT RIGHTS.
4.1
Temporary Fee Rebate. Within thirty (30) days following the end of each
calendar quarter during the Term, Developer shall submit to City written evidence of all City
Fees and Charges paid during the preceding calendar quarter. Within fifteen (15) days after
submission of such written evidence, City shall notify Developer of any deficiencies in the
evidence submitted by Developer and/or any need for additional information. Developer shall
provide such information as is reasonably requested by City in response to any request therefor.
Within sixty (60) days after receipt of sufficient documentation of the payment of City Fees and
Charges, City shall remit to Developer fifty percent (50%) of said City Fees and Charges. The
procedures set forth in this Section 4.1 shall continue until the earlier of (i) the expiration of the
Term, and (ii) such time as the total amount of City Fees and Charges rebated to Developer
equals the Maximum Fee Sharing Amount. Notwithstanding anything to the contrary in this
Agreement, Developer shall only be eligible for the temporary fee rebate provided in this Section
4.1 if and after it makes the election under Section 6.1 to build the Enhanced Project.
4.2
Other Fees and Charges. Except as specifically set forth in this Section 4, nothing
set forth in this Agreement is intended or shall be construed to limit or restrict City’s authority to
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impose, on new development within the City, new fees, charges, assessments, or taxes that apply
to the development of the Property or that increase any existing fees, charges, assessments, or
taxes that apply to the development of the Property, and nothing set forth herein is intended or
shall be construed to limit or restrict whatever right Developer might otherwise have to challenge
any fee, charge, assessment, or tax either not set forth in this Agreement or not in effect as of the
Effective Date. In connection therewith, and subject to the partial rebate of City Fees and
Charges provided in Section 4.1, Developer shall timely pay all applicable fees, charges,
assessments, and special and general taxes validly imposed in accordance with the Constitution
and laws of the State of California. Notwithstanding the foregoing, City represents that it has no
current plans to increase any City Fees and Charges.
4.3
[RESERVED]
4.4
Accounting and Review.
4.4.1 Maintenance of Books and Records. Developer (and/or its successor(s) in
interest) shall cause to be prepared and maintained complete, proper and accurate books,
accounts and records of all matters or amounts relevant to any calculation of any and all sums
owed to or by City under this Agreement, including without limitation the City Fees and Charges
subject to rebate under Section 4.1, the Grant Amount under Section 6.3.2, and the Fire Station
Construction Costs under Section 8 so that said payments can be accurately determined for all
relevant periods; provided, however, that City shall not have a right of audit of the temporary fee
rebate under Section 4.1 or the Grant Amount under Section 6.3.2 unless developer elects under
Section 6.1 to build the Enhanced Project. All such books, accounts and records, including true
copies of all revenue and other income statements and tax returns, shall be maintained at
Developer's (and/or its successor(s) in interest) address in Southern California, or at another
location reasonably designated by each Development Party in Southern California, for a period
of at least five (5) calendar years after the expiration of the year during which the same relates.
4.4.2 Allocation of Costs and Expenses. In allocating any item of cost, expense,
receipts or income to a particular portion of the Property, commercially reasonable real estate
accounting principles, consistently applied, shall be utilized.
4.4.3 Non-Waiver By City. The acceptance by the City of a payment, or the
provision by City to Developer of a payment, required by this Agreement shall be without
prejudice to the City's right to examine and to audit Developer's (and/or its successor(s) in
interest) books, accounts and records to verify the accuracy of any information supplied by
Developer (and/or its successor(s) in interest), and to challenge the accuracy and validity of any
such payment(s). Developer (and/or its successor(s) in interest) shall make available to the City
and the City's designated representatives for inspection during normal business hours at a
business location of Developer (and/or its successor(s) in interest) located in Southern California,
or at another location reasonably designated by Developer (and/or its successor(s) in interest) in
Southern California, on twenty (20) business days' advance written notice, all of Developer's
(and/or its successor(s) in interest's) books, accounts and records relating to the development of
the Property (and all matters which are the subject of this Agreement), which books, accounts
and records may be copied or extracted in whole or in part by the City or the City's designated
representatives, but which will be maintained by City as proprietary and confidential business
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information to the extent permitted by the California Public Records Act (Government Code
section 6250, et seq.), the Ralph M. Brown Act (Government Code section 54950, et seq.) and/or
any other applicable state or federal laws respecting the disclosure of information held by a
public agency.
4.4.4
[RESERVED]
4.4.5 Survival of Audit Rights. Notwithstanding any provision of this
Agreement to the contrary, all of the City's rights under this Agreement to audit and review any
calculations or information submitted thereunder and collect any payments due the City shall
survive any expiration of this Agreement as follows: (i) if Developer elects under Section 6.1 to
build the Enhanced Project, then any audit right of the temporary fee rebate amounts under
Section 4.1 shall continue until two (2) years following the final payment of a rebate amount
under Section 4.1; (ii) if Developer elects under Section 6.1 to build the Enhanced Project, then
any audit right of the Grant Amount under Section 6.3.2 shall continue until two (2) years after
the expiration of the Operating Period; (iii) the City’s audit right of the Fire Station Construction
Costs under Section 8 shall continue until three (3) years after the issuance of a Certificate of
Occupancy for the Fire Station.
5.
GENERAL DEVELOPER COVENANTS
5.1
Commencement of Improvements and Completion.
In accordance with
Section 3.6, Developer shall commence and complete, or cause to be commenced and completed,
at Developer's sole cost and expense the construction of the Improvements. Developer shall be
responsible for all costs of developing the Base Project and/or the Enhanced Project, which
includes all costs for construction, alteration, demolition, installation, and repair work, and all
costs for pre-development and pre-construction associated therewith, including inspection and
land surveying work, for the Improvements. Once construction has commenced, Developer shall
use commercially reasonable efforts to proceed to complete or cause to be completed the Base
Project and/or the Enhanced Project in a good and workmanlike manner.
5.2
Large Format and Remaining Commercial Development Retailers. All Large
Format Retail Development and Remaining Commercial Development shall be operated under
one of the retail brand names set forth in Exhibit "H" or such other retail brand name approved
by City, in its sole and absolute discretion.
5.3
[RESERVED].
5.4
City Right to Inspect. Officers, employees, agents and representatives of City
shall have the right of reasonable access to the Property, without the payment of charges or fees,
during normal construction hours, during the period of construction and operation of the Base
Project and/or the Enhanced Project. Developer shall make a representative or Developer
available to accompany City representatives onto the Property, at all times, during normal
construction hours, upon reasonable advance notice from City. Developer understands and
agrees that any such City inspections are for the sole purpose of protecting City's rights under
this Agreement, are made solely for City's benefit, that City's inspections may be superficial and
general in nature, and are for the purposes of informing City of the progress of the construction
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of the Base Project and/or the Enhanced Project in a manner consistent with the terms and
conditions of this Agreement, and that Developer shall not be entitled to rely on any such
inspection(s) as constituting City's approval, satisfaction or acceptance of any materials,
workmanship, conformity of the Base Project and/or the Enhanced Project with this Agreement
or otherwise. Developer agrees to make its own regular inspections of the work of construction
of the Base Project and/or the Enhanced Project to determine that the quality of the
improvements and all other requirements of the work of construction of the Base Project and/or
the Enhanced Project are being performed in a manner satisfactory to Developer.
5.5
Developer Attendance at City Meetings. Developer shall ensure that one or more
of its employees or consultants who are knowledgeable regarding this Agreement and the
construction and installation of the Improvements, such that such person(s) can meaningfully
respond to City questions regarding the progress of the Improvements and attend meetings of the
City Council and City staff, when reasonably requested to do so by City staff ("Developer
Representative"). Developer shall identify the Developer Representative in writing to City
within 30 days of the Effective Date, and shall identify any changes in the identity of the
Developer Representative in writing to City immediately upon such change.
5.6
Maintenance Covenant.
covenants and agrees that:
Developer for itself, its successors and assigns,
5.6.1 General Maintenance of Property. The areas of the Property that are
subject to public view (including all improvements and the existing and future improvements,
paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained in good
repair and a neat, clean and orderly condition, ordinary wear and tear excepted. If at any time
prior to the end of the Term, there is an occurrence of a Maintenance Deficiency, then City may
notify Developer in writing of the Maintenance Deficiency. If Developer fails to cure or
commence and diligently pursue to cure the Maintenance Deficiency within thirty (30) calendar
days of its receipt of notice of the Maintenance Deficiency, City shall have the right to enter the
Property, as necessary, and perform all acts necessary to cure the Maintenance Deficiency, or to
take any other action at law or in equity that may then be available to City to accomplish the
abatement of the Maintenance Deficiency. Any sum expended by City for the abatement of a
Maintenance Deficiency, as authorized by this Section, shall become the debt of Developer. If
the amount of the debt is not paid by Developer within thirty (30) calendar days after written
demand for payment from City to Developer, City shall have the right to enforce collection by
any available legal means including without limitation the withholding of the amount of the debt
from any future payments and/or rebates to Developer under this Agreement.
5.6.2 Graffiti. Graffiti, as defined in Government Code Section 38772, that has
been applied to the Improvements and that is visible from any public right-of-way adjacent or
contiguous to the Property shall be removed by Developer by either painting over the evidence
of such vandalism with a paint that has been color-matched to the surface on which the paint is
applied, or graffiti may be removed with solvents, detergents or water, as appropriate. If any
such graffiti is not removed within seventy two (72) hours following the time of written notice
from City to Developer of the discovery of the graffiti, City shall have the right to enter the
Property, as necessary, and remove the graffiti, without further notice to Developer. Any sum
actually expended by City for the abatement of the graffiti, as authorized by this Section, shall
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become the debt of Developer. If the amount of the debt is not paid by Developer within thirty
(30) calendar days after written demand for payment from City to Developer, City shall have the
right to enforce collection by any available legal means including without limitation the
withholding of the amount of the debt from any future annual Grant payment under this
Agreement.
5.6.3 Lien Rights. The obligations of Developer and its successors and assigns
under this Section 5.6 shall be secured by a lien against the Property. Developer hereby grants to
the City a security interest in the Property with the power to establish and enforce a lien or other
encumbrance against the Property, in the manner provided in Civil Code Sections 2924, 2924b
and 2924c, to secure the obligations of the Developer and it successors under this Section,
including Legal Costs and other costs of the City associated with the abatement of a Maintenance
Deficiency or removal of graffiti. This Agreement shall provide notice of such security interest
in favor of the City. The City shall reasonably subordinate its lien rights under this Section to
security instruments or leases securing bonafide financing from Institutional Lenders to the
Developer for construction of the Base Project and/or the Enhanced Project, upon written request
from Developer and on the condition that Developer reimburse the City all of its costs (including
Legal Costs) incurred in providing such subordination.
6.
DEVELOPER COVENANTS RELATING TO THE ENHANCED PROJECT
6.1
Developer Election To Develop Enhanced Project. At any time during the first
five (5) years following the Effective Date, Developer may in its sole and absolute discretion
elect to develop the Enhanced Project. Such an election shall be effective upon the provision of
notice of such election in writing to the City.
6.2
Applicability of Base Project Covenants. If, pursuant to Section 6.1, Developer
elects to develop the Enhanced Project, the following covenants, in addition to those set forth in
Article 5 shall remain applicable and binding upon the parties.
6.3
Operating Covenant. The provision to City of an election to develop the
Enhanced Project pursuant to Section 6.1, shall constitute Developer’s binding commitment to be
bound by the Operating Covenant contained in this Section 6.3, which consists of the following
terms and conditions:
6.3.1 Conduct of Required Operations. During the Operating Period, Developer
hereby covenants and agrees to diligently endeavor to continuously conduct or cause to be
conducted the Required Operations on the Property. The failure of Developer to maintain the
Required Operations during any Compliance Year within Operating Period shall, inter alia,
excuse the City from the obligation to make any annual Grant payment pursuant to Section 6.3.2
for that Compliance Year.
6.3.2 Annual Grant Payment. Subject to Developer's continued compliance
under this Agreement, on or before June 30 following each calendar year during Operating
Period in which Developer maintains the Required Operations, City agrees to pay Developer the
Grant Amount, provided, however, that City shall not be required to pay the Grant Amount for
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any calendar year during which Sales Tax Revenues do not equal a minimum of Two Million
Five Hundred Thousand Dollars ($2,500,000).
6.3.3 Certification. Within forty-five (45) days following the end of each
Compliance Year for which Developer claims an entitlement to receive an annual Grant Amount,
Developer shall file a Certification.
6.3.4 Use Restriction. Throughout the Operating Period, the Property shall
include buildings and facilities sufficient to support the Required Operations.
6.3.5 Covenant to Maintain Property on Tax Rolls. Developer covenants to
cause the Property to remain on the County of Los Angeles secured real property tax rolls,
continuously, throughout the Term, and to pay all property taxes regarding the Property and all
improvements on or to the Property before delinquency, throughout the Term. Notwithstanding
the foregoing, the City may, in its sole and absolute discretion, and upon written request of
Developer, consent to a use of a portion of the Property that would cause said portion of the
Property to be removed from the County of Los Angeles secured real property tax rolls.
6.3.6 No Conveyance to Tax Exempt Entity. Developer covenants and agrees
that throughout the Term, neither Developer, nor its successors or assigns, shall Transfer all or
any portion of the Property to any Person or use all or any portion of the Property for any use,
that is partially or wholly exempt from the payment of property taxes or that would cause the
exemption of the payment of all or any portion of property taxes otherwise assessable regarding
the Property, without the prior written consent of the City, which may be given or withheld in the
City’s sole and absolute discretion. Developer acknowledges and agrees that the covenants
contained in this Section are material to the City and its decision to enter into this Agreement, as
the City receives significant financing from property tax revenues from development within the
City and that any violation of such covenants will result in financial injury to the City by
depriving the City of property tax revenues from all or a portion of the Property or the Base
Project and/or the Enhanced Project. Additionally, Developer acknowledges and agrees that the
restrictions on Transfers set forth in this Section are reasonable under the circumstances because
of the City’s interest in property tax revenues from the Property. Notwithstanding the foregoing,
Developer and City acknowledge that upon its transfer in accordance with Section 8 of this
Agreement, ownership of the Fire Station Site may be held by a tax exempt entity and/or the Fire
Station Site may be used for purpose that is exempt from taxation, and such ownership and/or
use shall not require any further consents under this Section 6.3.6.
6.3.7 Quality of Improvements. Developer shall cause the Improvements for
the Enhanced Project to be constructed in a first class manner and at an average cost of no less
than two hundred thirty five dollars ($235.00) per square foot, adjusted on an annual basis from
and after the Effective Date based on the year-over-year change in the California Highway
Construction Cost Index (or, if the California Highway Construction Cost Index is discontinued,
a substantially similar index selected by the City). All improvements will be maintained in a
condition substantially identical (or better) than their original condition. All Large Format Retail
Development and Remaining Commercial Development shall be operated under one of the retail
brand names set forth in Exhibit "H" or such other retail brand name approved by City, in its sole
and absolute discretion.
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6.4
Covenants Running with the Land. The provisions of this Article 6 shall be
covenants running with the land of the Property during the Operating Period for the benefit of
and shall be enforceable solely by the City in its sole discretion.
7.
NON-DISCRIMINATION
7.1
Obligation to Refrain from Discrimination. Developer covenants and agrees for
itself, its successors, its assigns and all persons claiming under or through them to the Property or
any part thereof, that there shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, marital status, ancestry or
national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
Property, nor shall Developer itself, or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, or sublessees of the
Property. The foregoing covenants shall run with the land and shall remain in effect during the
Extended Term.
7.2
Form of Non-discrimination and Non-segregation Clauses. Developer covenants
and agrees for itself, its successors, its assigns, and all persons claiming under or through them to
the Property that Developer, such successors and such assigns shall refrain from restricting the
sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Property on the
basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person.
All deeds, leases or contracts pertaining to all or any portion of the Property shall contain or be
subject to substantially the following non-discrimination or non-segregation covenants:
7.2.1 In deeds. "The grantee herein covenants by and for itself, its successors
and assigns, and all persons claiming under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on account of race, color, creed,
religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, sub-tenants, or sub-lessees in the premises herein conveyed. The foregoing
covenants shall run with the land."
7.2.2 In leases. "The Lessee herein covenants by and for itself, its successors
and assigns, and all persons claiming under or through them, and this lease is made and accepted
upon and subject to the following conditions: That there shall be no discrimination against or
segregation of any person or group of persons, on account of race, color, creed, religion, sex,
marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sub-lessees, or sub-tenants in the premises herein leased."
7.2.3 In contracts. "There shall be no discrimination against or segregation of
any person or group of persons on account of race, color, creed, religion, sex, marital status.
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national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person
claiming under or through it, establish or permit any such practice or practices or discrimination
or segregation with reference to the selection, location, number, use, or occupancy, of tenants,
lessees, sub-lessees, or sub-tenants of the premises herein transferred." The foregoing provision
shall be binding upon and shall obligate the contracting party or parties and any subcontracting
party or parties, or other transferees under the instrument.
8.
FIRE STATION DEDICATION AND DEVELOPMENT.
8.1
Election to Require Development of Fire Station Site. At any time during the
twenty-five years period following the Effective Date, City may request in writing that
Developer begin design and ultimately construct the Fire Station on the Fire Station Site. Upon
issuing such request in writing, and upon furnishing approved specifications for the development
of the Fire Station to Developer, Developer shall be required to diligently commence design and
other predevelopment activities, and to diligently proceed to the completion of construction of
the Fire Station on the Fire Station Site. City shall reasonably cooperate with Developer and
developer shall reasonably cooperate with City in facilitating the construction of the Fire Station
on the Fire Station Site. The Parties completion of construction of the Fire Station on the Fire
Station Site shall occur within twenty four (24) months after the City issues its request that
Developer begin design and ultimately construct the Fire Station on the Fire Station Site, but said
timeline shall be extended based on force majeure events under Section 9.4, and based on
unreasonable delays in the issuance of permits or authorizations from governmental authorities.
8.2
Design and Construction Costs. Developer shall bear all costs, fees, burdens, and
charges associated with the design, permitting, construction and delivery of the Fire Station in a
manner that conforms to the specifications furnished by City pursuant to Section 8.1. City shall
waive all City Fees and Charges in connection with the development and construction of the Fire
Station, and such waived amount shall not be included in the Maximum Fee Amount.
8.3
Subdivision of Fire Station Site. Within two years following the issuance of a
Certificate of Occupancy for the Fire Station, Developer and City shall cause the Fire Station
Site to be a separately saleable property through the filing of a condominium map, or such other
procedure for rendering the Fire Station Site saleable as the Parties may mutually agree upon.
8.4
Developer's Rental of Fire Station to City. Upon issuance of a Certificate of
Occupancy for the Fire Station, City and Developer shall enter into the Fire Station Lease. This
Agreement creates a present obligation to enter into the Fire Station Lease. All material terms
and requirements to be included in the Fire Station Lease have been included in this Agreement,
and any additional matters included by mutual consent in the Fire Station Lease shall be fully
consistent with the terms set forth in this Agreement.
8.5
Conveyance of Fire Station and Fire Station Site to City. Upon payment by City
to Developer of the Fire Station Construction Costs, which shall be paid by City to Developer as
rent over a period of twenty (20) years, the Fire Station Lease shall terminate. Upon the
termination of the Fire Station Lease, Developer shall convey fee title to the Fire Station, the Fire
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Station Site and all improvements and fixtures thereon to City, and the Fire Station Lease shall
be terminated with such termination.
9.
DEFAULT, REMEDIES, AND TERMINATION.
9.1
Notice and Opportunity to Cure. Before this Agreement may be terminated or
action may be taken to obtain judicial relief, the Party seeking relief ("Non-Defaulting Party")
shall comply with the notice and cure provisions of this Section 9.1. A Nondefaulting Party in
its discretion may elect to declare a default under this Agreement in accordance with the
procedures hereinafter set forth for any failure or breach of any other Party ("Defaulting Party")
to perform any material duty or obligation of said Defaulting Party in accordance with the terms
of this Agreement. However, the Non-Defaulting Party must provide written notice to the
Defaulting Party setting forth the nature of the breach or failure and the actions, if any, required
by the Nondefaulting Party to cure such breach or failure. The Defaulting Party shall be deemed
in "default" of its obligations set forth in this Agreement if the Defaulting Party has failed to take
action and cured the default within fifteen (15) days after the date of such notice (for monetary
defaults), within thirty (30) days after the date of such notice (for non-monetary defaults), or
within such lesser time as may be specifically provided in this Agreement. If, however, a nonmonetary default cannot be cured within such thirty (30) day period, as long as the Defaulting
Party does each of the following, then the Defaulting Party shall not be deemed in breach of this
Agreement: (i) notifies the Non-Defaulting Party in writing with a reasonable explanation as to
the reasons the asserted default is not curable within the thirty (30) day period; (ii) notifies the
Non-Defaulting Party of the Defaulting Party's proposed course of action to cure the default;
(iii) promptly commences to cure the default within the thirty (30) day period; (iv) makes
periodic reports to the Non-Defaulting Party as to the progress of the program of cure; and
(v) diligently prosecutes such cure to completion. Notwithstanding the foregoing, the Defaulting
Party shall be deemed in default of its obligations set forth in this Agreement if said breach or
failure involves the payment of money but the Defaulting Party has failed to completely cure
said monetary default within fifteen (15) days (or such lesser time as may be specifically
provided in this Agreement) after the date of such notice.
9.2
Default Remedies. Subject to Section 9.3, in the event of a default, the NonDefaulting Party, at its option, may institute legal action to cure, correct, or remedy such default,
enjoin any threatened or attempted violation, enforce the terms of this Agreement by specific
performance, or pursue any other legal or equitable remedy. Furthermore, City, in addition to or
as an alternative to exercising the remedies set forth in this Section 9.2, in the event of a material
default by Developer, may give notice of its intent to terminate or modify this Agreement
pursuant to the City Development Agreement Regulations and/or the Development Agreement
Statute, in which event the matter shall be scheduled for consideration and review by the City
Council in the manner set forth in the City Development Agreement Regulations and/or the
Development Agreement Statute.
9.3
Developer’s Exclusive Remedy. The Parties acknowledge that City would not
have entered into this Agreement if it were to be liable in damages under or with respect to this
Agreement, or the Existing Land Use Regulations, or the application thereof, or any permit or
approval sought by Developer in accordance with the Existing Land Use Regulations.
Accordingly, Developer covenants on behalf of itself and its successors and assigns, not to sue
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City for damages or monetary relief for any breach of this Agreement or arising out of or
connected with any dispute, controversy or issue regarding the application, interpretation or
effect of this Agreement, the Existing Land Use Regulations, or any land use permit or approval
sought in connection with the development or use of the Property or any portion thereof, the
Parties agreeing that declaratory and injunctive relief, mandate, and specific performance shall
be Developer’s sole and exclusive judicial remedies. Notwithstanding the foregoing, the Parties
acknowledge and agree that Developer may seek specific performance of City’s monetary
obligations under this Agreement, and that such an action for specific performance shall not be
construed as an action for damages.
9.4
Force Majeure. The obligations by any Party hereunder shall not be deemed to be
in default where delays or failures to perform are due to any cause without the fault and beyond
the reasonable control of such Party, including to the extent applicable, the following: war;
insurrection; strikes; walk-outs; the unavailability or shortage of labor, material, or equipment;
riots; floods; earthquakes; the discovery and resolution of hazardous waste or significant
geologic, hydrologic, archaeological, paleontological, or endangered species problems on the
Property; fires; casualties; acts of God; governmental restrictions imposed or mandated by other
governmental entities; with regard to delays of Developer's performance, delays caused by City's
failure to act or timely perform its obligations set forth herein; with regard to delays of City's
performance, delays caused by Developer's failure to act or timely perform its obligations set
forth herein; inability to obtain necessary permits or approvals from other governmental entities;
enactment of conflicting state or federal statutes or regulations; judicial decisions; or litigation
not commenced by such Party. Notwithstanding the foregoing, any delay caused by the failure
of City or any agency, division, or office of City to timely issue a license, permit, or approval
required pursuant to this Agreement shall not constitute an event of force majeure extending the
time for City's performance hereunder. If written notice of such delay or impossibility of
performance is provided to the other Parties within a reasonable time after the commencement of
such delay or condition of impossibility, an extension of time for such cause will be granted in
writing for the period of the enforced delay, or longer as may be mutually agreed upon by the
Parties in writing, or the performance rendered impossible may be excused in writing by the
Party so notified. In no event shall adverse market or financial conditions constitute an event of
force majeure extending the time for such Party’s performance hereunder. Unless the parties
agree in writing to the contrary, in no event shall the Term of this Agreement be extended by an
event of force majeure.
10.
ANNUAL REVIEW.
10.1 Timing of Annual Review. During the Term of this Agreement, at least once
during every twelve (12) month period from the Effective Date, after receipt of each annual
Certification from Developer, City shall review the good faith compliance of Developer with the
terms of this Agreement ("Annual Review"). The Annual Review shall be conducted by the
City Council or its designee in accordance with the City Development Agreement Regulations.
10.2 Standards for Annual Review. During the Annual Review, Developer shall be
required to demonstrate good faith compliance with the terms of this Agreement. If City or its
designee finds and determines that Developer has not complied with any of the terms or
conditions of this Agreement, then City may declare a default by Developer in accordance with
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Article 9 herein. City may exercise its rights and remedies relating to any such event of default
only after the period for curing a default as set forth in Article 9 has expired without cure of the
default. The costs incurred by City in connection with the Annual Review process shall be paid
by Developer.
10.3 Certificate of Compliance. With respect to each year in which City approves
Developer's compliance with this Agreement, City shall, upon written request by Developer,
provide Developer with a written certificate of good faith compliance within thirty (30) days of
City's receipt of Developer's request for same.
11.
MORTGAGEE RIGHTS.
11.1 Encumbrances on the Property. The Parties hereto agree that this Agreement
shall not prevent or limit Developer, in any manner, from encumbering the Property or any
portion thereof or any improvements thereon with any Mortgage securing financing with respect
to the construction, development, use, or operation of the Base Project and/or the Enhanced
Project.
11.2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of
any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render
invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, and any
acquisition or acceptance of title or any right or interest in or with respect to the Property or any
portion thereof by a Mortgagee (whether pursuant to foreclosure, trustee's sale, deed in lieu of
foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of
this Agreement and any such Mortgagee who takes title to the Property or any portion thereof
shall be entitled to the benefits arising under this Agreement.
11.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Article 11, a
Mortgagee will not have any obligation or duty pursuant to the terms set forth in this Agreement
to perform the obligations of any of Developer or other affirmative covenants of Developer
hereunder, or to guarantee such performance, except that (i) the Mortgagee shall have no right to
develop the Property under the Existing Land Use Regulations without fully complying with the
terms of this Agreement and (ii) to the extent that any covenant to be performed by Developer is
a condition to the performance of a covenant by City, the performance thereof shall continue to
be a condition precedent to City's performance hereunder.
11.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure. Each Mortgagee
shall, upon written request to City, be entitled to receive written notice from City of the results of
the Annual Review and of any default by Developer of its obligations set forth in this
Agreement. Each Mortgagee shall have a further right, but not an obligation, to cure such
default within fifteen (15) days after receipt of such notice (for monetary defaults), within thirty
(30) days after receipt of such notice (for non-monetary defaults) or, if such default can only be
remedied or cured by such Mortgagee upon obtaining possession of the Property, such
Mortgagee shall have the right to seek to obtain possession with diligence and continuity through
a receiver or otherwise, and to remedy or cure such default within thirty (30) days after obtaining
possession, and, except in case of emergency or to protect the public health or safety, City may
not exercise any of its judicial remedies set forth in this Agreement until expiration of such thirty
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(30) day period; provided, however, that in the case of a default which cannot with diligence be
remedied or cured within such thirty (30) day period, the Mortgagee shall have such additional
time as is reasonably necessary to remedy or cure such default provided Mortgagee promptly
commences to cure the default within the thirty (30) day period and diligently prosecutes such
cure to completion.
12.
ASSIGNMENT.
12.1 Right to Assign. Subject to City’s prior written consent, which shall not be
unreasonably withheld, Developer shall have the right to assign its rights and obligations under
this Agreement in connection with a Transfer of Developer's interest in the Property. In the
event of any such assignment, the assignee shall be liable for the performance of the assigned
obligations of Developer. In determining whether to grant consent to an assignment under this
Section, factors that may be considered by the City include, but are not limited to, the extent of
the assignee’s ownership interest in the Property (or any portion thereof), the desire to have the
master developer of the Property hold substantially all of the rights under the Agreement, the
assignee’s demonstrated experience in developing and/or operating projects of like kind and
scale as the Base Project (or the Enhanced Project, if Developer makes the election authorized by
Section 6.1), the assignee’s commitment to develop and maintain the Base Project (or the
Enhanced Project, if Developer makes the election authorized by Section 6.1), and the financial
ability of the assignee to complete development and/or maintain operation of the Base Project (or
the Enhanced Project, if Developer makes the election authorized by Section 6.1). In the event
of Transfers to end users such as those who will develop Large Format Retail Development or
Remaining Commercial Development, if such Transfer(s) is/are approved by the City, such
transferee(s) shall inure to the benefits and burdens of this Agreement; provided, however, that
such transferee(s) shall not receive the benefits of set forth in Section 4.1 and Section 6.3.
12.2 Release Upon Transfer of Agreement. Upon the written consent of City to the
partial or complete assignment of this Agreement (which consent shall not be unreasonably
withheld) and the express written assumption in a form approved by City of such assigned
obligations of Developer under this Agreement by the assignee, Developer shall be relieved of its
legal duty to perform the assigned obligations set forth in this Agreement, except to the extent
Developer is in default hereunder prior to said transfer.
12.3 Assignee Subject to Terms of Agreement. Following an assignment or transfer of
any of the rights and interests of Developer set forth in this Agreement in accordance with
Sections 12.1 and 12.2, the assignee’s exercise, use, and enjoyment of the Property shall be
subject to the terms of this Agreement to the same extent as if the assignee or transferee were
Developer.
12.4 Release Upon Transfer of Interest in Leased Property. Upon the written consent
of City to the partial or complete transfer of Developer’s interest in the Leased Property pursuant
to Section 13.01 of that certain Ground Lease By and Between City of Downey and Industrial
Realty Group, LLC, dated on or about December 4, 2003 (which consent shall not be
unreasonably withheld) and the express written assumption in a form approved by City of such
assigned obligations of Developer under said Ground Lease by that assignee, Developer shall be
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relieved of its legal duty to perform the assigned obligations set forth in said Ground Lease,
except to the extent Developer is in default thereunder prior to said transfer.
13.
INSURANCE AND INDEMNITY.
13.1
Insurance.
13.1.1 Base Project Insurance. Developer shall procure and maintain on the
Developer Leased Property the insurance required under that certain Ground Lease dated
December 4, 2003 between City and Industrial Realty Group, LLC, a Nevada limited liability
company.
13.1.2 Enhanced Project Insurance. If Developer elects under Section 6.1 to
build the Enhanced Project, then Developer shall procure and maintain insurance on the Property
in the types and amounts required under that certain Ground Lease dated December 4, 2003
between City and Industrial Realty Group, LLC, a Nevada limited liability company.
13.1.3 Insurance Does Not Relieve Liability. Insurance coverage in the
minimum amounts set forth in this Agreement shall not be construed to relieve Developer of any
liability, whether within, outside, or in excess of such coverage, and regardless or solvency or
insolvency of the insurer that issues the coverage; nor shall it preclude City from taking such
other actions as are available to it under any other provision of this Agreement or otherwise at
law.
13.1.4 Default for Failure to Maintain Insurance. Failure by Developer to
maintain all insurance required by this Agreement in effect at all times shall be a default by
Developer under this Agreement. City, at its sole option, may exercise any remedy available to
it in connection with such default. Additionally, City may purchase any such required insurance
coverage and City shall be entitled to immediate payment from Developer for any premiums and
associated costs paid by City for such insurance coverage. Any election by City to purchase or
not to purchase insurance for Developer’s contractor shall not relieve Developer of its obligation
to obtain and maintain the insurance coverage required by this Agreement.
13.2
Indemnities by Developer.
13.2.1 General Indemnity. Developer agrees to indemnify, protect, defend, and
hold harmless the City Parties from and against any and all Claims which may arise, directly or
indirectly, from the acts, omissions, or operations of Developer or Developer’s agents,
contractors, subcontractors, agents, or employees pursuant to this Agreement, but excluding any
loss resulting solely from the intentional or active negligence of the City Parties.
Notwithstanding the foregoing, City shall have the right to select and retain counsel to defend
any such action or actions and Developer shall pay the cost thereof; provided, however, that the
Parties agree to attempt in good faith to coordinate and/or consolidate their defense of any Claim
that is subject to the indemnification provisions of this Section 13.2.
13.2.2 Prevailing Wage Indemnity and Notice to Developer of Labor Code
Section 1781. In connection with, but without limiting, the foregoing, Developer hereby
expressly acknowledges and agrees that the City is not by this Agreement affirmatively
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representing, and has not previously affirmatively represented, to the Developer or any
contractor(s) of Developer for any construction on or development on or adjacent to the
Property, in writing or otherwise, in a call for bids or any agreement or otherwise, that any work
to be undertaken on the Property, as may be referred to in this Agreement or construed under this
Agreement, is not a "public work," as defined in Section 1720 of the Labor Code or under DavisBacon, or under any similar existing or hereinafter enacted law or regulation. The Parties agree
that, in connection with the development and construction (as defined by applicable law) of the
Base Project (or the Enhanced Project if Developer makes the election authorized by Section
6.1), including, without limitation, any and all public works (as defined by applicable law),
Developer shall bear all risks of payment or non-payment of prevailing wages under California
law and/or federal law and/or the implementation of Labor Code Section 1781, as the same may
be amended from time to time, and/or Davis Bacon and/or any other similar law. With respect to
the foregoing, Developer shall be solely responsible, expressly or impliedly and legally and
financially, for determining and effectuating compliance with all applicable federal, state and
local public works requirements, prevailing wage laws, and labor laws and standards, and City
makes no representation, either legally and/or financially, as to the applicability or nonapplicability of any federal, state and local laws to the construction of the Base Project and/or the
Enhanced Project
Without limiting the foregoing, Developer shall indemnify, protect, defend and hold harmless the
City and its officers, employees, agents, representatives, and attorneys, with counsel reasonably
acceptable to City, from and against "increased costs" as defined in California Labor Code
Section 1781 (including City’s reasonable attorneys’ fees, court and litigation costs, and fees of
expert witnesses) in connection with the development or construction (as defined by applicable
law) of or on the Property, that results or arises in any way from (1) noncompliance by
Developer of the requirement, if and to the extent applicable, to pay federal or state prevailing
wages and hire apprentices; or (2) failure by Developer to provide any required disclosure or
identification as required by California Labor Code Sections 1720 et seq. including without
limitation specifically Section 1781, as the same may be amended from time to time. The
foregoing indemnity shall survive the expiration or earlier termination of this Agreement.
13.2.3 Environmental Indemnity. Developer agrees, in addition to any other
indemnity obligations of Developer to City under this Agreement or any other agreement
between the Parties and at Developer’s sole cost and expense, to indemnify, protect, defend, hold
harmless, (with counsel reasonably acceptable to City) the City Parties and each of them, from
and against any and all Environmental Losses that may, at any time, be imposed upon, incurred
or suffered by, or claimed, asserted or awarded against, City directly or indirectly relating to or
arising from any Environmental Matters arising during or as a result of Developer’s ownership or
use of the Property, but excluding any loss resulting solely from the intentional or active
negligence of the City Parties. Notwithstanding the foregoing, City shall have the right to select
and retain counsel to defend any such action or actions and Developer shall pay the cost thereof;
provided, however, that the Parties agree to attempt in good faith to coordinate and/or
consolidate their defense of any Environmental Losses that are subject to the indemnification
provisions of this Section 13.2.3. The indemnity provisions set forth in this Agreement shall
survive termination of this Agreement until the expiration of the statute of limitations for the
applicable Claim.
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13.3 Indemnification Procedures. Wherever this Agreement requires any indemnitor to
indemnify any indemnitee:
13.3.1 Prompt Notice. City shall promptly notify Developer in writing of any
Claim.
13.3.2 Cooperation. City shall reasonably cooperate with Developer’s defense,
provided Developer reimburses City’s actual reasonable out of pocket expenses (including Legal
Costs) of such cooperation.
13.3.3 Settlement. Any settlement shall require the prior written consent of both
City and Developer, which consent shall not be unreasonably withheld.
13.3.4 City Cooperation. City shall reasonably cooperate with Developer’s
defense, provided Developer reimburses City for its actual reasonable out of pocket expenses
(including Legal Costs) of such cooperation.
13.3.5 Insurance Proceeds. Developer’s obligations shall be reduced by net
insurance proceeds City actually receives for the matter giving rise to indemnification.
14.
THIRD PARTY LEGAL CHALLENGE.
14.1 Developer Covenant to Defend this Agreement. Developer acknowledges that
City is a "public entity" and/or a "public agency" as defined under applicable California law.
Therefore, City must satisfy the requirements of certain California statutes relating to the actions
of public entities, including, without limitation, CEQA. Also, as a public body, City’s action in
approving this Agreement, the Specific Plan, Maps, and/or any other current or future action of
City in connection with the approval or implementation of the Base Project and/or the Enhanced
Project may be subject to proceedings to invalidate this Agreement or mandamus. Developer
assumes the risk of and waives and releases any claims for delays and damages that may result to
Developer from any third-party legal actions related to City’s approval of this Agreement, the
activities contemplated under this Agreement, the Specific Plan, Maps, and/or any other current
or future action of City in connection with the approval or implementation of the Base Project
and/or the Enhanced Project, even in the event that an error, omission or abuse of discretion by
the City is determined to have occurred. If a third party files a legal action regarding City’s
approval of this Agreement, the pursuit of the activities contemplated by this Agreement, the
Specific Plan, Maps, and/or any other current or future action of City in connection with the
approval or implementation of the Base Project and/or the Enhanced Project, Developer shall
indemnify and defend the City, with legal counsel reasonably selected by the City, against such
third-party legal action, and shall pay all of the court costs, attorney fees, monetary awards,
sanctions, attorney fee awards, expert witness and consulting fees, and any expenses of any and
all financial or performance obligations resulting from the disposition of the legal action. If
Developer breaches its obligations to defend and indemnify City as detailed in this Section 14.1,
City may terminate this Agreement on thirty (30) calendar days’ written notice to Developer of
City’s intent to terminate this Agreement, referencing this Section 14.1, without any further
obligation on the part of City to perform the terms of this Agreement. Nothing contained in this
Section 14.1 shall be deemed or construed to be an express or implied admission that City is
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liable to Developer or any other person or entity for damages alleged from any alleged or
established failure of City to comply with any statute, including, without limitation, CEQA.
15.
MISCELLANEOUS.
15.1 Compliance with Applicable Law. Developer shall carry out the construction of
the Base Project and/or the Enhanced Project in accordance with all applicable laws, regulations,
and rules of Governmental Agencies, including without limitation all applicable federal and state
labor standards.
15.2 Covenants. The provisions of this Agreement shall constitute covenants which
shall run with the land comprising the Property for the benefit thereof, and the burdens and
benefits hereof shall bind and inure to the benefit of each of the Parties hereto and all successors
in interest to the Parties hereto.
15.3 Mutual Covenants. The covenants contained in this Agreement are mutual
covenants and constitute conditions precedent or concurrent to the subsequent or concurrent
performance by the Party benefited by the covenant(s).
15.4 Recordation of Agreement. This Agreement and any amendment, modification,
termination or cancellation of this Agreement shall be recorded against the Property in the
official records of the County Recorder by the Clerk of the City Council, within the period
required by Section 65868.5 of the Government Code. Developer authorizes the recording of all
such documents against the Property, and each and every parcel within the Property, whether
preceding, during or after the Extended Term.
15.5 Constructive Notice and Acceptance. Subject to Article 12, every person who
now or hereafter owns or acquires any right, title, or interest in or to any portion of the Base
Project and/or the Enhanced Project or the Property is and shall be conclusively deemed to have
consented and agreed to every provision contained herein, whether or not any reference to this
Agreement is contained in the instrument by which such person acquired an interest in the Base
Project and/or the Enhanced Project or the Property.
15.6 Successors in Interest. Subject to Section 12.1, the burdens of this Agreement
shall be binding upon and the benefits of this Agreement shall inure to all successors in interest
to the Parties. All provisions of this Agreement shall be enforceable as equitable servitudes and
constitute covenants running with the land of the Property. Subject to Section 12.1, each
covenant of this Agreement to do or refrain from doing some act regarding development of the
Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs
with every portion of the Property; and (iii) is binding upon Developer and each successor in
interest to Developer in ownership of the Property or any portion of the Property.
15.7 City Manager Implementation. City shall implement this Agreement through its
City Manager. The City Manager is hereby authorized by City to issue approvals, interpretations
or waivers and enter into certain amendments to this Agreement on behalf of City, to the extent
that any such action(s) does/do not materially or substantially change the Improvement or
increase the monetary obligations of City by more than Seventy-Five Thousand Dollars
($75,000) in the aggregate, provided, however, that in the event the Specific Plan allows certain
028110-0002/12-14-11/JTM/
-30-
approvals by the Community Development Director, his designee or the Community
Development Department, the procedures in the Specific Plan shall be followed. All other
actions shall require the consideration and approval of the City Council, unless expressly
provided otherwise by action of the City Council. Nothing in this Section 15.6 shall restrict the
submission to the City Council of any matter within the City Manager’s authority under this
Section 15.6, in the City Manager’s sole and absolute discretion, to obtain the City Council’s
express and specific authorization on such matter. The specific intent of this Section 15.6 is to
authorize certain actions on behalf of City by the City Manager, but not to require that such
actions be taken by the City Manager, without consideration by the City Council.
15.8 Political Reform Act. The Parties acknowledge that they are each aware of the
Political Reform Act. Each Party represents and warrants to the other that it is its full intention
to comply with all applicable provisions of the Political Reform Act.
15.9 Survival of Agreement. All of the provisions of this Agreement shall be
applicable to any dispute between the Parties arising from this Agreement, whether prior to or
following expiration or termination of this Agreement, until any such dispute is finally and
completely resolved between the Parties, either by written settlement, entry of a non-appealable
judgment or expiration of all applicable statutory limitations periods and all terms and conditions
of this Agreement relating to dispute resolution and limitations on damages or remedies shall
survive any expiration or termination of this Agreement.
15.10 Entire Agreement; Waivers and Amendments. This Agreement constitutes the
entire understanding and agreement of the Parties and supersedes all previous negotiations,
discussions, and agreements among the Parties with respect to all or part of the subject matter
hereof. No parole evidence of any prior or other agreement shall be permitted to contradict or
vary the terms of this Agreement. Failure by a Party to insist upon the strict performance of any
of the provisions of this Agreement by any other Party, or the failure by a Party to exercise its
rights upon the default of the other Party, shall not constitute a waiver of such Party’s right to
insist and demand strict compliance by the other Parties with the terms of this Agreement
thereafter. Any amendments or modifications to this Agreement must be in writing, signed by
duly authorized representatives of each of the Parties hereto, and recorded in the Official
Records of Los Angeles County, California.
15.11 Principles of Interpretation. No inference in favor of or against any Party shall be
drawn from the fact that such Party has drafted any part of this Agreement. The Parties have
both participated substantially in the negotiation, drafting, and revision of this Agreement, with
advice from legal and other counsel and advisers of their own selection. A word, term or phrase
defined in the singular in this Agreement may be used in the plural, and vice versa, all in
accordance with ordinary principles of English grammar, which shall govern all language in this
Agreement. The words "include" and "including" in this Agreement shall be construed to be
followed by the words: "without limitation." Each collective noun in this Agreement shall be
interpreted as if followed by the words "(or any part of it)," except where the context clearly
requires otherwise. Every reference to any document, including this Agreement, refers to such
document, as modified from time to time (excepting any modification that violates this
Agreement), and includes all exhibits, schedules, addenda and riders to such document. The
word "or" in this Agreement includes the word "and." Every reference to a law, statute,
028110-0002/12-14-11/JTM/
-31-
regulation, order, form or similar governmental requirement refers to each such requirement as
amended, modified, renumbered, superseded or succeeded, from time to time.
15.12 Incorporation of Recitals. The Recitals of fact set forth preceding this Agreement
are true and correct and are incorporated into this Agreement in their entirety by this reference.
15.13 Section Headings and Section and Article References. All section headings and
subheadings in this Agreement are inserted for convenience only and shall not be considered in
the construction or interpretation of this Agreement. All references to Section numbers shall be
construed to include any and all subsections of the referenced Section number. All references to
Articles shall be construed to include each and every section and subsection within the
referenced Article.
15.14 Singular and Plural. As used in this Agreement, the singular of any word includes
the plural.
15.15 Calculation of Time Periods. Unless otherwise specified, all references to time
periods in this Agreement measured in days shall be to consecutive calendar days, all references
to time periods in this Agreement measured in months shall be to consecutive calendar months
and all references to time periods in this Agreement measured in years shall be to consecutive
calendar years. Any reference to business days in this Agreement shall mean consecutive
business days.
15.16 Time of Essence. Time is of the essence in the performance of the provisions of
this Agreement as to which time is an element.
15.17 Further Actions and Instruments. Each of the Parties shall cooperate with and
provide reasonable assistance to the other Parties to the extent necessary to implement this
Agreement. Upon the request of a Party at any time, the other Parties shall promptly execute,
with acknowledgement or affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary to implement this
Agreement or to evidence or consummate the transactions contemplated by this Agreement.
15.18 Severability. If any term, provision, covenant, or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions of this Agreement shall continue in full force and effect, unless and to the extent the
rights and obligations of any Party has been materially altered or abridged by such holding.
15.19 Legal Expenses. In any Action proceeding between City and Developer, the
prevailing party in such Action shall recover all of its actual and reasonable costs and expenses
(whether or not the same would be recoverable pursuant to Code of Civil Procedure
Section 1033.5 or Civil Code Section 1717 in the absence of this Agreement), including expert
witness fees, attorney’s fees, and costs of investigation and preparation prior to the
commencement of the Action. However, such recovery shall not exceed the dollar amount of the
actual costs and expenses of the party from whom such recovery is sought for such same Action,
and such prevailing party shall not recover any costs and expenses in excess of the nonprevailing party’s expenses. The right to recover such costs and expenses shall accrue upon
028110-0002/12-14-11/JTM/
-32-
commencement of the Action, regardless of whether the Action is prosecuted to a final judgment
or decision.
15.20 No Third Party Beneficiaries. This Agreement and all of its terms, conditions,
and provisions are entered into only for the benefit of the Parties executing this Agreement (and
any successors in interest), and not for the benefit of any other individual or entity. In this
regard, the owner of any portion of the Property that does not timely enter into and perform this
Agreement or a substantially similar agreement with City shall have no benefit from, and shall
not be a beneficiary of, any of the provisions of this Agreement.
15.21 Relationship of Parties. 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 City and Developer
joint venturers or partners.
15.22 Development as a Private Undertaking. The Parties acknowledge and agree that
the development of the Development is a private development. Neither Party is acting as the
agent of the other in any respect pursuant to this Agreement and each Party is an independent
contracting entity, with respect to the terms, covenants and conditions contained in this
Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. Other than the relationship between City and Developer with respect to the
Developer Leased Property, the only relationship between City and Developer is that of a
government entity regulating the development of private property and the owner of such
property.
15.23 Inspection of Books and Records. Subject to the limitations set forth in Section
4.4.5, City shall have the right at all reasonable times, at City’s sole cost and expense, to inspect
the books and records of Developer relating to this Agreement, the Property, the Base Project
and/or the Enhanced Project, and any development approvals for the Base Project and/or the
Enhanced Project, to the extent relevant to City’s rights or obligations under this Agreement, but
excluding any proprietary information or attorney-client privileged communications. Developer
shall also have the right at all reasonable times, at Developer’s sole cost and expense, to inspect
the books and records of City relating to this Agreement, the Property, the Base Project and/or
the Enhanced Project, and any development approvals for the Base Project and/or the Enhanced
Project, to the extent relevant to Developer’s rights or obligations under this Agreement, but
excluding any proprietary information, closed-session information or attorney-client privileged
communications.
15.24 Estoppel Certificate. Any Party hereunder may, at any time, deliver written
notice to any other Party requesting such Party to certify in writing that, to the best knowledge of
the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the
Party; (ii) this Agreement has not been amended or modified either orally or in writing, or if so
amended, identifying the amendments; and (iii) the requesting Party is not in default in the
performance of its obligations set forth in this Agreement or, if in default, to describe therein the
nature and amount of any such defaults. A Party receiving a request hereunder shall execute and
return such certificate within sixty (60) days following the receipt thereof. Any third party
including a Mortgagee shall be entitled to rely on the Certificate.
028110-0002/12-14-11/JTM/
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15.25 Applicable Law; Venue. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of California. Any action at law or in equity
arising under this Agreement or brought by any Party hereto for the purpose of enforcing,
construing or determining the validity of any provision of this Agreement shall be filed and tried
in the Superior Court of the County of Los Angeles, State of California or the United States
District Court for the Central District of California, Los Angeles Division, and the Parties hereto
waive all provisions of law providing for the removal or change of venue to any other court.
15.26 Non-Liability of City Officers and Employees. No official, officer, employee,
agent or representative of City shall be personally liable to any of Developer or its shareholders,
partners, officers, employees, agents, respective, successors and/or assigns for any loss arising
out of or connected with this Agreement, the Existing Land Use Regulations, or the development
of the Property.
15.27 Non-Liability of Developer’s Officers and Employees. No official, officer,
employee, agent or representative of Developer shall be personally liable to any of the City
Parties for any loss arising out of or connected with this Agreement, the Existing Land Use
Regulations, or the development of the Property.
15.28 Notices. Any notice or communication required hereunder between City and
Developer must be in writing and may be given either personally, by registered or certified mail,
return receipt requested, or by facsimile transmission. If given by registered or certified mail, the
same shall be deemed to have been given and received on the date of actual receipt by the
addressee designated hereinbelow as the Party to whom the notice is sent. If personally
delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is
addressed. Notices delivered by facsimile transmission shall be deemed to have been given on
the first business day following the date of transmission to the facsimile number. A Party hereto
may at any time, by giving ten (10) days’ written notice to the other Parties hereto, designate any
other address in substitution of the address to which such notice or communication shall be
given. Such notices or communications shall be given to the Parties at their addresses set forth
below:
If to City:
City of Downey
City Hall
1111 Brookshire
Downey, CA 90241
Attn: City Manager
Telephone: (562) 904-7284
Telecopy: ____________
With a copy to:
Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626
Attn: Jeffrey T. Melching, Esq.
Telephone: (714) 641-5100
Telecopy: (714) 546-9035
028110-0002/12-14-11/JTM/
-34-
If to Developer:
Manarino Realty LLC
15615 Alton Parkway #450
Irvine, CA 92618
Attn: Robert A. Manarino
Telephone: (949) 748-7800
Telecopy: (949) 748-7807
With a copy to:
Allen Matkins Leck Gamble Mallory & Natsis LLP
Three Embarcadero Center, 12th Floor
San Francisco, CA 94111-4074
Attn: Sonia Ransom, Esq.
Telephone: (415) 837-1515
Telecopy: (415) 837-1516
15.29 Representation as to Ownership. Developer represents and warrants that
Developer is the owner in fee of the Developer Owned Property.
15.30 Representation as to Ownership. City represents and warrants that City is the
owner in fee of the Developer Leased Property.
15.31 Authority to Execute. Developer warrants and represents that (i) it is duly
organized and existing, (ii) it is duly authorized to execute and deliver this Agreement, (iii) by so
executing this Agreement, Developer is formally bound to the provisions of this Agreement,
(iv) Developer’s entering into and performance of its obligations set forth in this Agreement does
not violate any provision of any other agreement to which Developer is bound, and (v) there is no
existing or threatened litigation or legal proceeding of which Developer is aware which could
prevent Developer from entering into or performing its obligations set forth in this Agreement.
15.32 Authority to Execute. City warrants and represents that (i) it is duly organized
and existing, (ii) it is duly authorized to execute and deliver this Agreement, (iii) by so executing
this Agreement, City is formally bound to the provisions of this Agreement, (iv) City’s entering
into and performance of its obligations set forth in this Agreement does not violate any provision
of any other agreement to which City is bound, and (v) there is no existing or threatened
litigation or legal proceeding of which City is aware which could prevent City from entering into
or performing its obligations set forth in this Agreement.
15.33 Execution of Agreement; Counterparts. This Agreement may be executed by the
Parties in counterparts, each of which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement. This Agreement shall
constitute a valid and enforceable agreement between City and Developer.
15.34 Exhibits. This Agreement contains nine (9) exhibits, attached hereto and made a
part hereof by this reference. Said exhibits are identified as follows:
A
B
C
D
028110-0002/12-14-11/JTM/
Legal Description of Developer Owned Property
Depiction of Developer Owned Property
Legal Description of Developer Leased Property
Depiction of Developer Leased Property
-35-
E
F
G
H
I
Depiction of Property
Fire Station Site Plan
[RESERVED]
Pre-Approved Retail Development Brand Names
Pre-Approved Hotel Development Brand Names
[Signatures on next page]
028110-0002/12-14-11/JTM/
-36-
IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the
date first written above.
"CITY"
CITY OF DOWNEY,
a Charter City
By:
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
Yvette M. Abich Garcia
City Attorney
"DEVELOPER"
______________________
By: _____________________
Its: _____________________
028110-0002/12-14-11/JTM/
-37-
STATE OF CALIFORNIA
)
) ss
COUNTY OF LOS ANGELES)
On ____________________, before me, _________________________, 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 the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
____________________________________
Notary Public
[SEAL]
STATE OF CALIFORNIA
)
) ss
COUNTY OF LOS ANGELES)
On ____________________, before me, _________________________, 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 the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
____________________________________
Notary Public
[SEAL]
028110-0002/12-14-11/JTM/
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EXHIBIT "A"
Legal Description of Developer Owned Property
39
EXHIBIT "B"
Depiction of Developer Owned Property
40
EXHIBIT "C"
Legal Description of Developer Leased Property
41
EXHIBIT "D"
Depiction of Developer Leased Property
42
EXHIBIT "E"
Depiction of Property
43
EXHIBIT "F"
Depiction of Fire Station Site
44
EXHIBIT "G"
[RESERVED]
45
EXHIBIT "H"
Pre-Approved Retail Development Brand Names
SPORTING GOODS
90
BIG 5
CABELAS
DICKS SPORTING GOODS
GOLF SMITH
NIKE FACTORY STORE
ROGER DUNN
SPORT CHALET
SPORTMART
BASS PRO SHOP – OUTDOOR WORLD, TRACKER BOATS
SUPERCENTER
CALIFORNIA PIZZA KITCHEN
CEFIORE ITALIAN YOGURT
CHEESECAKE FACTORY
CHICAGO PIZZA & BREWERY
CLAIM JUMPER
CORNER BAKERY CAFE
DAILY GRILL
DAPHNE'S GREEK CAFE
EINSTEIN BROS BAGELS
FIVE GUYS FAMOUS BURGERS AND FRIES
FRESCA'S MEXICAN GRILL
HANAH GRILLE
ISLANDS RESTAURANTS
JOE'S CRAB SHACK HOLDINGS, INC.
JOHNNY ROCKETS
HABIT BURGER
LONE STAR STEAKHOUSE & SALOON INC.
MACARONI GRILL
MAGGIANO'S LITTLE ITALY
MCCORMICK & SCHMICK'S SEAFOOD RESTAURANTS
MEL'S DRIVE-IN
OLD SPAGHETTI FACTORY
ON THE BORDER MEXICAN GRILL & CANTINA
ORIGINAL ROADHOUSE GRILL
OUTBACK STEAKHOUSE
P.F. CHANG'S CHINA BISTRO, INC.
PARADISE BAKERY & CAFE
PEI WEI ASIAN DINER
PICK UP STIX, INC.
PORTILLO RESTAURANT GROUP
RED LOBSTER
RED ROBIN
RUBY'S DINER
SOUPLANTATION
T.G.I. FRIDAYS
WOOD RANCH
YARDHOUSE
TOYS, GAMES & ELECTRONICS
AT&T WIRELESS
BABIES R US
GAME STOP
T-MOBILE
TOYS R US
VERIZON WIRELESS
FRY’S
SPECIALTY DINING
AUNTIE ANNE'S PRETZEL
BAJA FRESH
BASKIN ROBBINS
BEN & JERRY'S
COFFEE BEAN & TEA LEAF
COLDSTONE CREAMERY
HOT DOG ON A STICK
JAMBA JUICE
LAMAJOON SHISH KABOB
MAUI STYLE HAWAIIAN BBQ
NIBI PHO BISTRO
ON THE BORDER
PANDA EXPRESS
PANERA BREAD
RED BRICK PIZZA
ROCKY MOUNTAIN CHOCOLATE FACTORY
ROLL IT SUSHI
SBARRO ITALIAN EATERY
STARBUCKS
SUBWAY
SWEET FACTORY
TOGO'S
TUTTI FRUTTI FROZEN YOGURT
YOGURTLAND
PINKBERRY
FARRELLS ICE CREAM PARLOR
FORMAL DINING
BOA STEAK HOUSE
CAFÉ R&D
FLEMINGS
HOUSTONS
KINGS SEAFOOD
LE GRAND ORANGE
MORTONS
ROY'S
SUSHI ROKU
TONY ROMAS
TORO'S
RUTH CHRIS STEAKHOUSE
CASUAL DINING
APPLEBEE'S
BENIHANA
BLACK ANGUS
BOSTON'S GOURMET PIZZA
BUBBA GUMP SHRIMP CO. RESTAURANTS
FOOTWEAR
ADIDAS
AEROSOLES
BASS
BENNETTON
46
CLAIRE'S
CLARKS/BOSTONIAN
CONVERSE
DC SHOES
DSW
ETNIES: EXS
FAMOUS FOOTWEAR
NINE WEST
OFF BROADWAY
PUMA
REEBOK
ROCKPORT
SHOE PAVILLION
SKETCHERS
SPRITZ
VANS
VINCE CAMUTO SHOES
VOLCOM
NIKE FACTORY STORE
NORDSTROM
NORDSTROM RACK
O'NEILL
PAOLO GIARDINI
PERRY ELLIS
QUICKSILVER
STEIN MART
T.J. MAXX
TILLY'S
TOMMY HILFIGER
U.S. POLO ASSN.
UNDER ARMOUR
VAN HEUSEN
WOMENS APPAREL
AEROPOSTLE
AMERICAN APPAREL
ANN TAYLOR
BANANA REPUBLIC
BCBGIRLS
BCBG/ MAXAZRIA
BENNETTON
BILLABONG
CABI
CALVIN KLEIN
CHARLOTTE RUSSE
CHARMING SHOPS
COLUMBIA SPORTSWEAR
DKNY
DOCKERS
DOT'S
DRESS BARN
ECKO UNLTD.
ESPIRIT
FILENE'S BASEMENT
FOREIGN EXCHANGE
FOSSIL
GAP, INC
GUESS
H&M
HANES BRANDS
HURLEY INTERNATIONAL
IZOD
JOURNEYS
JUICY COUTURE
JUSTICE
KENNETH COLE
KIPLING
LEVIS
LIDS
LUCKY BRAND JEANS
MAIDENFORM
MAXSTUDIO.COM
MICHAEL KORS
MICHAEL'S
NAUTICA
NIKE FACTORY STORE
NORDSTROM
NORDSTROM RACK
NOT YOUR DAUGHTERS JEANS
O'NEILL
PAPAYA FACTORY OUTLET
PERRY ELLIS
HOUSEWARES & HOME FURNISHING
3 DAY BLINDS
AARON BROTHERS
ANNA'S LINENS
BOMBAY COMPANY
CORNINGWARE CORELLE REVERE
COST PLUS
HOME GOODS (TJX COMPANY)
KITCHEN COLLECTION
LE CREUSET
LINENS N THINGS
MATTRESS GALLERY
PIER 1 IMPORTS
MEN'S APPAREL
AEROPOSTLE
AMERICAN APPAREL
BACHRACH
BANANA REPUBLIC
BENNETTON
BILLABONG
CALVIN KLEIN
COLUMBIA SPORTSWEAR
DC SHOES
DKNY
DOCKERS
ECKO UNLTD.
FILENE'S BASEMENT
FOSSIL
GAP, INC
GUESS
H&M
HANES BRANDS
HURLEY INTERNATIONAL
IZOD
JOURNEYS
JUICY COUTURE
KENNETH COLE
LEVIS
LIDS
LUCKY BRAND JEANS
MICHAEL KORS
MICHAEL'S
NAUTICA
47
QUICKSILVER
STEIN MART
SUO
T.J. MAXX
THE AVE
TILLY'S
TOMMY HILFIGER
TORRID
TREND THEORY
TWO LIPS
U.S. POLO ASSN.
ULTA
UNDER ARMOUR
TRADER JOE'S
TRUE VALUE
WELLS FARGO
WHOLEFOODS
WILSONS LEATHER
CHILDREN'S APPAREL
BABIES R US
CARTER'S
CHILDREN'S PLACE
KIDS BUDDIEZ
KIDS SUPERCENTER
OSHKOSH
STRIDE RITE
SPECIALTIES
24 HOUR FITNESS
ACE HARDWARE
ARIZONA LEATHER
BALLY'S
BARBEQUES GALORE
BARNES & NOBLE
BEVERAGES N MORE
BRISTOL FARMS
CALIFORNIA NATIONAL BANK
CHASE BANK
COACH
DAVIDS BRIDAL
DAVE AND BUSTERS
DESIGNER FRAGRANCES & COSMETICS
ECKO UNLTD.
FEDEX KINKOS
GELSONS SUPER MARKET
GOLD'S GYM
GYMBOREE
HAIR CUTTERS
HAIR SALON
HALLMARK
HANCOCK FABRICS
HENRY’S FARMERS MARKET
HILTON
JO-ANN FABRIC
KRAGEN
LIDS
NAIL SALON
OFFICE DEPOT
PACIFIC DENTAL
PARTY AMERICA
SAMSONITE COMPANY STORE
SMART & FINAL
SPROCKETS KIDS
SPROUTS MARKET
SUNGLASS HUT
TARGET
TIME FACTORY WATCH OUTLET
48
EXHIBIT "I"
Pre-Approved Hotel Development Brand Names
HILTON WORLDWIDE
LUXURY
CONRAD HOTELS & RESORTS
WALDORF ASTORIA HOTELS AND RESORTS
FULL SERVICE
HILTON HOTELS & RESORTS
DOUBLETREE BY HILTON
EMBASSY SUITES
FOCUSED SERVICE
HILTON GARDEN INN
HAMPTON INN
HAMPTON INN & SUITES
STARWOOD HOTELS AND RESORTS
SHERATON
WESTIN
W HOTELS
FOUR POINTS BY SHERATON
LE MÉRIDIEN
ST. REGIS
THE LUXURY COLLECTION
ALOFT
ELEMENT
MARRIOTT INTERNATIONAL
MARRIOTT HOTELS & RESORTS
JW MARRIOTT HOTELS & RESORTS
RENAISSANCE HOTELS
EDITION HOTELS
AUTOGRAPH COLLECTION
COURTYARD BY MARRIOTT
AC HOTELS BY MARRIOTT
RESIDENCE INN BY MARRIOTT
FAIRFIELD INN & SUITES BY MARRIOTT
MARRIOTT CONFERENCE CENTERS
TOWNEPLACE SUITES BY MARRIOTT
SPRINGHILL SUITES BY MARRIOTT
MARRIOTT VACATION CLUB
THE RITZ-CARLTON HOTEL COMPANY, L.L.C.
THE RITZ-CARLTON DESTINATION CLUB
EXECUSTAY
MARRIOTT EXECUTIVE APARTMENTS
GRAND RESIDENCES BY MARRIOTT
CROWNE PLAZA HOTELS
028110-0002/12-14-11/JTM/
EXHIBIT "I"
-1-
028110-0002/12-14-11/JTM/
EXHIBIT "I"
-1-
DOWNEY APPROVING TENTATIVE PARCEL MAP NO. 71543, AN
APPLICATION TO SUBDIVIDE THE 19.67 ACRE PARCEL THAT
ENCOMPASSES THE EASTERNMOST PART OF THE 77- ACRE DOWNEY
STUDIOS SITE, LOCATED AT 12214 LAKEWOOD BOULEVARD, INTO FOUR
(4) LOTS ON PROPERTY ZONED AMENDED DOWNEY LANDING SPECIFIC
PLAN.
ASSESSOR PARCEL NUMBER: 6256-004-909
APPLICANT: CITY OF DOWNEY
AUTHORIZED AGENT: MANARINO REALTY LLC
THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES HEREBY
RESOLVE AS FOLLOWS:
A. Tentative Parcel Map No. 71543 (the Application) was filed on June 9, 2011 by Mr.
Robert A. Manarino, the Authorized Agent, on behalf of the Applicant, the City of
Downey, requesting a parcel map under Section 9900 et seq. of the Downey
Municipal Code to subdivide the easterly 19.67 acres of the 77-acre former Downey
Studios site, located at 12214 Lakewood Boulevard, into four (4) parcels with the
following acreages: Parcel 1: 10.81 acres; Parcel 2: 0.126 acres; Parcel 3:
0.10acres; and Parcel 4: 8.64 acres. The lots that comprise Tentative Parcel Map
No. 71543 maintain the Amended Downey Landing Specific Plan zoning designation.
B. The Authorized Agent also filed three other applications in conjunction with Tentative
Parcel Map No. 71543 for the purpose of developing a 1.5 million square foot mixeduse project known as the Tierra Luna Marketplace, or the 2011 Revised Project, on
the 77-acre Downey Studios site. The three applications included PLN -11 – 00136,
which is a request to amend the Downey Landing Specific Plan, a Development
Agreement and Tentative Tract Map No. 71544.
C. The Los Angeles County Tax Assessor’s Office identifies the parcel under
consideration to be subdivided as assessor parcel number 6256-004-909.
D. The Planning Commission held a duly-noticed public hearing on December 21,
2011, and after fully considering all written and oral testimony and facts and opinions
offered at said public hearing adopted Resolution No. 11 - , approving Tentative
Parcel Map No. 71543.
SECTION 2. Having considered all of the oral and written evidence presented to
it at said public hearing, the Planning Commission finds, determines and declares that:
A. Proposed Tentative Parcel Map No. 71543 is consistent with the General Plan.
The Amended Downey Landing Specific Plan, which regulates all development
activities on the 19.67-acre project site, is consistent with the General Plan with
respect to permitted uses and floor area ratio; and Tentative Parcel Map No. 71543
complies with the Amended Plan’s development standards. Tentative Parcel Map
No. 71543 complies with the Amended Plan’s requirements regarding lot size and lot
Resolution No.
Planning Commission
dimensions. Therefore, the requested tentative parcel map is consistent with the
General Plan. Tentative Parcel Map No. 71543 is also consistent with the General
Plan from the standpoint that approving the tentative map and developing the project
associated with it, the Tierra Luna Marketplace, will implement several General Plan
programs whose purpose is job creation, and which in turn, will beneficially impact
the local economy. They include: (1) Program 1.1.3.1 Encourage land uses that
generate jobs; (2) Program 9.2.1.3 Promote employment that increases the daytime
population of the city thus creating customer demand for other businesses; and
(3) Program 9.2.2.1 Promote a diversified employment base with jobs in sectors in
addition to retail sales.
B. The site is physically suitable for the type of development proposed. Together, the
parcels that make up Tentative Parcel Map No. 71543 are physically suited for the
development proposal that is planned for the requested tentative parcel map site.
The project site is nearly level and no active earthquake faults have been identified
at the ground surface of any properties within Downey, according to the Safety
Chapter of the General Plan. And although the state Division of Mines has
designated the City of Downey as a liquefaction hazard zone, a requirement of the
City’s plan check process for construction requires submission of a geotechnical
report in conjunction with the project’s architectural plans in order to mitigate the
possibility of undermining a structure during an earthquake. Further, infrastructure,
fire protection, and water supply improvements are readily available, or will be
provided as conditions of the application’s approval in order to support the project
that is planned for the tentative map site.
C. The site is physically suitable for the proposed density of development. The four
parcels that comprise Tentative Parcel Map No. 71543 and which are intended to
support part of the Tierra Luna Marketplace development are physically suited to
accommodate this project. The tentative parcel map’s proposed lots conform with
the size and dimension requirements of the regulatory specific plan that oversees
project development at the site. Moreover, the site is large enough, slightly larger
than 19 acres, so the improvements that comprise the planned project will comply
with the development standards of the Amended Specific Plan.
D. The design of the tentative parcel map and its proposed improvements will not cause
substantial environmental damage or substantially and avoidably injure fish or
wildlife or their habitat. The site of Tentative Parcel Map No. 71543 is part of the
community’s built environment and has supported the affected site’s existing
improvements since the early 1930s. The 19-acre tentative map site is part of a
larger 77-acre site that supports seven buildings of various sizes, which together
total 1.5 million square feet. Further, an environmental impact report (EIR) was
prepared for Tentative Parcel Map No. 71543, along with companion Tentative Tract
Map No. 71544 and the Amended Downey Landing Specific Plan, which indicates
that although the planned development of Tentative Parcel Map No. 71543 may
have a significant and unavoidable impact on construction-related emissions, longterm operational emissions and construction-related noise, there are specific social,
economic and other considerations which make infeasible to implement the
mitigation measures for these impacts or select one of the other project alternatives
identified in the EIR.
Tentative Parcel Map No. 71543 – 12214 Lakewood Blvd.
December 21, 2011 – Page 2
Resolution No.
Planning Commission
E. The design of the tentative parcel map or type of improvements will not cause
serious public health problems. The design of Tentative Parcel Map No. 71543 has
been carefully laid out to avoid conditions that could result in serious public health
problems. Additionally, the prospective lots are of sufficient size to enable them to
comply with building setback requirements, yard requirements, fire separation areas
and satisfy parking requirements. Moreover, conditions of approval have been
imposed on the requested tentative parcel map to insure that project development
will not result in health problems
F. The design and configuration of Tentative Parcel Map No. 71543 and its
accompanying improvements will not conflict with the easements acquired by the
public at large for access through or use of the property within the proposed
subdivision. All such easements have been noted on the tentative map, reserved or
made a condition of tentative map approval, including vehicular and pedestrian
easements and access easements to public utilities on private property for inspection
and maintenance purposes.
G The design and configuration of Tentative Parcel Map No. 71543 will result in
parcels that are more than adequate in size to enable the orientation of future
buildings to take advantage of natural and passive cooling opportunities. The
tentative map’s four parcels are more than adequate in size to take advantage of
passive cooling opportunities.
H. The conditions imposed on Tentative Parcel Map No. 71543 and described in
Exhibit A are necessary to preserve the health, safety and general welfare of the
community and enable the Planning Commission to make the findings set forth in
this section. Furthermore, the conditions are fair and reasonable for the
accomplishment of these purposes.
Report (Final EIR) have been prepared for the Tierra Luna Marketplace project,
including Tentative Parcel Map No. 71543, in accordance with the provisions of the
California Environmental Quality Act (CEQA), State CEQA Guidelines and the City of
Downey’s Revised Procedures for Implementing CEQA. Prior to approving the
proposed tentative parcel map, the Planning Commission considered the Final EIR, the
comments received during the environmental document’s public review period and
responses to the comments. Based on the Final EIR and submitted comments and
responses, the Planning Commission finds, determines and declares that although the
proposed Tierra Luna Marketplace project may have significant and unavoidable
adverse impacts, the Commission makes the finding according to Subsection (3 ) of
Public Resources Code Section 21081 that specific economic, legal, social,
technological and other considerations make infeasible the mitigation measures or the
SECTION 4. The Planning Commission of the City of Downey hereby adopts by
reference the following documents attached to the Resolution Recommending
Certification of the Final Environmental Impact Report for the Tierra Luna Specific Plan,
A Proposed Amendment to the Downey Landing Specific Plan: (1) Exhibit D - Statement
of Findings of Fact; (2) Exhibit E - Statement of Overriding Considerations; and (3)
Exhibit F – Mitigation Monitoring and Reporting Program.
Resolution No.
Planning Commission
SECTION 5. The Planning Commission hereby certifies the Final EIR, as
complete and adequate, and determines that the Final EIR was prepared in compliance
with the requirements of CEQA, the State CEQA Guidelines, and the City of Downey’s
Revised Procedures for Implementing CEQA. Based on the findings set forth above, the
Planning Commission hereby approves Tentative Parcel Map No. 71543, subject to the
above-referenced documents, and the conditions of approval attached hereto as Exhibit
A.
the Planning Commission of the City of Downey at a regular meeting thereof, held on the
AYES:
NOES:
ABSTAIN:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
Resolution No.
Planning Commission
EXHIBIT A---Conditions of Approval
Tentative Parcel Map No. 71543
Planning Division
1.
This tentative parcel map approval involves subdividing the easternmost 19.67
acres of the 77-acre Downey Studios site at 12214 Lakewood Boulevard into four
(4) parcels, identified as Parcels 1 through 4 on Tentative Parcel Map No. 71543.
Parcels 1, 2, 3 and 4 total 10.81 acres, 0.12 acres, 0.10 acres and 8.64 acres,
respectively, as shown on the approved parcel map, dated June 9, 2011.
Deviations or exceptions from this tentative map shall not be permitted without
the approval of the City Planning Commission.
2.
The Planning Commission shall retain jurisdiction to amend or add conditions
with a public notice and public hearing to assure compatibility with the purpose
and intent of the Amended Downey Landing Specific Plan and the
Comprehensive Zoning Ordinance and to protect the health, safety and welfare.
3.
All conditions of Tentative Parcel Map No. 71543 shall be complied with before
this parcel map is recorded, unless otherwise noted.
4.
If City approval is contingent upon any changes to the parcel map, as submitted,
the Applicant shall submit three (3) copies of the revised map, incorporating all
approved amendments, overlays, modifications, etc. to the Planning Division
prior to the issuance of building permits.
5.
This approval shall expire 24 months from the date the Planning Commission
approves the tentative map.
6.
The applicant shall enter into and record a Reciprocal Easement Agreement prior
to recordation of the final map.
7.
All developments in excess of $500,000.00 valuation that involve the construction
or reconstruction of light industrial or commercial uses shall be subject to the
Public Arts Program. The applicant shall either install public art on their property
or pay a cash payment, not to exceed $150,000.00, equal to the public arts fee in
accordance with the City of Downey Manual for Arts in Public Places.
8.
The applicant shall incorporate anti-graffiti elements into the building design,
such as non-porous coating on exterior wall surfaces, plant materials, and antigraffiti film on windows, subject to the approval of the City Planner.
9.
Tentative Parcel Map No. 71543 shall not become valid until the City Council of
the City of Downey adopts the Amended Downey Landing Specific Plan.
10.
The City Council shall accept Final Parcel Map No. 71543 before the City of
Downey issues any building permits for the lots that comprise Map No. 71543,
except the permits that are required to satisfy the application’s conditions of
approval.
Resolution No.
Planning Commission
11.
The Mitigation Monitoring Program for Alternative F (2011 Revised Project)
contained in the Final EIR for the Tierra Luna Specific Plan, dated September,
2011, shall be implemented before the City of Downey issues a Certificate of
Occupancy for any of the project’s buildings.
Building & Safety Division
12.
Separate sewer shall be constructed to each building to the standards of the City
Engineering and Building & Safety Divisions or a sewer covenant shall be
recorded with the Los Angeles County recorder, and a copy filed with the City
Planning Division.
13.
All electrical and telephone utilities shall be installed underground or at the rear
lot lines to the standards of the City Engineering and Building & Safety Divisions.
14.
All new electrical panels shall be the Underground Service Panel Type.
15.
Title 24 Disabled Access requirements shall be followed.
16.
Obtain all required plan approvals and permits.
Fire Department
17.
A water system supporting domestic use, fire flow requirements and strategic fire
department access for emergency operation(s) will be designed according to the
Fire Code and City of Downey Fire Department requirements in affect at the time
building permits are issued.
18.
Fire hydrant specifications and locations will be determined based on Fire Code
and City of Downey Fire Department requirements in effect at the time building
permits are issued.
19.
Understanding that some stores may have certain fire/life safety requirements of
their own, which requirements may be above and beyond the minimum code
requirements, the Applicant should read and consider those Downey Municipal
Code Sections related to fire / life safety that will most likely impact portions of
the proposed project (available on the city’s website):
SECTION 3307
SECTION 3309
SECTION 3311
SECTION 3316
SECTION 3317
SECTION 3318
CONSTRUCTION PLAN DOCUMENTS REQUIRED
REQUIREMENT FOR SUBMISSION OF ELECTRONIC
PLANS
NEW MATERIALS, PROCESSES, OR OCCUPANCIES
WHICH MAY REQUIRE PERMITS
FIRE ALARMS
REQUIREMENTS FOR THE INSTALLATION OF
AUTOMATIC FIRE EXTINGUISHING SYSTEMS
AUTOMATIC FIRE EXTINGUISHING SYSTEMS IN
ASSEMBLY OCCUPANCIES
Resolution No.
Planning Commission
SECTION 3320
SECTION 3321
SECTION 3326
SECTION 3327
SECTION 3328
SECTION 3329
SECTION 3331
SECTION 3332
SECTION 3402
SECTION 3403
SECTION 3404
SECTION 3405
SECTION 3406
SECTION 3407
SECTION 3408
SECTION 3409
SECTION 3411
FIRE LIFE SAFETY PROVISIONS FOR HIGHRISE
BUILDINGS, CAMPUS FACILITIES, AND SPECIAL
STRUCTURES
MONITORING OF FIRE ALARM SYSTEMS
ELEVATOR SIZING FOR EMERGENCY
TRANSPORTATION EQUIPMENT
DESIGNATION OF FIRE LANES AND TURN AROUND
SPECIFICATIONS
REQUIREMENTS FOR FIRE SAFETY DURING
CONSTRUCTION OF CERTAIN WOOD FRAME
BUILDINGS
REQUIREMENT FOR IN BUILDING COMMUNICATION
SYSTEM
ESTABLISHMENT OF LIMITS OF DISTRICTS IN WHICH
STORAGE OF FLAMMABLE OR COMBUSTIBLE
LIQUIDS IN OUTSIDE ABOVEGROUND TANKS IS
PROHIBITED
STORAGE OF LIQUEFIED PETROLEUM GASES IS
PROHIBITED
DEFINITIONS (Hazardous Materials)
DESIGNATION OF A HAZARDOUS MATERIAL
FILING OF A HAZARDOUS MATERIAL DISCLOSURE
FORM
DISCLOSURE OF INFORMATION
CONTENT OF THE DISCLOSURE FORM
EXEMPTIONS FROM DISCLOSURE
IDENTIFICATION
ON-SITE UTILIZATION OF MSDS AND OCCUPANCY
FLOOR PLANS
RMPP REQUIREMENTS – NEW/MODIFIED FACILITIES
20.
The Applicant agrees to prepare and submit a fire / life safety alarm plan to the
City of Downey Fire Department prior to the issuance of the first building permit.
21.
The Applicant agrees to prepare and submit an accurate illustration of proposed
dedicated fire/emergency access to each building in the project to the City of
Downey Fire Department prior to the issuance of the first building permit.
22.
Any NPDES substructures must be built to support the weight of emergency
equipment operating on the surface above.
23.
During demolition and construction, the Applicant will direct the General
Contractor to be responsible for ensuring that all “spoils piles”, crusher outputs or
similar aggregate piles be maintained at a 2:1 maximum slope at the end of the
work day and over weekends to prevent accidental engulfments.
24.
Contractor to be responsible for ensuring that a drivable surface for emergency
access be maintained to locations where trench work and underground
structures are under construction. Clear demarcation of emergency access will
Resolution No.
Planning Commission
be coordinated through an assigned project safety officer / emergency service
liaison.
25.
The Applicant shall submit a Master Plan, which shall provide the capacity of the
fire mains serving the Project Site, to City of Downey Fire Department at the
initial plan check for review and approval. Any required upgrades shall be
identified and implemented prior to the issuance of building permits.
26.
The site design of the proposed project shall comply with all fire code and
ordinance requirements for building construction, emergency access, water
mains, fire flows, onsite automatic sprinklers, and hydrant placement in effect at
the time building permits are issued.
27. The site design of the proposed project shall provide adequate access for Fire
Department equipment and fire fighters onto and throughout the Project Site and
future structures, in accordance with Fire Code and City of Downey Fire
Department requirements in effect at the time building permits are issued.
28.
Fire hydrant specifications and locations will be determined based on the Fire
Code and City of Downey Fire Department requirements in effect at the time
Police Department
29.
The proposed project design shall be reviewed and approved by the Downey
Police Department pursuant to General Plan Program 5.4.2.6 prior to the
issuance of a building permit.
30.
Prior to the issuance of building permits, the applicant shall provide an onsite
security plan for the development, to be approved by the City of Downey and the
Downey Police Department. The security plan shall include the use of fixed post
License Plate Readers (LPR) at all of the development’s points of ingress/egress.
The applicant shall bear the cost of all LPRs and associated equipment.
Public Works/Utilities
31.
The owner/applicant shall dedicate:
a) A southbound right-turn deceleration lane (right-turn pocket) at the main
driveway entrance along Bellflower Boulevard frontage.
b) A 15-foot landscape easement along Bellflower Boulevard frontage (to
match existing).
32.
The parcel map shall be recorded with Los Angeles County with copies to the
City Engineering and Planning Divisions.
33.
The Applicant hereby consents to the annexation of the property into the Downey
City Lighting Maintenance District in accordance with Division 15 of the Streets
and Highways Code, and to incorporation or annexation into a new or existing
Benefit Assessment or Municipal Improvement District in accordance with
Division 10 and Division 12 of the Streets and Highways Code and/or Division 2
Resolution No.
Planning Commission
of the Government Code of the State of California. Public Works Department will
forward Zone II fee structure to applicant.
34.
The Applicant shall provide a fair-share contribution (based on the fair share
calculation provided by the city) towards the improvements (intersection widening
and additional turn lanes) proposed at the Bellflower Boulevard and Imperial
Highway intersection, to be constructed by the City (not to exceed $600,000.00).
35.
The Applicant shall install all utilities underground.
36.
The facility design must provide for refuse/recycle enclosure specifications
(location, size).
37.
The Applicant shall be required to complete a construction & demolition
(C&D) waste management plan per Article V, Chapter 8 of the Downey Municipal
Code.
38.
The Applicant shall complete the necessary upgrades/modifications to the
signalized intersection at Bellflower Boulevard and Washburn Road.
39.
The Applicant shall install improvements, which consists of a new traffic signal
and appurtenances at the intersection of Bellflower Boulevard and the project’s
main entrance (Aviation Boulevard).
40.
Miscellaneous conditions:
a. The Applicant shall submit an engineered grading plan and/or hydraulic
calculations and site drainage plan for the site (prepared and sealed by a
registered civil engineer in the State of California) for approval by the
Engineering Division and Building and Safety Division. All lot(s) shall not
have less than one (1%) percent gradient on any asphalt or non-paved
surface, or less than one quarter (1/4%) percent gradient on any concrete
surface. Provide the following information on plans: topographic site
information, including elevations, dimensions/location of
existing/proposed public improvements adjacent to project (i.e. street,
sidewalk, parkway and driveway widths, catch basins, pedestrian ramps);
the width and location of all existing and proposed easements, the
dimensions and location of proposed dedications; existing and proposed
underground utility connections); the location, depth and dimensions of
potable water, reclaimed water and sanitary sewer lines; chemical and
hazardous material storage, if any, including containment provisions; and
the type of existing use, including the gross square footage of the
building, and its disposition.
b. The Applicant shall construct/install curb, gutter, sidewalk, disabled
ramps, portland cement concrete driveway approaches, street trees (36inch box with 2-inch diameter trunk), street lights, and pavement along
property frontage to the standards of the Department of Public Works.
Broken, uneven, or sub-standard curb, gutter, sidewalk, driveway,
disabled ramps and pavement shall be replaced to the satisfaction of the
Public Works Department. Contact the Public Works Inspection Office at
Resolution No.
Planning Commission
(562) 904-7110 to have these areas identified just prior to initiating a
grading plan. The owner/applicant shall obtain all necessary plan
approvals and permits and shall provide that the standards of
improvements, construction materials, and methods of construction shall
be in conformance with the Standard Plans and Specification for Public
Works Construction and as modified by the City of Downey’s Standard
Plans and Specifications.
c. All driveway approaches shall be as wide as the driveway or parking aisle
they serve. All unused driveways shall be removed and reconstructed
with full-height curb, gutter and sidewalk.
d. The Applicant shall comply with the National Pollutant Discharge
Elimination System (NPDES) requirements of the Federal Clean Water
Act; the General Construction Activities Stormwater Permit (GCASP) of
the State Water Resources Control Board; the Standard Urban
Stormwater Mitigation Plan (SUSMP); and Ordinance 1142 of the
Downey Municipal Code (DMC). Furthermore, the owner/applicant shall
provide a design that incorporates vegetative swales and retains the first
0.75 inches of drainage onsite using either surface detention basins or
below grade facilities with flow in excess of the first 0.75 inches allowed to
overflow by underground drains to an existing Los Angeles County Public
Works storm drain so as to comply with the requirements of the Standard
Urban Stormwater Mitigation Plan (SUSMP) and Municipal Separate
Storm Water System; and is required to Certify and append Public Works
standard “Attachment A” to all construction and grading plans as required
by the LACoDPW Stormwater Quality Management Plan (SQMP).
e. The Applicant shall install a sewer main and sewer lateral (to the front
property line) for each lot in the subdivision, and shall provide that the
design and improvements of sewers shall be to the standards of the City
Engineering Division. Septic systems are not acceptable.
f.
The Applicant shall provide that all construction graffiti created as part of
this project in the public right of way to be removed.
g. The Applicant shall provide that no easements of any type be granted
over any portion of the subdivision to any agency, utility or organization
(private or public), except to the City of Downey prior to recordation of the
parcel map. The Applicant shall grant easements in the name of the City
and shall include:
• Vehicular easements
• Walkway easements
• Drainage easements
• Utility easements
h.
The Applicant shall submit scanned, uncompressed Tiff images of Parcel
Map No. 71543 on a CD-ROM media (AutoCAD 2000 or later).
i.
The Applicant shall submit a recorded mylar copy of the Final Map No.
71543, in a digital AutoCAD format file.
Resolution No.
Planning Commission
41.
The Applicant shall submit calculations at the initial plan check showing adequate
flow and pressure for fire and domestic water purposes in accordance with the
Department of Public Works and City of Downey Fire Department requirements.
42.
The Applicant shall design, furnish, and construct on-site looped potable and fire
water piping systems and all associated domestic and fire water services, water
main extensions and/or connections, fire hydrants, and associated
appurtenances and facilities necessary provide adequate domestic and fire water
flow and pressure to the development in accordance with City of Downey
standards.
43.
The owner/applicant shall design, furnish, and construct a minimum 1-inch
domestic water service line, meter, box, and backflow device for each unit per
City of Downey standards.
44.
Code and City of Downey Fire and Public Works Department requirements in
effect at the time Water Utility Plans are submitted. The Applicant shall design,
furnish, and construct fire department connections, fire hydrants and dedicated
(each parcel at minimum) fire protection laterals including backflow devices, and
other appurtenances as required by the Department of Public Works and the
Downey Fire Department. Such improvements may include removal and/or
replacement of existing fire hydrants, laterals, backflow devices, and associated
facilities with new facilities to current Downey standards and materials. Backflow
devices shall be screened from view by providing sufficient landscaping.
45.
Owner/applicant shall design, furnish, and construct backflow devices in
accordance with the City of Downey, California Department of Public Health
(DPH), and Los Angeles County (LAC) DPH requirements and standards.
Backflow devices and fire connections shall be privately owned and maintained
and readily accessible for emergency and inspection purposes.
46.
Owner/applicant shall design, furnish, and construct an on-site looped recycled
water piping system including the necessary recycled water main connections
and extensions, separate recycled water services/meters, and dual-plumbing
systems in and around proposed buildings for the use of recycled water for
landscape irrigation, non-potable plumbing, cooling towers, as approved by and
in accordance with the requirements and standards of the City of Downey,
California DPH, and LAC DPH.
47.
The Applicant is responsible for all City, County, State and other applicable plan
review and construction inspection and approval fees and permits.
48.
The Applicant shall provide and record utility easements for access to, and
inspection and maintenance of, public water lines, meters, appurtenances, and
backflow devices per City of Downey requirements.
49.
The applicant shall fund the City of Downey’s purchase of Central Basin
groundwater rights in an amount necessary to serve the projected potable water
demands of the development at build-out as determined by a water usage
Resolution No.
Planning Commission
analysis funded by the owner/applicant and agreed upon by the City. The total
amount of funding shall be based upon the prevailing market rate for
groundwater rights in the Central Basin.
50.
The Applicant shall fund its fair share of the costs necessary to design, furnish,
and construct a groundwater well to serve the projected potable and fire water
demands of the development at build out. The total amount of funding shall not
exceed $160,000 and be based upon projected potable and fire water demands
of the development at build-out as determined by a water usage analysis funded
by the owner/applicant and agreed upon by the City.
51.
The Applicant shall identify the points of connection for sanitary sewer laterals
and confirm that sufficient capacity exists in the publicly-owned facilities in
conformance with the requirements of the City of Downey and the County
Sanitation Districts of Los Angeles County (CSDLAC).
52.
The Applicant is responsible for coordinating with and payments to the City and
CSDLAC for all sanitary sewer connection and capacity charges.
53.
The Applicant shall provide improvement plan mylars, record drawing mylars,
and record drawing digital (AutoCAD – latest edition) files in accordance with the
requirements of the Department of Public Works that have been signed by a civil
engineer licensed in the State of California. Final approval of new improvements
shall be dependent upon submittal and approval of record drawing mylars and
scanned, uncompressed TIFF images of record drawings on a CD/DVD-ROM
media per City’s GIS Requirements.
Additional comments may arise during formal plan check review.
Resolution No.
Planning Commission
Attachment A
Storm Water Pollution Control Requirements for Construction Activities
Minimum Water Quality Protection Requirements for All Development
Construction Projects/Certification Statement
The following is intended as an attachment for construction and grading plans
and represent the minimum standards of good housekeeping which must be
implemented on all construction sites regardless of size.
Eroded sediments and other pollutants must be retained on site and may not be
transported from the site via sheetflow, swales, area drains, natural drainage
courses or wind.
Stockpiles of earth and other construction related materials must be protected
from being transported from the site by the forces of wind or water.
Fuels, oils, solvents and other toxic materials must be stored in accordance with
their listing and are not to contaminate the soil and surface waters. All approved
storage containers are to be protected from the weather. Spills must be cleaned
up immediately and disposed of in a proper manner. Spills may not be washed
into the drainage system.
Non-storm water runoff from equipment and vehicle washing and any other
activity shall be contained at the project site.
Excess or waste concrete may not be washed into the public way or any other
drainage system. Provisions shall be made to retain concrete wastes on site until
they can be disposed of as solid waste.
Trash and construction related solid wastes must be deposited into a covered
receptacle to prevent contamination of rainwater and dispersal by wind.
Sediments and other materials may not be tracked from the site by vehicle traffic.
The construction entrance roadways must be stabilized so as to inhibit sediments
from being deposited into the public way. Accidental depositions must be swept
up immediately and may not be washed down by rain or other means.
Any slopes with disturbed soils or denuded of vegetation must be stabilized so as
to inhibit erosion by wind and water.
Other
_____________________________________________________________
_____________________________________________________________
As the project owner or authorized agent of the owner, I have read and understand the
requirements listed above, necessary to control storm water pollution from sediments,
erosion, and construction materials, and I certify that I will comply with these
requirements.
Project Name: _________________________________________________________
Project Address: _______________________________________________________
Print Name ______________________________________
(Owner or authorized agent of the owner)
Signature _____________________________________ Date __________________
DOWNEY APPROVING TENTATIVE TRACT MAP NO. 71544, AN
APPLICATION TO RE-SUBDIVIDE THE TWO (2) PARCELS THAT COMPRISE
THE WESTERLY 57.78 ACRES OF THE DOWNEY STUDIOS SITE, LOCATED
AT 12214 LAKEWOOD BOULEVARD, INTO SIXTEEN (16) LOTS ON
PROPERTY ZONED AMENDED DOWNEY LANDING SPECIFIC PLAN,
ASSESSOR PARCEL NUMBER: 6256-004-036, 6256-040-020
APPLICANT: INDUSTRIAL REALTY GROUP, LLC, INC.
AUTHORIZED AGENT: MANARINO REALTY LLC
THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES HEREBY
RESOLVE AS FOLLOWS:
A. Tentative Tract Map No. 71544 (the Application) was filed on June 9, 2011 by Mr.
Robert A. Manarino, the Authorized Agent, on behalf of the Applicant, Industrial
Realty Group, LLC, Inc., requesting a tentative tract map under Section 9900 et seq.
of the Downey Municipal Code to subdivide the westerly 57.78 acres of the 77-acre
Downey Studios site at 12214 Lakewood Boulevard into sixteen (16) parcels. The
lots that comprise Tentative Tract Map No. 71544 maintain the Amended Downey
Landing Specific Plan zoning designation.
B. The Authorized Agent also filed three other applications in conjunction with Tentative
Tract Map No. 71544 for the purpose of developing a 1.5 million square foot mixeduse project known as the Tierra Luna Marketplace, or the 2011 Revised Project, on
the 77-acre Downey Studios site. The three applications included PLN -11 – 00136,
which is a request to amend the Downey Landing Specific Plan, a Development
Agreement and Tentative Parcel Map No. 71543.
C. The Los Angeles County Tax Assessor’s Office identifies the two parcels under
consideration to be subdivided as assessor parcel numbers 6256-004-036 and 6256004-020.
D. The Planning Commission held a duly-noticed public hearing on December 21,
2011, and after fully considering all written and oral testimony and facts and opinions
offered at said public hearing adopted Resolution No. 11 - , approving Tentative
Tract Map No. 71544.
SECTION 2. Having considered all of the oral and written evidence presented to
it at said public hearing, the Planning Commission finds, determines and declares that:
A. Proposed Tentative Tract Map No. 71544 is consistent with the General Plan.
The Amended Downey Landing Specific Plan is the regulatory document that
oversees all development activities involving the tentative map’s proposed parcels
and the amended plan’s provisions conform with the “Mixed Use” General Plan
category assigned to the site. Further, the shape and design of Tentative Tract Map
No. 71544’s lots are consistent with the provisions of the amended specific plan;
consequently, the requested tentative tract map is consistent with the General Plan.
Resolution No.
Planning Commission
In addition, approving Tentative Tract Map No. 71544 and developing the project site
in accordance with the tentative map will implement several General Plan programs
and a General Plan goal. The tentative map is an integral part of the Tierra Luna
Marketplace, and the project is expected to generate employment opportunities that
will have a beneficial effect throughout the local economy. Related General Plan
programs and a General Plan goal include: (1) Goal 9.1 Attract and retain
businesses; (2) Program 1.1.3.1 Encourage land uses that generate jobs; (3)
Program 9.2.1.3 Promote employment that increases the daytime population of the
city creating customer demand for other businesses; and (4) Program 9.2.2.1
Promote a diversified employment base with jobs in sectors in addition to retail sales.
B. The site is physically suitable for the type of development proposed. No active
earthquake faults have been identified along the ground surface of any of the
properties within Downey, according to the Safety Chapter of the General Plan. And
although the state Division of Mines has designated Downey as a liquefaction hazard
zone, a standard condition of the city’s architectural plan check process requires the
submittal of a geotechnical report in conjunction with a project’s architectural plans in
order to mitigate the possibility of undermining structures during earthquakes.
C. The site is physically suitable for the proposed density of development proposed.
The parcels that comprise Tentative Tract Map No. 71544 are physically suited to
accommodate the intensity and density of development that the amended specific
plan will permit, since they are of sufficient size to accommodate the plan’s permitted
uses, as well as satisfy its applicable development standards.
D. The design of the tentative tract map or its proposed improvements will not cause
substantial environmental damage or substantially and avoidably injure fish or
wildlife or their habitat. The site of Tentative Tract Map No. 71544 is part of the
community’s built environment and has supported the affected site’s existing
improvements since the early 1930s. The 57-acre tentative map site is part of a
larger 77-acre site that supports seven (7) buildings of various sizes, which together
total approximately 1.5 million square feet. Further, an environmental impact report
(EIR) was prepared for Tentative Tract Map No. 71544, along with a companion
parcel map (TPM No. 71543) and the proposed amendment to the Downey Landing
Specific Plan, which indicates that although the planned development of the tentative
tract map may have significant and unavoidable impacts on construction-related
emissions, long-term operational emissions and construction-related noise, there are
specific social, economic and other considerations which make infeasible the
mitigation measures for those mpacts or the other project alternatives identified in
the EIR.
E. The design of the subdivision or type of improvements will not cause serious public
health problems. The design of Tentative Tract Map 71544 has been carefully laid
out to avoid conditions that could result in serious public health problems. Further,
each proposed lot is large enough to comply with building setback, yard and fire
separation areas. Additionally, conditions of approval have been imposed on the
tentative map to insure that it will not result in health problems
F. The design and configuration of Tentative Tract Map No. 71544 and its
accompanying improvements will not conflict with the easements acquired by the
public at large for access through or use of property within the proposed subdivision.
Tentative Tract Map No. 71544 – 12214 Lakewood Blvd.
Resolution No.
Planning Commission
All such easements have been noted and reserved on the tentative map, including
vehicular and pedestrian and access easements to public utilities on private property
for the purpose of maintenance and inspection.
G The design and configuration of Tentative Tract Map No. 71544 and its
accompanying improvements will result in parcels that are more than adequate in
size to enable the orientation of future buildings to take advantage of natural and
passive cooling opportunities. The tentative map’s 16 parcels are more than
adequate in size to take advantage of passive cooling opportunities.
H. The conditions imposed on Tentative Tract Map No. 71544 and described in
Exhibit A are necessary to preserve the health, safety and general welfare of the
community and enable the Planning Commission to make the findings set forth in
this section. Furthermore, the conditions are fair and reasonable for the
accomplishment of these purposes.
Report (Final EIR) have been prepared for the Tierra Luna Marketplace project,
including Tentative Tract Map No. 71544, in accordance with the provisions of the
California Environmental Quality Act (CEQA), State CEQA Guidelines and the City of
Downey’s Revised Procedures for Implementing CEQA. Prior to approving the
proposed tentative tract map, the Planning Commission considered the Final EIR, the
comments received during the environmental document’s public review period and
responses to the comments. Based on the Final EIR and submitted comments and
responses, the Planning Commission finds, determines and declares that although the
proposed Tierra Luna Marketplace project may have significant and unavoidable
adverse impacts, the Commission makes the finding according to Subsection ( 3 ) of
Public Resources Code Section 21081 that specific economic, legal, social,
technological or other considerations make infeasible the mitigation measures or the
SECTION 4. The Planning Commission of the City of Downey hereby adopts by
reference the following documents attached to the Resolution Recommending
Certification of the Final Environmental Impact Report for the Tierra Luna Specific Plan,
A Proposed Amendment to the Downey Landing Specific Plan: (1) Exhibit D – Statement
of Findings of Fact; (2) Exhibit E – Statement of Overriding Considerations; and (3)
Exhibit F – Mitigation Monitoring and Reporting Program.
SECTION 5. The Planning Commission hereby certifies the Final EIR, as
complete and adequate, and determines that the Final EIR was prepared in compliance
with the requirements of CEQA, the State CEQA Guidelines, and the City of Downey’s
Revised Procedures for Implementing CEQA. Based on the findings set forth above, the
Planning Commission hereby approves Tentative Tract Map No. 71544, subject to the
above-referenced documents, and the conditions of approval attached hereto as Exhibit
A.
Resolution No.
Planning Commission
the Planning Commission of the City of Downey at a regular meeting thereof, held on the
AYES:
NOES:
ABSTAIN:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
Resolution No.
Planning Commission
EXHIBIT A---Conditions of Approval
Tentative Tract Map No. 71544
Planning Division
1.
This tentative tract map approval involves subdividing the westerly 57.78 acres of
the 77-acre Downey Studios site at 12214 Lakewood Boulevard into sixteen (16)
parcels, as shown on the approved tract map, dated June 9, 2011. Deviations
or exceptions from this tentative map shall not be permitted without the approval
of the City Planning Commission.
2.
The Planning Commission shall retain jurisdiction to amend or add conditions
with a public notice and public hearing to assure compatibility with the purpose
and intent of the Amended Downey Landing Specific Plan and the
Comprehensive Zoning Ordinance and to protect the health, safety and welfare.
3.
All conditions of Tentative Tract Map No. 71544 shall be complied with before the
tract map is recorded, unless otherwise noted.
4.
If City approval is contingent upon any changes to the tract map, as submitted,
the Applicant shall submit three (3) copies of the revised map, incorporating all
approved amendments, overlays, modifications, etc. to the Planning Division
prior to the issuance of building permits.
5.
This approval shall expire 24 months from the date the Planning Commission
approves the tentative map.
6.
The owner/applicant shall enter into and record a Reciprocal Easement
Agreement prior to recordation of the final map.
7.
All developments in excess of $500,000.00 valuation that involve the construction
of reconstruction of light industrial or commercial uses shall be subject to the
Public Arts Program. The applicant shall either install public art on their property
or pay a cash payment, not to exceed $150,000.00, equal to the public arts fee in
accordance with the City of Downey Manual for Arts in Public Places.
8.
The owner/applicant shall incorporate anti-graffiti elements into the building
design, such as non-porous coating on exterior wall surfaces, plant materials,
and anti-graffiti film on windows, subject to the approval of the City Planner.
9.
Tentative Tract Map No. 71544 shall not become valid until the City Council of
the City of Downey adopts the Amended Downey Landing Specific Plan.
10.
The City Council shall accept Final Tract Map No. 71544 before the City of
Downey issues building permits involving the lots that comprise the tract map,
except for those permits that are necessary to satisfy the application’s conditions
of approval.
11.
The Mitigation Monitoring Program for Alternative F (2011 Revised Project)
contained in the Final EIR for the Tierra Luna Specific Plan, dated September,
Resolution No.
Planning Commission
2011, shall be implemented before the City of Downey issues a Certificate of
Occupancy for any project building.
Building & Safety Division
12.
Separate sewer shall be constructed to each building to the standards of the City
Engineering and Building & Safety Divisions or a sewer covenant shall be
recorded with the Los Angeles County recorder, and a copy filed with the City
Planning Division.
13.
All electrical and telephone utilities shall be installed underground or at the rear
lot lines to the standards of the City Engineering and Building & Safety Divisions.
14.
All new electrical panels shall be the Underground Service Panel Type.
15.
Title 24 Disabled Access requirements shall be followed.
16.
Obtain all required plan approvals and permits.
Fire Department
17.
A water system supporting domestic use, fire flow requirements and strategic fire
department access for emergency operation(s) will be designed according to the
Fire Code and City of Downey Fire Department requirements in effect at the time
18.
Code and City of Downey Fire Department requirements in effect at the time
19.
Understanding that some stores may have certain fire/life safety requirements of
their own, which requirements may be above and beyond the minimum code
requirements, the Applicant should read and consider those Downey Municipal
Code Sections related to fire / life safety that will most likely impact portions of
the proposed project (available on the city’s website):
SECTION 3307
SECTION 3309
SECTION 3311
SECTION 3316
SECTION 3317
SECTION 3318
SECTION 3320
SECTION 3321
CONSTRUCTION PLAN DOCUMENTS REQUIRED
REQUIREMENT FOR SUBMISSION OF ELECTRONIC
PLANS
NEW MATERIALS, PROCESSES, OR OCCUPANCIES
WHICH MAY REQUIRE PERMITS
FIRE ALARMS
AUTOMATIC FIRE EXTINGUISHING SYSTEMS
AUTOMATIC FIRE EXTINGUISHING SYSTEMS IN
ASSEMBLY OCCUPANCIES
FIRE LIFE SAFETY PROVISIONS FOR HIGHRISE
BUILDINGS, CAMPUS FACILITIES, AND SPECIAL
STRUCTURES
MONITORING OF FIRE ALARM SYSTEMS
Resolution No.
Planning Commission
SECTION 3326
SECTION 3327
SECTION 3328
SECTION 3329
SECTION 3331
SECTION 3332
SECTION 3402
SECTION 3403
SECTION 3404
SECTION 3405
SECTION 3406
SECTION 3407
SECTION 3408
SECTION 3409
SECTION 3411
ELEVATOR SIZING FOR EMERGENCY
TRANSPORTATION EQUIPMENT
DESIGNATION OF FIRE LANES AND TURN AROUND
SPECIFICATIONS
REQUIREMENTS FOR FIRE SAFETY DURING
CONSTRUCTION OF CERTAIN WOOD FRAME
BUILDINGS
REQUIREMENT FOR IN BUILDING COMMUNICATION
SYSTEM
STORAGE OF FLAMMABLE OR COMBUSTIBLE
LIQUIDS IN OUTSIDE ABOVEGROUND TANKS IS
PROHIBITED
STORAGE OF LIQUEFIED PETROLEUM GASES IS
PROHIBITED
DEFINITIONS (Hazardous Materials)
DESIGNATION OF A HAZARDOUS MATERIAL
FILING OF A HAZARDOUS MATERIAL DISCLOSURE
FORM
DISCLOSURE OF INFORMATION
CONTENT OF THE DISCLOSURE FORM
EXEMPTIONS FROM DISCLOSURE
IDENTIFICATION
ON-SITE UTILIZATION OF MSDS AND OCCUPANCY
FLOOR PLANS
RMPP REQUIREMENTS – NEW/MODIFIED FACILITIES
20.
The applicant agrees to prepare and submit a fire / life safety alarm plan to the
City of Downey Fire Department prior to the issuance of the first building permit. .
21.
The Applicant agrees to prepare an accurate illustration of proposed dedicated
fire / emergency access to each building in the project to the City of Downey Fire
Department prior to the issuance of the first building permit.
22.
Any NPDES substructures must be built to support the weight of emergency
equipment operating on the surface above.
23.
Contractor to be responsible for ensuring that all “spoils piles”, crusher outputs or
similar aggregate piles be maintained at a 2:1 maximum slope at the end of the
work day and over weekends to prevent accidental engulfments.
24.
Contractor to be responsible for ensuring that a drivable surface for emergency
access be maintained to locations where trench work and underground
structures are under construction. Clear demarcation of emergency access will
be coordinated through an assigned project safety officer / emergency service
liaison.
Resolution No.
Planning Commission
25.
The Applicant shall submit a Master Plan, which shall provide the capacity of the
fire mains serving the project site, to the City of Downey Fire Department at the
initial plan check, for review and approval. Any required upgrades shall be
identified and implemented prior to issuance of building permits.
26.
The site design of the proposed project shall comply with all fire code and
ordinance requirements for building construction, emergency access, water
mains, fire flows, onsite automatic sprinklers, and hydrant placement in effect at
the time building permits are issued.
27.
The site design of the proposed project shall provide adequate access for Fire
Department equipment and fire fighters onto and throughout the Project Site and
future structures, in accordance with Fire Code and City of Downey Fire
Department requirements in effect at the time building permits are issued.
28.
Fire Department specifications and locations will be determined based on the
Fire Code and City of Downey Fire Department requirements in effect at the time
Police Department
29.
The proposed project design shall be reviewed and approved by the Downey
Police Department pursuant to General Plan Program 5.4.2.6 prior to the
issuance of a building permit.
30.
Prior to the issuance of building permits, the applicant shall provide an onsite
security plan for the development, to be approved by the City of Downey and the
Downey Police Department. The security plan shall include the use of fixed post
License Plate Readers (LPR) at all of the development’s points of ingress/egress.
The applicant shall bear the cost of all LPRs and associated equipment.
Public Works/Utilities
31.
The Applicant shall dedicate:
a) 16-ft right of way along the southerly line of Lot 12 and portion of Lot 11 to
match existing Congressman Stephen Horn Way parkway improvements.
b) 2 to 4-ft dedication needed along Columbia Way to match the existing
parkway width.
32.
The tract map shall be recorded with Los Angeles County, with copies to the
City Engineering and Planning Divisions.
33.
The Applicant shall execute an agreement for future improvements (i.e., double
South bound left-turn lanes) at the Lakewood/Columbia Way intersection (when
site generated traffic volume warrants the two left-turn lanes as determined by
the Department of Public Works). The design and construction of the double leftturn lane will be the applicant’s responsibility.
Resolution No.
Planning Commission
34.
The Applicant shall prepare and submit a street lighting plan along Columbia
Way between Congress Steve Horn Way (CSHW) and the main driveway
entrance on Lakewood Boulevard with underground service.
35.
The owner/applicant hereby consents to the annexation of the property into the
Downey City Lighting Maintenance District in accordance with Division 15 of the
Streets and Highways Code, and to incorporation or annexation into a new or
existing Benefit Assessment or Municipal Improvement District in accordance
with Division 10 and Division 12 of the Streets and Highways Code and/or
Division 2 of the Government Code of the State of California. Public Works
Department will forward Zone II fee structure to the Applicant.
36.
The applicant shall provide a fair-share contribution (based on a fair-share
calculation provided by the city) towards the improvements (intersection widening
and additional turn lanes) proposed at the Bellflower Boulevard and Imperial
Highway intersection, to be constructed by the city (not to exceed $600,000.00).
37.
The owner/applicant shall install all utilities underground.
38.
The facility design must provide for refuse/recycle enclosure specifications
(location, size).
39.
The owner/applicant shall be required to complete a construction & demolition
(C&D) waste management plan per Article V, Chapter 8 of the Downey Municipal
Code.
40.
Miscellaneous conditions:
a. The Applicant shall submit an engineered grading plan and/or hydraulic
calculations and site drainage plan for the site (prepared and sealed by a
registered civil engineer in the State of California) for approval by the
Engineering Division and Building and Safety Division. All lot(s) shall not
have less than one (1%) percent gradient on any asphalt or non-paved
surface, or less than one quarter (1/4%) percent gradient on any concrete
surface. Provide the following information on plans: topographic site
information, including elevations, dimensions/location of existing/proposed
public improvements adjacent to project (i.e. street, sidewalk, parkway and
driveway widths, catch basins, pedestrian ramps); the width and location of
all existing and proposed easements, the dimensions and location of
proposed dedications; existing and proposed underground utility
connections); the location, depth and dimensions of potable water, reclaimed
water and sanitary sewer lines; chemical and hazardous material storage, if
any, including containment provisions; and the type of existing use, including
the gross square footage of the building, and its disposition.
b. The Applicant shall construct/install curb, gutter, sidewalk, disabled ramps,
portland cement concrete driveway approaches, street trees (36-inch box
with 2-inch diameter trunk), street lights, and pavement along property
frontage to the standards of the Department of Public Works along Columbia
Way between Congressman Steve Horn Way and the main entrance on
Lakewood Boulevard. Broken, uneven, or sub-standard curb, gutter,
Resolution No.
Planning Commission
sidewalk, driveway, disabled ramps and pavement, shall be replaced to the
satisfaction of the Public Works Department. Contact the Public Works
Inspection Office at (562) 904-7110 to have these areas identified just prior to
initiating a grading plan. The Applicant shall obtain all necessary plan
approvals and permits and shall provide that the standards of improvements,
construction materials, and methods of construction shall be in conformance
with the Standard Plans and Specification for Public Works Construction and
as modified by the City of Downey’s Standard Plans and Specifications.
c. All driveway approaches shall be as wide as the driveway or parking aisle
they serve. All unused driveways shall be removed and reconstructed with
full-height curb, gutter and sidewalk.
d. The Applicant shall comply with the National Pollutant Discharge Elimination
System (NPDES) requirements of the Federal Clean Water Act; the General
Construction Activities Stormwater Permit (GCASP) of the State Water
Resources Control Board; the Standard Urban Stormwater Mitigation Plan
(SUSMP); and Ordinance 1142 of the Downey Municipal Code (DMC).
Furthermore, the Applicant shall provide a design that incorporates vegetative
swales and retains the first 0.75 inches of drainage onsite using either
surface detention basins or below grade facilities with flow in excess of the
first 0.75 inches allowed to overflow by underground drains to an existing Los
Angeles County Public Works storm drain so as to comply with the
requirements of the Standard Urban Stormwater Mitigation Plan (SUSMP)
and Municipal Separate Storm Water System; and is required to Certify and
append Public Works standard “Attachment A” to all construction and grading
plans as required by the LACoDPW Stormwater Quality Management Plan
(SQMP).
e. The Applicant shall install a sewer main and sewer lateral (to the front
property line) for each lot in the subdivision, and shall provide that the design
and improvements of sewers shall be to the standards of the City Engineering
Division. Septic systems are not acceptable.
f.
The owner/applicant shall provide that all construction graffiti created as part
of this project in the public right of way to be removed.
g. The Applicant shall provide that no easements of any type be granted over
any portion of the subdivision to any agency, utility or organization (private or
public), except to the City of Downey prior to recordation of the tract map.
The Applicant shall grant easements in the name of the City shall include:
•
•
•
•
Vehicular easements
Walkway easements
Drainage easements
Utility easements
h. The Applicant shall submit scanned, uncompressed TIFF images of Tract
Map No. 71544 on a CD-ROM media (AutoCAD 2000 or later).
Resolution No.
Planning Commission
i.
The Applicant shall submit a recorded mylar copy of the Final Tract Map No.
71544, a digital AutoCAD format file.
41. The Applicant shall submit calculations at the initial plan check showing
adequate flow and pressure for fire and domestic water purposes in accordance
with the Department of Public Works and City of Downey Fire Department
requirements.
42. The Applicant shall design, furnish, and construct on-site looped potable and fire
water piping systems and all associated domestic and fire water services, water
main extensions and/or connections, fire hydrants, and associated
appurtenances and facilities necessary to provide adequate domestic and fire
water flow and pressure to the development in accordance with City of Downey
standards.
43. The Applicant shall design, furnish, and construct a minimum 1-inch domestic
water service line, meter, box, and backflow device for each unit per City of
Downey standards.
44. Fire hydrant specifications and locations will be determined based on the Fire
Code and City of Downey Fire and Public Works Department requirements in
effect at the time Water Utility Plans are submitted. The Applicant shall design,
furnish, and construct fire department connections, fire hydrants and dedicated
(each parcel at minimum) fire protection laterals including backflow devices, and
other appurtenances as required by the Department of Public Works and the
Downey Fire Department. Such improvements may include removal and/or
replacement of existing fire hydrants, laterals, backflow devices, and associated
facilities with new facilities to current Downey standards and materials. Backflow
devices shall be screened from view by providing sufficient landscaping.
45. Owner/applicant shall design, furnish, and construct backflow devices in
accordance with the City of Downey, California Department of Public Health
(DPH), and Los Angeles County (LAC) DPH requirements and standards.
Backflow devices and fire connections shall be privately owned and maintained
and readily accessible for emergency and inspection purposes.
46. Owner/applicant shall design, furnish, and construct an on-site looped recycled
water piping system including the necessary recycled water main connections
and extensions, separate recycled water services/meters, and dual-plumbing
systems in and around proposed buildings for the use of recycled water for
landscape irrigation, non-potable plumbing, and cooling towers as approved by
and in accordance with the requirements and standards of the City of Downey,
California DPH, and LAC DPH.
47. The Applicant is responsible for all City, County, State and other applicable plan
review and construction inspection and approval fees and permits.
48. The owner/applicant shall provide and record utility easements for access to, and
inspection and maintenance of, public water lines, meters, appurtenances, and
backflow devices per City of Downey requirements.
Resolution No.
Planning Commission
49. The Applicant shall fund the City of Downey’s purchase of Central Basin
groundwater rights in an amount necessary to serve the projected potable water
demands of the development at build-out as determined by a water usage
analysis funded by the owner/applicant and agreed upon by the City. The total
amount of funding shall be based upon the prevailing market rate for
groundwater rights in the Central Basin.
50. The Applicant shall fund its fair share of the costs necessary to design, furnish,
and construct a groundwater well to serve the projected potable and fire water
demands of the development at build out. The total amount of funding shall not
exceed $160,000 and be based upon projected potable and fire water demands
of the development at build-out as determined by a water usage analysis funded
by the Applicant and agreed upon by the City.
51. The Applicant shall identify the points of connection for sanitary sewer laterals
and confirm that sufficient capacity exists in the publicly owned facilities in
conformance with the requirements of the City of Downey and the County
Sanitation Districts of Los Angeles County (CSDLAC).
52. The Applicant is responsible for coordinating with and payments to the City and
CSDLAC for all sanitary sewer connection and capacity charges.
53. The Applicant shall provide improvement plan mylars, record drawing mylars,
and record drawing digital (AutoCAD – latest edition) files in accordance with the
requirements of the Department of Public Works that have been signed by a civil
engineer licensed in the State of California. Final approval of new improvements
shall be dependent upon submittal and approval of record drawing mylars and
scanned, uncompressed TIFF images of record drawings on a CD/DVD-ROM
media per City’s GIS Requirements.
Additional comments may arise during formal plan check review.
Resolution No.
Planning Commission
Attachment A
Storm Water Pollution Control Requirements for Construction Activities
Minimum Water Quality Protection Requirements for All Development
Construction Projects/Certification Statement
The following is intended as an attachment for construction and grading plans
and represent the minimum standards of good housekeeping which must be
implemented on all construction sites regardless of size.
Eroded sediments and other pollutants must be retained on site and may not be
transported from the site via sheetflow, swales, area drains, natural drainage
courses or wind.
Stockpiles of earth and other construction related materials must be protected
from being transported from the site by the forces of wind or water.
Fuels, oils, solvents and other toxic materials must be stored in accordance with
their listing and are not to contaminate the soil and surface waters. All approved
storage containers are to be protected from the weather. Spills must be cleaned
up immediately and disposed of in a proper manner. Spills may not be washed
into the drainage system.
Non-storm water runoff from equipment and vehicle washing and any other
activity shall be contained at the project site.
Excess or waste concrete may not be washed into the public way or any other
drainage system. Provisions shall be made to retain concrete wastes on site until
they can be disposed of as solid waste.
Trash and construction related solid wastes must be deposited into a covered
receptacle to prevent contamination of rainwater and dispersal by wind.
Sediments and other materials may not be tracked from the site by vehicle traffic.
The construction entrance roadways must be stabilized so as to inhibit sediments
from being deposited into the public way. Accidental depositions must be swept
up immediately and may not be washed down by rain or other means.
Any slopes with disturbed soils or denuded of vegetation must be stabilized so as
to inhibit erosion by wind and water.
Other
_____________________________________________________________
_____________________________________________________________
As the project owner or authorized agent of the owner, I have read and understand the
requirements listed above, necessary to control storm water pollution from sediments,
erosion, and construction materials, and I certify that I will comply with these
requirements.
Project Name: _________________________________________________________
Project Address: _______________________________________________________
Print Name ______________________________________
Signature _____________________________________ Date __________________

Planning Commission

Transcription

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