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HomeMy WebLinkAboutAgenda Packet - December 04, 2006 - CC N 11 W1 Bum= AGENDA CITY COUNCIL, AND THE REDEVELOPMENT AGENCY AZUSA AUDITORIUM MONDAY, DECEMBER 4, 2006 213 EAST FOOTHILL BOULEVARD 6:30 P.M. AZUSA CITY COUNCIL DIANE M. CHAGNON MAYOR DAVID O. HARDISON IOSEPH R. ROCHA COUNCILMEMBER MAYOR PRO-TEM KEITH HANKS ANGEL CARRILLO COUNCILMEMBER COUNCILMEMBER NOTICE TO THE PUBLIC Copies ofstaffreports or other written documentation relatingto each item ofbusiness referred to on the Agenda are on>i/e in the Office of the City Clerk and are available for public inspection at the City Library. Persons who wish to speak during the Public Participation portion of the Agenda, sha//Fll out a card requesting to speak and shall submit it to the City Clerk prior to the start of the City Council meeting. When ca/led, each person may address any item on or off the agenda during the public participation. 6:30 P.M. MEETING CEREMONIAL i Presentation of Certificates of Recognition for Ms. Karen Clear, who placed 1 st&best of show for her beaded lavender bouquet, and to Ms. Cindy Seffer who placed 1st for her lemon cake and 1 st and best in division for her coffee cake, at the Los Angeles County Fair. Presentation of Proclamation via a request of Mercedes Cerrillos of the Muscular Dystrophy Association, to thank all Fire Fighters for their dedication in the fight against neuromuscular disease. Presentation of Certificates of Welcome Home to Sergeant Gilbert Rudy Moreno and Sergeant Paul Ramirez. Presentation of Certificate of Recognition to Matt "Howey' Hoenshell, a student at Azusa Pacific University, for his actions as a "Good Samaritan". CLOSED SESSION CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Gov. Code Sec. 54956.9(a)) City of Azusa Redevelopment Agency v. Wayne R. Fletcher, et al. Case No. BC 352467. CONFERENCE WITH LEGAL COUNSEL - POTENTIAL LITIGATION (Gov. Code Sec. 54956.9(b)) 1 Potential Case 7:30 P.M. REGULAR MEETING CALL TO ORDER PLEDGE TO THE FLAG INVOCATION - Reverend Angel De Rosas of the First Filipino Presbyterian Church ROLL CALL CEREMONIAL CONTINUED Veterans Committee to present a plaque to honor Assemblyman Ed Chavez for his years of service and his support to the Veterans. A. PUBLIC PARTICIPATION (Person/Group shall be a//owed to speak without interruption up to five (5) minutes maximum time, subject to compliance with applicable meeting rules. Questions to the speaker or responses to the speaker's questions or comments shall be handled after the speaker has completed his/her comments. Public Participation will be limited to sixty(60) minutes time.) 12/04/06 PAGE TWO JOINT PUBLIC HEARING - FOOTHILL CENTER CONTINUED g. The City Council approves Tentative Tract Map TTM 68355; h. The City Council approves Design Review DR-2006-02; i. The City Council approves Design Review DR-2006-103; j. The City Council approves Minor Use Permit MUP-2006-27. 2. IOINT PUBLIC HEARING - TO CONSIDER BUDGET APPROPRIATION AMENDMENTS AND LOAN ADVANCE FROM THE CITY TO THE REDEVELOPMENT, AGENCY FOR PROPERTY ACQUISITIONS. RECOMMENDED ACTION: Approve the Resolutions authorizing an advance of $10,218,000 from the City to the Azusa Redevelopment Agency, authorize execution of a Note regarding the terms of the loan, and approve the Resolutions authoring appropriation amendments to the City and Redevelopment Agency budgets, as follows: f a. Waive further reading and adopt Resolution No. 06-R50, (Agency) requesting a loan from the City of Azusa for purposes of the Merged Redevelopment Project Area; b. Waive further reading and adopt Resolution No. 06-C114, (City) authorizing loans for purposes of the Merged Redevelopment Project Area; c. Waive further reading and adopt Resolution No. 06-C115, (City) approving Appropriation Amendments for Fiscal Year 2006-07 pursuant to Section 2-450 of the Azusa Municipal Code; d. Waive further reading and adopt Resolution No. 06-R51, (Agency) approving Appropriation Amendments for Fiscal Year 2006/07 pursuant to Section 2-450 of the Azusa Municipal Code. THE REDEVELOPMENT AGENCY TO RECESS AND THE CITY COUNCIL TO CONTINUE. D. CONSENT CALENDAR The Consent Calendar adopting the printed recommended actions will be enacted with one vote. if Councilmembers or Staff wish to address any item on the Consent Calendar individually, it will be considered under SPECLAL CALL ITEMS. 1. APPROVAL OF THE MINUTES OF THE REGULAR MEETING OF NOVEMBER 20 2006. RECOMMENDED ACTION: Approve Minutes as written. ` 2. HUMAN RESOURCES ACTION ITEMS. RECOMMENDED ACTION:::Approve Personnel.Action Requests in accordance with Section 3.3 of the City of Azusa Civil Service Rules and applicable Memorandum of Understanding(s). i 3. CITY TREASURER'S REPORT AS OF OCTOBER 31, 2006. RECOMMENDED ACTION: Receive and file the report. 4. PURCHASE OF PHOTOCOPIER. RECOMMENDED ACTION: Approve the purchase of a Minolta Bizhub 600 Digital copier. 12/04/06 PAGE FOUR I B. REPORTS UPDATES AND ANNOUNCEMENTS FROM STAFF/COUNCIL 1. Mayor Chagnon - a. Miles Rosedale to announce the recipients of the Canyon City Foundation grants for 2006. This foundation was formed as part of the Rosedale Development agreement in order to promote service to our community. b. Darren Near to present Lizette Salas, the CIF Champion in Golf. She is the first woman to win such a title from Azusa High School or Gladstone High School and has been awarded a full scholarship to USC. c. Request a certificate of Recognition to Lizette Salas to be presented at the council meeting on Dec. 18 or at the Azusa Unified School District meeting where she will also be announced as the CIF winner. 2. Mayor Pro-Tem Rocha- Request for Certificate of Appreciation to the Knights of Columbus for Annual Recognition Luncheon for Police Personnel and Fire Fighters, to be presented at the December 13, 2006, luncheon. 3. Status Report on Northeast corner of Arrow and Azusa. 4. Update on the Water Treatment Plant Bonding THE CITY COUNCIL AND THE REDEVELOPMENT TO CONVENE JOINTLY TO CONSIDER THE FOLLOWING: C. SCHEDULED ITEMS 1 IOINT PUBLIC HEARING - FOOTHILL CENTER MDCEED-USE PROTECT MITIGATED NEGATIVE DECLARATION: DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT: ZONING ORDINANCE AMENDMENT ZCA-212 & Z-2006-01• TENTATIVE TRACT MAP TTM 68355• DESIGN REVIEWS DR-2006-02 &DR-2006-103 AND MINOR USE PERMIT MUP-2006- 27. RECOMMENDED ACTION: Open the Public Hearing; receive testimony, close the Hearing. a. Waive further reading and adopt Resolution No. 06-C1 12, (City) approving the Mitigated Negative Declaration; b. Waive further reading and adopt Resolution No. 06-R48, (Agency) approving the Mitigated Negative Declaration; c. Waive further reading and adopt Resolution No. 06-C1 13, (City) approving the Use of Tax Increment Funds by the Redevelopment Agency; d. Waive further reading and adopt Resolution No. 06-R49, (Agency) approving a Statutory Development Agreement and Owner Participation Agreement; e. Waive further reading and introduce for first reading an Ordinance Approving a Statutory Development Agreement and Owner Participation Agreement f. Waive further reading and introduce for first reading an Ordinance approving Zoning Ordinance Amendment ZCA 222 and Z-2006-01 and approve its first reading; 12/04/06 PAGE THREE � I i 5. UPGRADE OF CRIME MAPPING SYSTEM. RECOMMENDED ACTION: Approve the upgrade of i the Omega Group Crime View system with funding provided by the reimbursable State of California justice Assistance Grant (JAG). 6. ADOPTION OF A RESOLUTION APPROVING THE SUMMARY VACATON OF A PORTION OF A SANITARY SEWER EASEMENT DESCRIBED IN INSTRUMENT NO. 85-1108081 RECORDED SEPTEMBER 24, 1985. RECOMMENDED ACTION: Adopt Resolution No. 06-C 116, vacating the subject sanitary sewer easement and directing the City Clerk to record a certified copy of the resolution with the Los Angeles County Recorders Office. 7. ADOPTION OF A RESOLUTION WANING THE FORMAL SEALED BIDDING PROCESS FOR THE POLICE DEPARTMENT TO PURCHASE THREE USED UNMARKED CARS FOR POLICE USE FROM ENTERPRISE IN THE AMOUNT OF $54,257.10. RECOMMENDED ACTION: Adopt Resolution No. 06-C 117, waiving the formal sealed bidding process and order the issuance of a purchase order in the amount of $54,257.10 to Enterprise Rent-A-Car of the City of Azusa for the purchase of three used unmarked cars for police use inclusive of tax, title and license fees. 8. RESOLUTION OF APPROVAL OF THE MASTER COOPERATIVE AGREEMENT (MCMI WITH THE METRO GOLD LINE FOOTHILL EXTENSION CONSTRUCTION AUTHORITY. RECOMMENDED ACTION: Adopt Resolution No. 06-C 118, approving the Master Cooperative Agreement (MCA) between the City of Azusa and the Metro Gold Line Foothill Extension Construction Authority. 9. WARRANTS. Resolution authorizing payment of warrants by the City. RECOMMENDED ACTION: Adopt Resolution No. 06-C119. THE CITY COUNCIL TO RECESS AND THE REDEVELOPMENT AGENCY WILL RECONVENE E. AGENCY SCHEDULED ITEMS r 1. AUTHORITY TO ISSUE TAX ALLOCATION BONDS AND RETAIN FINANCIAL CONSULTANT. RECOMMENDED ACTION: Authorize staff to initiate the process for the issuance of tax allocation bonds, waive the formal Request for Qualifications process, and authorize the Executive Director to execute the attached professional services agreement with C.M. de Crinis &Co., Inc., to provide financial advisory services for the proposed tax allocation bond issuance. 2. SETTLEMENT AGREEMENT FOR THE ACQUISITION OF THE REAL PROPERTY LOCATED AT 100 EAST FOOTHILL BOULEVARD (WAYNE S VALDA FLETCHER) AND THE RELOCATION OF WIMPEY'S PAWN SHOP (IIM YENYO S SHANNON YENYO-ESPINOSA). RECOMMENDED ACTION: Waive further reading and adopt Resolution No. 06-1152, approving the Settlement Agreement for the acquisition of the property located at 100 East Foothill Boulevard and the relocation of the business located on the site (Wimpey's Pawn Shop), commonly known as Los Angeles County Assessor's Parcel #8611-003-006. 12/04/06 PAGE FIVE I 1 S F. AGENCY CONSENT CALENDAR # The Consent Calendar adopting the printed recommended actions will be enacted with one , vote. if Boardmembers or Staff wish to address any item on the Consent Calendar individually, it will be considered under SPECIAL CALL ITEMS. I. APPROVAL OF MINUTES OF THE REGULAR MEETING OF NOVEMBER 20, 2006. RECOMMENDED ACTION: Approve Minutes as written. 2. AGENCY TREASURER'S REPORT AS OF OCTOBER 31, 2006. RECOMMENDED ACTION: Receive and file the report. 3. WARRANTS. Resolution authorizing payment of warrants by the Agency. RECOMMENDED ACTION: Adopt Resolution No. 06-1153. G. ADJOURNMENT 1. Adjourn. UPCOMING MEETINGS: December 11, 2006, Special City Council Meeting- 6:30 p.m. December 18, 2006, City Council Meeting- 6:30 p.m. January 2, 2006, City Council Meeting- 6:30 p.m. January 16, 2006, City Council Meeting- 6:30 p.m. in compliance with the Americans with Disabilities Act, if you need special assistance to participate Ina city meeting please contact the City Clerk at 616-812-5129. Notification three (3) worldngdays prior to the meeting when specialservices are needed wiffassiststaffin assuring that reasonable arrangements can be made to provide access to the meeting 12/04/06 PAGE SIX U - C7<ffOR�A { • INFORMATIONAL ITEM TO: HONORABLE CHAIRPERSON AND MEMBERS OF THE AGENCY BOARD i FROM: BRUCE COLEMAN, ECONOMIC AND COMMUNITY DEVELOMENT DIRECTOR VIA: F.M. DELACH, EXECUTIVE DIRECTOR DATE: DECEMBER 4, 2006 SUBJECT: STATUS REPORT ON NORTHEAST CORNER OF ARROW AND AZUSA RECOMMENDATION There is no recommendation. This report is provided for informational purposes only. BACKGROUND At the October 16th, City Council meeting, Council requested that staff provide a status report on the Foothill Center, Block 36, and Arrow and Azusa projects —with a report on each project being provided at subsequent Council meetings. On November 6th, staff provided a status report on the Foothill Center project. On November 20th, staff provided the report on the Block 36 project. This staff report will describe the status of the Arrow and Azusa project. The Northeast Corner of Arrow and Azusa is privately owned and contains approximately 3 '/z acres. It is currently located in the unincorporated area of the City of Azusa, within Los Angeles County. The property is located within the City of Azusa's Sphere of Influence and within its Merged Redevelopment Project Area. On December 19, 2005, the City submitted an application to the Los Angeles County Local Agency Formation Commission (LAFCO) for the proposed annexation of the property. Subsequently, Supervisor Gloria Molina requested that the annexation application be delayed pending further discussions between the City and Supervisor Molina's office. Following a meeting on May 18, 2006 between the Mayor, City staff and Supervisor Molina's office, it was decided that the City and County would jointly prepare a Request for Development Proposals (RFP) with the objective of attracting a qualified developer for the site. Under the terms of the RFP, the property would be developed within the City of Azusa to City development standards. It is anticipated that the annexation process would be completed following selection of the developer. The RFP was released on June 19th with proposals due on July 17th.t On that date, 4 proposals were received from: HDS Group, Newmark Merrill, Primstor/McCormack Baron Salazar, and Rich Development Company. These developers submitted varying proposals consisting of retail/restaurant shopping center projects to mixed-use retail/residential projects. The four developers were interviewed by representatives of the City and County during the period between December 4, 2006 Status NE Corner of Arrow &Azusa Page 2 of 2 August and October 16, 2006. Based on staffs evaluation of these proposals, the developers were seeking significant financial assistance from the Azusa Redevelopment Agency. One of the developers, Rich Development Company, indicated that they had entered into a binding contract to purchase 17525 Arrow Highway from Clark Oren Allen and William Allen, the owners of one of the parcels at the Northeast Corner of Arrow and Azusa. The Rich Development submittal indicates that they are proposing to develop a retail/restaurant project on the site. As a result, staff has initiated preliminary discussions with Rich Development to determine the feasibility of pursuing a development project with this developer if the level of financial assistance can be reduced. If the City and County are unable to negotiate an acceptable agreement with Rich Development, it may be necessary to reject all proposals which were received and to issue a new joint City/County RFP for the project. FISCAL IMPACT There is no fiscal impact at this time. The fiscal impact will be determined subsequently once a developer has been selected. FP d U Ay r"yLtfCSP�T a i TO: THE HONORABLE MAYOR/CHAIRPERSON AND COUNCIL/AGENCY MEMBERS FROM: BRUCE A. COLEMAN, ECONOMIC AND COMMUNITY DEVELOPMENT DIRECTOR VIA: F.M. DELACH, CITY MANAGER/EXECUTIVE DIRECTOR DATE: DECEMBER 4, 2006 SUBJECT: FOOTHILL CENTER MIXED-USE PROJECT MITIGATED NEGATIVE DECLARATION; DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGEEMENT; ZONING ORDINANCE AMENDMENT ZCA-222 &Z-2006-01; TENTATIVE TRACT MAP TTM 68355; DESIGN REVIEWS DR-2006-02 &DR-2006-103 AND MINOR USE PERMIT MUP-2006-27 Please find attached, revised Conditions of Approval from the Azusa Light &Water Department. Additionally, staff has attached various comments and possible revisions to the draft Conditions of Approval, Mitigation Measures, the DA and the CC&Rs , based on discussions today with members of the City Council. The Council may wish to discuss these revisions. i I i Revised Conditions of Approval D. All requirements of the Water Division shall be met, including but \not limited to the following: ' 2. Will require installation of new water mains. Water and fire service to meet specifications and requirements to the satisfaction of Azusa Light and Water Department. The Azusa Utility will, at its cost, replace all water mains on or off site'at the existing size and standard. The Developer shall pay incremental increased charges if needed to meet fireflow requirements 4. Other than explicitly provided in these conditions, the owner or project applicant shall take sole responsibility for costs incurred due to any modification, relocations or alteration of existing water facilities caused by this project to the satisfaction of the Light and Water Department. 5. This project is subject to Ordinance 96-08, Chapter 78-471 through 477, City of Azusa Municipal Code entitled"Water System Development Fee." This condition shall be satisfied prior to the final plan approval bythe Building Division 7. (intentionally deleted) E. All requirements of the Light Division shall be met, including but not limited toio the following: 1. Notwithstanding anything to the contrary, Azusa Utility may enter into a loan agreement with RDA to pay for the extension of the distribution line from 5`h Street and Cerritos Avenue to the proiect site Electric services for entire project site shall be served from City of Azusa- Azusa Light& Water. Project developer owner shall make arrangement with Azusa Light &Water for electric utility services required at project site. Extensive underground electric line rebuilding including new underground electric distribution system are required to be furnished and installed by project developer or owner. Project developer or owner is also directed to make separate arrangements with owners of other affected utilities for any underground conversion of their services prior to issuance of any building permits. All electric services shall be installed underground. Design or methods of construction shall be in accordance with specifications and requirements of Azusa Light &Water. Property owner shall furnish and install all electric facilities required by Azusa`Light& Water, necessary to receive electric utility service. This may involve an underground electric system from Alosta Avenue Fenimore Avenue and Citrus Avenue. The new electric facilities may include but not limited to concrete encased underground conduits, vaults/manholes, transformer pads, roadway lighting, 2" conduit for telecommunication purposes, and other electric related structures required to complete service installations. F. All requirements of the Fire Department shall be met, including but not limited to the following, or such other conditions as may be approved by the Fire Department: i i i I i i i I r r I I i Council Comments Mitieation Measures Mitigation Measure Air Quality AIR-6 : "The Developer/permittee shall locate stockpiles and active construction areas as far from adjacent land uses as possible. The dirt stockpiles shall be covered to reduce dust migration Condition of Approval: Planning#41h: "The Developer/permittee shall locate stockpiles and active construction areas as far from adjacent land uses as possible. The dirt stockpiles shall be covered to reduce dust migration. i Mitigation Measure Noise NOI-2: Pavement breaking, demolition, equipment operation/maintence, and heavy material handling activities shall only be allowed between the hours of 8:00 A.M. and 5:00 P.M., Monday through Saturday. No construction activities allowed on Sundays and National Holiday Condition of Approval: Planning#40: Pavement breaking, demolition, equipment operation/maintence, and heavy material handling activities shall only be allowed between the hours of 8:00 a.m. and 5:00 p.m. Monday through Saturday. No construction activities allowed on Sundays and National Holidays. CC&R's Covenants 1.2.2 An Owner may only lease the entire Unit and may not sublease portions of the Unit to separate tenants. No more than two (2)private vehicles belonging to the owner and/or the tenant(s) under any such lease can be parked at the Residential Project in owner designated garages. Parking on Fenimore Avenue shall be restricted to guest parking and subject to time limitations Parking for long-term visitors and guests shall be treated as owners/tenants. No overnight parking is allowed on Fenimore Avenue between_Haltern Street and Alosta Avenue without a permit from the HOA or the City of Azusa Police Department. Condition of Approval: Planning#50• Parking on Fenimore Avenue shall be restricted to guest parking. No overnight parking is allowed on Fenimore Avenue between Haltern Street and Alosta Avenue without a permit from the HOA or the City of Azusa Police Department. Statutory Development Agreement and Owner Participation Agreement • 3.7 Marketing of Residential Project to Certain Groups The Developer shall, for a period no less than forty-five (45) days prior to the marketing of the Residential Project to the general public, advertise and market the Residential Project exclusively to City of Azusa public employees, police officers, firefighters, and teachers in a credentialed school within the jZeo aphie area of the Azusa Unified School District. • 43Agency's Obligations Under Agreement The Developer acknowledges and agrees that the Agency's obligation under this Agreement are limited to those obligations set forth in this Article IV pertaining to the Street Improvements Reimbursement. 4.4 Developer's Obligations Under the Agreement The Developer acknowledges an obligation to provide accurate and complete submittals for reimbursement Incomplete and/or inaccurate submittals will be returned to the Developer. The requirement time for a timely response by the City shall re-set with each revised submittal. For the second and succeeding submittals the Developer shall pay the City's actual cost for processing and responding to the additional submittals required by the Developer's error. Exhibit"F-1" Prohibited Land Uses 8. Churches 9. Non-profit Organizations 10. Tattoo Parlors Conditions of Approval I • Condition of Approval: Engineering#1: Applicant is required to design, engineer and construct the extension of Fenimore Avenue to Alosta Avenue, including any traffic channeling measures that may be required to prevent left turns onto Alosta Avenue from Fenimore Avenue. • Condition of Approval: Planning #51: With regard to the north end of the residential component, the Developer shall work with staff to maximize the privacy of the existing property owners on the west property line adjacent to the townhomes, through additional landscaping change of window locations or balcony redesign . • Revised Residential Design Review Finding of Fact: A. Provides architectural design, building massing and scale appropriate to and compatible with the site surroundings and the community. The proposed residential architectural design incorporates architectural elements of both the commercial development and the existing residential neighborhood. The combination of pitched and flat rooflines acts as an intermediary element between the modem commercial buildings and the traditional, existing single- family homes. While the three-story townhomes are taller than the majority of the single-family residences, they are approximately the same height as the apartment development on the northwest edge of the development and are compatible in size to the commercial buildings. The townhomes are set back approximately 45 feet from the west and south property lines to reduce the height impact and to provide privacy for the existing residences, except for the north section of the residential development which has a fifteen foot (15') setback Condition of Approval #51 I m requires the Developer to work with staff to maximize the privacy of the existing property owners, on the west property line adjacent to the townhomes through additional landscaping change of window locations or balcony redesign I i I C I I. i I I I II i it I FS IF 41sd CITY COUNCIL PUBLIC HEARING/ IOINT CIN/AGENCY AGENDA ITEM T THE HONORABLE MAYOR/CHAIRPERSON AND COUNCIL/AGENCY MEMBERS 1J,v FROM: BRUCE A. COLEMAN, ECONOMIC AND COMMUNITY DEVELOPMENT DIRECTOR VIA: F.M. DELACH, CITY MANAGER/EXECUTIVE DIRECTO DATE: DECEMBER 4, 2006 I SUBJECT: FOOTHILL CENTER MIXED-USE PROJECT MITIGATED NEGATIVE DECLARATION; DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGEEMENT; ZONING ORDINANCE AMENDMENT ZCA-222 &Z-2006-01; TENTATIVE TRACT MAP TTM 68355; DESIGN REVIEWS DR-2006-02 &DR-2006-103 AND MINOR USE PERMIT MUP-2006-27 RECOMMENDATION It is recommended that: 1) The City Council Adopt the City Resolution Approving the Mitigated Negative Declaration; 2) The Agency Board Adopt the Redevelopment AgencyResolution Approving the Mitigated Negative Declaration; 3) The City Council Adopt the City Resolution Approving the Use of Tax Increment Funds by the Redevelopment Agency; 4) The Agency Board Adopt the Redevelopment Agency Resolution Approving a Statutory Development Agreement and Owner Participation Agreement; 5) The City Council introduce for the first reading the Ordinance of the City Council Approving a Statutory Development Agreement and Owner Participation Agreement k 6) The City Council introduce for the first reading the Ordinance of the City Council approving Zoning Ordinance Amendment ZCA 222 and Z-2006-01 and approve its first reading; 7) The City Council Approve Tentative Tract Map TTM 68355; 8) The City Council Approve Design Review DR-2006-02; i 9) The City Council Approve Design Review DR-2006-103; 10) The City Council Approve Minor Use Permit MUP-2006-27. DEVELOPMENT AGREEMENT The Foothill Shopping Center, located at the southwest corner of Alosta and Citrus Avenues, was originally built in the 1950's. Since that time, it has become a blighted and underutilized site with many second tier tenants and high vacancy rates. In order to provide an attractive, high quality project which would also benefit the City, the Foothill Shopping Center was included in the Redevelopment Merged Project Area in 2003. This allows the Agency to achieve a high quality, revenue-producing project consistent with the General Plan. t i On November 15, 2006, the Planning Commission reviewed the proposed project and found that the y Development Agreement was in conformance with,the General Plan and also unanimously approved Resolutions recommending that the City Council approve the proposed project (Attachment 1) with the added condition that the traffic impact of the extension of Fenimore Avenue at Alosta Avenue be reviewed again by the City Engineer and by the Mobility Group, the City's traffic consultant. That additional review is included in this report. THE PROJECT The proposed project consists of the construction of a mixed-use commercial and residential development on the existing, approximately 24-acre site, and includes the following components: • Demolition of approximately 72,000 square feet of existing buildings; • Construction of 58,000 square feet of new retail/restaurant space, for a total of approximately 186,500 square feet of retail/restaurant/entertainment tenant space; • Redesign and renovation of the existing movie theater to decrease seating capacity from 3,200 seats to 2,200 seats; • Construction of 102 townhouses on the southwestern portion of the site; • Redesign of portions of the current parking lot configuration and provision of parking spaces for the project; • Extension of Fenimore Avenue as a local city street from Haltern Street through the project site to Alosta Avenue. ENVIRONMENTAL INITIAL STUDY AND MITIGATED NEGATIVE DECLARATION An Initial Study was conducted by the City, which included a Traffic Study; a Phase I, Phase 11 and a Supplemental Phase 11 Environmental Site Assessment; a Noise Study, and an Air Quality Study. The Initial Study included a thorough review of the environmental factors that could potentially be affected by the proposed project, i.e.: aesthetics, agricultural resources, air quality, biological resources, cultural resources, geology/soils, hazards and hazardous materials, hydrology, land use, mineral resources, noise, housing, public services, recreation, traffic and utilities. It was determined that the project could have a potentially significant impact on aesthetics, air quality, hazards &hazardous materials and noise unless those impacts were mitigated. Therefore, mitigation measures to reduce these impacts have been included as conditions of approval for the project and a Mitigated Negative Declaration was prepared. A Traffic Study was also conducted as a part of the Initial Study. The Traffic Study analyzed the projected volumes of traffic, the levels of service at the intersections and the estimated amount of trips generated by the proposed project. It was found that the proposed project will cause a less than significant traffic impact in relation to the existing traffic load and the existing capacity of the street system (Attachment 2). At the November 15`h Planning Commission meeting, the Commission asked for a follow-up traffic analysis to further review the effects of the Fenimore Avenue extension at Alosta Avenue. The attached memo (Attachment 3) from the City's traffic consultant, Michael Bates of the Mobility Group, summarizes the findings of the original traffic report. Mr. Bates concludes that no additional traffic mitigation measures are necessary. DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (DA &OPA) The Redevelopment Agency of the City of Azusa has been working for at least five years with the owner, JAR- University Commons, LLC, and more recently with the developer, Trachman-Indevco, LLC, to redevelop the center. On December 5, 2005, the Agency Board approved a Memorandum of Understanding between Trachman-Indevco and the Agency. Its intent was to assign responsibilities to each party, complete the CEQA evaluation, and establish a timeline for negotiating a Development Agreement (DA). The developer has conducted seven (7) community meetings regarding this project and has utilized that process to receive significant public input, incorporating various modifications to the project resulting from that input. With the negotiation period ending November 30, 2006, the draft DA has been finalized and incorporates project details and project deal points. (Attachment 4). 2 DA &OPA Primary Deal Points I 1. Street Improvements. The Developer is required to construct the�Fenimore Avenue road extension and dedicate it to the City. 2. Agency Obligation for Street Improvements. The Redevelopment Agency will pay up to $1,500,000 of the cost of the acquisition of the street right-of—way and street improvements of the Fenimore Avenue extension, to be paid in progress installments with construction of the shopping center. I 3. Local Sales Tax Generation. The Developer shall pay $40,000 in advance of each Sales Tax Year, beginning with the First Sales Tax Year. In each Sales Tax Year thereafter, for 20 years, the Developer will pay the difference, not to exceed $40,000, between the Minimum Annual Sales Tax Revenues of $392,000, adjusted annually by 4% or the CPI, whichever is lower, and the actual sales tax revenues for the project for the prior year. There is no carry forward or back. 4. Residential Leasing Restrictions. Covenants, Conditions and Restrictions pertaining to the residential project, subject to approval of leasing restrictions contained therein by the California Department of Real Estate, shall run with the land, and restricts leasing of units for transient, hotel, or dormitory purposes, or subleasing portions of a unit to separate tenants, or parking more than two private vehicles belonging to the owner and/or tenants in the owner designated garages. 5. Pillars of the Community. The Developer shall advertise and market the residential project exclusively to City of Azusa police officers, firefighters, and Azusa Unified School District teachers, for a period of no less than 45 days prior to marketing the project to the general public. 6. Public Art Component. The Developer shall include a public art component approved by the City Manager which may include public murals, fountains, sculptures, etc. If not approved prior to the issuance of Building Permits, the Developer shall pay an in lieu fee of $10,000 which the City will hold until a public art component acceptable to the City has been approved. The fee will be refunded to the developer once an acceptable public art component has been approved by the City Manager and built by the Developer. 7. Completion of the Shopping Center. Project scheduling is instituted to ensure timely build out of the Shopping Center. 8. Prohibited and Restricted Land Uses. Defines prohibited uses as pawn shops, adult businesses, retail sex shops, flea markets/swap meets, laundromats, dry cleaning plants, and retail gun shops. The agreement restricts dental and medical offices and personal service providers to no more than 10,000 square feet of the gross leasable area, with certain exceptions. 9. Restaurant. The Developer agrees the "Citrus Pad 1" (refer to site plan) must be developed as a full service, sit-down restaurant. j If approved, Trachman Indevco has indicated that they plan to start project demolition/construction in January, 2007. I FISCAL IMPACT I This project has been budgeted in the FY 2006/07 Agency budget. The Development Agreement provides that the Redevelopment Agency will pay $1,500,000 of the cost of the acquisition of the street right-of—way and the street improvements of the Fenimore Avenue extension, using existing bond proceeds. The DA also describes the terms of the annual sales tax payments to be made to the City. Attachments: 1. Planning Commission staff report and Exhibits A-K (delivered on 11/22/06) 2. Initial Study and Mitigated Negative Declaration (delivered on 11/22/06) 3. Supplemental Traffic Analysis 1 3 F 4. Statutory Development Agreement and Owner Participation Agreement By and Among the City of Azusa, the Redevelopment Agency of the City of Azusa a Public Body, and JAR - University Commons, LLC [Dated As Of December 4, 2006 For Reference Purposes Only, delivered on 11/22/06] 5. A Resolution of the City Council of the City Of Azusa, California, Approving the Mitigated Negative Declaration. 6. A Resolution of the Governing Board of the Redevelopment Agency of the City Of Azusa, California, Approving the Mitigated Negative Declaration. 7. A Resolution Of The City Council Of The City Of Azusa, California, Approving The Use Of Tax Increment Funds By The Redevelopment Agency Of The City Of Azusa For Certain Public Improvements Pursuant To Health And Safety Code Section 33445 And Making Certain Findings Regarding Such Use Of Tax Increment Funds 8. A Resolution Of The Governing Board Of The Redevelopment Agency Of The City Of Azusa, California, Approving A Statutory Development Agreement And Owner Participation Agreement By And Between The Redevelopment Agency Of The City Of Azusa, The City Of Azusa and Jar — University Commons, LLC, For The Merged Central Business District Redevelopment Project 9. An Ordinance Of The City Council Of The City Of Azusa, California Adopting And Approving A Statutory Development Agreement And Owner Participation Agreement By and Between The City Of Azusa And Jar — University Commons, LLC 10. An Ordinance Of The City Council Of The City Of Azusa, California Adopting And Approving Zoning Code Amendment ZCA-222 establishing the Foothill Center Overlay Zone and Zone Change Z-2006-01 to re-zone the property from DU-MU to DU-MU(FC) I I. A Resolution approving Tentative Tract Map TTM 68355 12. A Resolution approving Design Review DR-2006-02 (commercial component) 13. A Resolution approving Design Review DR-2006-103 (residential component) 14. A Minor Use Permit MUP-2006-27 (alcoholic beverage sales in building "C") 15. Exhibit "A" City Council Conditions of Approval 16. Mitigation Monitoring Program 17. Foothill Village Perspective 18. Signed Statutory Development Agreement and Owner Participation Agreement By and Among the City of Azusa, the Redevelopment Agency of the City of Azusa a Public Body, and JAR - University Commons, LLC 4 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, APPROVING A MITIGATED NEGATIVE DECLARATION FOR THE FOOTHILL CENTER MIXED USE PROJECT, LOCATED AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE I WHEREAS, the City Council of the City of Azusa, has given notice thereof as required by law and held a public hearing on the application of Trachman/Indevco, LLC and Jar University Commons, LLC with respect to the requested Mitigated Negative Declaration for the Foothill Center Mixed Use Project, located at the southwest corner of Alosta Avenue and Citrus Avenue; and WHEREAS, the City Council has carefully considered all pertinent testimony and the staff report offered in the case as presented at the public hearing. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES HEREBY RESOLVE AS FOLLOWS: Section 1: In accordance with City of Azusa Municipal Code Section 88.50.080 and based on the staff report and other such written and oral evidence as presented to the City Council regarding the Mitigated Negative Declaration, the City Council finds and determines that: (a) Although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made or agreed to by the . project applicant. Mitigation Measures for aesthetics, hazards and hazardous materials, noise and air quality have been included in the Conditions of Approval. I Section 2. This Resolution shall take effect immediately upon its adoption. Section 3. The Mayor shall sign this Resolution and the City Clerk shall attest and certify to the passage and adoption of this Resolution. ADOPTED, SIGNED, AND APPROVED this day of 12006, by the following vote: I AYES: NAYS: ABSENT: ABSTAIN: Foothill Cemer Mixed Use ProjecU7TM 68355/CC/ResoMND Diane Chagnon, Mayor ATTEST: Vera Mendoza, City Clerk APPROVED AS TO FORM: BEST BEST &KRIEGER LLP City Attorney Foothill Center Mixed Use ProjectllTM 68355/CC/ResoMND RESOLUTION NO. A RESOLUTION OF THE GOVERNING BOARD OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, CALIFORNIA, APPROVING A MITIGATED NEGATIVE DECLARATION FOR THE FOOTHILL CENTER MIXED USE PROJECT, LOCATED AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE WHEREAS, the Governing Board of the Redevelopment Agency of the City of Azusa, has given notice thereof as required by law and held a public hearing on the application of Trachman/Indevco, LLC and Jar University Commons, LLC with respect to the requested Mitigated Negative Declaration for the Foothill Center Mixed Use Project, located at the southwest comer of Alosta Avenue and Citrus Avenue; and WHEREAS, the Governing Board of the Redevelopment Agency of the City of Azusa has carefully considered all pertinent testimony and the staff report offered in the case as presented at the public hearing. NOW, THEREFORE, THE GOVERNING BOARD OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA DOES HEREBY RESOLVE AS FOLLOWS: Section 1: In accordance with City of Azusa Municipal Code Section 88.50.080 and based on the staff report and other such written and oral evidence as presented to the Governing Board of the 'Redevelopment Agency regarding the Mitigated Negative Declaration, the Governing Board of the Redevelopment Agency finds and determines that: (a) Although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made or agreed to by the project applicant. Mitigation Measures for aesthetics, hazards and hazardous materials, noise and air quality'have been included in the Conditions of Approval. Section 2. This Resolution shall take effect immediately upon its adoption. Section 3. The Chairperson shall sign this Resolution and the Agency Secretary shall attest and certify to the passage and adoption of this Resolution. ADOPTED, SIGNED, AND APPROVED this day of 2006, by the following vote: AYES: NAYS: ABSENT: Foothill Center Mixed Use Project/!TM 68355/CCRDAResoMND ABSTAIN: Chairperson ATTEST: Secretary APPROVED AS TO FORM: BEST BEST & KRIEGER LLP Agency Counsel Foothill Center Mixed Use Project/]TM 68355/CC/RDAResoMND RESOLUTION NO. h A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, APPROVING THE USE OF TAX INCREMENT FUNDS BY THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA FOR CERTAIN PUBLIC IMPROVEMENTS PURSUANT TO HEALTH AND SAFETY CODE SECTION 33445 AND MAKING CERTAIN FINDINGS REGARDING SUCH USE OF TAX INCREMENT FUNDS I WHEREAS, pursuant to the California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) ("CRL"), the City Council ("City Council") of the City of Azusa ("City") has approved and adopted a redevelopment plan ("Redevelopment Plan") for the Merged Central Business District Redevelopment Project Area("Project Area"); and WHEREAS, the Governing Board (`Board") of the Redevelopment Agency of the City of Azusa ("Agency") has adopted an implementation plan for the Redevelopment Plan ("Implementation Plan") and is engaged in activities necessary to execute and implement the Redevelopment Plan pursuant to the CRL; and i WHEREAS, JAR — University Commons, LLC ("Developer") owns certain real property within the Project ("Property"), more particularly described in that certain "Statutory Development Agreement and Owner Participation Agreement", a copy of which is on file with the City Clerk and available for public inspection ("Agreement'); and k WHEREAS, pursuant to the terms and conditions of the Agreement, the City desires, and the Developer agrees, for the Developer to construct and dedicate to the City a public road and certain other related street improvements (collectively, "Street Improvements"); and WHEREAS, pursuant to Health and Safety Code Section 33445, the Agency may use tax increment revenue to pay all or part of the costs of the Street Improvements if the City Council finds that certain circumstances exist regarding the Street Improvements and provides its consent; and i WHEREAS, in accordance with Health and Safety Code Section 33445, the Agency . desires to reimburse the Developer the sum of the: (i) third party costs and expenses actually incurred and paid by the Developer in connection with the design and construction of the Street Improvements; and (ii) fair market value of the property interests underlying the Street Improvements, up to an aggregate maximum reimbursement amount of One Million Five Hundred Thousand Dollars ($1,500,000); and WHEREAS, upon their completion, the Street Improvements will provide a direct and substantial benefit to the Project Area and the City by protecting residents and visitors alike from vehicular accidents caused by unsafe road conditions; and WHEREAS, City staff has evaluated the Agency's determination that the environmental impacts associated with the Agreement, with implementation of viable mitigation measures, will not have any significant environmental impacts. The City Council adopted a Mitigated Negative i Foothill Center Mixed Use ProjeclI TM 68355/CUReso Tnx Increment Declaration regarding the development of the Property pursuant to the Agreement on December 4, 2006. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, DOES RESOLVE AS FOLLOWS: Section 1: In accordance with Health and Safety Code Section 33445 and based on the staff report and other such written and oral evidence as presented to the City Council regarding the Agreement, the City Council finds and determines the following: (a) The Agency's use of tax increment revenue to pay for the costs to design and construct the Street Improvements is of benefit to the Project Area because such payment will reduce vehicular accidents caused by unsafe road conditions; and (b) There are no other reasonable means of financing the Street Improvements because the City has no General Fund or other revenues that are not already committed to other specific projects; and (c) The Agency's payment of the costs to design and construct the Street Improvements will assist in the elimination of physical and economic blighting conditions within the Project Area by providing safer and more accessible roadways, thereby enabling residents and visitors to access community activities and events within the Project Area, encouraging new business and development in the Project Area; and (d) The use of tax increment revenue to pay the costs to design and construct the Street Improvements is consistent with the Implementation Plan. Section 2. The City Council consents to the Agency's use of redevelopment tax increment revenue from the Project Area in an amount not to exceed One Million Five Hundred Thousand Dollars ($1,500,000) to assist in the financing of the costs to design and construct the Street Improvements. Section 3. The City Council authorizes and directs the City Manager, with the concurrence of the City Attorney, to take such actions and execute such other documents as may be necessary or appropriate in administering the actions authorized by this Resolution. Section 4. This Resolution shall take effect immediately upon its adoption. Section 5. The Mayor shall sign this Resolution and the City Clerk shall attest and certify to the passage and adoption of this Resolution. Foothill Center Mixed Use Project/ITM 68355/CGReso Tax Increment ADOPTED, SIGNED, AND APPROVED this day of 1 2006, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: E Diane Chagnon, Mayor i I ATTEST: 1 Vera Mendoza, City Clerk APPROVED AS TO FORM: BEST BEST & KRIEGER LLP i City Attorney I l I It I Foothill Center Mixed Use Projectl/TM 68355/COReso Tax Increment RESOLUTION NO. A RESOLUTION OF THE GOVERNING BOARD OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, CALIFORNIA, APPROVING A STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, THE CITY OF AZUSA AND JAR — UNIVERSITY COMMONS, LLC, FOR THE MERGED CENTRAL BUSINESS DISTRICT REDEVELOPMENT PROJECT WHEREAS, pursuant to the California Community Redevelopment Law (Health and Safety Code Sections 33000, et seq.) ("CRL"), the City Council ("City Council") of the City of Azusa ("City") has approved and adopted a redevelopment plan ("Redevelopment Plan') for the Merged Central Business District Redevelopment Project Area("Project Area"); and WHEREAS, the Governing Board ("Board") of the Redevelopment Agency of the City of Azusa ("Agency") has adopted an implementation plan for the Redevelopment Plan ("Implementation Plan") and is engaged in activities necessary to execute and implement the Redevelopment Plan pursuant to the CRL; and WHEREAS, JAR — University Commons, LLC ("Developer") owns certain real property within the Project Area ("Property"), more particularly described in that certain "Statutory Development Agreement and Owner Participation Agreement" a copy of which is on file with the City Clerk and available for public inspection(the"Agreement"); and WHEREAS, pursuant to the CRL and the Redevelopment Plan, the Agency and the Developer desire to enter into the owner participation provisions of the Agreement; and WHEREAS, the development project described in the Agreement will provide for the redevelopment of the Property and will be of benefit to the Project Area, all in conformance with the Redevelopment Plan and the Implementation Plan; and WHEREAS, the Board evaluated the environmental impacts associated with the Agency's adoption of the Agreement under the California Environmental Quality Act, and the Board determined that the Agreement, with implementation of viable mitigation measures, will not have any significant environmental impacts. The Board adopted a Mitigated Negative Declaration for the project that is the subject of the Agreement on December 4, 2006; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, THE GOVERNING BOARD OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, CALIFORNIA, DOES RESOLVE AS FOLLOWS: Section 1. The Board approves the Agreement in substantially the form on file with the City Clerk. 1 Foothill Center Mixed Use Profect/77M 683551CCIRDA DARESO Section 2. As mitigated, pursuant to the Mitigated Negative Declaration, the Project will not result in any significant adverse environmental impacts. Section 3. The location and custodianship of the documents and any other material that constitutes the record of proceedings regarding the adoption of this Resolution by the Board is as follows: Secretary to the Board, Redevelopment Agency of the City of Azusa, 213 E. Foothill Blvd., Azusa, California, phone: (626) 812-5299. 4 Section 4. This Resolution shall take effect immediately upon its adoption. Section 5. The Chairperson shall sign this Resolution and the Agency Secretary shall attest and certify to the passage and adoption of this Resolution. ADOPTED, SIGNED, AND APPROVED this day of 2006, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: ! Chairperson 4 ATTEST: Secretary APPROVED AS TO FORM: Agency Counsel I 4 I i I 1 I i I 2 Foothill Center Mixed Use Project//TM 68355/CGRDA DARESO ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA ADOPTING AND APPROVING A STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE CITY OF AZUSA AND JAR—UNIVERSITY COMMONS, LLC WHEREAS, JAR — University Commons, LLC ("Developer") owns certain real property within the City ("Property"), more particularly described in that certain "Statutory Development Agreement and Owner Participation Agreement", a copy of which is on file with the City Clerk and available for public inspection (the "Agreement"); and WHEREAS, the development of the Property in accordance with the Agreement will provide substantial benefits to the City and will further important policies and goals of the City by: (i) eliminating uncertainty in planning; (ii) providing for the orderly development of the Property; and (iii) generating local sales tax revenues for the City; and WHEREAS, the Agreement is consistent with the objectives, policies, general land uses and programs specified in the General Plan and all applicable specific plans; and WHEREAS, the Agreement is in conformity with public convenience, general welfare, and good land use practice, as it provides for the development of infrastructure and public safety facilities necessary to serve the Property in accordance with City standards; and WHEREAS, the Agreement will promote the health, safety and general welfare of the City and its residents because it provides for necessary public improvements, services and public safety facilities; and WHEREAS, on November 15, 2006, the City Planning Commission of the City of Azusa conducted a duly noticed public hearing and recommended approval of the Agreement to the City Council; and WHEREAS, on December 4, 2006, the City Council of the City of Azusa conducted a duly noticed public hearing concerning the Agreement, at which time all persons wishing to testify in connection with the Agreement were heard and the Agreement was comprehensively reviewed; and WHEREAS, the City evaluated the environmental impacts associated with the City's adoption of the Agreement under the California Environmental Quality Act, and the City Council determined that the Agreement, with implementation of viable mitigation measures, will not have any significant environmental impacts. The City Council adopted a Mitigated Negative Declaration regarding the development of the Property pursuant to the Agreement on December 4, 2006; and WHEREAS, all other legal prerequisites to the adoption of this Ordinance have occurred. Foothill Center Mixed Use ProjecUTTM 68355/CCIDA0rd 1 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: Section 1. Based on the findings contained in this Ordinance, the City Council hereby adopts and approves the Agreement in substantially the form on file with the City Clerk. Section 2. As mitigated pursuant to the Mitigated Negative Declaration, the development of the Property pursuant to the Agreement will not result in any significant adverse environmental impacts. , Section 3. The location and custodianship of the documents and any other material that constitutes the record of proceedings regarding the adoption of this Ordinance by the City Council is as follows: City Clerk, City of Azusa; 213 E. Foothill Blvd., Azusa, California, phone: (626) 812-5238. Section 4. This Ordinance shall take effect 30 days after,its final passage. i Section 5. The City Clerk shall attest and certify to the passage and adoption of this Ordinance and cause the publication or posting of this Ordinance in accordance with California Government Code Section 36933. 1 Section 6. The City Clerk shall file a certified copy of the Agreement with the Recorder of the County of Los Angeles, State of California, for recording in the official records of said county, no later than ten (10) days following the effective date of this Ordinance. I ADOPTED, SIGNED, AND APPROVED this day of 2006, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: i Diane Chagnon,Mayor ATTEST: r Foothill Center Mixed Use Project=M 683551CUDA 0,el 2 Vera Mendoza, City Clerk APPROVED AS TO FORM: BEST BEST &KRIEGER LLP City Attorney Foothill Center Mined Use Projecd7TM 683551CCIDAOrd 3 I ORDINANCE NO. i AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA ADOPTING AND APPROVING A ZONING ORDINANCE AMENDMENT- DEVELOPMENT CODE TEXT AMENDMENT ZCA-222 AND ZONE CHANGE Z-2006-01 FOR THE FOOTHILL CENTER MIXED USE PROJECT, LOCATED AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE WHEREAS, the City Council of the City of Azusa, has given•notice thereof as required by law, held a public hearing on the application of Trachman/Indevco, LLC and Jar University Commons, LLC with respect to the requested Zoning Ordinance Amendment ZCA 222 & Z-2006-01, for the Foothill Center Mixed-use project, located at the southwest comer of Alosta Avenue and Citrus Avenue; and WHEREAS, the City Council has carefully considered all pertinent testimony and the staff report offered in the case as presented at the public hearing; and WHEREAS, the City Council adopted a Mitigated Negative Declaration regarding the development of the Project on December 4, 2006. 1 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: i Section 1. That in accordance with Section 88.51.060 of the Azusa Municipal Code, the City Council approves said Zoning Ordinance Amendment ZCA 222 & Z-2006-01, I based on the following findings: (a) That the proposed amendment is consistent with the goals, policies, and objectives of the General Plan, any applicable specific plan, Owner Participation Agreement or Development Agreement. The proposed Zoning Ordinance and Zone Change are consistent with the goals,policies and objectives of the General Plan. Chapter 3 of the General Plan calls for "encouraging mixed use development in the University District". Policy 4.2 requires the revitalization of the Foothill Center and Policy 4.3 encourages the development of"housing in mixed-use settings", and calls for"new developments and substantially remodeled commercial developments to integrate sidewalks, plazas, and other amenities that contribute to pedestrian-oriented activities." The proposed Zoning Amendment would allow the project to be developed with alternate development standards while still meeting the intent of the General Plan. I i Foothill Center Mixed Use Projecl/TTM 68355/COOMWA222 1 i (b) That the proposed zone change will not adversely affect surrounding properties. The proposed project would be beneficial to the surrounding properties. The existing commercial retail center is currently under utilized and the southwest portion of the site consists of abandoned building pads and a largely vacant parking lot. The existing development on the south and west side of the proposed project is single- family residential. The proposed residential development, which would replace the abandoned building pads and parking lot,would be an improvement to the area. The new commercial retail center will provide more services to the surrounding area and improve the appearance of the neighborhood. Section 2. The location and custodianship of the documents and any other material that constitutes the record of proceedings regarding the adoption of this Ordinance by the City Council is as follows: City Clerk, City of Azusa, 213 E. Foothill Blvd., Azusa, California, phone: (626) 812-5238. Section 3. This Ordinance shall take effect 30 days after its final passage. Section 4. The City Clerk shall attest and certify to the passage and adoption of this Ordinance and cause the publication or posting of this Ordinance in accordance with California Government Code Section 36933. ADOPTED, SIGNED, AND APPROVED this day of 2006, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: Diane Chagnon,Mayor ATTEST: Foothill Center Mixed Use ProjecilTTM 68355/C0'0rdZCA222 2 Vera Mendoza, City Clerk I APPROVED AS TO FORM: BEST BEST &KRIEGER LLP i City Attorney h i k I I Foothill Center Mixed Use Project/7TM 683551CCOrdZCA221 3 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, APPROVING TENTATIVE TRACT MAP 68355 FOR THE FOOTHILL CENTER MIXED USE PROJECT, LOCATED AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE WHEREAS, the City Council of the City of Azusa, has given notice thereof as required by law and held a public hearing on the application of Trachman/Indevco, LLC and Jar University Commons, LLC with respect to the requested Tentative Tract Map 68355 for the Foothill Center Mixed Use Project, located at the southwest corner of Alosta Avenue and Citrus Avenue; and WHEREAS, the City Council has carefully considered all pertinent testimony and the staff report offered in the case as presented at the public hearing; and WHEREAS, the City Council adopted a Mitigated Negative Declaration regarding the development of the Project on December 4, 2006. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES HEREBY RESOLVE AS FOLLOWS: Section 1: In accordance with City of Azusa Municipal Code Section 88.51.032 and based on- the staff report and other such written and oral evidence as presented to the City Council regarding the Tentative Tract Map, the City Council finds and determines that: (a) The design or improvement of the proposed subdivision is consistent with applicable general and specific plans. The proposed Tentative Tract Map is consistent with Chapter 3 of the General Plan which calls for"encouraging mixed use development in the University District', and is also consistent with Policy 4.2 which requires the revitalization of the Foothill Center. Policy 4.3 encourages the development of"housing in mixed-use settings", and calls for"new developments and substantially remodeled commercial developments to integrate sidewalks, plazas, and other amenities that contribute to pedestrian-oriented activities." The proposed Tentative Tract Map for the phased mixed-use project supports these goals. Section 2. This Resolution shall take effect immediately upon its adoption. Section 3. The Mayor shall sign this Resolution and the City Clerk shall attest and certify to the passage and adoption of this Resolution. Foothill Center Mixed Use Project/TTM 68355/CC/Reso➢TM68355 ADOPTED, SIGNED, AND APPROVED this day of 2006, by the following vote: AYES: i NAYS: G ABSENT: ABSTAIN: I Diane Chagnon, Mayor II ATTEST: I f Vera Mendoza, City Clerk APPROVED AS TO FORM: it BEST BEST &KRIEGER LLP City Attorney I I I h Foothill Center Mixer[Use Project/TTM 68355/CC/Re o7TM68355 ` RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, APPROVING DESIGN REVIEW DR-2006- 02 (COMMERCIAL COMPONENT) FOR THE FOOTHILL CENTER MIXED USE PROJECT, LOCATED AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE WHEREAS, the City Council of the City of Azusa, has given notice thereof as required by law and held a public hearing on the application of Trachman/Indevco, LLC and Jar University Commons, LLC with respect to the requested Design Review DR-2006-02, (commercial component) for the Foothill Center Mixed Use Project, located at the southwest corner of Alosta Avenue and Citrus Avenue; and WHEREAS, the City Council has carefully considered all pertinent testimony and the staff report offered in the case as presented at the public hearing; and WHEREAS, the City Council adopted a Mitigated Negative Declaration regarding the development of the Project on December 4, 2006. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES HEREBY RESOLVE AS FOLLOWS: Section 1: In accordance with City of Azusa Municipal Code Section 88.51.040 and based on the staff report and other such written and oral evidence as presented to the City Council regarding the Design Review, the City Council finds and determines that the proposed commercial component: (a) Provides architectural design, building massing and scale appropriate to and compatible with the site surroundings and the community. The new construction is designed to be compatible in height and mass with the remaining buildings. (b) Provides attractive and desirable site layout and design, including, but not limited to, building arrangement, exterior appearance and setbacks, drainage, fences and walls, grading, landscaping, lighting, signs, etc. Given that the project is the initial phase of a phased mixed use development, the site layout and design does not conform to the urban design principles articulated in the General Plan and Development Code with respect to pedestrian orientation. Although pedestrian accommodations are provided, the overall site layout continues to be of an auto-oriented shopping center design Foothill Center Mixed Use Project7TM683551CCResoDr2006-02 with the buildings surrounded by large parking fields. Nevertheless,the Development Code provides for such design layouts if submitted in conjunction with a master plan which conforms to the policies of the General Plan. The existing site lay- out allows for the extension of Fenimore Avenue, with the existing center access points remaining the same. The demolition and reconstruction of buildings "A, `B", "C" and Citrus Pad#1 and the new construction of Citrus Pad 92 will improve the existing center. The addition of architectural details and articulation will complement the existing buildings and contribute to the up-grading of the surrounding community. New landscaping will be added and a Master Sign Plan will be implemented to improve the appearance of the center. (c) Provides efficient and safe public access,i circulation and parking. Currently, in addition to the existing entrances to the center, cars enter and leave the shopping center from the southern boundary, at the terminus of Fenimore Avenue, haphazardly driving across the site. The construction of the Fenimore Avenue extension and the construction of a sidewalk along Fifth Street and Alosta Avenues will greatly improve the efficient and safe access to the center. A Traffic Study was conducted for the project and alternate circulation patterns were reviewed. In developing the site plan, it was considered whether the Fenimore Avenue extension should terminate at Alosta Avenue or at 5"' Street. It was decided that a termination at Alosta Avenue was preferable. This design provides a more direct route with a simpler alignment, it connects to an arterial street rather than a collector/residential street, the geometries of a Fifth Street connection would be complicated and the layout of the fast food restaurants are constrictive. The proposed alignment would however continue to allow traffic to exit the center via the internal parking dot circulation and would not preclude a Fifth Street exit. The parking and circulation will be upgraded per the requirements of the Development Code and the Foothill Center Overlay Zone, and per the Conditions of Approval of the Fire Department. i (d) The project provides appropriate open space and landscaping, including the use of water efficient landscaping. The preliminary landscape plans provide increased and improved landscaping. A Final Landscape Plan is required subject to the review and approval of the Planning Division and the Recreation and Family Services Department. (e) Is consistent with the General Plan, any applicable specific plan, Foothill Center MUM Use Project/!TM 683551CC ResoD,2006-02 development agreement, and/or any previously approved planning permit. A Development Agreement is being processed concurrently with the Design Review DR-2006-02 application. The DA includes a master phasing plan that will guide future phases of the site. The Master Phasing Plan for the proposed project is consistent with the goals policies and objectives of the General Plan. Chapter 3 of the General Plan calls for"encouraging mixed use development in the University District'. Policy 4.2 requires the revitalization of the Foothill Center and Policy 4.3 encourages the development of "housing in mixed-use settings", and calls for "new developments and substantially remodeled commercial developments to integrate sidewalks, plazas, and other amenities that contribute to pedestrian-oriented activities" The proposed project will meet the intent of the General Plan. (f) Complies with all applicable requirements of the Development Code, and any other adopted City design standards, guidelines, and policies. The Development Code requires the submittal of a Master Phasing Plan for a mixed-use development to insure that the development will meet the intent and requirements of the development standards for the zone. With the approval of the Master Phasing Plan and the Foothill Center Overlay Zone, the proposed project will meet the applicable requirements of the Development Code. Section 2. This Resolution shall take effect immediately upon its adoption. Section 3. The Mayor shall sign this Resolution and the City Clerk shall attest and certify to the passage and adoption of this Resolution. ADOPTED, SIGNED, AND APPROVED this day of 2006, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: Diane Chagnon, Mayor Foothill Center Mixed Use Project/TTM 68355/CC ResoDr2006-02 I ATTEST: I Vera Mendoza, City Clerk i APPROVED AS TO FORM: BEST BEST &KRIEGER LLP City Attorney I i �I I I I E i Foothill Center Mired Use Project/7TM 683551CCResoDl'2006-01 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, APPROVING DESIGN REVIEW DR-2006- 103 (RESIDENTIAL COMPONENT) FOR THE FOOTHILL CENTER MIXED USE PROJECT LOCATED AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE WHEREAS, the City Council of the City of Azusa, has given notice thereof as required by law and held a public hearing on the application of Trachman/Indevco, LLC and Jar University Commons, LLC with respect to the requested Design Review DR-2006-103, (residential component) for the Foothill Center Mixed Use Project, located at the southwest corner of Alosta Avenue and Citrus Avenue; and WHEREAS, the City Council has carefully considered all pertinent testimony and the staff report offered in the case as presented at the public hearing; and WHEREAS, the City Council adopted a Mitigated Negative Declaration regarding the development of the Project on December 4, 2006. NOW, THEREFORE,THE CITY COUNCIL OF THE CITY OF AZUSA DOES HEREBY RESOLVE AS FOLLOWS: Section 1: In accordance with City of Azusa Municipal Code Section 88.51.032 and based on the staff report and other such written and oral evidence as presented to the City Council regarding the Design Review, the City Council finds and determines that the proposed residential component of the Mixed Use Project: (a) Provides architectural design, building massing and scale appropriate to and compatible with the site surroundings and the community. The proposed residential architectural design incorporates architectural elements of both the commercial development and the existing residential neighborhood. The combination of pitched and flat rooflines acts as an intermediary element between the modem commercial buildings and the traditional, existing single-family homes. While the three-story townhomes are taller than the majority of the single-family residences, they are approximately the same height as the apartment development on the northwest edge of the development and are compatible in size to the commercial buildings. The townhomes are set back approximately 45 feet from the west and south property lines to reduce the height impact and to provide privacy for the existing residences. Foothill Center Mixed Use Project/TTM 683551CCResoDR2006-103 i (b) Provides attractive and desirable site layout and design, including, but not limited to, building arrangement, exterior appearance and setbacks, drainage, fences and walls, grading, landscaping, lighting, signs, etc. I The proposed residential development design provides an attractive site layout by featuring the Fenimore Avenue extension as the public face.of the development. The majority of the units along Fenimore Avenue face the street and the proposed sidewalks and parkway landscaping along Fenimore Avenue create a pedestrian-oriented neighborhood. The interior if the project is designed to emphasis a pedestrian paseo with walkways, public open space and landscaped private patio areas. I (c) Provides efficient and safe public access, circulation and parking. Efficient and safe public access and circulation is provided by the Fenimore Avenue extension as well as by the private drive aisles. Both the City of Azusa Engineering Division and the Los Angeles County Fire Department have reviewed and approved the proposed circulation. Regarding parking, each unit has a two-car garage and guest parking is provided at a ratio of one guest parking space for every two units, which exceeds the required guest parking rate of one guest parking space for every three uI nits. (d) The project provides appropriate open space and landscaping, including the use of water efficient landscaping. The preliminary landscape plans provide ample landscaping in the form of the proposed front patio areas, the pedestrian paseos and the Village Green. A Final Landscape Plan is required subject to the review and approval of the Planning Division and the Recreation and Family Services DepartmI ent. (e) Is consistent with the General Plan, any applicable specific plan, development agreement, and/or any previously approved planning permit. The proposed project is consistent with the goals, policies and objectives of the General Plan. Chapter 3 of the General Plan calls for "encouraging mixed use development in the University District". Policy 4.2 requires the revitalization of the Foothill Center, and Policy 4.3 encourages the development of"housing in mixed-use settings", and calls for"new developments and substantially remodeled commercial developments to integrate sidewalks, plazas, and other amenities that contribute to pedestrian-oriented activities." The proposed project will meet the Foothill Center Mixed Use Piaject/7TM68355/CC/ReaoDR2006-103 intent of the General Plan. (f) Complies with all applicable requirements of the Development Code, and any other adopted City design standards, guidelines, and policies. The Development Code requires the submittal of a Master Phasing Plan for a mixed-use development to insure that the development will meet the intent and requirements of the development standards for the zone. With the approval of the Master Phasing Plan and the approval of the Foothill Center Overlay Zone, the proposed project will meet the applicable requirements of the Development Code. Section 2. This Resolution shall take effect immediately upon its adoption. Section 3. The Mayor shall sign this Resolution and the City Clerk shall attest and certify to the passage and adoption of this Resolution. ADOPTED, SIGNED, AND APPROVED this day of 2006, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: Diane Chagnon, Mayor ATTEST: Vera Mendoza, City Clerk APPROVED AS TO FORM: BEST BEST & KRIEGER LLP City Attorney Foothill Center Mixed Use Project/TTM 683551CCResoDR2006-103 I I RESOLUTION NO. I A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA,APPROVING MINOR USE PERMIT MUP- 2006-27 FOR BUILDING "C" OF THE COMMERCIAL COMPONENT OF THE FOOTHILL CENTER MIXED USE PROJECT, LOCATED AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE I WHEREAS, the City Council of the City of Azusa, has given notice thereof as required by law and held a public hearing on the application of Trachman/Indeveo, LLC and Jar University Commons, LLC with respect to the requested Minor Use Permit MUP-2006-27 for Building "C" of the commercial component of the Foothill Center Mixed Use Project, located at the southwest corner of Alosta Avenue and Citrus Avenue; and WHEREAS, the City Council has carefully considered all pertinent testimony and the staff report offered in the case as presented at the public hearing; and WHEREAS, the City Council adopted a Mitigated Negative Declaration regarding the development of the Project on December 4, 2006. NOW,THEREFORE,THE CITY COUNCIL OF THE CITY OF AZUSA DOES HEREBY RESOLVE AS FOLLOWS: Section 1: In accordance with City of Azusa Municipal Code Section 88.51.040 and based on the staff report and other such written and oral evidence as presented to the City Council regarding the Minor Use Permit, the City Council finds and determines that: (a) The proposed use is allowed within the,applicable zoning district and complies with all other applicable provisions of this Development Code and the Municipal Code. Per the City of Azusa Development Code, the sale of alcoholic beverages is permitted in the DU-MUI zone with a Minor Use Permit. There is an undue concentration of ABC licenses for the sale of alcoholic beverages for off-site consumption in Azusa, Census Tract #40420 and Azusa Police Department Reporting District 9224 . However, Staff finds that the public convenience or necessity would be served by the issuance of a Minor Use Permit for the proposed Building "C" market use. This is based on the fact that a market selling alcoholic beverages, as a supplement to their other merchandise, would provide a convenience to the residents. I Condition of Approval #29b restricts the validity of the Minor Use Permit to an approved market use. Condition of Approval #29c I Foothill Center Mixed Use Prroiectl TM 683551CC/ResoMUP1006-27 states that the hours of operation are 8:00 a.m. to 1 I p.m. and Condition of Approval #29d limits the size of the display of beer, wine and alcoholic beverages to 1,400 square feet. In addition,per Condition of Approval#1, the Minor Use Permit would be void if the market use is not exercised within 24 months of the approval of the Minor Use Permit. With these conditions, Staff finds that the public convenience or necessity would be served by the issuance of a Minor Use Permit. (b) The proposed use is consistent with the General Plan and any applicable specific plan. The proposed Minor Use Permit is consistent with Land Use Goal 4 which calls for a thriving and well balanced business sector in the Districts through providing dining and retail uses. The proposed Minor Use Permit would also meet the criteria in Policy 4.2 which calls for the revitalization of the University District. (c) The design, location, size, and operating characteristics of the proposed activity are compatible with the existing and future land uses in the vicinity. The sale of alcoholic beverages is proposed for Building"C", a proposed market. The operating characteristics are limited by the Conditions of Approval: #29b that states the Minor Use Permit is valid only in conjunction with a market use; #29c states that the hours of operation are 8:00 a.m. to 11 p.m. and Condition of Approval #29d limits the size of the display of beer, wine and alcoholic beverages to 1,400 square feet. In addition, per Condition of Approval #1, the Minor Use Permit would be void if the market use is not exercised within 24 months of the approval of the Minor Use Permit. (d) The site is physically suitable for the type, density and intensity of use being proposed, including access, utilities, and the absence of physical constraints. The proposed Building"C"is to be located in an existing commercial retail center which is physically suitable for the proposed use. A Traffic Study for the proposed project found that that, based on an analysis of the project volume of traffic, the levels of service at the intersections and estimated trips generated by the proposed project, the project will not cause a substantial increase in traffic in relation to the existing traffic load and the existing capacity of the street system Foothill Center Mixed Use ProjectITTM 68355/CC/ResoMUP2006-27 (e) Granting the permit would not be detrimental to the public interest, health, safety, convenience, or welfare, or materially injurious to persons, property, or improvements in the vicinity and zoning district in which the property is located: Granting the permit will be consistent with the General Plan goals and policies by providing a service in the University District. Restrictions through the Conditions of Approval assure that the use will be operated safely and will not harm persons or property in the immediate vicinity. Additional Criteria to be considered with Alcoholic Beverage Sales (f) The nature and use of real property within 500 feet of the use, and in particular, the location of similar nearby uses and the location of residences, parks, schools, and religious facilities; The residential component of the proposed project, located at the southwest corner of the project site is within 500 feet of Building "C", the market. This will provide a convenience to the residents. There are no schools or parks within 500 feet of the market. (g) Appropriate measures to provide proper maintenance of the building exterior, including keeping the premises free of junk, litter, and debris; Conditions of Approval require the premises to be maintained in a clean and acceptable condition at all times. All buildings and walls shall be maintained in good repair at all times. Any offensive markings shall be removed immediately. Any graffiti shall be painted over within forty-eight (48) hours to match existing wall in color and tone. (h) Lighting of exterior areas, including parking lots, to discourage loitering activities outside of the buildings; Adequate lighting is provided in the existing parking lot on the north and east sides of the existing building. (i) Protection of persons residing on or using adjacent properties from noise, illegal activity, odors, and undue light and glare; The Conditions of Approval for the project include noise and lighting mitigation for the site. (j) Provision,of onsite security, both inside and outside the building, to satisfy any concerns raised by the Police Department; i Foothill Center Mired Use Projeco`TTM 68355/CC/ResoMUP2006-27 The Police Department has reviewed the proposed project and does not have any specific requirements for the proposed use. (k) Adequacy of off-street parking provided for the use; Per the Traffic Study,prepared for the Initial Study, ample parking is provided in the existing commercial retail center. (1) Hours of operation; Per Condition of Approval #29c, the hours of sales of alcoholic beverages is limited to 8:00 a.m. to 11:00 p.m. (m) Controls on occupancy limits inside the building and loitering outside of the building; The Building Division and the Los Angeles County Fire Department will determined the occupancy limits of the proposed market. The Police Department and the Los Angeles County Fire Department are responsible for enforcing the limits. (n) Prevention of adverse effect of the use on value of adjacent properties; and The sale of alcoholic beverages for off-site consumption in the proposed Building"C" market will not adversely affect the value of adjacent properties since the adjacent building are part of the existing center and the properties next to the center will benefit from a refurbished center. (o) Whether approval would result in an undue concentration of these uses, and whether public convenience or necessity would mitigate the issue of undue concentration. The addition of another license for the sale of alcoholic beverages for off-site consumption will increase the undue concentration, however, Staff finds that the public convenience or necessity of the proposal will mitigate the issue. Section 2. This Resolution shall take effect immediately upon its adoption. Section 3. The Mayor shall sign this Resolution and the City Clerk shall attest and certify to the passage and adoption of this Resolution. Foothill Center Mixed Use Project7TTM 68355/CC/ResoMUP2006-27 - ADOPTED, SIGNED, AND APPROVED this day of 2006,by the following vote: AYES: NAYS: ABSENT: ABSTAIN: f Diane Chagnon, Mayor I ATTEST: I Vera Mendoza, City Clerk L APPROVED AS TO FORM: i BEST BEST & KRIEGER LLP �I City Attorney I f i Foothili Center Mixed Use ProjecdTTM 683551CC/ResoMUP2006-17 i Exhibit HX Draft Conditions of Approval —City Council - 12/4/06 Case No: TPM 68355, ZCA- 222, Z-006-01, DR 2006-02, DR 2006-103, MUP 2006-27 Address: Foothill Center - S/W corner of Alosta &Citrus Avenue A.P.N.: 8624-021-021: 8624-021-018: 8624-021- Proiect: Phased Mixed Use Development consisting of the following entitlements: Development Agreement and Owner Participation Agreement to allow a phased mixed use development; Tentative Parcel Map to subdivide three commercial parcel into 1 1 commercial parcels, one roadway (Fenimore Avenue extension) and to create 102 residential condominium units. A Zoning Ordinance Amendment — Development Code Text Amendment to establish the Foothill Center Overlay Zone, which would allow alternative development standards for the Foothill Center and Zone Change from DU-MU- to DU-MU(FC). Design Review of the proposed refurbishing of the existing retail commercial center including demolition of approximately 72,000 square feet of tenant space and construction of approximately 58,000 square feet of new tenant space. Design Review of the residential townhome component of the phased mixed use project. A Minor Use Permit to allow the sale of beer, wine and distilled alcohol for off-site consumption in Building "C" for a proposed market. These conditions of approval shall be printed on or attached to working drawings submitted to the Building Division for approval. A. All requirements of the Planning Division shall be met, including but not limited to the following: 1 . The Tentative Tract Map, the Design Reviews, and the Minor Use Permit shall be exercised within twenty-four (24) months after their approval, or said permits shall expire and be subject to revocation, unless an extension of time is approved in compliance with Section 88.52.040 of the Development Code. The permit shall not be deemed "exercised" until the applicant has obtained a building permit or, has commenced operation of the use for projects not requiring building permits. 2. All applicable Building Division and Fire Department requirements shall be met at all times. 3. All construction and uses shall be in substantial conformance with the approved plot plan and elevations, as modified pursuant to the conditions listed herein. 4. Prior to submitting Commercial Development Component construction plans for Building Division plan check, applicant shall submit a revised site plan to the Planning Division for review and approval. The revised site plan shall show compliance with all applicable zoning standards and reflect the following conditions: P:U Planning\Entitiements\I 2- Design RevieM2006\DR-2006-02,MUP 2006-0I Foothill Center\CQCC Exhibit-A.doc TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 2 of 19 I a. Revise the Site Plan to be consistent with the Tentative Tract Map. b. Trash enclosures shall be provided and constructed to City of Azusa standards, consisting of decorative masonry block walls and solid steel gates. Enclosure location must be approved by the local trash contractor. C. The drive aisle south of the Taco Bell drive-thru entrance shall be one-way with a stop sign installed, per the requirements of the City Engineer or 2—way if approved by the City Engineer. d. At least 533 parking spaces shall be provided and maintained in accordance with Chapter 88.36 (Parking and Loading) of the Development Code. e. All new roof equipment shall be screened to the satisfaction of the Planning Division. I f. Show a detail of the landscaped area on the west side of the theater building. g. Show the proposed location of the Taco Bell drive-thru lane curbs and the distance between the outside curb and the proposed planter. h. On the southern property line, provide landscaping between the parking and the perimeter wall. 5. Three sets of Commercial Landscape and Irrigation plans shall be submitted to the Planning Division for review and approval. Said plans shall be 24" by 36" and in compliance with City of Azusa landscape design standards. Location and percentage of landscaping, plant material and quantities of each, plant and planter box sizes, and design of an automatic irrigation system with detailed cross-sections shall be clearly indicated. [Note: Do not submit these plans with building plan check. Plans must be submitted directly to the Planning Division. The applicant is made aware that the Parks Division will be routed two sets of plans. Please allow 2-3 weeks for review]. The number of parkway trees, if any, shall be determined by the Parks Division. 6. The Landscape plans shall include: a. The location of all new and existing light poles/standards. b. Provide a legend identifying which symbols;represent trees, bushes and pots. C. Identify which trees are new and which are`existing/remaining. d. At the Citrus Avenue entrance, between Citrus Pad 1 8.2, show and retain the existing large trees at the entrance and the trees on south side of the entrance drive aisle if possible. 7. Prior to submitting for Building Division plan check of the Residential Component, the applicant shall submit revised residential elevations and Ih TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 3 of 19 site plan to the Planning Division for review and approval. The revised plans shall show compliance with all applicable zoning standards and reflect the following conditions: a. Revise the Site Plan to be consistent with the Tentative Tract Map b. At least 256 parking spaces shall be provided and maintained in accordance with Chapter 88.36 (Parking and Loading) of the Development Code. C. On the flat-roofed, Plan 3 elevation, extend the brick veneer to the entire wall surface of the front elevation. d. On the 1 Plan elevation with the rock veneer, increase the height of the rock veneer to the height of the porch roof. e. Provide a detail of proposed awnings, pot shelves, and balconies. f. Add architectural details, such as pot shelves and balconies to the revised rear elevations. 8. Three sets of Residential Landscape and Irrigation plans shall be submitted to the Planning Division for review and approval. Said plans shall be 24" by 36" and in compliance with City of Azusa landscape design standards. Location and percentage of landscaping, plant material and quantities of each, plant and planter box sizes, and design of an automatic irrigation system with detailed cross-sections shall be clearly indicated. [Note: Do not submit these plans with building plan check. Plans must be submitted directly to the Planning Division. The applicant is made aware that the Parks Division will be routed two sets of plans. Please allow 2-3 weeks for review]. The number of parkway trees, if any, shall be determined by the Parks Division. 9. The Landscape plans shall include: a. A walkway connection from the west side of Fenimore Avenue to the mailboxes on the east side of Fenimore Avenue b. On those units with a street sideyard on Fenimore Avenue, provide a detail, for review and approval of by the Planning Division, showing additional landscape material to provide additional buffering between the side of the residential units and the sidewalk. C. Trash enclosures shall be provided and constructed to City of Azusa standards, consisting of decorative masonry block walls and solid steel gates. Enclosure location must be approved by the local trash contractor. d. Reduce the height of the proposed monument to a pedestrian friendly height, to be approved by the Planning Division. e. Provide vine pockets at rear of buildings, between the garage doors. TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 4 of 19 10. Parking of vehicles on areas other than paved surfaces or in garages is prohibited. i 11 . Parking spaces shall be clearly outlined with four-inch wide lines painted on the parking surface. The striping and identification shall be continuously maintained in a clear and visible manner. Changes,to parking space or lot striping shall require the prior approval of a re-striping plan by the Director. 12. Each parking and loading space shall be permanently and continuously available, marked, and maintained for parking or loading purposes for the use it is intended to serve. i' 13. The existing wireless communication tower shall be redesigned as a stealth tower, as approved by the Planning Division. 14. All equipment associated with a communication facility shall be removed within 30 days of the discontinuance of the use and the site shall be restored to its original pre-construction condition; to the approval of the Director. The service provider shall provide the City with a notice of intent to vacate a site a minimum of 30 days before site vacation. A private lease for a facility located on private property is encouraged to include terms for equipment removal, since the property owner shall be ultimately responsible for removal of the equipment. 1 15. Landscaping shall be adequately maintained at all times including, but not limited to, irrigation, weeding, and/or replacement when necessary. 16. Before final building inspection or the issuance of a certificate of occupancy, and before the recordation of a final subdivision map where applicable, the applicant shall enter into a landscape maintenance agreement with the City to guarantee proper maintenance in compliance with Subsection 88.34.070 of the City of Azusa Development Code. The form and content of the agreement shall be approved by the City Attorney and the Director of Economic and Community Development. 17. The premises shall be maintained in a clean and acceptable condition at all times. All buildings and walls shall be maintained in good repair at all times. Any offensive markings shall be removed immediately. Any graffiti shall be painted over within forty-eight (48) hours to match existing wall in color and tone. 18. All trash enclosures(s) shall be maintained in goodand operating repair at all times. The storage of any and all trash other than the trash storage area or higher than the screened walls around said storage area is prohibited. Dumpster(s) are to remain in enclosure(s) at all times, except when being services by the disposal company. 19. Applicant shall provide and maintain litter receptacles outside of the businesses and be responsible for keeping the receptacle and the area around it clean and free of excess trash or debris at all times. TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 5 of 19 20. Outside storage of any and all materials, goods, etc., is absolutely prohibited. 21 . A Master Sign Plan is required for the Commercial component. 22. All new illuminated sign and parking lot lighting shall be located, aimed and/or shielded to prevent lights from shining or reflecting on adjacent property. 23. All new signs require separate sign permits, and must comply with those sign regulations set forth in Chapter 88.38 (Signs) of the Development Code or the Master Sign Plan to include restrictions on sign area, sign types, sign materials, and sign height. 24. Signs shall not be placed on the public right-of-way. Those projections over the existing or proposed public right-of-way shall meet the State of California Encroachment requirements. 25. Portable signs on the property are prohibited. 26. Temporary signs on the property shall meet all requirements of Chapter 88.38 (Signs) of the Development Code. 27. Enclosing of any patio structures by means of screens, glass, walls, etc., is absolutely prohibited, unless permitted under a separate Planning Division approval: 28. All handling and storage of hazardous waste, materials, or chemicals shall be in accordance with all applicable State, Federal, or local laws. 29. Conditions of Approval for Minor Use Permit MUP 2006-27 shall include: a. The Minor Use Permit is for the sale of beer, wine and alcohol, for off-site consumption, in Building "C" of the Foothill Center, a market use. b. The Minor Use Permit is valid in conjunction with a market use only; if the market use is not exercised within 24 months, the MUP shall become null and void. C. The hours of operation are 8:00 a.m. to 11:00 p.m. d. The area allowed for the display of beer, wine and alcohol is limited to 1 ,400 square feet. 30. All requirements of the State Department of Alcoholic Beverage Control (ABC) shall be met at all times. Should the ABC license be revoked, subject Minor Use Permit shall automatically be scheduled for revocation. 31 . The Applicant, or successor in interest, shall construct Fenimore Avenue and the City shall accept the street prior to the issuance of any residential occupancy permit. 32. A Homeowner's Association shall be established for the residential component of the project. 33. A separate Declaration of Covenants, Conditions, and Restrictions 2 2 Z-2006-01 DR 2006-06 DR 2006-103 MUP 2006-27 TPM 68355, ZCA 2 , December 4, 2006 Page 6 of 19 (CC&R's) for the residential component shall be submitted to and approved by the Economic and Community Development Director, prior to the issuance of any residential occupancy permit. 34. The Homeowner's Association shall remove any offensive markings immediately and any graffiti shall be painted over within forty-eight (48) hours to match existing wall in color and tone. f 35. During demolition and construction, a construction fence shall be erected around the residential construction site, per the requirements of the Planning Division. 36. A large notification sign, size and design to be approved by the Planning Division shall be shall be prominently posted at both the commercial component area and the residential component area listing: (i) The allowable hours of construction, per the City of Azusa Development Code and the Mitigated Negative Declaration; (ii) The contact information (Name, address &phone number) of whom to contact person with complaints; (iii) The general timeline of expected demolition and construction. 37. Prior to the issuance of demolition permits, the Applicant shall notify, via mailing notice and signage on the project site, the property owners within 500' of the entire commercial and residential site, of the date and time of demolition and of the types of equipment and methods to be employed. 38. The Applicant shall submit a dust and debris mitigation plan to Engineering Division and Building Division for review and approval, prior to the issuance of any grading, demolition, or construction permit, 39. Prior to the issuance of building permits, the Applicant shall notify the property owners within 500' of the entire commercial and residential site, via mailing notice, of the allowable hours of construction, per the City of Azusa Development Code and the Mitigated Negative Declaration; the contact information (Name, address &phone number) of the person to call regarding complaints; and the general timeline of expected demolition and construction. i 40. Pavement breaking, demolition, and heavy material handling activities shall only be allowed between the hours of 8:00 a.m. and 5:00 p.m. Monday through Saturday. No construction activities allowed on Sundays and National Holidays . 41 . The following Mitigation Measures of the Mitigated Negative Declaration shall be implemented: a. The developer shall construct and maintain a solid block wall of minimum height eight feet along the south' and west boundaries of the project site between the proposed townhouses and i TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 7 of 19 adjacent residential uses (AES-1). b. All new outdoor lighting shall comply with Section 88.31.030 — Outdoor Lighting of the Azusa Development Code. Prior to the issuance of building permits, the developer shall submit a comprehensive lighting plan that shows compliance with these requirements and obtain approval of such plans from the Director of Economic and Community Development (AES-2). . C. The developer/permittee shall ensure that all architectural coatings comply with SCAQMD Rule 1 1 13, and will provide the City with an architectural coatings plan prior to the beginning application that demonstrates the average VOC content of all architectural coatings will be 125 g/I or less (AIR-1 . d. The developer/permittee shall ensure that all heavy construction equipment used in the development of the proposed project is equipped with a lean-NOx catalyst or a diesel oxidation catalyst (AIR-2). e. All equipment shall be properly tuned and maintained. A vehicle maintenance log will be available on site at all times for inspection by a City representative (AIR-3). f. The developer/permittee shall water excavated soils and stockpiles of excavated dirt at least twice a day or as often as necessary to eliminate nuisance dirt (AIR-4). g. The developer/permittee shall install temporary dust screens along the perimeter of the project site to prevent nuisance dust from leaving the project site (AIR-5). h. The developer/permittee shall locate stockpiles and active construction areas as far from adjacent land uses as possible (AIR- 6). i. The developer/permittee shall outfit diesel-powered construction equipment with diesel particulate traps (AIR-7). j. During demolition and grading activities, the concrete slab in the vicinity of both the Mr. Dryclean facility and the former drycleaning machine shall be tested for the presence of PGE by a Registered Environmental Assessor (REA) and according to the results, disposed of in compliance with all applicable county, state, and federal regulations. The developer shall provide the City with written evidence of such compliance (HAZ-1) k. During grading activities in the vicinity of both the Mr. Dryclean facility and former drycleaners, the soil beneath the Mr. Dryclean facility building footprint and beneath the proposed building at this location and under the former dry cleaners, shall be excavated TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 8 of 19 to a minimum of 7 feet below the ground surface, and possibly deeper, if warranted based on field observations (i.e. staining or odors). A REA shall be present during the time of soil excavation to determine if excavation deeper than 7 feet below the ground . surface is required and to perform air monitoring with a photo- ionization detector (PID). The monitoring with the PID shall be performed in accordance with SCAQMD Rule 1 166 to determine whether soils may be reused on site. If PID readings are less than 50 parts per million by volume (ppmv), then the excavated soil may be reused on site. If the PID readings are greater than 50 ppmv, then the excavated soil shall need to be disposed of at an off-site facility in compliance with all applicable federal, state and county regulations (HAZ-2). I. Prior to issuance of building permits, the developer/permittee shall demonstrate noise levels from HVAC units will not exceed the City's Noise Ordinance. This may be achieved by either: i) constructing 4-foot-high barriers around all HVAC units within 95 feet of adjoining residential property lines, such that the direct line of sight from the HVAC unit to all property lines within 95 feet is blocked; ii) mounting HVAC units on proposed building roofs, provided that HVAC unit shall be positioned at least 10 feet from the nearest building edge; iii) using HVAC units that have an ARI sound level rating of 70 dBA or less; or iv) 'using other insulation or construction techniques that can effectively achieve City noise standards to the satisfaction of the Building Official (NOI-1) M. Pavement breaking, demolition, and heavy material handling activities shall only be allowed between the hours of 8:00 a.m. and 5:00 p.m. (NOI-2). n. The contractor and all vendors, suppliers, or subcontractors who operate construction equipment shall have'a regular maintenance and lubrication program for their equipment available at the construction site for verification in the event of a noise complaint (NOI-3). o. All construction equipment operated by the contractor, vendors, suppliers, or subcontactors shall be equipped with manufacturer- approved exhaust mufflers or better (NIO-14) 42. If it becomes necessary for the City to take any legal action or commence any administrative proceedings against the applicant or any successor in interest in order to enforce any of the conditions of approval set forth herein, the City shall recover from the applicant or successor in interest reasonable attorneys' fees and other reasonable costs incurred in such it TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 9 of 19 action or proceeding, provided that the City obtains a judgment in its favor in any portion of such action or proceeding. 44. The applicant or successor in interest shall be the real party in interest and shall assume primary responsibility for the defense of any legal action or proceeding commenced against the City to challenge the City's approval of Land Use Entitlements and/or the City's approval related to such land use approval. The applicant or successor in interest shall reimburse the City for all reasonable attorneys' fees and other reasonable costs incurred by the City in defending such action or proceeding. 45. By accepting approval of the Land Use Entitlements subject to the conditions set forth herein, the applicant or successor in interest shall be deemed to have agreed to the terms and conditions set forth herein and the City shall have the right to enforce in its sole discretion such terms and conditions by pursuing any and all available legal and equitable remedies. 46. All maps shall be submitted in digitized form to the Engineering Division prior to and upon approval of the final maps by the City Council. 47. Any changes to the conditions listed above must be approved by the City Council. 48. The applicant shall continue to work with the adjacent residential property owners to address the drainage and wall concerns. 49. A supplemental traffic study of the intersection of Alosta Avenue and the Fenimore Avenue extension shall be presented to the City Council for their review. B. All requirements of the Recreation and Parks Department shall be met, including but not limited to the following: 1 . No work within the public right of way shall be commenced without first obtaining a public works permit. 2. Landscape and irrigation plans shall show locations, quantities, sizes, and types of plant materials, as well as design of an automatic irrigation system. No final release from this department shall be granted until these plans have been approved. 3. Park and Recreation in-lieu fees shall be paid in accordance with Azusa Municipal Code Section 66-5. C. All requirements of the Building Division shall be met, including but not limited to the following: Commercial Component 1. Review is based on construction plans dated 9/22/06 and Tentative Parcel Map dated 9/14/06. 2. Applicant shall conform to the 2001 Uniform Building Standards Codes incorporating the State of California 2001 Uniform Building Code, TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 10 of 19 Uniform Mechanical Code, Uniform Plumbing Code, and the 2004 California Electric Code, and all applicable Azusa Municipal Ordinances. 3. All plan check fees shall be paid at the time of plan check submittal. Once plan check is completed and approved, applicant shall be responsible to pay in full all other appropriate development fees (i.e. school district fees, water reimbursement, park fees) prior to issuance of any buildins permit. 4. Electrical, mechanical, plumbing plan check fees are required. 5. Energy plan check fees are required. 6. Applicant shall submit 3 copies of foundation, framing, floor and elevation plans for plan check. 7. Structural, architectural, electrical, mechanical, plumbing plans shall be designed by a State of California Registered Engineer, or a State of California Registered Architect. 8. Applicant shall submit 3 copies of structural calculations simultaneous with the construction plans. 9. Applicant shall submit 3 copies of energy calculations simultaneous with the construction plans. 10. Electrical, mechanical, plumbing plans shall be submitted for plan check simultaneous with the construction plans. 11. Applicant shall submit 3 copies of soil report simultaneous with the construction plans. 12. Prior to issuance of a permit, the applicant shall submit approval from the Los Angeles County Health Department, the Los Angeles County Fire Department, South Coast Air Quality Management District (SCAQMD). 13. Applicant recognizes that approval granted is for planning and zoning only and the owner is obligated to meet all applicable Building Division requirements. 14. Property falls within an area of potential earthquake induced Liquifaction, Landslides or both. A site-specific Geologic investigation must be conducted for the property. The site-investigation report must be prepared by a certified engineering geologist or registered engineer who must have competence in the field of seismic hazard evaluation and mitigation. The geologic report must be submitted to the Department of Community Development for review. Plan review fees will based on actual costs with a minimum deposit of $1 ,000.00 due when the report is submitted. 15. Plans as submitted are not acceptable for Building Division submittal. Residential Component 1 . Applicant shall conform to the 2001 Uniform Building Standards Codes TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 11 of 19 incorporating the State of California 2001 Uniform Building Code, Uniform Mechanical Code, Uniform Plumbing Code, and the 2004 California Electric Code, and all applicable Azusa Municipal Ordinances. 2. All plan check fees shall be paid at the time of plan check submittal. Once plan check is completed and approved, applicant shall be responsible to pay in full all other appropriate development fees (i.e. school district fees, water reimbursement, park fees) prior to issuance of any buildin¢ hermit. 3. Electrical, mechanical, plumbing plan check fees are required. 4. Energy plan check fees are required. 5. Applicant shall submit _3_ copies of foundation, framing, floor and elevation plans for plan check. 6. Structural, architectural, electrical, mechanical, plumbing plans shall be designed by a State of California Registered Engineer, or a State of California Registered Architect. 7. Applicant shall submit _3_ copies of structural calculations simultaneous with the construction plans. 8. Applicant shall submit _3_ copies of energy calculations simultaneous with the construction plans. 9. Electrical, mechanical, plumbing plans shall be submitted for plan check simultaneous with the construction plans. 10. Applicant shall submit _3_ copies of soil report simultaneous with the construction plans. 11. Property shall be surveyed by a State of California Licensed Surveyor and the report shall be submitted simultaneous with the construction plans. 12. Prior to issuance of a permit, the applicant shall submit approval from the Los Angeles County Fire Department. 13. Applicant recognizes that approval granted is for planning and zoning only and the owner is obligated to meet all applicable Building Division requirements. 14. Plans as submitted are not acceptable for Building Division submittal. 15. Project must comply with SB 1025. 16. Project requires an Acoustic Study. 17. Third floor area shall not exceed 500 square feet unless a second exit is . provided (see Section 207 C.B. C.) D. All requirements of the Water Division shall be met, including but not limited to the following: 1 . Will require an approved backflow device. 2. Will require installation of a new water main. Water and fire service to meet specifications and requirements to the satisfaction of Azusa Light TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MOP 2006-27 December 4, 2006 Page 12 of 19 &Water Department. 3. Plan Check is required. 4. The owner or project applicant shall take sole responsibility for costs incurred due to any modification, relocation or alteration of existing water facilities caused by this project to the satisfaction of the Light and Water Department. 5. This project is subject to Ordinance 96-08, Chapter 78-471 through 477 entitled, City of Azusa Municipal Code entitled "Water System Development Fee". Fee must be paid to the Light and Water Department following the final plan approval by Building Division. 6. This project is subject to Ordinance No. 92-030, Chapter 78, Article VI, and Division 6 of the City of Azusa Municipal Code, entitled "Water Conservation Plan." This includes the installation of water saving . devices, such as ultra low-flow toilets (1 .6 gallons), and participation in the retrofitting of existing housing units. 7. Remove existing interior piping. Install new water main in 5"' Street at Alosta Avenue and relocate all services to existing public right of way as per attached sketch. 1 8. Submit water plan to Azusa Light and Water Department for approval. 9. Land Use Category Residential- single family unit 102 units 0 $1 .528.12.90/DU Commercial 0.70 SF E. All requirements of the Light Division shall be met, including but not limited to the following: 1 . Electric services for entire project site shall be served from City of Azusa - Azusa Light &Water. Project developer owner shall make arrangement with Azusa Light &Water for electric utility services required at project site. Extensive underground electric line rebuilding including new underground electric distribution system are required to be furnished and installed by project developer or owner. Project developer or owner is also directed to make separate arrangements with owners of other affected utilities for any underground conversion of their services prior to issuance of any building permits. All electric services shall be installed underground. Design or methods of construction shall be in accordance with specifications and requirements of Azusa Light &Water. Property owner shall furnish and install all electric facilities required by Azusa Light &Water, necessary to receive electric utility service. This may involve an underground electric system from Alosta Avenue, Fenimore Avenue and Citrus Foothill Center Mixed Use Project/TTM 68355/CGCC Exhibit A.doe i TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 13 of 19 Avenue. The new electric facilities may include but not limited to concrete encased underground conduits, vaults/manholes, transformer pads, roadway lighting, 2" conduit for telecommunication purposes, and other-electric related structures required to complete service installations. 2. In addition to furnishing and installing underground electric substructures, the property owner or project developer shall pay to Azusa Light &Water all utility related fees and charges required by Azusa Light &Water. These fees or charges may include but not limited to electric equipment deposits, labor, material and overhead expenses to furnish and install underground high voltage cables, pre-payments on new electric services, pole fixtures and hardware etc. 3. Project developer or owner shall submit for review the following plans to Azusa Light &Water, prior to determining method of services or layout of electric distribution system at project site. Project plans required for submittal are as follows: a) site survey, grading plan &site plan b) roadway improvement plans including non-pressurized underground utilities c) electric service desired including electrical load calculation and single line diagram d) proposed locations of above ground transformer pads. 4. Existing electric facilities shall remain until replacement underground electric system is installed and accepted by Azusa Light &Water. Any relocation, modification, or alteration of existing, on-site electric facilities arising from project improvement plans shall be installed underground at sole cost and expense of project developer or owner. All existing electric facilities will be retained and shall be accessible before, during, or after construction of new buildings or site improvements. In order to maintain continuity of existing services to remaining buildings, replacement electric facilities as per requirements of Azusa Light &Water, shall be pre-installed by owner/project developer for those existing electric facilities affected by site improvements. 5. Existing electric easements shall be retained or relocated acceptable to Azusa Light &Water Department. No new structures, buildings, or facilities shall be constructed or installed directly above existing underground electric facilities. Property owner shall grant an underground electric easement to Azusa Light &Water for new underground electric facilities. Easement document shall be prepared, Foothill Center Mixed Use Project/TTM 68355/CC/CC Exhibit A.doc 1 TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 14 of 19 duly signed by property owner in the prescribed (form and shall be submitted by owner to Azusa Light &Water for acceptance and recording no later than the time to energize any of the new electric services. New electric easements will be required to be recorded prior to the sale of any portion of the entire parcel or relocate electric facilities as per requirements of Azusa Light &Water. 6. Any new transformer pads or outdoor electric panel/equipment shall be installed in a safe location, readily accessible by utility field personnel. Prior to construction, owner or project developer shall coordinate and resolve with City of Azusa - Planning Division, any issues relating to visual impacts arising from installation of outdoor above ground electric utility equipments. 7. Public roadway lighting facilities within the frontage of the proposed project site along Fenimore Avenue shall be furnished and installed by property owner or project developer. Roadway lighting plans shall be prepared and submitted to Azusa Light &Water for approval. Roadway illumination design shall be in conformance with applicable roadway lighting standards of Los Angeles County. The method of electric service and lighting facilities shall be in accordance with requirements or specifications of Azusa Light &Water. The property owner or project developer shall work with City of Azusa to install street lighting system that balances attractiveness of decorative lighting with safe roadway illumination along project site perimeter at Fenimore Avenue. Private roadway lighting within the project site shall be served from a metered electric service. Ownership, operation and maintenance of private lighting facilities shall be at the sole cost and expense of owner or project developer. Private roadway electrical lighting plans will require approval from City of Azusa - Building Inspector. Lighting plans shall be incorporated and be made part of roadway improvement plans. 8 Prior to issuance of final release for occupancy of any residential or commercial units, the owner or project developer shall comply with requirements of Azusa Light &Water. F. All requirements of the Fire Department shall be met, including but not limited to the following: I . Access shall comply with Section 902 of the Fire Code which requires all weather access. All weather access may require paving. 2. Fire department access shall be extended to within 150' feet wide of any exterior portion of all structures. 3. Where driveways extend further than 150 feet'and are of single access design, turnarounds suitable for fire protection equipment use shall be Foothill Center Mixed Use Project/TTM 68355/CC/CCEzhibit A.doc TPM 68355, ZCA-222,Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 15 of 19 provided and shown on the final map. Turnarounds shall be designed, constructed and maintained to insure their integrity for Fire Department use. Where topography dictates, turnarounds shall be provided for driveways which extend over 150 feet. 4. The private driveways shall be indicated on the final map as a "Private Driveway and Firelane" with the widths clearly depicted and shall be maintained in accordance with the Fire Code. All required fire hydrants shall be installed, tested and accepted prior to construction. 5. Provide Fire Department or City Approved street signs and building address numbers prior to occupancy. 6. The building construction plans shall be submitted to the Fire Department's Glendora Fire Prevention Office for review. Additional access requirements may also be addressed at this time. 7. Provide water mains, fire hydrants and fire flows as required by the County of Los Angeles Fire Department, for all land uses shown on map which shall be recorded. 8. The required fire flow for public fire hydrants at this location is 3750 gallons per minute at 20 psi for a duration of 3 hours, over and above maximum daily domestic demand. 2 hydrants flowing simultaneously may be used to achieve the required fire flow. 9. Fire hydrant requirements are as follows: a. Install 18 public fire hydrants b. UpgradeNerify 2 existing public fire hydrants C. Relocate 6 existing public fire hydrants 10. All hydrants shall measure 6"x4"x2 1/2" brass or bronze, conforming to current AWWA standard C503 or approved equal. All on-site hydrants shall be installed a minimum of 25 feet from a structure or protected by a two (2) hour rated firewall a. Location: as per map on file with the office. b. Other location: Refer to the approved map for fire hydrant locations. 11 . All required fire hydrants shall be installed, tested and accepted or bonded for prior to Final Map approval. Vehicular access must be provided and maintained serviceable throughout construction. 12. Additional water system requirements will be required when this land is further subdivided and/or during the building permit process. 13. Upgrade not necessary, if existing hydrants meet fire Flow requirements. 14. Submit a minimum of four (4) copies of the water plan indicating the fire hydrant locations to the Department's Land Development Unit for review. Submit the original copy of the Fire Flow Availability Form (form 196) for Foothill Center Mixed Use Project/7TM 683551MCC Exhibit A.doc TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 16 of 19 the existing ,public fire hydrants to the Fire Department's Land Use Development Unit for review. The fire flow is based on the proposed structure being fully fire sprinklered. 15. On Fenimore Avenue, parking is permitted on both sides of the street with the width of 36 feet, to be measured from the curb-Flow-line to curb- flow-line. 16. On Fenimore Avenue, parking is not permitted on neither side of the street with the width of 30 feet, to be measured from curb-Flow-line to the curb-flow-line. Both sides of the street shall be posted "No Parking— Fire Lane." 17. For the multi-family development (Parcel 12 & 13), where parking is not permitted, provide a minimum unobstructive driveway width of 26 feet, with the driveway to be posted "No Parking— Fire Lane." 18. As noted on the tract map, provide a gate with a Knox Box to be located on both sides of the gate (Parcel 13). Then minimum gate width is required to be 26 feet, with all gate accessory hardware is out of the access way when fully open. 19. For Parcel 8, for the one-way traffic, provide a minimum unobstructive driveway width of 20 feet, with the driveway to be posted "No Parking— Fire Lane". 20. For Parcel 8, for the driveway between proposed Buildings A&B, provide a minimum unobstructive driveway width of 26 feet, with the driveway to be posted "No Parking-Fire Lane". This driveway may be blocked off at each end to function as a pedestrian walkway, with the use of either a gate or mechanical bollards. The mechanical Bollards shall be activated at the Knox Box, which is required to be located at each end of the driveway. 21 . Provide a minimum unobstructive driveway width of 26 feet, with the driveway to be posted "No Parking— Fire Lane" in Parcel 10, as noted by the Fire Department. G. All requirements of the Engineering Division shall be met, including but not limited to the following: 1 . Applicant is required to design, engineer and construct of the extension of Fenimore Avenue to Alosta Avenue. 2. Applicant is required to design, engineer and construct a new sidewalk along Fifth Street and Alosta Avenue, to connect the existing sidewalk on Fifth Street to Citrus Avenue. 3. Project applicant has submitted Traffic Analysis Report to the Engineering Division for review. The methodology and findings are Foothill Center Mixed Use ProjectITM 68355/CC/CC Exhibit A.doc TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 17 of 19 satisfactory to this Division. Applicant shall comply with recommendations contained therein. 4. Obtain written approval or stamped approval of Los Angeles County Fire Department for access and roadways. 5. Submit Grading and Drainage Plan with Soil Report to Engineering Division for approval. 6. Submit Hydrology Report for approval of the Engineering Division; with analysis of need for on-site retention. 7. Obtain an Encroachment Permit for any work within street right-of-way including construction of driveway aprons and Utility connections. 8. Comply with City's National Pollution Discharge Elimination Permit requirements (NPDES). Contractor and Owner shall prepare a Storm Water Pollution and Erosion Control Plan. 9. Submit a comprehensive sewer discharge study for present and future use that will include an analysis of gpm discharge using an ultimate build out fixture unit count. 10. Curbside parking along Alosta Ave will not be permitted . Bus loading and unloading will be permitted. II . Prepare and File an appropriate Final Map in conformance with the City Subdivision Ordinance and the Subdivision Map Act. Set any and all permanent property corner monuments with Engineer or Surveyors tag and request inspection. 12. Grading Bond and Survey Monument Bond if required. 13. Obtain Demolition Permit from the City Building Division. 14. This project and all occupied completed units shall be included in the City wide Landscaping and Irrigation Assessment District No. 1. 15. Prior to issuance of a Grading Permit, the applicant shall provide written verification that all fees have been or make satisfactory arrangements guaranteeing payment of all Wastewater Discharge permits issued by the County Sanitation Districts of Los Angeles County. 16. Prior to approval by the Engineering Division, the following statement must be submitted by the Owner/Applicant and Licensed Architect and Engineer of Record the following: " The undersigned hereby state that an evaluation of the turning radii and maneuverability characteristics of vehicles using and servicing this site has been completed and that under normal conditions vehicles shall be able to safely maneuver in a continuous movement without obstruction or excessive backup to other cars." 18. The Applicant shall coordinate with the United States Postal Service Foothill Center Mixed Use Project/TTM 683551CCICC Exhibit A.doc TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 18 of 19 f and the Engineering Division all new addresses. f H. All requirements of the Los Angeles County Sanitation Districts shall be met, including but not limited to the following: 1 . The proposed development is located within the jurisdictional boundaries of district No. 22. 1 2. The wastewater flow originating from the proposed project will discharge to a local sewer line which is not maintained by the Districts, for conveyance to the Districts' Base Line Trunk Sewer, located in the Baseline Road between Citrus Avenue and Rockvale Avenue. This 18- inch diameter trunk sewer has a design capacity of 7.7 million gallons per day (mgd) and conveyed a peak flow of 5.4 mgd when last measured in 2006. Downstream of the connection point, the sewerage system is at capacity. Availability of sewer capacity depends upon project size and timing of connection to the sewerage system. Because there are other proposed developments in the area, the availability of trunk sewer capacity should be verified as the project advances. In order to ensure that the project is considered in planning future sewerage system relief and replacement projects, please submit a copy of the project's build-out schedule to: Ruth I. Frazen, Engineering Technician, Facilities Planning Department, County Sanitation Districts of Los Angeles County, 1955 Workman Mill Road, Whittier,CA, 90607-4998. i 3. The wastewater generated by the proposed project will be treated at the San Jose Creek Water Reclamation Plant (WRP) located adjacent to the City of Industry, which has a design capacity of 100 mgd and currently processes an average flow of 88.4 mgd. Wastewater flows that exceed the capacity of the San Jose Creek WRP, and all biosolids, are diverted to and treated at the Joint Water Pollution Control Plant located in the City of Carson. 4. The expected increase in average wastewater flow from the project site is 40,408 gallons per day. A copy of the District's average wastewater generation factors is attached for your information. 5. The districts are empowered by the California Health and Safety Code to charge a fee for the privilege of connecting (directly or indirectly) to the Districts' Sewerage System or increasing the existing strength and/or quantity of wastewater attributable to a'particular parcel or operation already connected. This connection fee is required to construct an incremental expansion of the Sewerage system to accommodate the proposed project, which will mitigate the impact of Foothill Center Mixed Use ProjecdTTM 683551CC/CC Exhibit A.doc. TPM 68355, ZCA-222, Z-2006-01, DR 2006-06, DR 2006-103, MUP 2006-27 December 4, 2006 Page 19 of 19 this project on the present Sewerage System. Payment of a connection fee will be required before a permit to connect to the sewer is issued. A copy of the Connection Fee Information Sheet is attached for your convenience. For more specific information regarding the connection fee application procedure and fees, please contact the Connection Fee Counter at 562-699-7411 x2727. 6. In order for the Districts to conform to the requirements of the Federal Clean Air Act (CAA), the design capacities of the Districts' wastewater treatment facilities are based on the regional growth forecast adopted by the Southern California Association of Governments (SCAG). Specific policies included in the development of the SCAG regional growth forecast are incorporated into clean air plans, which are prepared by the South Coast and Antelope Valley Air Quality management Districts in order to improve air quality in the South Coast and Mojave Desert Air Basins as mandated by the CAA. All expansions of Districts' facilities must be sized and service phased in a manner that is consistent with the SCAG regional growth forecast for the counties of Los Angeles, Orange, San Bernardino, Riverside, Ventura, and Imperial. The available capacity of the Districts' treatment facilities will, therefore, be limited to levels associated with the approved growth identified by SCAG. As such, this letter does not constitute a guarantee of wastewater service, but is to advise you that the Districts intend to provide this service up to the levels that are legally permitted and to inform you of the currently existing capacity and any proposed expansion of the Districts' facilities. 7. For additional information, contact Ruth I. Frazen, Engineering Technician, Facilities Planning Department, County Sanitation Districts of Los Angeles County, 562-699-7411. Foothill Center Mixed Use Project17TM 68355/CC✓CC&-hibil A.doc I I MITIGATION MONITORING AND REPORTING PROGRAM i Foothill Center Mixed-Use Development I Date of Adoption by the City of Azusa: I Project Files May Be Reviewed at: I City of Azusa Planning Department 213 E. Foothill Boulevard Azusa, CA 91702 i I I i I i I Mitigation Monitoring and Reporting Program forthe City of Azusa, Foothill Center Mixed-Use Development Section 1: Authority This Environmental Mitigation Monitoring and Reporting Program has been prepared pursuant to Section 21081.6 of the California Environmental Quality Act, known as CEQA (Public Resources Code Section 21000 et seq.), to provide for the monitoring of mitigation measures required of the Foothill Center Mixed-Use Development Project, as set forth in the Mitigated Negative Declaration (MND) prepared for the project. This report will be kept on file in the office of the City of Azusa Planning Department, 213 E. Foothill Boulevard, Azusa, CA 91702. Section 2: Monitoring Schedule City staff will monitor compliance with the provisions of this program. City staff will prepare or cause to be prepared reports identifying compliance with mitigation measures. Such reports may consist of, as appropriate, final monitoring reports submitted to the City Council or other City decision making bodies. Section 3: Changes to Mitigation Measures Any substantive change in the monitoring and reporting plan made by City staff shall be reported in writing to the Director of Economic and Community Development. Reference to such changes shall be made in the yearly Mitigation Monitoring Report prepared by City staff. Modifications to the mitigation measures may be made by City staff subject to one of the following findings, documented by evidence included in the record: a. The mitigation measure included in the MND and the Mitigation Monitoring and Reporting Program is no longer required because the significant environmental impact identified in the MND has been found not to exist, or to occur at a level which makes the impact less than significant as a result of changes in the project, changes in conditions of the environment, or other factors. OR b. The modified or substitute mitigation measure to be included in the Mitigation Monitoring and Reporting Program provides a level of environmental protection equal to or greater than that afforded by the mitigation measure included in the MND and the Mitigation Monitoring and Reporting Program; and The modified or substitute mitigation measure does not have significant adverse effects on the environment in addition to or greater than those which were considered by the City Council and other responsible decision making bodies in their decisions on the MND and the proposed project; and FOOTHILL CENTER MIXED-USE DEVELOPMENT 1 MITIGATION MONITORING AND REPORTING PROGRAM The modified or substitute mitigation measures are feasible, and the City, through measures included in the Mitigation Monitoring and Reporting Program or other City procedures, can assure their implementation. I Section 4: Support Documentation Findings and related documentation supporting the findings involving modifications to mitigation measures shall be maintained in the project file with the Mitigation Monitoring and Reporting Program and shall be made available to the public upon request. Section 5: Format of Mitigation Monitoring Matrix The mitigation monitoring matrix on the following pages identifies the environmental issue areas for which monitoring is required, the required mitigation measures, the time frame for monitoring, and responsible monitoring agencies. I I ,I. i i II FOOTHILL CENTER MIXED-USE DEVELOPMENT 2 MITIGATION MONITORING AND REPORTING PROGRAM I Time Frame/ Responsible Impact Mitigation Measures Monitoring Monitoring Party Milestone Aesthetics The proposed townhomes will be AES- 1 The developer shall construct and maintain a solid block wall Monitoring will occur. City of Azusa taller than adjacent residential units to of minimum height eight feet along the south and west during construction. Planning Department the south and west. Light sources boundaries of the project site between the proposed Final approval of wall and Building from these new units will represent townhouses and adjacent residential uses. height to occur prior to Department sources typical of residential uses, the issuance of including interior light from second occupancy permits for and third floors, light from headlights the townhomes. of cars driving into garages, and light AES-2 All new outdoor lighting shall comply with Section from outdoor security lighting. If not 88.31.030—Outdoor Lighting of the Azusa Development Monitoring will occur City of Azusa properly designed and shielded, Code. Prior to the issuance of building permits, the prior to the issuance of Planning Department these light sources have the potential developer shall submit a comprehensive lighting plan that building permits. to create significant light and glare shows compliance with these requirements and obtain impacts on surrounding residents. approval of such plan from the Director of Community Development. Air Quality The principal source of VOC AIR-1 The developer/permittee shall ensure that all architectural Monitoring will occur City of Azusa emissions, approximately 87.7 coatings comply with SCAQMD Rule 1113, and will provide during construction. Buildiing Department pounds per dayduring the building the City with an architectural coatings plan prior to phase, would be from architectural beginning application that demonstrates the average VOC coatings off-gassing. The project will content of all architectural coatings will be 125 g/I or less. exceed the SCAQMD VOC threshold without the implementation of mitigation. NOx emissions associated with AIR-2 The developer/permittee shall ensure all heavy construction building construction will exceed the equipment used in the development of the proposed project Monitoring will occur City of Azusa SCAQMD threshold without the is equipped with a lean-NOx catalyst or a diesel oxidation during construction. Building Department implementaflon of mitigation. catalyst. AIR-3 All equipment shall be properly tuned and maintained. A vehicle maintenance log will be available on site at all time for inspection by a City representative. FOOTHILL CENTER MIXED-USE DEVELOPMENT 3 MITIGATION MONITORING AND REPORTING PROGRAM Time Frame/ Responsible Impact Mitigation Measures Monitoring Monitoring Party Milestone Nearby properties, particularly the AIR-4 The developer/permittee shall water excavated soils and residences south and west of the stockpiles of excavated dirt at least twice a day or as often Monitoring will Occur City of Azusa project site, may be. exposed to as necessary to eliminate nuisance dust. during construction. Building Department nuisance dust during demolition, excavation, and grading operations, AIR-5 The developer/permittee shall install temporary dust which, could potentially violate Rule screens along the perimeter of the project site to prevent 402. nuisance dust from leaving the project site. AIR-6 The developer/permittee shall locate stockpiles and active construction areas as far from adjacent land uses as possible. AIR-7 The developer/permittee shall outfit diesel-powered construction equipment with diesel particulate traps. Hazards HAZ-1 During demolition and grading activities, the concrete slab Based on the supplemental Phase II in the vicinity of both the Mr. Dryclean facility and former Monitoring will occur City of Azusa ESA results in the vicinity of the Mr. dry cleaning machine shall be tested for the presence of during construction. Building Department Dryclean facility and former dry PCE by a Registered Environmental Assessor (REA) and cleaners, mitigation measures HAZ-1 according to the results, disposed of in compliance with all and HAZ-2 will be required to reduce applicable county, state, and federal regulations. The the potential impact from PCE during developer shall provide the City with written evidence of construction. such compliance. HAZ-2 During grading activities in the vicinity of both the Mr. Dryclean facility and former dry cleaners, the soil beneath the Mr. Dryclean facility building footprint and beneath the proposed building at this location and under the former dry - - - - - - - — - - - cleaners shall be excavated to a minimum of 7 feet below the ground surface,' and possibly deeper, K warranted based on field observations (i.e. staining or odors). A Registered Environmental Assessor shall be present during the time of soil excavation to determine if excavation deeper than 7 feet below the ground surface is required and to perform air monitoring with a photo-ionization detector (PID). The monitoring with the PID shall be performed in accordance with SCAQMD Rule 1166 to determine whether soils may be reused on site. If PID readings are less than 50 parts per million by volume my , then the excavated soil may be reused on site. If FOOTHILL CENTER MIXED-USE DEVELOPMENT 4 MITIGATION MONITORING AND REPORTING PROGRAM Time Frame/ Responsible Impact Mitigation Measures Monitoring Monitoring Party Milestone the PID readings are greater than 50 ppmv, then the excavated soil shall need to be disposed of at an off-site facility in compliance with all applicable federal, state, and county regulations. Noise The adjacent residential lots will be NOI-1 Prior to issuance of building permits, the affected by short-term construction developer/permittee shall demonstrate noise levels from Monitoring will occur City of Azusa noise when grading occurs. HVAC units will not exceed the City's Noise Ordinance. prior to the building Building Department Construction noise is a potential This may achieved by either: a) constructing 4-foot-high permit. impact on the adjacent residential barriers around all HVAC units within 95 feet of adjoining structures. residential property lines, such that the direct line of sight from the HVAC unit to all property lines with 95 feet is blocked; b) mounting HVAC units on proposed building roofs, provided that HVAC units shall be positioned at least 10 feet from'the nearest building edge; c)using HVAC units that have an ARI sound level rating of 70 dBA or less; or d) using other insulation or construction techniques that can effectively achieve City noise standards to the satisfaction of the Building Director. NOI-2 Pavement breaking, demolition, and heavy material handling activities shall only be allowed between the hours Monitoring will occur City of Azusa 8:00 A.M.and 5:00 P.M. during construction. Building Department NOW The contractor and all vendors, suppliers,or subcontractors who operate construction equipment shall have a regular maintenance and lubrication program for their equipment available at the construction site for verification in the event of a noise complaint. NOI-4 All construction equipment operated by the contractor, vendors, suppliers, or subcontractors shall be equipped with manufacturer-approved exhaust mufflers or better. FOOTHILL CENTER MIXED-USE DEVELOPMENT 5 . MITIGATION MONITORING AND REPORTING PROGRAM Recorded at request of: City of Azusa When recorded return to: City of Azusa 213 East Foothill Boulevard Azusa,CA 91702-1395 Attention: City Clerk Space Above for Use by Recorder Only Exempt from Recording Fees Per Gov't Code§27383 i I STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT i by and among THE CITY OF AZUSA a California municipal corporation i and THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA a public body,corporate and politic and JAR-UNIVERSITY COMMONS,LLC a California limited liability company [Dated as of December 4,2006 for reference purposes only] RVP UBW Vd RNER171628710 STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT This Statutory Development A greement and Owner Participation Agreement("Agreemene)is entered into as of this 4" day of December, 2006 by and among (i) the City of Azusa, a California municipal corporation("City"),(ii)the Redevelopment Agency ofthe City of Azusa,a public body,corporate and politic ("Agency"),and(iii)JAR-University Commons,LLC,aCalifornia limited liability company("Developer") with reference to the following recited facts(each,a"Recital"): RECITALS . A. The city council of the City("City Council")approved and adopted the redevelopment plan ("Redevelopment Plan'l for the redevelopment project area known as the"Merged Central Business District Redevelopment Project Area"("Project Area"). B. The governing board of the Agency("Governing Board")has adopted an implementation plan ("Implementation Plan") for the Redevelopment Plan and is engaged in activities necessary to execute and implement the Redevelopment Plan pursuant to California Community Redevelopment Law(Health and Safety Code Section 33000 et sea.)("CRL"). C. The Developer owns certain real property within the Project Area that is vacant("Vacant Property") as more particularly described in Exhibit "A-1" and shown on Exhibit `B-1" attached to this Agreement and incorporated into this Agreement by this reference. The Developer anticipates developing the Vacant Property as a residential project("Residential Project"). D. The Developer also owns certain real property located within the Project Area adjacent to the Vacant Property that is improved with a shopping center facility commonly known as the"Foothill Shopping Center"("Shopping Center Property")as more particularly described in Exhibit"A-2"and shown on Exhibit "B-2"attached to this Agreement and incorporated into this Agreement by this reference. The Developer has agreed to rehabilitate the Shopping Center Property ("Shopping Center Project") consistent with the development plan("Development Plan")attached to this Agreement as Exhibit"C-l"and incorporated into this Agreement by this reference. E. The Vacant Property and the Shopping Center Property are collectively referred to in this Agreement as the "Property." The Residential Project and the Shopping Center Project are collectively referred to in this Agreement as the"Project." F. As one of the regulatory conditions of approval for entitlements related to the Shopping Center Project,the City has required or will require the Developer to construct and dedicate to the City a public road and certain otherrelated street improvements(collectively,"Street improvements"). The Street Improvements are described in Exhibit"D-1"and shown on Exhibit"D-2"attached to this Agreement and incorporated into this Agreement by this reference. RVPUBWYARNER171087.10 1 I G. With the City Council's consent,the Agency is authorized under CRL Sections 33421.1 and 33445 to pay all or part of the cost of constructing the Street Improvements. H. In accordance with CRL Sections 33421.1 and 33445,the Agency desires to reimburse the Developer the sum ofthe:(i)the third party costs and expenses actually incurred and paid by the Developer in connection with the design and construction ofthe Street Improvements;and(ii)the fair market value of the property interests underlying the Street Improvements,(i)and(ii)not to exceed One Million Five Hundred Thousand Dollars($1,500,000)in the aggregate. 1. The intent of the City,the Agency and the Developer in entering into this Agreement is to:(i) establish specific development standards to govern the development of the Project on the Property by the Developer in accordance with California Govemment Code Section 65864,et se (ii)ensure that the Street Improvements necessary for the development of the Shopping Center Project are completed by the Developer; (iii)provide for the Agency's reimbursementto the Developer of the costs and expenses actually incurred and paid by Developer in connection with the design and construction of the Street Improvements and the fair market value of the property interests underlying the Street Improvements pursuant to the limitations and conditions of this Agreement;and(iv) provide for the generation of Local Sales Tax Revenues(as defined below)from the Shopping Center Property,subjeetto the terms,conditions,covenants and restrictions set forth in this Agreement. J. The development of the Project on the Property in accordance with this Agreement will provide substantial benefits to the City and the Agency and will further important policies and goals of the City and the Agency by:(i)eliminating uncertainty in planning,(ii)providing for the orderly development of the Property, (iii) providing for the development of the Street Improvements needed for the Shopping Center Project in conformance with the Redevelopment Plan and the Implementation Plan;and(iv)generating Local Sales Tax Revenues for the City. NOW, THEREFORE, IN VIEW OF THE GOALS AND OBJECTIVES OF THE CITY, THE AGENCY AND THE.DEVELOPER SET FORTH IN THIS AGREEMENT,THE CITY,THE AGENCY AND THE DEVELOPER AGREE,AS FOLLOWS: ARTICLE 1 L DEFINITIONS I 1.1 Definitions. Unless the context otherwise requires,the terms defined in this Section 1.1 shall, for all purposes of this Agreement, and of any opinion or report or other document mentioned in this Agreement,have the meanings defined in this Section 1.1. The following definitions are equally applicable to both the singular and plural forms of any of the terms defined in this Section 1.1. 1.1.1 "Agency"shall mean the Redevelopment Agency ofthe City of Azusa,a public body, corporate and politic,arid shall include any nominee,assignee or successor to the Agency's rights,powers and responsibilities. 1.1.2 "Agreement" shall mean this Statutory Development Agreement and Owner Participation Agreement. RVPUBIKVARNER1716287.M 2 1.1.3 "Annual Developer Payment" shall mean the sum of Forty Thousand Dollars ($40,000)to be paid in advance ofeach Sales Tax Year,subject to reduction by credit on a Sales Tax Year-to- Sales Tax Year basis as provided in Section 5.1. 1.1.4 "Approved Street Improvements Cost Estimate"shall mean an estimated statement of the Street Improvements Costs setting forth specific amounts for components of the Street Improvements that has been approved by the Agency and Developer in accordance with the provisions of Section 4.2.1. 1.1.5 "City"shall mean the City of Azusa,a California municipal corporation, and shall include any nominee,assignee or successor to the City's rights, powers and responsibilities. 1.1.6 "City Council"shall mean the duly elected city council of the City. 1.1.7 "Complete"or"Completion"shall have the meaning set forth in Section 5.2. 1.1.8 "Core Buildings"shall have the meaning set forth in Section 4.1.1. 1.1.9 "CPI Adjustment Date"shall mean the first anniversary of the first day of the First Sales Tax Year, and each anniversary date thereafter during the Sales Tax Term. 1.1.10 "Developer" shall mean !AR - University Commons, LLC, a California limited liability company and any permitted nominee,assignee or successor to Developer's rights,powers,obligations and responsibilities under this Agreement_ 1.1.11 "Development Approvals" shall mean all permits and other entitlements for use subject to approval or issuance by the City in connection with development of the Property including,but not limited to: (i) specific plans and specific plan amendments; (ii)tentative and final subdivision and parcel maps;(iii)conditional use permits,public use permits and plot plans;(iv)zoning;and(v)grading and building permits. 1.1.12 "Development Exaction"shall mean any requirement of the City in connection with or pursuant to any Land Use Regulations or Development Approvals for the dedication of land,the construction of improvements or public facilities,or the payment of fees in order to lessen,offset,mitigate or compensate for the impacts of development on the environment,public facilities,or other public interests. Without limiting the exclusivity of the foregoing, the term "Development Exactions"excludes fees charged by the City in connection with the issuance of building permits. 1.1.13 "Development Plan" shall mean the plan for development of the Project on the Property as set forth in Exhibit"C-1". 1.1.14 "Dispute Notice"shall have the meaning set forth in Section 920. 1.1.15 "Effective Date"shall mean the first date on which all of the following are true:(i) this Agreement has been approved by the City Council following all legally required notices and hearings;(ii) this Agreement has been approved by the Agency Governing Board following all legally required notices and hearings; (iii)this Agreement has been executed by the appropriate authorities of the City,Agency and the Developer;(iv)the City ordinance approving and authorizing this Agreement becomes effective;and(v)the R PPUB MIARMER1716287 10 . 3 Residential Project Covenants Conditions and Restrictions are recorded against the Vacant Property in a priority position senior to all other non-statutory liens and encumbrances against the Vacant Property and the Developer has provided documentation evidencing that fact reasonably acceptable to the City. 1.1.16 "Enforced Delays"shall have the meaning set forth in Section 9.10. i 1.1.17 "Event of Default'shall have the meaning set forth in Section 6..1. i 1.1.18 "Exhibits" shall mean the following documents that are attached to, and by this reference made a part of,this Agreement: Exhibit"A-1" Legal Description of the Vacant Property. Exhibit"A-2" Legal Description of the Shopping Center Property. Exhibit`B-1" Map of the Vacant Property. Exhibit"B-2" Map of the Shopping Center Property. Exhibit"C-1" Development Plan for Project 4 Exhibit"C-2" Master Phasing Plan .Exhibit"D-1" Description of Street Improvements Exhibit"D-2" Map Depicting the Location of Street Improvements 'Exhibit"E" Covenants,Conditions and Restrictions Related to the Residential Project Exhibit"F-I" Prohibited Land Uses 'Exhibit"F-2" Restricted Land Uses 1.1.19 "First Sales Tax Year" shall mean the Sales Tax Yearcommencing immediately following the earlier of 1)the second(2nd)anniversary of the Shopping Center Project Commencement Date, or(2)the third (3`d)anniversary of the Effective Date. 1.1,20 "Generator"shall mean any and all persons,entities or businesses generating Local Sales Tax Revenues at the Shopping Center Property in any Sales Tax Year during the Sales Tax Term. 1.1.21 "Goods"shall mean any and all tangible personal property offered for sale or lease at the Shopping Center Property that is subject to the Sales Tax Law during the Sales Tax Tenn. 1.1.22' "Governing Board"shall mean the governing board of the Agency. 1.1.23 "Land Use Regulations" shall mean all ordinances, resolutions, codes, rules, regulations and official policies of the City governing the development and use of land, including,without limitation,the permitted use of land,the density or intensity of use,subdivision requirements,the maximum height and size of proposed buildings,the provisions for reservation or dedication of land for public purposes, and the design,improvement and construction standards and specifications applicable to the development of the Property. The term"Land Use Regulations"does not include any City ordinance,resolution,code,rule, regulation or official policy,governing:(i)the conduct of businesses,professions,and occupations;(ii)taxes (special or general) and assessments; (iii) the control and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests that provide for the use of or the entry upon public property; or(v)the exercise of the power of eminent domain. RVPUDIAVARNEJ?1716287Jd 4 - 1.1.24 "Local Sales Tax Revenues"means that portion of the Sales Tax,if any,originating from Taxable Sales of Goods consummated by a Generator on the Shopping Center Property which is allocated and paid to City pursuant to the Sales Tax Law. Local Sales Tax Revenues shall not include: (i) Penalty Assessments,(ii)any Sales Tax levied by,collected for or allocated to the State of California,the County of Los Angeles,or a district or any entity(including an allocation to a statewide or countywide pool)other than City,(iii)any administrative fee charged by the SBE,(iv)any Sales Tax subjectto any sharing,rebate,offset or other charge imposed pursuant to any applicable provision of federal,state or local(except City's)law,rule or regulation,(v)any Sales Tax attributable to any transaction not consummated within the Sales Tax Tenn,or (vi)any Sales Tax(or other funds measured by Sales Tax)required by the State of California to be paid over to another public entity(including the State)or set aside and/or pledged to a specific use other than for deposit into or payment from the City's general fund. 1.1.25 "Master Phasing Plan" shall mean the conceptual phasing plan for the future development of the Property in which the final phase meets the Urban Form goals and policies of the General Plan as set forth in Exhibit"C-2". 1.1.26 "Minimum Annual Local Sales Tax Revenue"shall mean Three Hundred Ninety Two Thousand Dollars ($392,000) for the First Sales Tax Year. On each CPI Adjustment Date,the Minimum Annual Sales Tax Revenues for the then-current Sales Tax Year shall be determined by increasing the Minimum Annual Local Sales Tax Revenue in effect for the immediately preceding Sales Tax Year by the lesser of:(i)four percent(4%)of the amount of the Minimum Local Sales Tax Revenue which is applicable in the immediately preceding Sales Tax Year,or(ii)the percentage of increase,if any,shown by the Consumer Price Index for All Urban Consumers(CPI-U)(Los Angeles-Anaheim-Riverside) (base years 1982-1984= 100)(Index),published by the United States Department of Labor,Bureau of Labor Statistics,for the month immediately preceding the CPI Adjustment Date. 1.1.27 "Penalty Assessments"shall mean penalties,assessments,collection costs and other costs,fees or charges resulting from late or underpaid payments of Sales Tax and that are levied,assessed or otherwise collected from Developer. 1.1.28 "Permitted Transfer"means and refers to any ofthe following types of Transfers:(i) any Transfer to a person or entity reasonably approved by the City which expressly assumes the obligations of the Developer under this Agreement in a written instrument satisfactory to the Agency;(ii)any Transfer ofthe Vacant Property or the Residential Project or any part thereof and(iii)any Transfer of stock or equity of the Developer that does not change management or operational control of the Shopping Center Property or the Shopping Center Project;and(iii)any Transfer of any interest in the Developer irrespective of the percentage of ownership to either:(a)any other owner of any interest in the Developer;(b)any affiliate of or other entity related to the Developer,or(c)to any other entity in which any holder of an interest(including any beneficial interest)in the Developer is a manager or in which any of the aforementioned is a shareholder or member of the Developer. 1.1.29 "Project" shall collectively mean the Shopping Center Project and the Residential Project 1.1.30 "Property" shall collectively mean the Shopping Center Property and the Vacant Property. R11PU0WYARNERV16287 fa 5 I f 1.1.31 "Reservation of Rights" shall mean the rights and authority excepted from the assurances and rights provided to the Developer under this Agreement and reserved to the City under Section 33 of this Agreement 1.1.32 "Residential Project" shall mean the residential project to be constructed on the Vacant Property consistent with the Development Plan. 1.1.33 "Resolution Period"shall have the meaning set forth in Section 9.20.2. 1.1.34 "Sales Tax Year" shall mean a period of twelve(12)consecutive calendar months commencing on the first day of a calendar quarter(i.e.January 1,April 1,July ],or October 1,as applicable) and ending on the fast day of the immediately following fourth(0)calendar quarter(i.e.March 31,June 30, September 30,or December 31,as applicable). J 1.1.35 "Shopping Center Project Commencement Date"shall ha ve the meaning set forth in Section 4.1.1. 1.136 "Shopping Center Projecf'shall mean the rehabilitation of the building and facilities located on the Shopping Center Property consistent with the Development Plan. 1.1.37 "Shopping Center Property"shall mean the real property described in Exhibit"A-2" and shown on Exhibit"13-2"attached to this Agreement 1.1.38 "Sales Tax"shall mean all sales and use taxes levied under the authority of the Sales Tax Law attributable to Taxable Sales occurring upon the Shopping Center Property,excluding Sales Tax that is to be refunded to Generator because of an overpayment of Sales Tax. 1.1.39 "Sales Tax Year"shall mean the First Sales Tax Year and each of the immediately subsequent nineteen (l 9)Sales Tax Years. There shall be a total of twenty(20) Sales Tax Years during the Sales Tax Term, including the First Sales Tax Year. 1.1.40; "Sales Tax Law"shall mean(i)California Revenue and Taxation Code Section 6001 et soy., and any successor law thereto, (ii) any legislation allowing another public agency or entity with jurisdiction in the City to levy any form of Sales Tax on the operations of Developer, any Generator,the Shopping Center Project and/or the Shopping Center Property, and (iii) regulations of the SBE and other binding rulings and interpretations relating to(i)and(ii),above. i 1.1..41 "Sales Tax Term"shall mean the twenty(20)Sales Tax Year period commencing on the first day of the First Sales Tax Year and ending on the last day of the twentieth (20a') Sales Tax Year thereafter. 1 1.1.42 "SBE"means the California State Board of Equalization and any successor agency. 1 1.1.43 "Street Improvements" shall mean the public road, utilities and related public improvements that bisectthe Shopping Center Property and are imposed by the City upon the Shopping Center Project as a condition of the City's regulatory approval of the shopping Center Project and which are to be designed and constructed by the Developer and dedicated to the City in accordance with the City's standard R1,PUBW11ARNER1716287.10 6 plans for public works construction concerning the same,as more particularly described in Exhibit"D-I"and shown on Exhibit "D-2" attached to this Agreement. The Street Improvements shall comply with City Standard R-1,except as maybe modified and approved by the City Engineer in his or her reasonable discretion to ensure acceptable access. L I A4 "Street Improvements Costs"shall mean the sum of:(i)those third party hard and soft costs and expenses actually incurred and paid by the Developer in connection with the design and construction of the Street Improvements (which shall include, but not be limited to, architectural, engineering, project management, legal,construction and permit and inspection costs);and(ii) an amount equal to One Million Three Hundred Thousand Dollars ($1,300,000) representing the fair market value of the publicly-owned property interests underlying the Street Improvements_ 1.1.45 "Street Improvements Reimbursement"shall mean the lesser of: (i)the total of the Street Improvements Costs, or(ii)One Million Five Hundred Thousand Dollars($1,500,000). 1.1.46 "Street Improvements Reimbursement Request' shall have the meaning set for in Section 4.2.3. 1.1.47 "Taxable Sales" shall mean all sales and leases of Goods by a Generator at the Shopping Center Property that are: (i)subject to the payment of Sales Tax pursuantto the Sales Tax Law and (ii)for which the"point of sale"reported to the SBE is the City. L IAS "Term"shall mean the period of this Agreement commencing on the Effective Date and ending on the last day of the Sales Tax Term. 1.1.49 "Transfer"shall mean any of the following:(i)any total or partial sale,assignment, conveyance, trust, power, or transfer in any other mode or form,by the Developer of more than forty nine percent(49%) interest (or a series of such sales, assignments or the like that, in the aggregate, result in a disposition ofmore than a forty-nine percent(49%)interest)in this Agreement,the Shopping Center Property, the Shopping Center Project or any part thereof;or(ii)any total or partial sale,assignment,conveyance,or transfer in any other mode or form,of or with respect to any interest in the Developer(or a series ofsuch sales, assignments or the like that, in the aggregate,result in a disposition of more than a 49%interest);or(iii)any merger,consolidation,sale or lease of all or substantially all of the assets ofthe Developer(or a series of such sales, assignments or the like that, in the aggregate,result in a disposition of more than a forty nine (49%) interest). The term"Transfer"shall not include any total or partial sale,assignment,conveyance,trust,power, or transfer in any other mode or form,by the Developer of the Vacant Property,the Residential Projector any part thereof. 1.1.50 "Vacant Property"shall mean the real property described in Exhibit"A-1"and shown on Exhibit`13-1"attached to this Agreement. R IT UR I K VA RNR M71628710 7 i ARTICLE D REPRESENTATIONS AND WARRANTIES;RESTRICTION ON TRAN�SFE.R;NOTICES i 2.1 Representations and Warranties. 2.1.1 City Representations and Warranties. All representations and warranties contained in this Section 2.1.1 shall be true and correct as of the Effective Date and the City's liability for misrepresentation or breach of warranty,representation or covenant, wherever contained in this Agreement,shall survive the execution and delivery ofthis Agreement.The City hereby makes the following representations and warranties and acknowledges that the execution of this Agreement by the Agency and the Developer has been made in material reliance by the Agency and the Developer on such representations and warranties: 2.1.1.1 The City is aCalifomia municipal corporation. The City has the legal power, right and authority to enter into this Agreement and to execute the instruments and documents referenced in this Agreement and to consummate the transactions contemplated in this Agreement. 2.1.1.2 The City acknowledges and agrees that the Agency's obligations with respect to this Agreement are limited to those obligations set forth in Article IV of this Agreement pertaining to the Street Improvements Reimbursement. All representations and warranties made by the City hereunder shall be limited to the actual current knowledge of F.M. Delach(City Manager)as of the Effective Date,without independent investigation and without any duty to do so. 2.1.2 Aeency Reoresentations and Warranties. All representations and warranties contained in this Section 2.1.2 shall be true and correct as of the Effective Date and the Agency's liability for misrepresentation or breach of warranty,representation or covenant,wherever contained in this Agreement, shall survive the execution and delivery of this Agreement The Agency hereby makes the following representations and warranties and acknowledges that the execution of this Agreement by the City and the Developer has been made in material reliance by the City and the Developer on such representations and warranties: 2.1.2.1 The Agency is a public body,corporate and politic. The Agency has the legal power, right and authority to enter into this Agreement and to execute the instruments and documents referenced in this Agreement and to consummate the transactions contemplated in this Agreement. 2.12.2 The Agency acknowledges and agrees that the Agency's obligations with respect to this Agreement are limited to those obligations set forth in Article IV ofthis Agreement pertamingto the Street Improvements Reimbursement All representations and warranties made by the Agency hereunder shall be limited to the actual current knowledge of F.M.Delach(Executive Director)as of the Effective Date,without independent investigation and without any duty to do so. 2.1.3 Developer's Representations and Warranties. All representations and warranties contained in this Section 2.1.3 shall be true and correct as ofthe Effective Date and the Developer's liability for misrepresentation or breach of warranty,representation or covenant,wherever contained in this Agreement, RVPUHWI'i11WERvlc2s7 ro 8 shall survive the execution and delivery of this Agreement. The Developer hereby makes the following representations,covenants and warranties to the City and the Agency acknowledges that the execution of this Agreement by the City and the Agency has been made in material reliance by the City and the Agency on such covenants,representations and warranties of the Developer. 2.1.3.1 The Developer is a California limited liability company lawfully authorized to do business in the State of California by and in good standing with the California Secretary of State_ The Developer has the legal right, power and authority to enter into this Agreement and the instruments and documents referenced in this Agreement and to consummate the transactions contemplated in this Agreement The persons executing this Agreement and the instruments referenced in this Agreement on behalf of the Developer represent and warrant that they have the power,right and authority to bind the Developer to this Agreement. 2.1.3.2 Prior to commencing any work of development on the Shopping Center Project,the Developer will have taken all requisite action and obtained all requisite consents in connection with entering into this Agreement and the instruments and documents referenced in this Agreement and the consummation of the transactions contemplated in this Agreement, and no consent of any other person is required for the Developer's authorization to enter into this Agreement 2.1.3.3 The execution of this Agreement shall not result in a breach of or constitute a default under any other agreement,document,instrument or other obligation to which the Developer is a party or by which the Developer may be bound,or under law,statute,ordinance,rule,governmental regulation or any writ, injunction,order or decree of any court or governmental body applicable to the Developer. 2.1.3.4 This Agreement is, and all agreements, instruments and documents to be executed by the Developer pursuant to this Agreement shall be duly executed by and shall be valid and legally binding upon the Developer and enforceable against the Developer in accordance with their respective terms. All representations and warranties made by the Developer hereunder shall be limited to the actual current knowledge ofJohn R_Francis as of the Effective Date,without independent investigation and without any duty to do so. 2.2 Restrictions on Chane in Management or Control of the Developer and Assignment or Transfer. 2.2.1 The Developer acknowledges that the qualifications and identity of the Developer are of particular importance to the City and the Agency. The Developer further recognizes and acknowledges that the City and the Agency have and are relying on the specific qualifications and identity of the Developer in entering into this Agreement with the Developer and, as a consequence, Transfers are permitted only as expressly provided in this Agreement. 2.2.2 Except in the event of a Permitted Transfer,the Developer shall promptly notify the City and the Agency in writing of any and all changes whatsoever in the identity of the business entities or individuals either comprising or in control of the Developer,as well as any and all changes in the interest or the degree of control of the Developer by any such entities or individuals,of which information the Developer or any of its partners,members or officers have been notified or may otherwise have knowledge or information. BVPUBUO1ARNER171628710 9 gr 2.2.3 This Agreement may be terminated by the City and the Agency if there is any Transfer, whether voluntary or involuntary, in membership, ownership, management or control of the Developer(other than such changes occasioned by the death or incapacity ofany individual)that has not been approved in writing by the City and the Agency prior to the time ofsuch Transfer,or the City and the Agency may seek other appropriate relief, provided, however,that(i)the City and the Agency shall first notify the Developer in writing of its intention to terminate this Agreement or to exercise any other remedy,and(ii)the Developer shall have twenty(20)days following its receipt of such written notice to cure the default of the Developer and submit evidence of the initiation and satisfactory completion of such cure to the City and the Agency, in a form and substance reasonably satisfactory to the City and the Agency. I 2.2.4 The City and the Agency may,in their reasonable discretion,approve in writing any Transfer requested by the Developer,provided the proposed transferee satisfactorily demonstrates successful experience in the development,ownership,operation,and management of Shopping Center developments of similar size and quality as the Shopping Center Project and expressly assumes all of the obligations of the Developer under this Agreement,including the Developer's obligations set for the in Article V regarding Local Sales Tax Revenues. All instruments and other legal documents proposed to carry out any Transfer shall be submitted to the City and the Agency for review,prior to the Transfer,and the written approval or disapproval of the City and the Agency shall be provided to the Developer within twenty(20)days of the City's and the Agency's receipt of the Developer's request. I 2.2.5 The prohibitions on Transfer shall expire and be of no force or effect upon Completion of the Shopping Center Project and the dedication of the Street Improvements to the City. 2.3 Notices. 2.3.1 As used in this Agreement, the term "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent; waiver, appointment or other communication required or permitted hereunder. 2.3.2 All notices shall be in writing and shall be considered given either:(i)when delivered in person to the recipient named below;or(ii)on the date of delivery shown on the return receipt,after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or(iii)on the date of delivery shown in the records of a national postal service(i.e.,the United Postal Service or Federal Express) after delivery to the recipient named below. All notices shall be addressed as follows: If to the City: City of Azusa 213 East Foothill Boulevard Azusa,CA 91102 Attention: City Manager Telephone: (626) 812-5239 Facsimile: (626)334-6358 RVP UBI KVARNER1716287.10 10 f Copy to: Best Best&Krieger,LLP 5 Park Plaza, Suite 1500 Irvine,CA 92614 Attention:Azusa City Attorney Telephone:(949)263-2600 Facsimile:(949)260-0972 If to the Agency: Redevelopment Agency of the City of Azusa 213 East Foothill Boulevard Azusa,CA 91702 Attention: Executive Director Telephone: (626) 812-5239 Facsimile: (626)334-6358 Copy to: Best Best&Krieger, LLP 3750 University Avenue Riverside,CA 92501 Attention: Kevin K. Randolph Telephone: (951)686-1450 Facsimile:(951)686-3083 If to the Developer: JAR-University Commons,LLC c/o Trachman-Indevco, LLC 1801 Century Park East,Suite 1040 Los Angeles;CA 90067 Attention: Andrew Trachman, President Telephone:(310) 789-3888 Facsimile: (310) 789-3889 Copy to: Francis Property Management, Inc. 501 S. Beverly Drive, Suite 100 Beverly Hills, CA 90212 Attention: John Francis Telephone:(310)556-2274 Facsimile:(310)552-8485 R IVPUBI KVARNL 81716787.10 11 �i Copy to: Friedman &Solomon LLP 9665 Wilshire Boulevard,Suite 810 Beverly Hills,CA 90212 Attention: Andy Friedman,Esq, Telephone:(310)553-7265 Facsimile: (310)553-7458 1 2.3.3 Any party may,by notice given at any time,require subsequent notices to be given to another person or entity,whether a party or an officer or representative of a party,or to a different address,or both.Notices given before actual receipt of notice of change shall not be invalidated by the change. ARTICLE M DEVELOPMENT OF THE PROJECT 3.1 Rights to Develop_ Subject to the terms of this Agreement, including the Reservation of Rights,the Developer shall have a vested right to develop the Project on the Property in accordance with,and to the extent of, this Agreement. Except as expressly provided otherwise herein, the Project shall remain subject to all Land Use Regulations and Development Approvals in effect on the Effective Date that are required to complete the Project on the Property as contemplated by the Development Plan. h 3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservation of Rights,the rules,regulations and official policies governing permitted uses of the Project on the Property,the density and intensity of use ofthe Project on the Property,the maximum height and size of proposed buildings,and the design,improvement and construction standards and specifications applicable to development of the Project on the Property shall be the Land Use Regulations and Development Approvals in effect on the Effective Date. In connection with any subsequently imposed Development Approvals and except as specifically provided otherwise herein; the City may exercise its discretion in accordance with the Land Use Regulations then in effect, as provided by this Agreement, including,but not limited to,the Reservation of Rights. The City shall accept for processing,review and action all applications for subsequent development approvals,and such applications shall be processed in the same manner and the City shall exercise its discretion,when required or authorized to do so,to the same extent it would otherwise be entitled in the absence of this Agreement. 33 Reservation of Rights. 33.1 Limitations Reservations and Excentions.Notwithstanding any other provision ofthis Agreement,the following regulations shall apply to the development of the Project on the Properly: 3.3.1.1 Processing fees and charges of every kind and nature imposed by the City to cover the estimated actual costs to the City of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued,prolvided however that the such monitoring fees are limited to One Thousand Dollars($1,000)per year. 33.11 Procedural regulations relating to hearing bodies, petitions, applications, notices, findings,records,hearings,reports,recommendations,appeals and any other matter of procedure. RVPUMK11dRNER1716287 10 12 I II 3.3.1.3 Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements,including,without limitation,all uniform codes adopted by the City and any local amendments to those codes adopted by the City, including, without limitation, the City's building code,plumbing code,mechanical code,electrical code,fire code and grading code. 3.3.1.4 Regulations that maybe in material conflict with this Agreement but that are reasonably necessary to protect the immediate community from a condition perilous to their health or safety. To the extent possible,any such regulations shall be applied and construed so as to provide the Developer with the rights and assurances provided under this Agreement. 3.3.1.5 Regulations that are not in material conflict with this Agreement or the Development Plan. Any regulation,whether adopted by initiative or otherwise,limiting the rate or timing of development of the Property shall be deemed to materially conflict with the Development Plan and shall therefore not be applicable to the development of the Property. 3.3.1.6 Regulations that are in material conflict with the Development Plan;provided the Developer has given written consent to the application of such regulations to development of that Property in which the Developer has a legal or equitable interest. 3.3.1.3 Regulations that impose, levy, alter or amend fees, charges, or Land Use Regulations relating to consumers or end users,including,without limitation,trash can placement,and service charges. 3.3.1.8 Regulations of other public agencies, including development impact fees adopted or imposed by such other public agencies,although collected by the City. 3.3.1.9 Ordinances,resolutions,regulations or policies regarding the permitted uses of the Property,density and intensity of use,maximum height and size of proposed buildings,and provisions for reservation and dedication of land for public purposes. 3.3.1.10 Ordinances, resolutions, regulations or policies which become effective more than five (5) years after the Effective Dale of this Agreement that impose, amend, or increase Development Exactions. 3.3.2 Subsequent Development Approvals. This Agreement shall not prevent the City,in acting on subsequent development approvals and to the same extent it would otherwise be authorized to do so absent this Agreement, from applying subsequently adopted or amended Land Use Regulations that do not materially conflict with this Agreement. 3.3.3 Modification or Suspension by State or Federal Law. In the event that State or Federal laws or regulations enacted after the Effective Date of this Agreement prevent or preclude compliance with one or more ofthe provisions of this Agreement,such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations;provided,however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. RVPUB VARNERI716287/0 13 3.3.4 intent. The City and the Developer acknowledge and agree that the City is restricted in its authority to limit certain aspects of its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to the City all of its police power that cannot be or are not expressly so limited.This Agreement shall be construed,contraryto its stated terns ifnecessary,to reserve to the City all such power and authority that cannot be or is not by this Agreemenf s express terns so restricted. 3.4 Regulation by Other Public Agencies. The City and the Developer acknowledge and agree that other public agencies not within the control of the City possess authority to regulate aspects of the development of the Property and/or Project separately from or jointly with the City and this Agreement does not limit the authority of such other public agencies. 3.5 Recordation of Residential Project CC&Rs. The Developer shall cause the recordation of the Residential Project Covenants,Conditions and Restrictions(in the form attached hereto as Exhibit"E.")against the Vacant Property within thirty (30) days from the Effective Date, subject to approval of the leasing restrictions contained in the project CC&Rs by the California Department of Real Estate(the"DRE')or in the alternative,such other leasing restrictions as may be approved by the DRE in connection with its issuance of a Final Subdivision Public report in connection with the Residential Project. The Parties agree that the Vacant Property shall be subject to such Covenants,Conditions and Restrictions notwithstanding Developer's failure to cause recordation of the same. 3.6 Public Art Component. The Developer shall include a publicartcomponent within the Shopping Center Project, The form and substance of the public art component shall be as approved by the City Manager in his or her absolute discretion,and may include such items as public murals,items ofextraordinary landscaping, public fountains and other gathering places,sculpture,and similaritems_ The Developer shall submit its proposed public art component to the City Manager for his/her review and approval no less than forty-five(45)days prior to the date that the Developer intends to seek the issuance of the firstbuilding permit for the Shopping Center Project The City Manager shall review and either approve or disapprove the proposed public art component within thirty(30)days thereafter., 1f approved,the public art component shall be automatically deemed to be included within the Development Plan. If the City Manager disapproves the proposed public art component,or if the City Manager fails to act on the proposed public artcomponemby the time that the Developer is prepared to apply for issuance of the first building permit for the Shopping Center Project,then,prior and as a condition to the issuance of such first building permit;the Developer shall pay to the City a public art in lieu fee in the amount of Ten Thousand Dollars($10,000)which the City shall hold until a public art component acceptable'to the City has been approved. 3.7 Marketing of Residential Project to Certain Groups. The Developer shall,for a period no less than forty-five(45)days prior to the marketing of the Residential Project to the general public,advertise and market the Residential Project exclusively to City of Azusa police officers,firefighters,and teachers within the Azusa Unified School District. The Developer shall make the homes within the Residential Project available for purchase by such persons,provided that such persons are qualified(financially and otherwise)to purchase such homes,no less than forty-five(45)days prior to making such homes available for purchase by the general public. R IIPUBIti IIARNFR1716287 10. , 14 f ARTICLE IV STREET IMPROVEMENTS REIMBURSEMENT 4.1 Developer Covenant to Undertake Street Improvements. The Developer covenants to and for the exclusive benefit of the City that,concurrently with the development of the Shopping Center Project on the Shopping Center Property,the Developer develop the Street Improvements and,once complete,shall dedicate the Street Improvements to the City. The Developer covenants and agrees for itself,its successors and assigns that the design,development and construction of the Street Improvements shall be undertaken and completed in conformity with this Agreement and all applicable laws, regulations, orders and conditions of any governmental agency with jurisdiction over the Street Improvements or the Shopping Center Property. 4.1.1 Shopping Center Project Commencement Date. The Developer shall commence construction of the Street Improvements within ninety (90) days after the date ("Shopping Center Project Commencement Date") on which the Developer obtains: (i) a binding unconditional commitment for construction financing for development of the Shopping Center Project,(ii)signed leases for at least seventy percent(70%) in the aggregate of the gross leaseable area of those buildings identified on Exhibit "B-2" as "A","B","99¢Store","CVS","Shop I","Shop 2",and the"Ross"buildings(all of the foregoing,collectively, the "Core Buildings"), and (iii) foundation permits sufficient to commence development of the Shopping Center Project. Subject to Section 9.10,if the Shopping Center Project Commencement Date fails to occur on or before twelve(12)months following the Effective Date of this Agreement,then,subject to compliance with the provisions of Article VI,either the City or the Agency may terminate this Agreement in its entirety without cost or liability to either the City or the Agency. 4.2 A_eencv Obligations Regarding Street Improvements Reimbursement. Agency agrees to pay to the Developer the Street Improvements Reimbursement pursuant to this Section 4.2. The Street improvements Reimbursement shall be used for the sole purpose of reimbursing the Developer for the Developer's Street Improvements Costs. 4.2.1 Procedure for Approved Street Improvements Cost Estimate. The Developer shall have the right,but not the obligation,to obtain bids or other estimates for all or individual portions of the Street Improvements and submit the same to the Agency for approval prior to commencing the Street Improvements work. In the event the Developer submits such bids or estimates to the Agency,the Agency agrees to review and approve the same or notify the Developer of any objection to such bids or estimates within ten (10) business days after receipt thereof. The failure of the Agency to notify the Developer of any objection to the costs shown in the bids or estimates within such ten(10)business day period shall be deemed approval of the same. Upon the Agency's approval of such bids or estimates such amount shall become an Approved Street Improvements Cost Estimate for the work described therein. The Agency and the Developer each acknowledge that an Approved Street Improvements Cost Estimate is subject to subsequent adjustment for changes in the work,changes in the site conditions or subsequently discovered conditions,increases in costs of labor,material,and/or supplies,and other such matters;provided in no event shall such changes increase the Street Improvements Reimbursement amount. The Agency agrees to review in good faith any requested changes to an Approved Street Improvements Cost Estimate. 4.2.2 Four Disbursements of Street Improvements Reimbursement Subject to Conditions Precedent. The Street Improvements Reimbursement shall be disbursed to the Developer in four (4) disbursements as described in this Section 4.2.2 for purposes of reimbursing the Developer(i)the third party costs and expenses actually incurred and paid by the Developer in connection with the design and construction R IIPUBIKIIARNFRI716287 10 15 i of the Street Improvements; and (ii) the fair market value of the property interests underlying the Street Improvements, (i) and (ii) not to exceed one Million Five Hundred Thousand Dollars ($1,500,000) in the aggregate. 1 I 4.2.2.1 First Disbursement At any time following the Shopping Center Project Commencement Date,and upon the Developer's satisfaction of the following conditions precedent and the Agency's approval of the Street Improvements Reimbursement Request as described in Section 4.2.3, the Agency shall disburse to'the Developer the first(I")twenty five percent(25%)of the Street Improvements Reimbursement: 4.2.2.1.1 there shall exist no condition, event or act which would constitute a material breach or default under this Agreement or which,upon the giving of notice or the passage of time,or both,would constitute such a material breach or default; 4.2.2.1.2 all representations and warranties ofthe Developer contain in this Agreement shall be true and correct as of the date of any disbursements of the Street improvement Reimbursement; 4.2.2.1.3 the Developer has submitted to the Agency and the City a complete design plan for the Street improvements which describes and depicts:(1)the location and placement of the Street Improvements,and(2)the engineering of the Street Improvements; 4.2.2.1.4 the Developer has submitted to I the Agency and the City a phased development schedule for the Street Improvements, including milestones and triggers for the development of the Street Improvements;and 42.2.1.5 the Developerhas obtained a demolition permit in accordance with the City's Municipal Code providing for the demolition of Buildings"A"and"B". 4.2.2.2 Second Disbursement. At any time following the Shopping Center Project Commencement Date,and upon the Developer's satisfaction of the following conditions precedent and the Agency's approval of the Street Improvements Reimbursement Request as described in Section 4.2.3, the Agency shall disburse to the Developer the second(2"')twenty five percent(25%)of the Street Improvements Reimbursement: i 4.22.2.1 there shall exist no condition,' event or act which would constitute a material breach or default under this Agreement or which,upon the giving of notice or the passage of time, or both,would constitute such a material breach or default; 4.2.2.2.2 all representations and warranties of the Developer contain in this Agreement shall be true and correct as of the date of any disbursements of the Street Improvement Reimbursement; 4.2.2.2.3 the Developer has submitted to the City applications for permits or any other discretionary or ministerial approvals required for the development of the Street Improvements;and RVPURVKVARNER1716287.10 f 16 I j I 4.2.2.2.4 the Developer has obtained a building permit(or a series of building permits)for the shell and core improvements of no less than sixty-five percent(65%)of the gross leasable area of the Core Buildings. 4.2.2.3 Third Disbursement. At any time following the Shopping Center Project Commencement Date,and upon the Developer's satisfaction of the following conditions precedent and the Agency's approval of the Street Improvements Reimbursement Request as described in Section 4.2.3, the Agency shall disburse to the Developer the third(3d)twenty five percent(25%)of the Street Improvements Reimbursement: 4.2.2.3.1 there shall exist no condition, event or act which would constitute a material breach or default under this Agreement or which,upon the giving of notice orthe passage of time,or both,would constitute such a material breach or default; 4.2.2.32 all representations and warranties of the Developer contain in this Agreement shall be true and correct as of the date of any disbursements of the Street Improvement Reimbursement, 4.2.2.3.3 the Developer has completed construction of the Street Improvements;and 4.2.2.3.4 the Developer has received final inspection and approval of the framing and roofing for no less than sixty-five percent (65%) of the gross leasable area of the Core Buildings. 4.2,2.4 Fourth Disbursement. At any time following the Shopping Center Project Commencement Date,and upon the Developer's satisfaction of the following conditions precedent and the Agency's approval of the Street Improvements Reimbursement Request as described in Section 4.2.3, the Agency shall disburse to the Developer the fourth (0) and final twenty five percent (25%) of the Street Improvements Reimbursement: 4.2.2.4.1 there shall exist no condition, event or act which would constitute a material breach or default under this Agreement or which,upon the giving of notice or the passage of time,or both,would constitute such a material breach or default; 4.2.2.4.2 al I representations and warranties of the Developer contain in this Agreement shall be true and correct as of the date of any disbursements of the Street Improvement Reimbursement; 4.2.2.4.3 the Developer has dedicated the Street Improvements to the City and the City has accepted such dedication in accordance with its standard practices for the acceptance of dedicated public improvements; and 4.2.2.4.4 the Developer has Completed the Shopping Center Project. 4.2.3 Street Improvements Reimbursement Request At anytime following the Shopping Center Project Commencement Date, and upon the satisfaction of the conditions precedent described in Section 4.2.2,the Developer may submit to the Agency a written request for any disbursement of the Street RVPUDW 11AR J8R1716187.I0 17 I Improvements Reimbursement("Street Improvements Reimbursement Request"). The Street Improvements Reimbursement Requests shall be approved and paid by the Agency as follows: 4.23.1 If the Street Improvements Reimbursement Request is for payment for work and amounts which are consistent with an Approved Street Improvements Cost Estimate,then the Agency shall review and pay such Street Improvements Reimbursement Request within thirty(30)days after the receipt of the same provided that Developer has submitted the supporting documentation required by Section 4.2.3.3 below and that such Street Improvements Reimbursement Request is materially consistent with the Approved Street Improvements Cost Estimate. I f 4.23.2 If the Street Improvements Reimbursement Request includes work or amounts in addition to or not previously subject to an Approved Street Improvements Cost Estimate,the Agency shall review the Street Improvements Reimbursement Request and,if approved,the Agency shall pay such Street Improvements Reimbursement Request to Developer within thirty(30)days after receipt of the same. The Agency's approval shall be given if the Agency reasonably determines that the Street Improvements Costs set forth on the Street Improvements Reimbursement Request are reasonable and customary.. The Agency's failure to approve or disapprove a Street Improvements Reimbursement Request within thirty (30) days from its receipt of such Street Improvements Reimbursement Request(including all reasonably required supporting documentation described in Section 4.2.2.3 below)shall constitute the Agency's'approval thereof. 4.2.33 The Agency's obligation to approve a Street Improvements Reimbursement Request under either Section 4.2.3.1 or Section 4.2.32 shall be contingent upon the Agency's receipt and approval,which shall not be unreasonably withheld or delayed,of the following: 4.2.33.1 The Street Improvements Reimbursement Request,which shall include a description of the work performed,material supplied and cost incurred or due; 4.2.33.2 Bills,invoices,vouchers,statements and all other documents, which shall be attached to the Street Improvements Reimbursement Request,evidencing the amount paid to third parties,and a certificate from Developer certifying to Developer's compliance with applicable prevailing wage requirements; i 4.2.3.3.3 Waivers and releases of mechanics'liens,stop notice claims or other lien claim righis;and 4.2.33.4 Any other document,requirement,evidence or information in the Developer's possession or under the Developer's control that Agency may reasonably request with regard to the Street Improvements or Street Improvements Reimbursement Request. 433 Ab nc.Y's obligations Under Aereement. The Developer acknowledges and agrees that the Agency's obligations under this Agreement are limited to those obligations set forth in this Article IV pertaining to the Street Improvements Reimbursement. i R11PURIKVARNER71628710 18 ARTICLE V DEVELOPER COVENANTS 5.1 Annual Developer Payment On behalf of itself,its successors and assigns to all or any part of the Stropping Center Property,the Developer covenants and agrees to pay the Annual Developer Payment in advance of each Sales Tax Year within the Sales Tax Tenn as provided in this Section 5.1. 5.1.1 First Sales Tax Year. The Developer shall tender the first Annual Developer Payment in the amount of Forty Thousand Dollars ($40,000) to the City no less than fifteen (15) days following commencement of the First Sales Tax Year. Subsequent Annual Developer Payments shall be paid as provided in Section 5..1.2. 5.1.2 Subsequent Sales Tax Years. Annual Developer Payments for the second and subsequent Sales Tax Years shall be determined and paid as provided in this Section 5.1.2. Within ninety(90) days after commencement of each Sales Tax Year other than the First Sales Tax Year,the City shall provide the Developer in writing the City's determination of die total Local Sales Tax Revenues for the immediately preceding Sales Tax Year on a tenant-by-tenant basis,together with such supporting documentation as the City may legally be permitted to disclose. If the total Local Sales Tax Revenues for such immediately preceding Sales Tax Year exceeded the Minimum Annual Sales Tax Revenues applicable to such Sales Tax Year,the City shall reduce the Annual Developer Payment to be paid for the then-current Sales Tax Year by the amount by which the Local Sales Tax Revenue for the immediately prior Sales Tax Year exceeded the Minimum Annual Sales Tax Revenues applicable to such prior Sales Tax Year. TheCity shall then make written demand upon the Developer for the amount of the Annual Developer Payment for the then-current Sales Tax Year as it may be reduced by operation of the foregoing sentence. The Developer shall tender the amount so demanded within thirty(30)days following such demand. Except as otherwise specifically set forth herein,in no event shall the City be obligated to provide the Developer any other data,information or documentation related tothe Local Sales Tax Revenues and all other data, information and documentation related to the Local Sales Tax Revenues shall by kept by the City in strict confidence and in compliance with all local,state and federal laws, rules and regulations. In no event shall the City be obligated to pay the Developer any sum if the Local Sales Tax Revenues for a particular Sales Tax Year exceeded the applicable Minimum Annual Sales Tax Revenues for such Sales Tax Year by an amount greater than the Annual Developer Payment;in such case,the Annual Developer payment for the then-current Sales Tax Year shall be reduced to zero but the Developer shall have no further right or claim with respect thereto. 5.1.3 Reconciliation Following Final Sales Tax Year. Within ninety(90)days followingthe end of the last Sales Tax Year,the City shall provide the Developer in writing the City's determination of the total Local Sales Tax Revenues for the final Sales Tax Year on a tenant-by-tenant basis, together with such supporting documentation as the City may legally be permitted to disclose- If the total Local Sales Tax Revenues for such final Sales Tax Year exceeds the Minimum Annual Local Sales Tax Revenues applicable to the final Sales Tax Year,the City shall pay(without interest)to Developer an amount equal to the lesser of.(1) the amount of the Annual Developer Payment paid by the Developer in advance at the beginning of the final Sales Tax Year, or (2) the amount by which the local Sales Tax Revenues for the final Sales Tax Year exceeded the Minimum Annual Sales Tax Revenues applicable to such final Sales Tax Year. Such payment shall be made concurrently with the City's written determination as described in the first sentence of this Section 5.1.3- 5.1.4 No Carry Forward or Back Agency and Developer acknowledge and agree that the calculation and determination of all financial components of the City's and the Developer's rights and UPURIKI+ARNERI716287./R 19 p obligations under this Article 5 shall be computed on a Sales Tax Year-to-Sales Tax Year basis. Revenues generated in one Sales Tax Year may not be carried forward or back to any prior or future Sales Tax Year, it being the express agreement and understanding of the parties that for each Sales Tax Year the financial obligations ofthe parties and satisfaction of the conditions precedent to such obligations shall be determined and made independently of any other Sales Tax Year. I 5.1.5 Term. The covenants of this Section 5.1 shall become effective upon the Effective Date of this Agreement and shall continue in effect thereafter for the entirety of the Sales Tax Term. 5.1.6 Covenants Run With the Land. The covenants set forth in this Section 5.1 touch and concern the Shopping Center Property, and every part thereof, and constitute covenants running with the Shopping Center Property and every part thereof for the full term of each covenant as set forth in this Article V. They may be enforced by the City through all available legal or equitable means, including injunctive relief. 5.2. Completion Covenant On behalf of itself,its successors and assigns to all or any portion of the Shopping Center Property,Developer covenants and agrees to commence the development of the Shopping Center Project within ninety(90)days ofthe Shopping Center Project Commencement Date and to Complete the Shopping Center Project within twenty four(24)months thereafter,subject to Section 9.10. For purposes of this Agreement,the term"Complete"or"Completion"means(I)as to the"Ross","CVS",and"99¢Store" Buildings,that a final certificate of occupancy(or City-designated equivalent)has been issued,and(2)as to "A" and "B" and "Shop V and "Shop 2' Buildings,the completion of all exterior improvements consistent with City requirements; the Developer shall not be required by this Agreement to obtain a certificate of occupancy with respect io any tenant improvements to be constructed within the Shopping Center ProjecL 5.2.1 Term. The covenants of this Section 5.2 shall become effective upon the Effective Date and shall terminate upon the earlier of(i)the Completion of the Shopping Center Project, or(ii)the fifteenth(I50i)anniversary ofthe Effective Date of this Agreement. 5-2.3 Covenants Run With the Land_ The covenants set forth in Section 5.2 touch and concern the Shopping Center Property, and every part thereof, and constitute covenants running with the Shopping Center Property and every part thereof for the full term of each covenant as set forth in this Article V. They may be enforced by the City through all available legal or equitable means, including injunctive relief. 5.3 Maintenance and Condition Covenant The Developer,for itself,its successors and assigns, hereby covenants and agrees that the exterior areas ofthe Shopping Center Property which are subject to public view(e.g,:all improvements,paving,walkways,landscaping,and ornamentation)shall be maintained in good repair and a neat,clean and orderly condition,ordinary wear and tear excepted- In the event that at any time during the term of this Section 5.3 there is an occurrence ofan adverse condition on any area ofthe Shopping Center Property which is subject to public view in contravention ofthe general maintenance standard described above(a"Maintenance Deficiency"),then the Agency shall notify the Developer in writing of the Maintenance Deficiency and give the Developer,or the then-current owner ofthe applicable portion ofthe Shopping Center Property if the Developer is no longer the owner of that portion of the Shopping Center Property which contains the Maintenance Deficiency,thirty(30)days from the date of such notice to cure the Maintenance Deficiency as identified in the notice. The words"Maintenance Deficiency"include,without limitation,the following inadequate or non-confirming property maintenance conditions: RVPURIKVARNER1716287 10 O 2 k (i) failure to properly maintain the windows,structural elements,and painted exterior surface areas of the commercial structures in a clean and presentable manner, (ii) failure to keep the front and side yard areas of the commercial elements of the Shopping Center Project free of accumulated debris,appliances,inoperable motor vehicles or motor vehicle parts,or free of storage of lumber,building materials or equipment not regularly in use on the Shopping Center Property;and (iii) failure to regularly mow lawn areas or permit grasses planted in lawn areas to exceed nine inches(9')in height,or failure to otherwise maintain the landscaping of the commercial elements of the Shopping Center Project in a reasonable condition free of weeds and debris. In the event the responsible party fails to cure or commence to cure the Maintenance Deficiency within the time allowed, the Agency may thereafter conduct a public hearing following transmittal of written notice thereofto the Developer,or the then-current owner of the applicable portion of the Shopping Center Property if the Developer is no longer the owner of that portion of the Shopping Center Property which contains the Maintenance Deficiency, ten (t 0)days prior to the scheduled date of such public hearing in order to verify whether a Maintenance Deficiency exists and whether the Developer, or the then-current owner of the applicable portion of the Shopping Center Property if the Developer is no longer the owner of that portion of the Shopping Center Property which contains the Maintenance Deficiency, has failed to comply with the provision of this Section 5.3. If,upon the conclusion of a public hearing,the Agency makes a finding that a Maintenance Deficiency exists and that there appears to be non-compliance with the general maintenance standard,as described above,thereafter the Agency shall have the rightto enterthe Shopping Center Property and perform 9 acts necessary to cure the Maintenance Deficiency,or to take other action at law or equity the Agency may then have to accomplish the abatement of the Maintenance Deficiency. Any sum expended by the Agency for the abatement of a Maintenance Deficiency as authorized by this Section 5.3 shall become a lien on the Shopping Center Property if the Maintenance Deficiency exists on the Shopping Center Property. If the amount of the lien is not paid within thirty (30)days after written demand for payment by the Agency,the Agency shall have the right to enforce the lien in the manner as provided in Section 5.3.1 below. 5.3.1 Lien Rights. The parties hereto further mutually understand and agree that the rights conferred upon the Agency under this Section 5.3 expressly include the powerto establish and enforce a lien or other encumbrance against the Shopping Center Property in the manner provided under Civil Code Sections 2924,2924b and 2924c in the amount as reasonably necessary to cure the Maintenance Deficiency,including attorneys fees and costs of the Agency associated with the abatement of the Maintenance Deficiency or removal of graffiti and the collection of the costs of the Agency in connection with such action.. In any legal proceeding for enforcing such a lien, the prevailing party shall be entitled to recover its attorneys'fees and costs of suit. The provisions of this Section 5.3 shall be enforceable by the Agency in its discretion, cumulative with any other rights or powers granted by the Agency under applicable law. Nothing in the foregoing provisions of this Section 5.3 shall be deemed to preclude any party from making any alterations, additions,or other changes to any structure or improvement or landscaping on the Shopping Center Property, provided that such changes comply with the zoning and development regulations of the City and other applicable law. 5.32 Term The covenants of this Section 5.3 shall become effective upon the Effective Date of this AgreemerrC and shall continue in full force and effect thereafter until the twentieth (20'h) anniversary of the Effective Date. R IIPUBVCVARNL RI716287.10 21 5.3.3 Covenants Run With the Land. The covenants set forth in this Section 5.3 touch and cdncem the Shopping Center Property, and every part thereof, and constitute covenants running with the Shopping Center Property and every part thereof for the full term of each covenant as set forth in this Article V. They may be enforced by the City through all available legal or equitable means, including injunctive relief. 5.4 Prohibited and Restricted Land Uses. 5.4.1 Prohibited Uses. On behalf of itself,its successors and assigns to all or any portion of the Shopping Center Property,Developer covenants and agrees that no part or portion of the Shopping Center Project or Property shall be held,used,leased,sold,rented,assigned,transferred,or otherwise alienated to,for, or by any use identified on the attached Exhibit"F-1"(each such use,a"Prohibited Use"). 5.4..2 Non-Retail Restricted Uses. On behalf of itself, its successors and assigns to all or any portion of the Shopping Center Property,Developer covenants and agrees that no more than ten thousand square feet(10,000 sq.ft.)of the gross leaseable area of the Shopping Center Project or Property shall at any one point in time be used;leased,sold,rented,assigned,transferred or otherwise alienated to,for,or by any of Use The foregoing the uses set forth on the attached Exhibit "F-2' (each such use, a Restricted U )- g g notwithstanding, however,the foregoing limitation shall not apply to any vacant leasable space within the Shopping Center Project which satisfies all of the following conditions: (1)such space has been unoccupied for a continuous ninety(90)day period,(2)the proposed use of such space is consistent with all then-current City zoning and other land use requirements, (3) the proposed use is not a Prohibited Use, and (4) the Developer demonstrates to the City's reasonable satisfaction that the Developer has exercised commercially reasonable good faith efforts to lease such space to a use other than a Prohibited Use or a Restricted Use during such ninety(90)day vacancy period at a rental rate no more than the fair market rental rate for,and on terms no less favorable than,similar commercial space within the City. 5.4.3 Existing Leases. Nothing in this Section 5.4 shall require Developerto terminate the tenancy of any lessee of the Shopping Center Property which is (or which may become pursuant to such lessee's lease)a Prohibited Use or Restricted Use but which lawfully occupies its leasehold space pursuant to a written lease which became effective no later than thirty (30) days prior to the Effective Date of this Agreement. The Developer shall not extend any such leasehold term unless such extension may be unilaterally exercised by the lessee without Developer's approval or consent. 5.4.4 Tenn. The covenants of this Section 5.4 shall become effective upon the Effective Date and shall continue in effect thereafter for the entirety of the Sales Tax Term. 5.4.5 Covenants Run With the Land. The covenants set forth in this Section 5.4 touch and concern the Shopping Center Property, and every part thereof, and constitute covenants running with the Shopping Center Property and every part thereof for the full term of each covenant as set forth in this Article V. They may be enforced by the City through all available legal or equitable means, including injunctive relief. 5.5 Restaurant Completion Covenant The Developer,for itself,its successors and assigns,hereby covenants and agrees that that portion of the Shopping Center Property identified as"Citrus Pad No. 1"on the Development Plan,shall as part of the Shopping Center Project,be developed for no purpose other than a sit- down,full-service restaurant containing not less than four thousand(4,000)square feet of gross leasable area. RIIPUBW IIARNER171628710' 22 i As an example,but not in limitation,of the types of prohibited uses,in connection with the development ofthe Shopping Center Project,Citrus Pad No. 1 shall not be developed as a fast food restaurant(e.g.,McDonalds, Burger King)or a"quick serve/fast serve"restaurant(e.g.,Fanner Boys). 5.5.1 Term. The covenants of this Section 5.5 shall become effective upon the Effective Date of this Agreement and shall continue in full force and effect thereafter until the twentieth (20d) anniversary of the Effective Date_ 5.52 Covenants Run With the Land. The covenants set forth in this Section 5.5 touch and concern the Shopping Center Property, and every part thereof, and constitute covenants running with the Shopping Center Property and every part thereof for the full term of each covenant as set forth in this Article V. They may be enforced by the City through all available legal or equitable means, including injunctive relief. ARTICLE VI DEFAULT AND REMEDIES 6.1 Event of Default Each of the following shall constitute an"Event of Default': 6.1.1 Failure by a party to comply with and observe any of the conditions, terms, or covenants set forth in this Agreement,if such failure remains uncured thirty(30)days after written notice of such failure from the non-defaulting party to the defaulting party with respect to a default that cannot be cured Within thirty(30)days,if the defaulting party fails to commence such cure within such thirty(30)day period or, thereafter, fails to diligently and continuously proceed with such cure to completion. However, if a different period,notice requirement,or remedy is specified under any other section of this Agreement,then the specific provision shall control. 6.1.2 Any representation or warranty contained in this Agreement or in any application, financial statement invoice,certificate,or report submitted pursuant to this Agreement proves to have been incorrect in any material respect when made. 6.2 Remedies as Between City and Develooer.It is acknowledged by the City and the Developer that the City would not have entered into this Agreement if it was to be liable in monetary damages underthis Agreement, or with respect to this Agreement or the application thereof. In general, the City and the Developer may pursue any remedy at law or equity available for the breach of any provision of this Agreement, including consequential damages, except that the City shall not be liable in monetary damages to the Developer, or to any successor in interest of the Developer, or to any other person, and the Developer covenants not to sue for damages or claim any damages: 6.2.1 For any breach of this Agreement or for any cause of action that arises out of this Agreement;or 6.2.2 For the taking,impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement;or 6.,23 Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. RIIPUBI KIIARNER171628710 23 6.3 Remedies as Between Agency and Developer.The Agency and the Developer may pursue any remedy at law or equity available for the breach of any provision of this Agreement,excluding consequential damages. 6.4 Specific Performance as Between City and Developer. The City and the Developer acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of the City's and the Developer's respective obligations under this Agreement and should be available to the City and the Developer for the following reasons: 6.4.1 Money damages are generally unavailable against the City. 6.4.2 Due to the size, nature and scope of the Shopping Center Project, it may not be practical or possible to restore the Shopping Center Property to its natural condition once implementation of this Agreement has begun. After such implementation,the Developer may be foreelosed from other choices it may have had to utilize the Shopping Center Property or portions thereof. The Developer has invested significant time and resources and performed extensive planning and processing of the Shopping Center Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Shopping Center Project in reliance upon the terms ofthis Agreement,and itis not possible to determine the sum of money that would adequately compensate the Developer for such efforts. 6.5 Developer Right To Terminate Prior To Receipt of Street Improvements Reimbursement. Prior to the Developer's receipt of any disbursement of the Street improvements Reimbursement, the Developer shall have the right to terminate this Agreement for convenience without cost,expense or liability to any Party. 6.6 Rights and Remedies• Rights and Remedies Not Exclusive. Unless prohibited by law or otherwise provided by a specific term of this Agreement,the rights and remedies of the parties under this Agreement are nonexclusive and all remedies under this Agreement may be exercised individually or cumulatively. Upon any party's Event of Default, in addition to those remedies expressly granted in this Agreement, the parties shall also have the right to seek all other available legal and equitable remedies, including,without implied limitation,general and consequential damages. 6.7 NoCross-Defaults. The Developer's obligations arising out of the Covenants,Conditions and Restrictions are separate and distinct from the obligations arising out of this Agreement,and the Developer's breach of the Covenants, Conditions and Restrictions shall not be deemed a breach or default of this Agreement. ARTICLE VII LITIGATION 7.1 Third Party Litigation Concerning Agreement Unless this Agreement is terminated as described below,the Developer shall defend, at its expense, Including attorneys' fees, indemnify,and hold harmless the City and the Agency,their agents,officers and employees from any actual or alleged claim,action or proceeding against the City or the Agency,their agents,officers,or employees to attack,set aside,void,or annul the approval of this Agreement or the approval of any entitlement or permit granted pursuant to this RVPUB I'ARNER1716.28710 24 Agreement- Within fifteen(15)days from its receipt of formal notice thereof,the City and/or the Agency shall promptly notify the Developer in writing of any such claim,action,or proceeding and the City and the Agency shall reasonably cooperate in the defense. The City and the Agency may in their discretion participate in the defense of any such claim,action,proceeding or determination. Within fifteen(15)days following its receipt of the above-described City's and/or Agency's notice,the Developer shall notify the City and Agency in writing that the Developer has irrevocably elected to either: (i) undertake its defense and indemnity obligations as herein set forth, or (ii)terminate this Agreement without cost, expense or liability to any Party; provided, however,that if Developer has received any portion of the Street Improvements Reimbursement the Developer shall not have the right to terminate this Agreement. 7.2 Environmental Assurances.. The Developer shall indemnify and hold the City, its officers, agents,and employees free and harmless from any liability,based or asserted,upon any act or omission of the Developer, its officers,agents, employees,subcontractors,predecessors in interest,successors, assigns and independent contractors for any violation ofany federal,state or local law,ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the real property underlying the Street Improvements that existed as of the date of acceptance of the Street Improvements,including,but not limited to,soil and groundwater conditions,and the Developer shall defend,at its expense,including attomeys'fees, the City, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. The City may in its discretion participate in the defense of any such action. 7.3 Approval of Attomev. With respect to Sections 7.1 and 7.2 herein,the City and the Agency reserve,the right to either:(i)approve the attomey(s)that the Developer selects,hires or otherwise engages to defend the indemnified the Agency and/or City hereunder,which approval shall not be unreasonably withheld, or(ii)conduct its own defense;provided,however,that the Developer shall reimburse the Agency and/or City forthwith for any and all reasonable expenses incurred for such defense,including attorneys'fees,upon billing and accounting therefor. 7.4 Survival. The provisions of Sections 7.1 through 7.3, inclusive,shall survive the termination of this Agreement. ARTICLE VIII MORTGAGEE PROTECTION 8.1 The parties hereto agree that this Agreement shall not prevent or limit the Developer,in any manner, at the Developer's sole discretion,from encumbering the Shopping Center Property or any portion thereof or any improvement thereon by any mortgage,deed of trust or other security device securing financing with respect to the Shopping Center Property that is junior to Developer's obligations under this Agreement. The City and the Agency acknowledge that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with the Developer and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. The City and the Agency will not unreasonably withhold their consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement and provided further that no term,condition or covenant of this Agreement is made subordinate to the rights or interests of such lenders. Any mortgagee of the Shopping Center Property shall be entitled to the following rights and privileges: RVPURU(VARAER171628710 25 8.1.1 Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid,diminish or impair the lien of any mortgage on the Shopping Center Property made in good faith and for value, unless otherwise required by law. g.1.2 The mortgagee of any mortgage or deed of trust encumbering the Shopping Center Property,or any part thereof,which mortgagee,has submitted a request in writing to the City and the Agency in the manner specified herein for giving notices,shall be entitled to receive written notification from the City and the Agency of any default by the Developer in the performance of the Developer's obligations under this Agreement 8.1.3 If the City or the Agency timely receives a request from a mortgagee requesting a copy of any notice of default given to the Developer under the terms of this Agreement,the City or the Agency,as the case may be,shall provide a copy of that notice to the mortgagee within ten(10)days of sending the notice of default to the Developer. The mortgagee shall have the right,but not the obligation,to cure the default during the remaining cure period allowed such party under this Agreement. 8.1.4 Any mortgagee who comes into possession of the Shopping Center Property,or any part thereof,pursuant to foreclosure of the mortgage or deed of trust,or deed in lieu of such foreclosure,shall take the Shopping Center Property,or part thereof,subject to the terns of this Agreement. 8.2 Estoppel Certificates. Within thirty (30) days following Developer's written request, the Agency shall execute, acknowledge and deliver to the Developer and/or to any mortgagee, its certificate certifying: (a) that this Agreement is unmodified and in full force and effect (or, if there have been modifications,that this Agreement is in full force and effect,as modified,and stating the modifications),and (b)whether,to the City's and Agency's actual current knowledge,there are then existing any defaults by the Developer in the performance or observance by the Developer of any agreement,covenant or condition hereof on the part of the Developer to be performed or observed and whether any notice has been given to the Developer of any default which has not been cured(and,if so,specifying the same).Any such certificate may be relied upon by a mortgagee or trustee under a deed of trust encumbering the Shopping Center Property or any part thereof. ARTICLE IX MISCELLANEOUS PROVISIONS 9.1 Recordation of Aereement.This Agreement and any amendment or cancellation thereof shall be recorded with the Los Angeles County Recorder by the Clerk of the City Council within ten(10)days atter the Effective Date.. If the parties to this Agreement or their successors in interest amend or cancel this Agreement,or if the City or the Agency terminates or modifies this Agreement as provided herein for failure of the Developer to comply in good faith with the terms and conditions of this Agreement,the City Clerk shall have notice of such action recorded with the Los Angeles County Recorder. 9.2 Entire Aereement. This Agreement sets forth and contains the entire understanding and agreement of the parties,and there are no oral or written representations,understandings or ancillary covenants, undertakings or agreements that are not contained or expressly referred to herein. No testimony or evidence of any such representations,understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement R J1PJ)BW J1ARNER1716287.10 26 9.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid,void or unenforceable,the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perforin taking into consideration the purposes of this Agreement Notwithstanding the foregoing,the terns of this Agreement concerning of the Street Improvements and the Local Sales Tax Revenues are essential elements of this Agreement and neither the City or the Agency would not have entered into this Agreement but for such provisions,and therefore in the event such provisions are determined to be invalid,void or unenforceable,this entire Agreement shall be null and void and of no force and effect whatsoever. 9.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the procedural and substantive laws of the State of California, without regard for conflict of laws principles. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes ofthe parties hereto,and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement,all parties having been represented by counsel in the negotiation and preparation hereof. 9.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 9.6 Singular and Plural. As used herein,the singular of any word includes the plural. 9.7 Incorporation of Recitals. The Recital set forth in this Agreement are incorporated into this Agreement. 9.8 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party,or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter. 9.9 No Third Party Beneficiaries. This Agreement is made acid entered into forthe sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 9.10 Extensions and Delays:No Excuse Due to Economic Changes. Time is of the essence in the performance of the obligations of the City,the Agency and the Developer under this Agreement In addition to specific provisions of this Agreement, providing for extensions of time, times for performance under this Agreement shall be extended where delays in performance are due to war,terrorism,insurrection;any form of labor dispute;lockouts;riots;floods;earthquakes;fires;acts of God or of third parties;third party litigation or orders and judgments of courts of competent jurisdiction; acts of a public enemy; acts of governmental authorities; epidemics; quarantine restrictions; and freight embargoes (collectively, "Enforced Delays"); provided,however,that the party claiming the extension notify the other parties of the nature of the matter causing the default; and, provided further, that the extension of time shall be only for the period of the Enforced Delay. In no event shall any party to this Agreement be deemed to be in default under this Agreement because of an Enforced Delay. The Developer expressly acknowledges and agrees that changes in the general economic conditions or changes in its economic assumptions which may have provided a basis for R IIPUBIKVARNER171628710 27 its entering into this Agreement e i and the obligations under This Agreementdescribed,orl legislative changes of a similar or dissimilar type are not Enforced Delays and do not provide grounds for asserting the existence of an Enforced Delay. Developer expressly assumes the risk that changes in general economic conditions,in its economic assumptions relating to the terms and covenants of this Agreement,or of legislative enactments, could impose an inconvenience or hardship on Developer's continued performance under this Agreement,but that such inconvenience or hardship is not an Enforced Delay and does not excuse Developer's performance under this Agreement. THE DEVELOPER EXPRESSLY AGREES THAT ADVERSE.CHANGES IN ECONOMIC CONDITIONS, EITHER OF THE DEVELOPER SPECIFICALLY OR THE ECONOMY GENERALLY, CHANGES IN MARKET CONDITIONS OR DEMANDS,ORADVERSELEGISLATIVE ENACTMENTS AFFECTING THE DISTRIBUTION OF SALES TAX REVENUES WITHOUT THE BENEFIT OF OFFSETTING REVENUES SHALL NOT BE AN ENFORCED DELAY OR OPERATE TO EXCUSE OR DELAY THE STRICT AND TIMELY PERFORMANCE-OF EACH AND EVERY OBLIGATION AND COVENANT OF DEVELOPER ARISING UNDER THIS AGREEMENT. THE DEVELOPER EXPRESSLY ASSUMES THE RISK OF SUCH ADVERSE ECONOMIC,MARKET OR LEGISLATIVE CHANGES,WHETHER OR NOT IN EXISTENCE OR FORESEEABLE.AS OF THE EXECUTION OF THIS AGREEMENT BY THE DEVELOPER. Developer's Initials 9.11 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrentq or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party. 9.12 Successors in Interest 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 to this Agreement All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Shopping Center Property:(i)is for the benefit of and is a burden upon every portion of the Shopping Center Property; (ii)runs with the Shopping Center Property and each portion thereof,and(iii)is binding upon each party and each successor in interest during ownership of the Shopping Center Property or any portion thereof. 9.13 Execution in Counterparts. Each person executing this Agreement on behalf ofthe Developer warrants and represents that he or she each have the authority to execute this Agreement on behalf of his orher corporation,partnership or business entity and warrants and represents that he or she has the authority to bind the Developer to the performance of its obligations hereunder. This Agreement may be executed in three(3)or more counterparts,each of which shall be deemed an original,and all of which shall constitute but one())and the same instrument 9.14 Obligations of the City and the Agency are Separate and Distinct The City's obligations and the Agency's obligations under this Agreement are separate and distinct. 1 9.15 Shopp ing Center Proiect as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Shopping Center Project is a private development, that no party to this Agreement is acting as the agent of the other in any respect hereunder,and that each party to this Agreement is an independent contracting entity with respect to the terms, covenants and conditions R 1'P UBMIARNER1716287 10 29 I contained in this Agreement. No partnership,joint venture or other association of any kind is formed by this Agreement. The only relationship between the City and the Developer is that ofa government entity regulating the development of private property and the owner of such property. 9.16 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time,the other party shall promptly execute,with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 9.17 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by the City or the Agency of their respective powers ofeminent domain with respectto the Shopping Center Property or Shopping Center Project or any other property owned by Developer. 9.18 Attorneys' Fees. In the event of the bringing of an arbitration,action or suit by a party against another party by reason of any breach of any of the covenants or agreements or any intentional inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement or any other dispute between the parties concerning this Agreement then,in that event,the prevailing party in such action or dispute,whether by final judgment or arbitration award,shall be entitled to have and recover of and from the other party all costs and expenses of suit or claim, including reasonable attorneys' fees and expert witness fees. Any judgment, order or award entered in any final judgment or award shall contain a specific provision providing for the recovery of all costs and expenses ofsuitor claim,including reasonable attorneys' fees and expert witness fees (collectively, "Costs") incurred in enforcing, perfecting and executing such judgment or award. For the purposes of this Section 9.19, Costs shall include,without implied limitation, attorneys' and experts' fees, costs and expenses incurred in the following: (i)post judgment motions and appeals, (ii) contempt proceedings, (iii) garnishment, levy and debtor and third party examination; (iv) discovery;and(v)bankruptcy litigation. This Section 9.19 shall survive any termination of this Agreement 9.19 Informal Dispute Resolution. The parties shall attempt in good faith to resolve any differences,controversy or claim arising out of or relating to this Agreement promptly by negotiations between senior officials of the parties who have authority to settle the difference or controversy. The disputing party may give the other Party written notice that a dispute exists between them so that the provision of Sections 9.1 9.1 and 9.19.2 shall apply("Dispute Notice'). 9.19.1 Within twenty(20) days after receipt of a Dispute Notice,the receiving party shall submit to the disputing party a written response. The Dispute Notice and response shall include:(i)a statement of each Party's position and a summary of the evidence and arguments supporting its position, and(ii) the name and title of the official who shall represent that party. The senior officials shall meet at a mutually acceptable time and place or by telephone conference within thirty(30)days ofthe date of the Dispute Notice, and thereafter as often as they reasonably deem necessary to exchange relevant information and to attempt to resolve the dispute. In the event any party fails to provide a response to a Dispute Notice in accordance with this section or fails to cooperate in the scheduling of,or to attend,the meetings,described above,to resolve the dispute,then,with respect to that party,the Resolution Period shall be deemed to have run se that the dispute may immediately be subject to arbitration in accordance with Section 9.19.2. RVPWitK IARNER1716287 10 29 I 9.19.2 If the matter has not been resolved pursuant to Section 9.19.1 within ninety(90)days of the date of the Dispute Notice("Resolution Period"),(which period maybe extended by mutual agreement), or if any party will not participate in such procedure,the dispute shall be submitted to non-binding arbitration in Los Angeles County, California, in accordance with the AAA Rules. Each Party to such dispute shall appoint an arbitrator, and such arbitrators shall appoint an additional arbitrator. If, within thirty.(30)days following the expiration of the Resolution Period,any party has not appointed an arbitrator,the AAA shall,at the request of the other party, appoint an arbitrator on that party's behalf. IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the last date set forth below. [Signatures on Following Pages] i I�. I I R11PUBMIARNER1716287 10 30 i i I SIGNATURE PAGE. TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT DEVELOPER: JAR-UNIVERSITY COMMONS,LLC a California limited liability company Date: By: Its: Date: By: Its: RITUBIK KARNER171628710 31 SIGNATURE PAGE. TO STATUTORY DEVELOPMENT AGREEMENT ' AND OWNER PARTICIPATION AGREEMENT CITY: THE CITY OF AZUSA, a California municipal corporation • I Date: By-. F. M.Delach City Manager ATTEST: By: City Clerk APPROVED AS TO LEGAL FORM: BEST BEST&KRIEGER LLP By: City Attorney I I R11PUTA MRNEM7l6287/0. 32 SIGNATURE PAGE. TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT AGENCY: THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, a public body,corporate and politic Date: By: F.M.Delach Executive Director ATTEST: By: Agency Secretary APPROVED AS TO,LEGAL FORM: BEST BEST&KRIEGER LLP By Agency Counsel R11PUBIKVARNER171618710 33 II NOTARY ACKNOWLEDGMENT (California All-Purpose Acknowledgment) STATE OF ) ss. COUNTY OF ) On 2006 beforeme, notary public, personally appeared , personally known to me(or proved i to me on the basis of satisfactory evidence)to be the person(s) whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s) acted, executed the instrument. I WITNESS my hand and official seal. Signature of Notary Public I l ATTACHED TO: i, RIIPUBIKIIARIVER17/6287 10; 1 NOTARY ACKNOWLEDGMENT (California All-Purpose Acknowledgment) STATE OF ) ss. COUNTY OF ) On 2006 before me, notary public, personally appeared personally known tome(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. Signature of Notary Public ATTACHED TO: RVPUB64Vd1ZNLR171618710 l i EXHIBIT"A-1" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT i (Legal Description of the Vacant Property) I I, 4 I I i EMBIT "A-1" R11PURIKVARNER1716187 JO i I EXHIHPT A - LEG-Al DESCRIPTION PARCEL 2 COMMENCING AT THE NORTHWESTERLY CORNER OF SAID PARCEL 1; THENCE ALONG THE WESTERLY LINE OF SAID PARCEL I SOUTH 46010'53" EAST A DISTANCE OF 173.26 FEET; THENCE SOUTH 00000'56" EAST A DISTANCE OF 287.99 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE SOUTH 71055'32" EAST A DISTANCE OF 176.87 FEET TO THE BEGINNING OF A 420.00 FOOT RADIUS NON-TANGENT CURVE, CONCAVE EASTERLY, A RADIAL TO SAID POINT BEARS NORTH 80010'45" WEST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 09053'57",AN ARC LENGTH OF 72.56 FEET; THENCE SOUTH 00004'42" EAST A DISTANCE OF 100.10 FEET TO THE BEGINNING OF A 436.00 FOOT RADIUS CURVE, CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 76035'22", AN ARC LENGTH OF 103.24 FEET, A RADIAL TO SAID POINT BEARS SOUTH 76°30'40" EAST; THENCE NORTH 89°58'40" EAST A DISTANCE OF 55.26 FEET; THENCE SOUTH 71°51'20" EAST A DISTANCE OF 311.98 FEET; THENCE SOUTH 35°55'40" EAST A DISTANCE OF 69.85 FEET; THENCE SOUTH A DISTANCE OF 23.83 FEET; THENCE SOUTH 06039'32" EAST A.DISTANCE OF 102.00 FEET;THENCE SOUTH 00°00'10" WEST A DISTANCE OF 127.14 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID PARCEL i OF PARCEL MAP 14845; THENCE ALONG SAID SOUTHERLY LINE NORTH 89058'36" WEST A DISTANCE OF 151.63 FEET TO THE SOUTHEASTERLY CORNER OF PARCEL 2 OF SAID PARCEL MAP 14845; THENCE CONTINUING ALONG THE SOUTHERLY LINE OF SAID PARCEL 2 NORTH 89058'36' WEST A DISTANCE OF 402.80 FEET TO THE SOUTHWESTERLY CORNER OF SAID PARCEL 2; THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 2 NORTH 0000'56" WEST A DISTANCE OF 447.38 FEET TO THE NORTHWESTERLY CORNER OF SAID PARCEL 2;THENCE CONTINUING ALONG SAID WESTERLY LINE OF PARCEL 1 NORTH 00000'56_'. WEST A DISTANCE OF 287.86 FEET TO THE TRUE POINT OF BEGINNING.: CONTAINING 5.7773 ACRES GROSS. s •'M:, r. I EXHIBIT"A-2" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Legal Description of the Shopping Center Property) . � I i i I i r I I, if EXHIBIT "A-2" RVPUBV:VARNER1716287/0. E)IIBIT A - LEGAL .DESCRIPTION PAGE 1 OF 2 PORTIONS OF PARCELS 1 AND 2 OF PARCEL MAP 14845 RECORDED IN BOOK 153, PAGES I THROUGH 5 OF PARCEL,MAPS, FILED IN THE OFFICES OF THE COUNTY RECORDER OF THE COUNTY OF LOS ANGLES, STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS AND ILLUSTRATED ON EXHIBIT B ATTACHED HERETO AND MADE A PART OF THIS DOCUMENT: PARCEL I BEGINNING AT THE NORTHWESTERLY CORNER OF SAID PARCEL 1; THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 1 SOUTH 46010'53" EAST A DISTANCE OF 173.26 FEET; THENCE SOUTH 00°00'56" EAST A DISTANCE OF 287.99 FEET; THENCE LEAVING SAID WESTERLY LINE SOUTH 7155'32" EAST A DISTANCE OF 176.87 FEET TO THE BEGINNING OF A 420.00 FOOT RADIUS NON-TANGENT CURVE, CONCAVE EASTERLY, A RADIAL TO SAID POINT BEARS NORTH 80°10'45" WEST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 09°53'57", AN ARC LENGTH OF 72.56 FEET;THENCE SOUTH 00°04'42"EAST A DISTANCE OF 100.10 FEET TO THE BEGINNING OF A 436.00 FOOT RADIUS CURVE, CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 76°35'22", AN ARC LENGTH OF 103.24 FEET, A RADIAL TO SAID POINT BEARS SOUTH 76°30'40" EAST; THENCE NORTH 89058'40"BAST A DISTANCE OF 55.26 FEET; THENCE SOUTH 71°51'20" EAST A DISTANCE OF 311.98 FEET;THENCE SOUTH 35055'40" EAST A DISTANCE OF 69.85 FEET; THENCE SOUTH A DISTANCE OF 23.83 FEET; THENCE SOUTH 06039'32" EAST A DISTANCE OF 102.00 FEET; THENCE SOUTH 00000'10" WEST A DISTANCE OF 127.14 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 1 OF PARCEL MAP 14845; THENCE ALONG SAID SOUTHERLY LINE SOUTH 89058'36" EAST A DISTANCE OF 476.49 FEET TO THE SOUTHEASTERLY CORNER OF SAID PARCEL 1, SAID POINT LYING ON TILE WESTERLY RIGHT-OF-WAY OF CITRUS AVENUE; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY NORTH 00001'24"EAST A DISTANCE OF 779.16 FEET TO THE BEGINNING OF A 15.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE LEAVING SAID WESTERLY RIGHT-OF-WAY NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 81°14'47", AN ARC LENGTH OF 21.17 FEET TO A POINT ON THE SOUTHERLY RIGHT-OF-WAY OF ALOSTA AVENUE, SAID POINT LYING ON A 2.300.OD FOOT RADIUS REVERSE CURVE, CONCAVE NORTHEASTERLY, A RADIAL TO SAID POINT BEARS SOUTH 08°46'37"WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24021'56", AN ARC LENGTH OF 978.10 FEET TO THE BEGINNING OF A 15.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY, • i EXHIBIT A - LEGAL DESCAMPTION PAGE 2 OF 2 A RADIAL,TO SAID POINT BEARS SOUTH 33°08'33"WEST;THENCE LEAVING SAID SOUTHERLY RIGHT-OF-WAY OF ALOSTA AVENUE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 33°09'29", AN ARC LENGTH OF 8.68 FEET; THENCE SOUTH 89°59'04" WEST A DISTANCE OF 229.10 FEET TO THE POINT OF BEGINNING. CONTAINING 16.9279 ACRES GROSS. I I I i e I • I I I' SPP A - CURVE TABLE NO. &Z 7A RADIUS LENGTH LINE TABLE of 095357' 420.00' 72.56' NO. BEAR/NG LENGTH 02 76;7522' 436.00' 103.24' L1 N995840E 55.26' 03 247156" 2300.0097910' 12 N35554W* 69.85' 04 330929" 15.00' 8,68' LJ NORTH 2983' C5817447" 15.00' 21.17' L4 N46705UV 173.26' C6 25;71:74" 122SOooloo40' L5 N7155;720W 176.87' T.Pae. - Pa 1 LEGAL OESCRIPAON L6 N00V442 w 100.10 POO, - Pa 2 PARCELS 1 AND 2 AS SHOW ON PARCEL LEGEND SJJ0833%fPRCf� MRP 1N BOOK 157 PACES 1-5 RECORDED p,0.C. PD/NT OF COEfAfENCc�IENT N895904,E j \�� /N THE COUNTY OF LOS ANGQ£S T.P.O.B. TRUE POINT OF BEGINNING 229.70 h T � — — —EXISANG PARCEL LIN£ a PROPOS£O PARCQ UNE � c�0 S 61.68 O \ \S eui y�Michael D. Levin 34.61' y00 Cp �(bJls�i, LN; Ezp. 6-30-07 0 147,98' 77.31' PARD ' �( �9 No. 6696 ��Q 7,37,3797/ MWINTSa /7 IFOF CAUF� T.P.0.8. 16.9279 MOSSINTACMES P!X 2 is 8824-021-01 O!$ 021 ry 2754'- CS 3�2 SET SHEET 2 NgoYOQS" q FOR GENERAL \�1 EASEYENT N185.37' 6 �� 'd4-64-3 184.25' of 9 LNOITS EGENDANO N P 6:9 PAd 4 'Dad ~� Q sus• 31.98' 3pA0 fP CZ `�' 2342z o a7SANBJA�A = L7v#,OARY rotiIp li" IcW L3 2 � Op PARCEL o ,0 ;79;72 N' 102oo' - - 251,659.97 MOSS/ I h NET SV.. FT, $ I717J MOSSINET ACRES ( ¢40.00' 8624-021-016 NOOnO'/O E 284.68' 402.80' 51.63' 927.14' 476.49' ZONING N895836`lY 1030.92' m ZONING PER A#•CITY Ldp AZL/S4 S aAWING b0MRPENT. a MVIAG FOR NIS SITE IS IN 7 dC UNIPM514rY DISTRICT A) � 0 200 400 EXHIBIT"B-1" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Map of the Vacant Property) I I i II i I if I I EXHIBIT"B-I" RVPUBW VARNE 81716287 16 q( EXISTING ROSS _ ,. EXISTING ( - CVSLL r EXISTINGfj THEATRE .. - .._....I A _.. Y'-- PROPOSED U - BUILDING O � - �/ EXISTING -I :.:'� .:—J_'I _ LL — i I moo. —' I SCALE: NTS - ® VACANT PROPERTY EXHIBIT 1 la SENGINEERING B sia o.0 a eK-sm�e:no-r�e.n cuu.�w.o:oce�psol em-eue I EXFIIBIT`B-2" TO STATUTORY DEVELOPMENT AGREEMENT j AND OWNER PARTICIPATION AGREEMENT (Map of the Shopping Center Property) I. i i I I I k EXHIBIT"B-2" R PPUMKVARNER171628710 t I EXHIBIT"C-i" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Development Plan for Shopping Center Project) I Tentative Parcel Map No. 68020 Code Amendment 6A-220 Design Review No. DR 2006-02 Minor Use No.(s) MUP 2006-01 (Tandem Parking) MUP 2006-06(Beer&Wine Sales at Citrus Pad#1 Restaurant) MUP 2006-07(CVS—offsite sale of liquor) i I 1 I I t EXHIBIT"C-1" RVPU81ti VARNER1716287 10 I EXISTING - ,:_ � ROSS i 0 1 + I EXISTING �. CVS CE EXISTING THEATRE - r PROPOSED ' I -' ! rn BUILDING uj Ix — -1 SIL Li'l I, i EXISTING W -I,� Ij Sr•ic. MS -- DEVELOPMENT PLAN EXHIBIT DAdamsENGIIIEERING C-1 sne mu;an.-same:co.cn:a.a.uer.y.e:noe.frcot xairu f ' 1 EXHIBIT"C-Z" TO STATUTORY DEVELOPMENT AGREEMENTI AND OWNER PARTICIPATION AGREEMENT I (Master Phasing Plan) I I I i i I EXHIBIT"C-2" j R11PUBMIARNERI716287)6 4-1 OR ffi ow , x` d a :3 @ y s ��� ' I ° •. �hy`A�:•i� •Q•a��Q�p � sv �Y K N r r I EXHIBIT"D-1" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT I (Description of Street Improvements) , I I i I EXHIBIT"D-I" R IIP UBW IIARNE R 1716287 10 i EXHIBIT D-1 DESCRIPTION OF STREET IMPROVEMENTS Roadway improvement shall consist of the Engineering,Construction Mnnagement and Construction of a dedicated roadway extension of Fenimore Ave. on the south,northerly to and including a join with Alosta Ave.. Engineering and constructiun shall be performed and completed to lire approval of the City Engineer. - Work shall include but not be limited to the construction of(be following: Curb,gutter,sidewally asphnit concrete pavement,base material,grading and excavation of the roadway,street lights,signage,pavement markings and signage, Sanitary Sewer,Water Distribution,Gig,Electrical,Cable TV,street trees, landscaping and other appurtenances for proper development of the Project. Enefticering and Canslruction Criteria: I. Engineering and Constraction shall be performed in accordance with the Standard Specifications for Public Works Construction,latest edition. 2. Standard Plans of Tile City of Azusn,including R-1,Street Sections. 3. The Standard Plans for Publie Works Construction. C Roadway width shall be approved by the Los Angeles County Fire Department S. Engineering shall include a smooth transition from existing Fenimore Ave. (43 feet wide curb to curb)on the south to an approved width(36 feet wide curb to curb or n width as approved by L-A.Co.Fire Department). 6. Roadway alignment shall provide for mnncuverabilily and turning radii for trucks servicing the Foothill Center. 7. Signage and traffic striping shall be in accordance with tine Manual on Uniform Traffic Control Devices. See attached Drawing D-1 A. EXHIBIT"D-1 RVPOEM IARNERV 1618710 i EXHIBIT"D-2" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Map Depicting Location of Street Improvements) I I I I I I r i EXHIBIT"D-2" RVRURIKVARKR1716187 16 II a S C: T h a FOOTHILL CENTER 4 V a R/W R/W 52' ;�(g may be 30'a+ ce,^kain locailo s B=36' t-r gpproved in wnt h� h fIAG°Fp� s 8' lgIB �, (MAY VARY) (MAY VARY) N e TO BE APPROVED BY LOS ANGELES COUNTY FIRE DEPARTMENT PAVEMENT THICKNESS TO BE DETERMINED FROM SOIL INVESTIGATION MINIMUM: 3' ASPHALT CONCRETE OVER 4' CRUSHED AGGREGATE BASE PROPOSED EXTENSION FENIMORE AVENUE EXHIBIT D-1 A P,EF+ CITY STANDARD PLAN R-1 i rr hhrr O Ml MOR ,r,,uj I-- -- 8 IL.-si-Pa', SCAM MS i AdaSnn m.e'.ur.-Suib:OF bNem GN •6m1ou-LRISoING UEXHIBIT ENGINEE li i EXHIBIT"E" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Covenants,Conditions&Restrictions) EXHIBIT"E." RVRUBIKVARNERM 6181 10 Recorded at request of: City of Azusa When recorded return to: City of Azusa 213 East Foothill Boulevard Azusa,CA 91702-1395 Attention: City Clerk Space Above for Use by Recorder Only Exempt from Recording Fees Per Gov't Code§27383 THE CITY OF AZUSA AND THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA DECLARATION j OF OWNER OCCUPANCY COVENANTS,CONDITIONS AND RESTRICTIONS THIS DECLARATION OF OWNER OCCUPANCY COVP-NANTN, CONDITIONS, AND RESTRICTIONS(this"Declaration")is dated as of ,and entered into by and among JAR-UNIVERSITY COMMONS,LLC,a California limited liability company("Developer"),the CITY OF AZUSA,a California municipal corporation("City's and the REDEVELOPMENT AGENCY OF THE.CITY OF AZUSA, a public body corporate and politic("Agency"), with reference to the following recited facts (each,a"Recital"): RECITALS A. The city'council of the City("City Council")approved and adopted the redevelopment plan ("Redevelopment Plan").for the redevelopment project area known as the"Merged Central Business District Redevelopment Project Area'("Project Area"). B. The governing board of the Agency("Governing Board")has adopted an implementation plan ("Implementation Plan") for the Redevelopment Plan and is engaged in activities necessary to execute and implement the Redevelopment Plan pursuant to California Community Redevelopment Law(Health and Safety Code Section 33000 et se .)("CRL"). f C. The Developer owns certain real property within the boundaries of the City and within the Project Area that is vacant("Vacant Property")as more particularly described in Exhibit"A"and shown on Exhibit "B" attached to this Declaration and incorporated into this Agreement by this reference. The Developer has proposed to develop the Vacant Property as a residential project("Residential Projeefl. r I EXHIBIT"E" R JIP UBW IIARNE R 171628710 D. The Developer,the City and the Agency agree that the Vacant Property shall be restricted as specifically provided in this Declaration for the benefit of the Project Area. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION AND THE COVENANTS,CONDITIONS AND RESTRICTIONS SET FORTH IN THIS DECLARATION, THE DEVELOPER,THE CITY AND THE AGENCY AGREE,AS FOLLOWS: COVINANTS 1.1 Covenants to Run with the Land. The Developer, the City and the Agency declare their mutual, specific intent that this Declaration further the development of owner-occupied, single family, attached,residential housing within the Project Area. The Developer,the City and the Agency also declare their mutual,specific intent that each and every one of the provisions ofthis Declaration touch and concern the Vacant Property and shall be covenants running with the land ofthe Vacant Property that shall pass to and be binding upon the Vacant Property and each successive owner of the Vacant Property for the benefit of the City and the Agency regardless of whether the City or Agency own or continue to own any property in the Project Area. The Developer expressly assumes the duty and obligation to perform each of the covenants and to honor each of the agreements, reservations,restrictions and conditions set forth in this Declaration. If Developer transfers the Vacant Property,then Developer shall thereby be released from any further obligations hereunder arising from and after the date of transfer,provided that the transferee either agrees in writingto be bound,or is otherwise legally obligated to be so bound,by the obligations of"Developer"hereunder arising from and after the transfer date. 1.2 Conditions Restrictions and Reouirementsre- LeasineofLots. An owner of a residential unit ("Unit") in the Residential Project who desires to lease his/her/its Unit shall be permitted to do so only upon compliance with all of the following:: 1.2.1 No Unit may be leased for transient,hotel,or dormitory purposes(i.e.for periods less than twelve(12)calendar months). 1.2.2 An owner may only lease the entire Unit and may not sublease portions of the Unit to separate tenants. No more than two(2)private vehicles belonging to the owner and/or the tenant(s)under any such lease can be parked at the Residential Project in owner designated garages. 1.3 Recordation of Declaration. The Developer shall or shall cause the recordation of this Declaration against the Vacant Property, which will be senior to all non-statutory liens and encumbrances against the Vacant Property. Each and every contract,deed or other instrument executed regarding the Vacant Property or any interest in the Vacant Property, following the date of recordation of this Declaration in the official records of the Recorder ofthe County of Los Angeles,Califomia,shall conclusively be deemed to have been executed,delivered and accepted subject to this Declaration,regardless of whether this Declaration is set forth in or referenced in such contract,deed or other instrument. 1.4 Incorporation of Recitals. The Recitals of fact preceding this Declaration are true and correct and are incorporated into this Declaration in their entirety by this reference. EXHIBIT"E" R11PUBMIARNM716287.10 i 1.5 Notices. Demands and Communications Between the Parties. 1.5.1 Any and all notices,demands or communications submitted by any party to another party pursuant to or as required by this Declaration shall be proper,if in writing and dispatched by messenger for immediate personal delivery, by a nationally recognized overnight delivery service or by registered or certified United States Mail,postage prepaid,return receipt requested,to the address of the Developer,the City or the Agency, as applicable, as designated in Section 1.5.2. Such written notices, demands or communications may be sent in the same manner to such other addresses as any party may from time to time designate. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt,on the day that it is delivered by personal delivery,on the date of delivery by a nationally recognized overnight delivery service or four(4)business days after it is placed in the United States Mail,as provided in this Section 0. r. 1.5.2 The following are the authorized addresses for the submission of notices,demands or communications to the Parties: To Developer: JAR-University Commons,LLC c/o Trachman Indevco,LLC 1801 Century Park East, Suite 1040 Los Angeles,CA 90067 Attention: Andrew Trachman, President To City:: The City of Azusa 213 East Foothill Boulevard i Azusa,CA 91702-1395 Attention: City Manager To Agency: The Redevelopment Agency of The City of Azusa 213 East Foothill Boulevard Azusa,CA 91702-1395 Attention: Executive Director i 1.6 No Intended Third Party Beneficiaries. The Parties do not intended to create any rights for,in favor of or on behalf of any person or entity by entering into this Declaration,other than the parties themselves. 1.7 Conflict of Interest No member,official or employee of the Agency having any conflict of interest, direct or indirect, related to this Declaration shall participate in any decision relating to this Declaration. The parties represent and warrant that they do not have knowledge of any such conflict of interest,as of the date of this Declaration. 1.8 Warranty Against Payment of Consideration for Declaration. The Developer warrants that it has not paid or given,and will not pay or give,any third party any money or other consideration for obtaining this Declaration. Third parties,for the purposes of this Section 1..8,shall not include persons to whom fees are paid for professional services,if rendered by attorneys,financial consultants,accountants,engineers,architects and the like when such fees are considered necessary by the Developer. 1.9 Governing Law. This Declaration shall be governed by the laws of the State of California applicable to contracts made by residents of the State of California and to be performed in the State of EXHIBIT "E' WP UR I K I'ARNER L716Z87 10 III California,without application of such laws'conflicts of laws principles. The parties acknowledge and agree that this Declaration has been entered into in the City of Azusa,County of Los Angeles,State of California,is to be performed in such city and relates to real property located in such city. 1.10 Binding on Successors and Assigns. This Declaration shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. 1.11 Partial Invalidity Severability. If all or any portion of any term or provision of this Declaration or the application of all or any portion of any term or provision of this Declaration to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Declaration, or the application of all or any portion of such tens or provision to persons or circumstances,other than those as to which it is held invalid or unenforceable, shall not be affected, and each such term and provision of this Declaration shall be valid and enforced to the fullest extent permitted by law. 1.12 Entire Agreement. This Declaration shall be executed in three(3)counterpart originals,each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. This Declaration integrates all of the terms and conditions mentioned in this Declaration or incidental to this Declaration,and supersedes all negotiations or previous agreements between the parties with respect to the Vacant Property and the other subjects addressed in this Declaration. None of the terns, covenants,agreements or conditions set forth in this Declaration shall be deemed to be merged with any deed conveying title to the Vacant Property,and this Declaration shall continue in full force and effect before and after any such conveyances. All waivers of the provisions of this Declaration and all amendments to this Declaration which materially affect a party's rights or benefits must be in writing and signed by the party waiving or amending any right or benefit it has under this Declaration. 1.13 Time of the Essence. For each provision of this Declaration that states a specific amount of time within which the requirements of such provision are to be satisfied,time shall be deemed to be of the essence. THIS DECLARATION is executed by the Developer,the City and the Agency on the dates indicated next to the signature(s)of each of them or their authorized representative(s),below: DEVELOPER: Date: By: Date: By: � Av/-- �A CITY: 2 Date: By: AGENCY: EXHIBIT"E" R PPUBMIARNLRU 1628710 - Date: By: [ALL SIGNATURES MUST BE NOTARY ACKNOWLEDGED] I, i ,I k �I I I� i it EXHIBIT"E" RVPUBW J'ARNBR 1716287 10 i EXHIBIT A TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (Legal Description of Vacant Property) Exhibit A to Declaration of Covenants R IIP UB I A VARNL R 1716287 10 EXHIBIT A - LEGS DESCRIPTION PARCEL 2 COMMENCING AT THE NORTHWESTERLY CORNER OF SAID PARCEL 1; THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 1 SOUTH 46010'53" EAST A DISTANCE OF 173.26 FEET; THENCE SOUTH 00°00'56" EAST A DISTANCE OF 287.99 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE SOUTH 71055'32" EAST A DISTANCE OF 176.87 FEET TO THE BEGINNING OF A 420.00 FOOT RADIUS NON-TANGENT CURVE, CONCAVE EASTERLY, A RADIAL TO SAID POINT BEARS NORTH 80°10'45" WEST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 09°53'57",AN ARC LENGTH OF 72.56 FEET; THENCE SOUTH 00004'42" EAST A DISTANCE OF 100.10 FEET TO THE BEGINNING OF A 436.00 FOOT RADIUS CURVE, CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL. ANGLE OF 76°35'22", AN ARC LENGTH OF 103.24 FEET, A RADIAL TO SAID POINT BEARS SOUTH 76°30'40" EAST; THENCE NORTH 89°58'40" EAST A DISTANCE OF 55.26 FEET; THENCE SOUTH 71°51'20" EAST A DISTANCE OF 311.98 FEET; THENCE SOUTH 35°55'40" EAST A DISTANCE OF 69.85 FEET; THENCE SOUTH A DISTANCE OF 23.83 FEET; THENCE SOUTH 06039'32"EAST A DISTANCE OF 102.00 FEET;THENCE SOUTH 00-00'10" WEST A DISTANCE OF 127.14 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 1 OF PARCEL MAP 14845; THENCE ALONG SAID SOUTHERLY LINE NORTH 89058'36" WEST A DISTANCE OF 151.63 FEET TO THE SOUTHEASTERLY CORNER OF PARCEL 2 OF SAID PARCEL MAP 14845; THENCE CONTINUING ALONG THE SOUTHERLY LINE OF SAID PARCEL 2 NORTH 89°58'36" WEST A DISTANCE OF 402.80 FEET TO THE SOUTHWESTERLY CORNER OF SAID PARCEL 2; THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 2 NORTH 00000'56"WEST A DISTANCE OF 447.38 FEET TO THE NORTHWESTERLY CORNER OF SAID PARCEL 2;THENCE CONTINUING ALONG SAID WESTERLY LINE OF PARCEL I NORTH 00000'56;. t. WEST A DISTANCE OF 287.86 FEET TO THE TRUE POINT OF BEGINNING,;.= CONTATMING 5.7773 ACRES GROSS. 7f1• nF 1 I i I. I EXHIBIT B TO DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS (Map of Vacant Property) Exhibit B to Declaration of Covenants RVRUB M'ARNL•R1716287 10 I I \ 06 7.4 EXISTING 9 .... ROSS i EXISTING CVS .. L j EXISTING THEATRE I 0 PROPOSED U BUILDINGuJ / C EXISTING .,.;;..:...:..: :.:. ...... ti SCALE: NIS I VACANT PROPERTY EXHIBIT 6)Ada SENGINEERING B-1 ueio o.enb sm-sine eou•[erMod,CAW.1.o:ooe•�IOG)zmauo EXHIBIT"F-1" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Prohibited Land Uses) 1. Pawn Shops 2. Adult Businesses 3. Retail Sex Shops("lotions and lace" types) 4. Flea Markets/Swap Meets 5. Laundromats 6. Dry Cleaning Plants 7. Retail Gun Shops EXHIBIT"F-1" RVP1JBV:VARNERV 1638710 EXHIBIT"F-2" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Restricted Land Uses) i 1. Dental and Medical Doctors'Offices I i 2. All office uses except accessory office use I 3. Banks and all uses listed as personal services in the City of Azusa Development Code(barber and beauty shops;clothing rental;dry cleaning pick-up stores with limited equipment;home electronics/small appliance repair; locksmiths;licensed,therapeutic and non-sexual massage business;pet grooming with no boarding;shoe repair shops;tailors;spas;and tanning salons) I I EXHIBIT"F-2" 1VPUBWVARNER171629710 i RESOLUTION N0. 06-C112 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, APPROVING A MITIGATED NEGATIVE DECLARATION FOR THE FOOTHILL CENTER MIXED USE PROJECT, LOCATED AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE I i RESOLUTION NO. 06-C113 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, APPROVING THE USE OF TAX INCREMENT FUNDS BY THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA FOR CERTAIN PUBLIC IMPROVEMENTS PURSUANT TO HEALTH AND SAFETY CODE SECTION 33445 AND MAKING CERTAIN FINDINGS REGARDING SUCH USE OF TAX INCREMENT FUNDS RESOLUTION.NO. 06-CI14 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, APPROVING TENTATIVE TRACT MAP 68355 FOR THE FOOTHILL CENTER MIXED USE PROJECT, LOCATED : AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE I` RESOLUTION NO.06-C115 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, APPROVING DESIGN REVIEW DR-2006- 02 (COMMERCIAL COMPONENT) FOR THE FOOTHILL CENTER MIXED USE PROJECT, LOCATED AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE WHEREAS, the City Council of the City of Azusa and held a public hearing on the has given notice thereof as required by law application of Trachmandudevco, LLC and Jar University Commons, LLC with respect to the i RESOLUTION NO. 06-C116 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, APPROVING DESIGN REVIEW DR-2006- 103 (RESIDENTIAL COMPONENT) FOR THE FOOTHILL CENTER MIXED USE PROJECT LOCATED ; AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE WHEREAS, the City Council of the City of Azusa, has given notice thereof as required i RESOLUTION NO. 06-C117 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA,APPROVING MINOR USE PERMIT MUP- 2006-27 FOR BUILDING "C" OF THE COMMERCIAL COMPONENT OF THE FOOTHILL CENTER MIXED USE PROJECT, LOCATED AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE WHEREAS, the City Council of the City of Azusa, has given notice thereof as required by law and held a public hearing on the application of Trachman/Indevco, LLC and Jar University Commons, LLC with respect to the requested Minor Use Permit MUP-2006-27 for, Building "C" of the commercial component of the Foothill Center Mixed Use Project, located at the southwest comer of Alosta Avenue and Citrus Avenue; and WHEREAS, the City Council has carefully considered all pertinent testimony and the staff report offered in the case as presented at the public hearing; and WHEREAS, the City Council adopted a Mitigated Negative Declaration regarding the development of the Project on December 4, 2006. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES HEREBY RESOLVE AS FOLLOWS: Section 1: In accordance with City of Azusa Municipal Code Section 88.51.040 and based on the staff report and other such written and oral evidence as presented to the City Cbuncil regarding the Minor Use Permit, the City Council finds and determines that: i (a) The proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of this Development Code and the Municipal Code. y , i ' 1 p U e �O'9CJFORT`�P- JOINT CIN/AGENCY ITEM TO: HONORABLE MAYOR/CHAIRPERSON AND CITY COUNCIUAGENCY MEMBERS I FROM: BRUCE A. COLEMAN, ECONOMIC AND COMMUNITY DEVELOPMENT DIRECTOR VIA: F.M. DELACH, EXECUTIVE DIRECTOR Mtt DATE: DECEMBER 4, 2006 SUBJECT: PUBLIC HEARING TO CONSIDER BUDGET APPROPRIATION AMENDMENTS AND LOAN ADVANCE FROM THE CITY TO THE REDEVELOPMENT AGENCY FOR PROPERTY ACQUISITIONS i RECOMMENDATION I It is recommended that the City Council/Agency Members approve the!Resolutions authorizing an advance of $10,218,000 from the City to the Azusa Redevelopment Agency, authorize execution of a Note regarding the terms of the loan, and approve the Resolutions authoring appropriation amendments to the City and Redevelopment Agency budgets. BACKGROUND On October 16, 2006, the Agency Board approved acquisition of several properties located in Downtown Azusa in the Redevelopment Merged Project area, for purposes of eliminating blight. Those properties approved for acquisition are 1 10-190 West 91,h Street for $7,520,000; 809 North Azusa Avenue for $770,000; and 800-802 North San Gabriel Avenue for $1 ,845,000. An additional I%, or $83,000 for closing costs will be required. The source of funding identified for those acquisitions is an interest-bearing loan to the Redevelopment Agency from City Reserves. Staff now presents the loan terms and documents necessary to complete the financial transaction to acquire these properties. The loan amount will be $10,218,000, with $7,520,000 from General Fund Reserves and the balance of $2,698,000 from Rosedale Fund Reserves. The loan will be payable from the proceeds of a pending Redevelopment Agency Bond issue with interest accruing from the date of the loan at an annualized rate of 7%. The Bond issue is currently proposed for Spring of 2007. Any unpaid amounts will accrue annually and be added to principal. Any funds derived from the sale of these properties will first be pledged to payment of the loan. The loan terms are summarized as follows: i Page 2 of 2 December 4, 2006 To: Honorable Mayor/Chairperson and City Council/Agency Members Re: Public Hearing to Consider Budget Appropriation Amendments and Loan Advance from the City to the Redevelopment Agency for Property Acquisitions LOAN PROIECT/AFFECTED INTEREST TERM BORROW REPAYMENT AMOUNT FUND RATE FROM FUND SOURCE $10,218,000 Merged Pro7% per ject-CBD' ayable City: Tax Increment, Capital Projects Fund upon GeneraVRosedale Bonds, Sales annum demand Funds Proceeds A budget amendment reflecting this transaction is also attached for approval. FISCAL IMPACT Action will require a short term investment of City General and Rosedale Fund reserves in a loan to the Redevelopment Agency. Interest shall be payable at 7% interest for the term of the loan. Additional expenses relating to tenant relocation, business goodwill, etc., will be negotiated and presented to the Agency Board for budget amendment and approval purposes. BAC:AICRjj/cs Attachments: 1. A Resolution of the Redevelopment agency of the City of Azusa Requesting Loans from the City of Azusa for Purposes of the Merged Redevelopment Project Area 2. A Resolution of the City Council of the City of Azusa Authorizing Loans for Purposes of the Merged Redevelopment Project Area 3. A Resolution of the City Council of the Gty of Azusa Approving Appropriation Amendment For Fiscal Year 2006-07 Pursuant To Section 2-450 Of The Azusa Municipal Code 4. A Resolution of the Redevelopment/agency of the City of Azusa Approving Appropriation Amendment For Fiscal Year 2006-07 Pursuant To Section 2-450 Of The Azusa Municipal Code C:\ROBERT 7252006\RPERSOMDFSRTORCITY C0UNCIL\2006\DECFMBER 4,2W 6\GENFNDLOANITW-PROPTYACQNS_DOC a RESOLUTION NO. A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA REQUESTING A LOAN FROM THE CITY OF AZUSA FOR PURPOSES OF THE MERGED REDEVELOPMENT PROJECT AREA WHEREAS,the Redevelopment Agency of the City of Azusa("Agency")is authorized to undertake certain actions which are necessary and incidental to the carrying out of the Redevelopment Plan which has previously been adopted by the City of Azusa, for purposes of the Merged Redevelopment Project Area;and WHEREAS,the Agency has incurred and will continue to incur obligations for such purpose; and i WHEREAS,the City of Azusa is authorized,pursuant to Section 33620, et. seq., of the Health and Safety Code of the State of California to make loans to the Agency for the purposes of defraying said expenses; NOW,THEREFORE,BE IT RESOLVED by the Agency Members of the Redevelopment Agency of the City of Azusa that: Section 1. Pursuant to the provisions of said Section 33620,et.seq.,of the California State Health and Safety Code, the Agency Members hereby authorize the Redevelopment Agency of the City of Azusa to request a Loan from the City of Azusa for purposes of the Merged Redevelopment Project. Section 2. The Agency pledges to accept and administer any funds loaned to it pursuant to this request in accordance with the provisions of Section 33620,et. seq., of the Health and Safety Code. Section 3. The Agency requests that authorization for repayment of the loan shall be evidenced by a Note(in the form attached as Exhibit A)of the Agency containing the following terms,in addition to all usual and customary terms: LOAN PROJECT/AFFECTED INTEREST TERM BORROW REPAYMENT AMOUNT FUND RATE FROM FUND SOURCE $10,218,000 Merged Project-CBD Payable City: I Tax Increment, Capital Projedts Fund 7%per Upon General/Rosedale Bonds, Sales Annum demand Funds Proceeds i The loan listed herein is payable according to the terms of the Note. Payments will be made upon demand from the City to the Agency..Any unpaid amounts will accrue annually and be added to principal. The Note is payable from accumulated tax increment funds in excess of those pledged for payment of Agency bonded indebtedness, and/or from any other funds available to the Agency from which such payment may legally be made. The Note may be prepaid at any time without penalty. Section 4. The Chairperson of the Agency or his/her designee is hereby authorized and directed to execute,on behalf of the Agency,the Note to the City of Azusa in accordance with the provisions of Section 3 hereof. Section 5. The Agency Secretary shall certify the adoption of this Resolution. PASSED AND ADOPTED this day of 2006. I Chairperson I b I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Redevelopment Agency of the City of Azusa at a regular meeting held on the_day of 12006. AYES: AGENCY MEMBERS: NOES: AGENCY MEMBERS: ABSTAIN: AGENCY MEMBERS: ABSENT: AGENCY MEMBERS: Secretary IF j PROMISSORY NOTE MERGED REDEVELOPMENT PROJECT AREA AZUSA, CALIFORNIA DECEMBER 4, 2006 For value received, the REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, a public body corporate and politic ("Agency"),promises to pay the CITY OF AZUSA, a municipal corporation and general law city organized and existing under the laws of the State of California ('City"), the estimated sum of TEN MILLION TWO HUNDRED EIGHTEEN THOUSAND DOLLARS AND NO/100 ($10,218,000), revised as necessary to reflect actual expenditures,with interest thereon from the date of actual receipt of loan proceeds as evidenced by warrant date of disbursement, at the annual interest rate of 7% per annum, principal and interest payable annually. Any unpaid amounts will accrue annually and be added to principal. The Note is payable from tax increment revenues in excess of those pledged for Agency bonded indebtedness, property sales procee'ds, bond proceeds designated to repay this note, and/or any other resources available to the Agency from which such payment may legally be made, allocated to and received by the Agency for the Merged Redevelopment Project Aiea. The term of the note shall be payable upon demand, unless extended by mutual consent of both parties. This note is issued in connection with the provision of funds to finance redevelopment activities of the Merged Redevelopment Project Area. The Merged Project provides for tax increment financing in accordance with the provisions of the California Health and Safety Code. The Agency is authorized, with the consent of the Board of Directors, to undertake certain actions which are necessary and incidental to carrying out the Redevelopment Plan which has previously been adoptdd by the City of Azusa, for purposes of the Merged Redevelopment Project area. The City Council has authorized the loan for purposes of funding property acquisition obligations for the acquisition of 110-190 West 91h Street, 809 North Azusa Avenue,and 800-802 North San Gabriel Avenue. This note is issued under the authority and pursuant to the Community Redevelopment Law, commencing with Section 33600 of the Health and Safety Code of the State of California, as amended. Each payment shall be credited first to principal due and the remainder to interest;and interest shall thereupon cease upon the principal so credited. Any unpaid interest shall accrue and be added to the outstanding principal balance. In event of default in payment of any amount as herein provided, then the entire amount shalt become due at the option of the City of Azusa. Principal and interest shall be payable in lawful money of the United States at Azusa, California. Demand,presentment for payment, protest and notice of protest are hereby waived. REDEVELOPMENT AGENCY OF THE CITY OF AZUSA By: Chairperson PROPERTY ACQUISITION/CBD C:aOBERT725200SRPERSOM MKTOMITYCOU CIL\2006 ECEh[BER4,200 GEN LNMO_REDEV_DOC RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA AUTHORIZING LOANS FOR PURPOSES OF THE MERGED REDEVELOPMENT PROJECT AREA WHEREAS, the Redevelopment Agency of the City of Azusa("Agency") is undertaking certain actions which are necessary and incidental to carrying out the Redevelopment Plan which has previously been adopted by the City of Azusa;and WHEREAS,the Agency has incurred and will continue to incur obligations for such purpose; and WHEREAS,the City of Azusa is authorized,pursuant to Section 33620,et.seq.,of the Health and Safety Code of the State of California to make loans to the Agency for the purposes of defraying said expenses; NOW,THEREFORE, BE IT RESOLVED by the City Council of the City of Azusa that: Section 1. Pursuant to the provisions of said Section 33620,et. seq., of the Health and Safety Code,the City Council hereby authorizes to the Redevelopment Agency of the City of Azusa the following loan for the Merged Redevelopment Project. Section 2. The Agency shall accept and administer any funds loaned to it pursuant to this request in accordance with the provisions of Section 33620,et. seq., of the Health and Safety Code. Section 3. Such loan shall be evidenced by a Note of the Agency containing the following terms, in addition to all usual and customary terms: LOAN PROJECT/AFFECTED INTEREST TERM BORROW REPAYMENT AMOUNT FUND RATE FROM FUND SOURCE $10,218,000 Merged Project-CBD Capital 7%per Annum Payable City: Tax Increment,Bonds, Projects Fund upon General/Rosedale Sales Proceeds demand Funds The loan listed herein is payable according to the terms of the Note. Payments will be made upon a demand made from the City to the Agency.Any unpaid amounts will accrue annually and be added to principal. The Note is payable from accumulated tax increment funds in excess of those pledged for payment of Agency bonded indebtedness, and/or from any other funds available to the Agency from which such payment may legally be made. The Note maybe prepaid at anytime without penalty. Section 4. The City Council of the City of Azusa is hereby authorized and directed to accept,on behalf of the Agency, the Note to the City of Azusa in accordance with the provision of Section 3 hereof. Section 5. The City Clerk shall certify the adoption of this Resolution. PASSED AND ADOPTED this day of 12006. Mayor I HEREBY CERTIFY that the foregoing resolution was duly adopted by the City of Azusa at a regular meeting thereof, held on the day of 2006. AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: City Clerk RESOLUTION NO A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING APPROPRIATION AMENDMENTS FOR FISCAL YEAR 2006-07 PURSUANT TO SECTION 2-450 OF THE AZUSA MUNICIPAL CODE WHEREAS, on June 19, 2006, the City Council passed Resolution No. 06-C46, adopting the Budget and approving the appropriations for the City of Azusa for the fiscal year commencing July 1 , 2006 and ending June 30, 2007; and WHEREAS, Section 2-450 of the Azusa Municipal Code provides for the amendment of said Budget, when required for the operation of the City of Azusa; and WHEREAS, certain appropriation amendments are, in fact, required as summarized below: Appropriation Amendment Summary: Appropriation of $10,218,000 to fund a loan to the Redevelopment Agency of the City of Azusa for the acquisition of 1.10-190 W. 91' Street, 809 N. Azusa Avenue, and 800-802 N. San Gabriel Avenue. NOW THEREFORE BE IT RESOLVED that the City Council of the City of Azusa does hereby approve the Budget Amendment and order the same to be recorded in the City's books of account and henceforth to be a part of said Budget as if adopted with the original thereof. i ADOPTED AND APPROVED this day of December. 2006 MAYOR I HEREBY CERTIFY that the foregoing resolution was duly adopted by the City Council of the City of Azusa at a regular meeting thereof on the day of December. 2006 , by the following vote of City Council Members: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: i ABSTAIN: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: II CITY CLERK i RESOLUTION NO A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA APPROVING APPROPRIATION AMENDMENTS FOR FISCAL YEAR 2006/07 PURSUANT TO SECTION 2-450 OF THE AZUSA MUNICIPAL CODE WHEREAS, on June 19, 2006, the Agency Members passed Resolution No. 06- R20, adopting the Budget and approving the appropriations for the Redevelopment Agency of the City of Azusa for the fiscal year commencing July 1, 2006 and ending June 30, 2007; and WHEREAS, Section 2-450 of the Azusa Municipal Code provides for the amendment of said Budget, when required for the operation of the Agency; and WHEREAS, certain appropriation amendments are, in fact, required as summarized below: Appropriation Amendment Summary: Appropriation of $10,218,000 to fund the acquisition of 110-190 W. 91' Street, 809 N. Azusa Avenue, and 800-802 N. San Gabriel Avenue. NOW THEREFORE BE IT RESOLVED that the Agency Members of the Redevelopment Agency of the City of Azusa do hereby approve the Budget Amendment and order the same to be recorded in the Agency's books of account and henceforth to be a part of said Budget as if adopted with the original thereof. ADOPTED AND APPROVED this day of December. 2006 CHAIRMAN 1 HEREBY CERTIFY that the foregoing resolution was duly adopted by the Agency Members of the Redevelopment Agency of the City of Azusa at a regular meeting thereof on the day of December, 2006 , by the following vote of Agency Members: AYES: AGENCY MEMBERS: NOES: AGENCY MEMBERS: ABSTAIN: AGENCY MEMBERS: ABSENT: AGENCY MEMBERS: SECRETARY i ogtrroin°r 7) v�/* i CITY OF AZUSA MINUTES OF THE CITY COUNCIL t REGULAR MEETING MONDAY, NOVEMBER 20,2006—6:30 P.M. The City Council of the City of Azusa met in regular session at the above date and time in the Azusa Auditorium. CLOSED SESSION - Closed Sess The City Council recessed to Closed Session at 6:30 p.m.to discuss the following: ` F CONFERENCE WITH LABOR NEGOTIATOR(Gov.Code Sec.54957.6) Conf w/Labor Agency Negotiators: City Manager Delach and Assistant City Manager Person Negotiators Organizations/Employee: EXECUTIVE and APMA CONFERENCE WITH LEGAL COUNSEL—EXISTING LITIGATION (Gov.Code Sec. 54956.9 Cont existing 1a litigation City of Azusa Redevelopment Agency v.Wayne R. Fletcher,et al.Case No. BC 352467. CRA vs Fletcher REAL PROPERTY NEGOTIATIONS (Gov.Code Sec.54956.81 Real Prop Property Address: 975 West Foothill Boulevard,Azusa, CA 91702 Negotiations Agency Negotiators: City Manager Delach and Assistant City Manager Person 975 W Foothill Under Negotiation: Price and Terms of payment Price R terms The City Council reconvened at 7:30 p.m. City Attorney Carvalho advised that there was no Reconvened reportable action taken in Closed Session. City Attorney Comments Mayor Chagnon called the meeting to order and led in the Salute to the Flag. Call to Order t INVOCATION - Bishop Timothy Bradbury Monzello of the Church of Jesus Christ of Latter- Invocation Day Saints. ROLL CALL Roll(Call i PRESENT: COUNCILMEMBERS: HARDISON,CARRILLO, ROCHA, HANKS,CHAGNON ABSENT: COUNCILMEMBERS: NONE ALSO PRESENT: Also Present City Attorney Carvalho, City Manager Delach, Assistant City Manager Person, Chief of Police f Garcia, Director of Utilities Hsu, Director of Public Works/Assistant City Manager Makshanoff, Economic Development Director Coleman, Public Information Officer Quiroz, Assistant Director/Vdater Operations Anderson, Assistant Director of Utilities Kalscheuer, Administrative Service Director-Chief Financial Officer Kreimeler, City Clerk Mendoza, Administrative Technician Hernandez. PUBLIC PARTICIPATION Public Part Mr. Nick Rosales, addressed council expressing his concerns regarding the trucks that are N. Rosales working on the Rosedale Project and are hauling dirt taking 101° St. and Orange, as a Comments shortcut, causing extensive dirt on the streets. City Manager Delach responded that he will Rosedale report this issue to Azusa Land Partners and request that authorized routes be taken. Dump trucks Ms. Roxanna Reyes, student from Gladstone High School, addressed council Inviting them R. Reyes and all residents,to attend a fund raiser to be held December 16, at Gladstone High School, comments 1340 N. Enid, Covina, fromV:00 a.m.to 3:00 p.m.This will be an electronic waste collection Gladstone fund and will be accepting Items such as desktops and personal computers, cameras, stereo raiser equipment, any kind of electronics. Electronic Recycler will donate .10 cents to the cheerleaders for each pound collected. Mr. Sammy Zaribaf, owner of the II Fomo Restaurant, addressed council expressing his S.Zaribaf support for the Downtown Azusa Development, and thanked staff members who are working Commends on this project. He looks forward to the opening of his restaurant in Azusa. Downtown Dev Mr. Dave Thies, Batalion Chief, Los Angeles County Fire Department, addressed council to D.Thies introduce himself stating that he is now working this area, and gave an update on the No Batallon Chief Where Fire. Fire Dept Mr. Denis Willut,addressed council regarding his property at 745 N.Soldano adjacent to the D.Wilut Senior Center. He complained about an overhanging tree into his property causing damage Comments to his port; his property is also.being Flooded from the Senior Center planters; and the brick Sr.Center tree wall is being left unattended, It has several holes where people go through to get to the on prop, & other side leaving their trash behind. He further addressed his mother's business license late unmaintained payment,stating that she has never been late, and was never notified of her next payment. brick wall Mr. Art Morales, welcomed the representatives from the Fire Department, the public in A.Morales attendance, and commended the Police Department. He suggested that the city should hold Comments an Azusa Police Officers day, and present a proclamation for the job well done. He further commended Light and Water as well as Recreation. He expressed his support for Robert "Gonzo" Gonzales who will be running for council. Mayor Pro-tem Rocha Informed Mr. Morales that the Knights of Columbus have a year event to salute and honor Police Officers and Fire Fighters.This year will be held on December 13 at 12 noon. REPORTS UPDATES COUNCIL BUSINESS AND ANNOUNCEMENTS-STAFF Rpts/Updates Mayor Chagnon, announced Operation Santa Clothes, which is conducted by the Covina Chagnon Centralized Rotary, along with schools and community members. This year's goal is to Comments provide clothing for 700 children in elementary schools in Azusa. They are looking for volunteers, or donations can be made to Operation Santa Clothes, in care of Azusa School District,Attn: Elaine Dominguez, P.O. Box 500,Azusa, CA 91702, or may call for additional Information to (626)858-6182. Saint Francis of Rome Church will be handing out Thanksgiving and Christmas baskets, as well as toys for Christmas. For donations,or drop off places, Mr. Peter Ramos is coordinating this event; he can be reached at (626)334-6765. Several businesses are also contributing to this cause and placed pick up boxes in their business for their employees to contribute.Winter Fiesta will be held on December 3,in front of city hall. Christmas Tree Lighting Ceremony will be held December 4, in front of Gty Hall . at 6:00 p.m. She further gave an update on her trip to Portland Oregon, an event that was sponsored by the Gold Line joint Powers Authority, to which all the cities that are involved in the Gold Line Project attended. The purpose was to see the current transportation. She announced that a scam letter is being mailed to residents, explained the content of it and cautioned residents. Economic Development Director Coleman, addressed council giving an update on Block 36. B.Coleman This project is proposed at the Southeast Corner of Foothill Boulevard and Azusa Avenue, Update on consisting of 3 story mixed use development, 40,000 square feet of retail space; including Block 36 Bank of America building, and Wimpey's Pawn Shop site. The project developer Is Lowe Enterprises, and the Disposition and Development Agreement is being finalized. A request for Certificates of Recognition for Ms. Karen Clear,who placed I st&best of show Certificate for her beaded lavender bouquet and Cindy Seffer who placed 1 st blue ribbon for her lemon request for K. calve and 1st blue ribbon and best in division for her coffee cake, at the Los Angeles County Clear&C. Fair, and a proclamation to thank all Fire Fighters for their dedication in their fight against Seffer L.A.Co neuromuscular disease, were approved to be prepared to be presented at the meeting of Fair contest December 4. 11/20/06 PAGE TWO Mayor Pro-tem Rocha requested that the meeting be adjourned in memory of Mr. Raymond Rocha V. Ochoa, U.S.Army and lifelong resident. He thanked the VFW Post 8070, who for 25 years Comments has been sponsoring a Thanksgiving Dinner providing transportation to the disabled veterans from WWII, Korea, Vietnam, Iraq and Desert Storm. He announced that together with the Mayor, he attended a service, sponsored by the Azusa Ministerial Association to recognize and honor service people. At this service the homeless of the city were discussed. They announced a summit that is scheduled for late January to address this issue, in which many community leaders will reunite to come up with strategy to assist the homeless. This is the 9`"year that the food drive event takes place. It is in conjunction with the School District, and all the schools participate. He asked councilmembers to once again volunteer this year. He announced the Winter JAM Oesus and Me) festival to be held Saturday December 2, at 1:00 p.m. in the old Drive-In site. He suggested that next year, the Tree Lighting ceremony be moved to Sunday, at the same time the Winter Fest Is held, so that councilmembers can F participate in the full event. Councilmember Hanks shared a card he received; this card is a combination of good wishes Hanks to everyone in Azusa, and his family, for a happy Thanksgiving, Christmas and New Year. Comments i Councilmember Hardison wished everyone a happy Thanksgiving. Hardison Comments Councilmember Carrillo requested an update from staff regarding installation of stop signs at Carrillo the intersections of 9'and Dalton, and Gladstone and Jackson. He requested authorization Comments to have certificates prepared for two APU students who assisted, with the help of the Police Department to locate the family of a lost child. Council agreed to place his request on the Utility Board agenda for approval. He further announced that he will be seeking re-election for the Council position. City Manager Delach addressed council informing them that in the near future monthly F. Delach reports will be issued. He stated that he received confirmation from the Revenue Comments Consultants, that as a result of higher gas prices, sales tax this quarter were up 14% through September 2006, and for the past 12 months medium value of properties In Azusa has gone up 14.6%, in comparison with Los Angeles County that has gone up 6%, and San Diego County went down 1.8%. I Mayor Pro-tem Rocha, re-addressed Council requesting clarification on the procedures of Rocha request requesting certificates and proclamations. His concern was that due to the short time the to prepare service people have to come and visit their families, and there may not be enough time to certificates for request one and have It ready before they go back. Most of these certificates are presented service men at their home while visiting from their duty. Discussion was held among Council and City Item of Attorney who suggested that City Clerk and City Manager draft a resolution to be considered subsequent at the next Special Meeting following the Utility Board Meeting, to set up procedures for need preparation of proclamations and certificates.Moved by Mayor Pro-tem Rocha,seconded by Councilmember Hanks, to add an item of subsequent need under consent calendar number . D-7, to approve and prepare certificates for Sergeant Gilbert Rudy Moreno U.S. Army and Sergeant Paul Ramirez Airborne Range,motion was carried unanimously. Sched Items SCHEDULED ITEMS Public Hrg PUBLIC HEARING—on Expenditure Plan,State Award Grant Funds. COPS Grant i The Mayor declared the Hearing open. City Clerk read the affidavit of proof of publication Hrg open published in the Azusa Herald on November 9, 2006. Public testimony was solicited. Testimony Mr. Morales addressed the hearing in support of the program and requested Chief of Police A.Morales to speak on this Item. Comments Moved by Councilmember Hardison, seconded by Councilmember Hanks and unanimously HrgClsd carried to close the Public Hearing. Moved by Councilmember Hardison, seconded by Councilmember Carrillo and unanimously COPS Grant carried to amend the 2006-07 City budget to include appropriations of funds to be received Approved from the State Citizens' Option for Public Safety (COPS) Program and approve the proposed expenditure plan and purchases. i i 11/20/06 PAGE THREE Mayor Chagnon addressed the item on the Canyon Filtration Plant Project WVF-207, Chagnon regarding the discrepancies between the first and second bid, and the ability of the Comments contractor being able to perform this project. Mr. Steve Filmy, project manager, Black and Cnyn Filtration Veatch, addressed the Item explaining that the percentage discrepancy was a typographical Project error; the contractor's difference on the bid from the first one, was correct, but the conditions remained the same as the first bid; and that two of the projects on SSC bid documents were designed by Black and Veatch; therefore, they are familiar with their work performance and are reliable. City Manager Delach addressed the Item reading a letter from Mr. Jorge Rosales in which he expressed his opposition on awarding the contract to SSC. City Attorney Carvalho requested a recess on this item until the end of the agenda, in order to clarify some issues with the developer and staff. Moved by Councllmember Hanks, seconded by Councilmember Carrillo and unanimously carried to continue this Item to the end of the agenda. Recess at 8:37 p.m.At 8:57 p.m. City Attorney Carvalho reconvened the item stating that staff and the developer reviewed the bids.She further stated that all the bid documents were in the right amount,and there were no discrepancies. Moved by Councilmember Hardison, seconded by Councilmember Hanks, and unanimously Canyon carried to approve bids received October 31, 2006, for the construction of Project WVF-207 Filtration Proj (Project) titled "Membrane Treatment Upgrade and Expansion of the Canyon Filtration awarded Plant," and award the contract for construction of the Project to SSC Construction, Inc. for SSC Constr the total lump sum bid price of$35,905,500.00 as recommended in the Black&Veatch Bid Inc. Report dated November 6,2006. City Manager Delach addressed council requesting that the item regarding consideration of Dwtn advsiroy procedures for the formation and appointment of the Downtown North Advisory Committee Comm Item for the Downtown North Redevelopment Project, be pulled from the agenda until after the pulled agenda Initial community meeting. The CONSENT CALENDAR consisting of Items D-1 through D- 7, which was added to the Consent Cal agenda, was approved by motion of Mayor Pro-tem Rocha, seconded by Councilmember Appvd D-7 Carrillo and unanimously carried. added I. Minutes of the regular meeting of November 6, 2006,were approved as written. Minutes 2. Human Resources Action Items were approved as follows: HR Action Merit Increase and/or Regular Appointments: D. Nguyen, Senior Accountant; H. Items Quintero, Senior Accountant; M. Bauer, Customer Service Representative 11 and S. Smith, Line Mechanic Helper. New Appointments: J. Poulos, Community Service Field Officer, and D. Prado, Water Distribution Worker 1. Flexible Staffing Promotion: T. Patrolger, Community Service Officer- Field. Reclassification: T.Montague, Law Enforcement Community Improvement Officer. Separation: F.Miller, Librarian-Youth Services; G.Valdez, Field Service Representative. 3. The agreement for continuing Financial and Accounting Services with Vawinek, Trine Varinek,Trine Day &Co. (VFD) was approved and the City Manager was authorized to execute the Day&Co. agreement. Agmnt Fin& Acct Svcs 4. The following resolution was adopted and titled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, Res.06-C106 AMENDING THE COMPENSATION AND BENEFITS MEMORANDUM COVERING THE Standard EXECUTIVE MANAGEMENT EMPLOYEES ESTABLISHING STANDARD BENEFITS Benefits Exect GUIDELINES FOR NON CONTRACT DEPARTMENT HEADS,AND GRANTING A COST OF Management LIVING INCREASE FOR TWO SPECIFIED EXECUTIVE MANAGEMENT POSITIONS. 5. The following resolution was adopted and entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA ALLOWING CERTAIN Res. 06-007 CLAIMS AND DEMANDS AND SPECIFYING THE FUNDS OUT OF WHICH THE SAME Warrant ARE TO BE PAID. 6. The agreement with Joseph D. Sintov, consulting actuary, for actuarial valuation of the Joseph D. City's retiree medical program, as required by Governmental Accounting Standards Sintov, Consul Board (GASB) Statement 45, was approved, and the City Manager was authorized to Actuary Agmnt execute the agreement 11/20/06 PAGE FOUR 7. A request to prepare certificates for Sergeant Gilbert Rudy Moreno, U.S. Army, and Certificates R. Sergeant Paul Ramirez, Airborne Ranger, to be presented by Mayor Pro-tem Rocha at Moreno&P. their home,was approved. Ramirez Military SPECIAL CALL ITEMS Special Call None None THE CITY COUNCIL RECESSED AND REDEVELOPMENT AGENCY CONVENED AT 8:37 P.M. Cncl Recessed THE CITY COUNCIL RECONVENED AT 8:55 P.M. CRA Continue Cncl, Rcnvnd Councilmember Hardison Offered an Ordinance entitled: AN ORDINANCE OF THE CITY OF AZUSA AMENDING SECTION 2.90 OF THE AZUSA Ord. No. MUNICIPAL CODE TO AUTHORIZE THE CITY MANAGER TO ENTER INTO AT-WILL 06-012 EMPLOYMENT AGREEMENTS FOR ALL DEPARTMENT HEAD POSITIONS. At-will emplmnt agmnt dept Move by Councilmember Hardison, seconded by Mayor Chagnon to waive further reading heads and adopt. Ordinance passed and adopted by the following vote of the Council: i AYES: COUNCILMEMBERS: HARDISON. CARRILLO, HANKS, CHAGNON NOES: COUNCILMEMBERS: ROCHA ABSENT: COUNCILMEMBERS: NONE ABSTAIN: COUNCILMEMBERS: NONE . It was consensus of the Council to adjourn the meeting In memory of Mr. Raymond V. Adjourn In Ochoa, U.S.Army Veteran and Mr. Rafael Gallore. memory of Raymond TIME OF ADJOURNMENT:9:01 P.M. Ochoa and Rafael Gallore I CITY CLERK i NEXT RESOLUTION NO.2006-C107. NEXT ORDINANCE NO.2006-013 i j i 11/20/06 PAGE FIVE U,ytyF r�N CONSENT CALENDAR i TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: CATHY HANSON, DIRECTOR OF HUMAN RESOURCES/PERSONNEL OFFICER VIA: F.M. DELACH, CITY MANAGER DATE: DECEMBER 4, 2006 SUBJECT: HUMAN RESOURCES ACTION ITEMS { RECOMMENDATION j It is recommended that the City Council approve the following Personnel Action Requests in accordance with the City of Azusa Civil Service Rules and applicable Memorandum of Understandirig(s). I BACKGROUND On November 28, 2006, the Personnel Board confirmed the following Department Head recommendation regarding the following Personnel Action requests. A. MERIT INCREASE AND/OR REGULAR APPOINTMENT: `DEPARTMENT ``NAME CIIASSIFICATION 'AMON)EFF RANGE/STEIP Da ATE BASE!MO SALARYz. Utilities Brandi Bommarito Customer Service Representative I Reg Appt/MI/2 5154/2 11-30-06 $3,02146 *Library Esther Harris Library Assistant III Reg Appt/Ml/2 4150/2 11-1-06 ! $3,031.78 *Library Safaa Abou-Taleb Library Assistant III Merit Inc' 4150/5 6-7-06 $3,479.99 B. NEW APPOINTMENT: The following appointments have been requested by department heads pursuant to the Rules of The Civil Service System. DE AItTM'EN7 'NAME CLASSFFICATlON;� [EFFECTIVE!DATE 1RANGE/STEP, ! iBASE'MOYSALARY Comm & Econ Brent Hale Community Improvement Pending phy & 4171/1 Develo ment Inspector fin er rintin $3,585.23 Police Robert Chivas Police Officer Trainee Pending phy & 4184/1 backgr1 $3,910.31 Police Bertha Parra Police Officer Trainee Pending phy & 4184/1 background $3,910.31 i *The Library Assistant III performance appraisals for the Library Department are late due to on-going staff vacancies and absences. i FISCAL IMPACT 3 There is no fiscal impact, as positions listed are funded in approved department budgets.', rf f'vL7r#JRt�`'f' i i To: Honorable Mayor and Members of the City Council / From: Marcene Hamilton, City Treasurer Date: December 4, 2006 (( Subject: City Treasurer's Statement of Cash and Investment Balances .for the month of October 2006 Recommendation: ' It is recommended that the Council Members receive, review, and file the City Treasurer's Report for the City of Azusa for the month of October 2006. 1 Backiaround• Transmitted herewith is the City Treasurer's Statement of Cash Balances for the City of Azusa for the month of October 2006. City investments are made in accordance with the City's Investment Policy adopted and approved with Resolution No. 05 - C 16 dated, June 5, 2006 and Government Code Section 53600 et seq. The balance of cash, investments, and projected revenues for the next six months are expected to be sufficient to meet cash disbursement requirements of the City for at least the next six months. ( 3 I t i i T T CITY OF AZUSA TREASURER'S REPORT Treasury Checking Accounts and Certificates of Deposit October 31, 2006 Held in Wells Fargo Bank 'repared by: Marcene Hamilton, Treasurer Interest or Balance Face Maturity Coupon Description Account Number or Amount Date Rate or CUSIP Market Value Checking Accounts General Checking Account 495-0041244 1,248,405.02 4.650% Stagecoach Sweep Account DDA 495-0041244 274,311.34 Worker's Compensation Checking 0606-050318 106,886.59 Flexible Reimbursement 0606-055036 19,331.28 Payroll Checking (ZBA account) 4159-281393 0.00 Police Petty Cash Fund 060-6050334 289.12 Section 108 1.610% Choice IV-Public Fund Account 410-0162239 295,388.30 200,000 11/14/06 3.060% FHLB 3.060 11/14/06 3133X6PD2 199,820.00 ISO Collateral Account Every 30 300,000 Days 0.050% Certificate of Deposit 300-0311658 309,561.61 1,975,001 04/07/07 3.748% Certificate of Deposit 061-5202840 2,129,204.19 Covington Endowment 100,000 06/29/09 4.200% Certificate of Deposit 25467JG21 101,501.33 TOTALS 4,684,698.78 CITY OF AZUSA TREASURER'S REPORT TREASURY INVESTMENTS OCTOBER 31,2006 Prepared by: Marcene Hamilton,Treasurer Coupon Maturity Settlement Market Prke Broker ' Face Amount Description Rata Date AccUCusip No. Date Princlpal- (Changes Me rket Va Ica- Monthly) City of Azusa Investments - AAA Rated Federal Agency Bonds WFB f 001000.00 FHLB 4.0000126107 4.000% 0126/07 3133XCHLO 0726105 1,000000.00 99.58DOOD 996700.00 Gilford 1000000.00 FHLMC 4.50004!18107 4.500% 04/18!0] 3128X40U8 10/18105 1000DW00 99.645000 995700.00 WFB 5000000.00 FHLB 3.100 0521,07 3.100% 05/21107 3133MYQ67 05/21/03 5000000.00 98.650000 4941000.00 Gifford 2000000.00 FHLMC 4.05009!24/0] 4.050% 0924107 3128X36R9 07101/05 1999375.00 98.935000 1978200.00 Higgins 2000000.00 FHLB 5.05010/112007 5.050% 10111107 3133XF4M5 04/11MB 2000000.00 99.906000 1997600.00 Gilford 1000000.00 FHLMC 4.37510/1810] 4.375% 10118MT 3128X4NUt 10/18/05 1000000.00 99.221000 992600.00 Gifford 1 000 000 00 IFHLB 4.900 11 r21107 4.900% 1121107 i 3133XDTW1 02/02106 998.905001 99.642000 9976OD.DO Higgins 2ODOODO.00 FHLMC 5.0500222108 5.050% 0222/08 3128X4H79 0323/06 1936300.00 99.853000 1997000.00 Gifford 1000000.00 FHLMC 5.30004/11,08 5.300% 04f11,08 3128X4Z61 05/02/D5 998750.00 99.996000 999100.00 Gifford 2,000000.00 FHLMC 3.6254117MB 3.625% 04/17/08 3128XO4M8 04/17103 1994DW.00 98.081000 1952600.00 Gefortl 2,000,000.00 FHLB 3.000 0611810B 3.000% 06/18/08 313390<JA3 06/19/03 2,003,125.00 96.859000 1.940.4010 WFB 2500000.00 FHLB 3.00007/14MB 3.000% 07114108 31339Y2X9 07/14103 2500000.00 96.610000 2422500.00 WFB 5000000.00 FHLB 4.0201121108 4.020%. 11/21108 3133MYKVB 0521103 5000.000.00 97.980000 4909000.00 Hi ins 2000000.00 FHLB 5.5000424109 5.500% 0424109 3133XFBPD 04/24106 2000000.00 99.9060DO 1998400.00 WFB 2000000.00 FHLB 420007/14/09 4.300% 07114109 3133XCDO3 07/14/05 2000000.00 98.300000 1972400.00 Gilford 2000100.00 FHLB 4.35009/01109 4.350% 09/01109 3133XBC26 09/01104 2000000.00 97.9D4000 1965000.00 Gilford 2000000.0D FHLB 4.20012/15109 4.200% 12!15109 3133X9N48 12/15104 2000000.00 97.229000 1962000.00 Higgins 2,000000.00 FHLB 5.6250427/10 5.625% 0427/10 3133XFCE4 04127MS 2000000.00 99.938000 1906600.00 Hi 'ns 2000000.00 FHLB 5.5000528/10 5.500% 05/25/16 3133XFPV2 051!0106 2DOO 000.00 100.313000 2007200.00 1-i ins 200000D00 FHLMC 5.250224111 5.250% 0224/11 3128X4N56 06/14/06 1982640.00 1D0.229000 2ON4800.00 Hi ins 2000000.00 FNMA 6.1)00 )5124/11 6000% 0524/11 3136F7B63 0524/06 2000000.00 100.031000 2000601.00 Hi ins 2.000.00 . IFNMA 6.000 0525111 6.000% 0525/11 31359MN58 0525/06 2000000.00 100281000 2W2800.00 Wachovia 2006000.00 FNMA 5.75006109111 5.750% 06109111 31359MPSO 06109106 2000000.00 100.71000 2012400.00 TOTALS 47,500,000.00 1 47473,095.00 1 47,083,200.00 Light 8 Water Rate Stablizatlon Fund Investments - AAA Rated Federal Agency Bonds t WFB 3000000.00 FHLB 3.50002f1210B 3.500% 02/12/08 3133MND1 02112104 3000000.00 97.981)006 2943300.00 WFB 306000000 FHLB4.00010108MB 4.000% 10/D9108 3133X1HZ3 10/08/03 3000000.01) 98.040000 2946900.00 WFB 3,215,000.00 FHLB 4.15004/30/09 4.150% 09!30!09 3133X6AW6 04!30104 3,215,000.00 97.906006 3,144.591.50 TOTALS 9,215,000.00 9,216,00000 9,034,791.50 LAIF LOCAL AGENCY INVESTMENT FUND 5.098% NIA WA N/A 19,212,111.71 100.OWOW 19,212,111.71 TOTAL INVESTMENTS IN FEDERAL AGENCIES AND LAIF 75,900,206.71 75,300,103.21 INTEREST RECEIVED FROM INVESTMENTS FISCAL YEAR-TO-DATE (From July 1,2006) 1,279,829.20 'The'Principal"column rellecls the balance on the last day of the month or the'historical cost'spent to purchase a security. I •'The'Market Value' is the current once at which a security can be traded or sold. Treasurer Report -October 2006 1 11202006 931 PM P CITY OF AZUSA TREASURER'S REPORT OF INTEREST PAYMENTS , TREASURY INVESTMENTS Thru October 31, 2006 Irepared by: Marcene Hamilton, Treasurer Scheduled Scheduled Interest Face Amount Net Amount Coupon Maturity AccUCusip No. Payment Annual Semi-Annual Received Rate Date Schedule Interest Payment Fiscal Year to Earnings Amount Date' :ity of Azusa Investments - AAA Rated Federal Agency Bonds 1,000,000.00 1,000,180.00 3.500% 08/15/06 3133MQSS4 Matured 35,000 17,500 17,325.28 1,000,000.00 997,693.33 3.125% 09115/06 3133X9UG3 Matured 31,250 15,625 17,931.67 1,000,000.00 1,000,000.00 4.000% 01126/07 3133XCHLO 1/26 &7126 40,000 20,000 20,000.00 1,000,000.00 1,000,000.00 4.500% 04/18/07 3128X4QU8 10/18&4118 45,000 22,500 V 2T500.00 5,000,000.00 5,000,000.00 3.100% 05/21/07 3133MYQ67 11/21 &5/21 155,000 77,500 0.00 2,000,000.00 2,000,000.00 5.375% 06/22/07 3133XFQE9 Called 107,500 53,750 26,875.00 2,000,000.00 2,021,200.00 4.050% 09/24107 3128X36R9 9/24&3/24 81,000 40,500 40,500.00 2,000,000.00 2,000,000.00 5.050% 10/11/07 3133XF4M5 10/11 &4111 101,000 50,500 r-"+x'5Ow,500.00 1,000,000.00 1,000,000.00 4.375% 10/18/07 3128X4NU1 10/18 &4118 43,750 21,875 x``nY�21,875.00 1,000,000.00 1,008,568.89 4.900% 11/21/07 3133XDTW1 11121 & 5/21 49,000 24,500 0.00 2,000,000.00 2,004,997.22 5.050% 02/22/08 3128X41-179 8/22&2/22 101,000 50,500 50,500.00 1,000,000.00 1,001,841.67 5.300% 04/11/08 3128X4Z61 10/11 &4/11 53,000 26,500 w?x:.26;500.00 2,000,000.00 1,994,000.00 3.625% 04/17/08 3128X04M8 10/17&4/18 72,500 36,250 '_•36,250.00 2,000,000.00 2,003,125.00 3.000% 06/18/08 31339XJA3 12/19&6/19 60,000 30,000 0.00 2,500,000.00 2,500,000.00 3.000% 07/14/08 31339Y2X9 7/14& 1114 75,000 37,500 37,500.00 5,000,000.00 5,000,000.00 4.020% 11/21108 3133MYKV8 11/21 &5/21 201,000 100,500 0.00 2,000,000.00 2,000,000.00 5.500% 04/24/09 3133XFBPO 10/24&5124 110,000 55,000 ':X55 000.00 2,000,000.00 2,000,000.00 4.300% 07/14/09 3133XCDQ3 7/14& 1114 86,000 43,000 43,000.00 2,000,000.00 2,000,000.00 4.350% 09/01/09 3133X8C26 9/1 &3/1 87,000 43,500 43,500.00 2,000,000.00 2,000,000.00 4.200% 12115/09 3133X9N48 6/15& 12115 84,000 42,000 0.00 2,000,000.00 2,000,000.00 5.625% 04/27/10 3133XFCE4 10/27&4/27 112,500 56,250 2,„='.56,250.00. 2,000,000.00 2,000,000.00 5.500% 05/25/10 3133XFPV2 11/25&5/25 110,000 55,000 0.00 2,000,000.00 2,014,723.33 5.250% 02/24/11 3128X4N56 8/24&2/24 105,000 52,500 52,500.00 2,000,000.00 2,000,000.00 6.000% 05/24/11 3136F7663 11/24&5/24 120,000 60,000 0.00 2,000,000.00 2,000,000.00 6.000% 05/25/11 31359MN58 11/25&5/25 120,000 60,000 0.00 2,000,000.00 2,000,000.00 5.750% 06/09/11 31359MP80 1219&6/9 115,000 57,500 0.00 51,500,000.00 2,300,500 1,150,250 618,506.95 .fight&Water Stablization Fund Investments -AAA Rated Federal Agency Bonds 3,000,000.00 3,000,000.00 3.500% 1 02/12/08 1 3133X3ND1 8/12 &2/12 1105,000.00 1 52,500.00 1,z `'52,500.00 3,000,000.00 3,000,000.00 4.000% 10/08!08 3133X1 HZ3 10/8&4/8 120,000.00 60,000.00 26 .00 3,215;000.00 3,215,000.00 4.150% 04/30!09 3133X6AW6 10/30&4/30 133,422.50 66,711.25 r'; 66,711:25 9,215,000.00 358,422.50 1 1 179,211.25 16,113,314.39 5.098% N/A N/A Quarterly Per Balance and Rate 482,111.00 TOTAL INTEREST EARNED 1,279,829.20 Fiscal Year: July 1 -June 30 I {gClfOFr'tiP+ i CONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROBERT B. GARCIA, CHIEF OF POLICE VIA: F.M. DELACH, CITY MANAGER p t DATE: DECEMBER 4, 2006 I SUBJECT: PURCHASE OF PHOTOCOPIER I RECOMMENDATION It is recommended that the City Council approve the purchase of a Minolta Bizhub 600 Digital copier. BACKGROUND During the past few years, the Police Department has experienced significant repair problems with the Xerox photocopy machine located in the Administration Division. This photocopy machine is over 12 years old and is no longer,covered by a service contract. The Police Department organized a team of employees who analyzed various machines. The following three bids were received: i Business Solutions, Inc. Konica Minolta Bizhub Digital Copier $12,403.29, Pacific Office Solutions Konica Minolta Bizhub Digital Copier $14,287.92 Advanced Copy Systems Ricoh/Gestetner 6002 Digital Copier. $21 ,970.42 1 Staff recommends that the purchase be awarded to Business Solutions, Inc., the lowest responsive bidder. FISCAL IMPACT The copier is budgeted in F/Y 06/07 General Fund Account #10-20-310-000-7150. Prepared by: Gina Footdale, Administrative Services Manager 2 aFP CONSENT ITEM TO: HONORABLE MAYOR AND MEMBERS OF THE CITYCOUNCIL FROM: ROBERT B. GARCIA, CHIEF OF POLICE VIA: F.M. DELACH, CITY t, MANAGER / DATE: 12/04/06 l �' SUBJECT: UPGRADE OF CRIME MAPPING SYSTEM jRECOMMENDATION I It is recommended that the City Council approve the upgrade of the Omega Group Crime View system with funding provided by the reimbursable State of California justice Assistance Grant (JAG). BACKGROUND The Police Department is currently utilizing a mapping system to track crime patterns, perform repeat call series and conduct density analysis. This information is provided to patrol officers as crime patterns are detected. Installed seven years ago as part of the Records Management System, the current program is slow, problematic and requires frequent maintenance. The next generation of Crime Analysis software is based on the Environmental Systems Research Institute (ESRI's) new program which will provide enhanced mapping capabilities, : including automatic dissemination of crime information via email. In compliance with Azusa Municipal Code 2-523(c), alternative purchasing procedures, the crime view software upgrade will be purchased from The Omega Group, a distributor for ESRI, the biggest manufacturer of geographic information systems in the world. FISCAL IMPACT: The upgrade to the system will cost $14,085. Justice Assistance Grant (JAG) funds in the amount of $12,008 will be allocated toward the upgrade, with the balance provided by 05/06 COPS funding. Prepared by: Captain Sam Gonzalez, Cynthia Haebe I 4�0A U N. °qor-�arg" CONSENT CALENDAR TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: JAMES MAKSHANOFVDIRECTOR OF PUBLIC WORI(S BY: ROY BRUCKNER, PROJECT MANAGER VIA: F.M. DELACH, CITY MANAGER�o DATE: NOVEMBER 20, 2006 SUBJECT: ADOPTION OF A RESOLUTION APPROVING THE SUMMARY VACATON OF A PORTION OF A SANITARY SEWER EASEMENT DESCRIBED IN INSTRUMENT NO. 85-1108081 RECORDED SEPTEMBER 24, 1985. RECOMMENDATION It is recommended that the City Council adopt the attached Resolution vacating the subject sanitary sewer easement and directing the City Clerk to record a certified copy of the resolution with the Los Angeles County Recorders Office. BACKGROUND The City Council approved Tentative Map 54057 on February 3, '2003. The subdivision provides for the division of the land into certain parcels and the construction of certain street, storm drain, sewer, water and electrical improvements. The Developer has formally requested that the City of Azusa vacate the right-of-way for a sewer easement that served the Dhammakaya Meditation Center subject to the completion of the improvements for the new alignment of sewer to serve this property. A replacement sewer line for the portion being vacated has been constructed and is in service. The vacation of public service easements is contained in section 8300 of the Streets and Highways Code. This section provides for the Summary vacation of public easements if _ the easement has been superseded by a new alignment or has not been maintained for five years. This request qualifies because the old sewer easement is being replaced by a new alignment that supersedes and makes unnecessary the old easement. P 1 Because sewer easements are limited in use, the notification of the proposed vacation is limited to others that can provide sewer service, in this case no one. FISCAL IMPACT The vacation of the existing sewer easement will have no fiscal impact on the City. Attachments: Resolution RESOLUTION NO. — A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA ORDERING THE SUMMARY VACATION OFA A PORTION OF THAT CERTAIN SEWER EASEMENT DESCRIBED IN INSTRUMENT NO. 85-1108081 ON SEPTEMBER 24, 1985 AND MAKING FINDINGS OF FACT WHEREAS, the City of Azusa has approved the Rosedale project, a subdivision of the Monrovia Nursery property within the City of Azusa; and ; WHEREAS, the City Council has required the Developer to make•sewer improvements to serve the project; and WHEREAS, the plans for the sewers in the vicinity of the Dhammakaya Meditation Center have been approved; and 4 WHEREAS, the subdivision of the property has made it necessary to realign the sewer service for the Dhammakaya and ALP has prepared the plans for the substitute sewer; and WHEREAS, the Subdivider, Azusa Land Partners, has requested the vacation of those portions of the existing sewer easement to facilitate the development of residential units on the Transit one parcel; and WHEREAS, the vacation of the public easement is undertaken pursuant to the provisions of the California Streets and Highways Code, Commencing with Section 8300 et sec, which authorizes the City to summarily vacate right-of-way that has been replaced by a newly aligned improvements; and WHEREAS, the easement for sanitary sewers as described in Exhibit A attached is the easement intended to be vacated by this resolution; and WHEREAS, as required by section 8333 of the streets and highways code, the City Council finds that the easements identified above is being replaced by new improvements, which make the old right-of-way unnecessary, NOW, THEREFORE, the City Council hereby resolves as follows: SECTION 1 . The public easements described in Exhibit "A" are hereby vacated. SECTION 2: The easement shall be vacated subject to the acceptance of the improvements for sanitary sewers to serve the Dhammakaya Meditation Center. When the sewer improvements serving the Dhammakaya Medication Center are accepted by the City Council this vacation shall be complete. SECTION 3. The City Clerk is authorized to record a certified copy of this resolution with the Los Angeles County Recorder's Office. PASSED, APPROVED AND ADOPTED this 4° day of December 2006. MAYOR I HEREBY CERTIFY that the foregoing resolution was duly adopted by the City Council of the City of Azusa, at a regular meeting thereof, held on the 4th day of December, 2006, by the following vote of the Council: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY � 1 l i RBF Consulting 14725 Alton Parkway Irvine, California 92618 October 30,2006 EXHIBIT "A" JN 10-103800 Page 1 of 1 E LEGAL DESCRIPTION QUITCLAIM OF A PORTION OF SANITARY SEWER EASEMENT DESCRIBED PER INSTRUMENT NO. 85-1108081,O.R. That certain parcel of land situated in the City of Azusa, County of,Los Angeles, State of California being that portion of that certain 10.00 foot wide easement for sanitary sewer purposes described in the "Grant of Easement" to the City of Azusa recorded September 24, 1985 as Instrument No. 85-1108081 of Official Records, in the Office of the County Recorder of said Los Angeles County, lying northerly of the north line of the 100.00 foot wide Los Angeles County Metropolitan Transit Authority (formerly Atchison, Topeka and Santa Fe) right-of-way as said right-of-way is shown on the map of Tract No. 062150 filed in Book 1311, Pages 28 through 50 of Maps, in the Office of the County Recorder of said Los Angeles County. EXHIBIT "B" attached and by this reference made a part hereof. i I ONO S 0 i Gregory A. Helmer, L.S. 5134 �S��(aY A. 4 __j co i Valid Through 6/30/07 e ✓! 'y0, 511 �lF OF CpU���a i HApdata\10103800VADM Mgegals\38001g1034.doc 1 I i 1 I i I 1 i 4 1 { I 1 f f i i 1 a I / ® INDICATES PORTION OF 10' WIDE 1 8 / SANITARY SEWER EASEMENT DESCRIBED 41 I PER INST. NO. 85-1108081, O.R. ` I RECORDED SEPTEMBER 24, 1985 BEING QUITCLAIMED. 111 I I I I Il III PARCEL A I j LOT 50 INST, N0. 97-842030, O.R. I LOT ' r ( � I (FEC. 06/06/1997) I I i I I I I I- �� �_--_ _ _- J --------- - _ 7 ' _ T — MONROVIA-PLACE r l i lUJI - -----I - I I Z i I �l TRACT NO. 1062150 z al ISI i �I � L LOT 42 j LOT 43 i LOT 44 =i � yWI I � I I �I I � ISI I � I I II --J I -------- ---- --L------------J I THE PROMENADE -------------------J --------------- -- --------------------------- I I 1 � II I j l M.B. 1311 -28-50 I I I I III I l i L07 48 i j LOT 49 l ill III 1r . , -- I --- I I N'LY LINE OF LOS ANGELES lT LOT K NS �— ME __— -__8TH_ST_REE_TSTREET-- - i _ nurHORY ITY RWOI iTAN TRA LOT ' J' --� j _-- - ---- —LL - - o- I — — — — — ---- - LOS ANGELES COUNTY ---------- ---T --- METROPOLITAN TRANSIT TRACT NO. 31504 AUTHORITY RN EXHIBIT °BA iIl M.B. 839/90-91 I (FORMERLY A.T. & S.F. R/W) 10' wIDE ;� SHEET 10F 1 SHEET 310=TCH TO ACCOMPANYA i SANT iARY SEWER LEGAL DESCRIPTION FOR CL ij EASEMENT PER =�•"""� • oce,ow • �orera��*,o,+ QUITCLAIM OFAPORTION OF INST. N0. . SANITARY SEWER EASEMENT 85-1108081 0R. wunmHPuxw rrvaB CAisawa nam-xz, s DESCRIBED PER INSTRUMENT C O N S U LTI N G 9CBA)t105 • FAX aw oze7n • ,wvA �m NO.85-1108081,Q.R. OCTOBER 30, 2006 J.N. 10-103800 f H:\PORTA\10103800\CADD\MAPPING\EXHI8ITS\38OGEXO70.DWG JWP 10/30/06 3:22 pm I f I i Ull NMI win �� � CONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROBERT B. GARCIA,, CHIEF OF POLICE VIA: F.M. DELACH, CITY I MANAGER DATE: DECEMBER 4, 2001 /I r SUBJECT: ADOPTION OF A RESOLUTION WAIVING THE FORMAL SEALED BIDDING PROCESS FOR THE POLICE DEPARTMENT TO PURCHASE THREE USED UNMARKED CARS IFOR POLICE USE FROM ENTERPRISE IN THE AMOUNT OF $54,257.10 RECOMMENDATION It is recommended that the City Council adopt the attached resolution waiving the formal sealed bidding process and order the issuance of a purchase order in the amount of $54,257.10 to Enterprise Rent-A-Car of the City of Azusa for the purchase of three used unmarked cars for police use inclusive of tax, title and license fees. BACKGROUND The City of Azusa Municipal Code prescribes the process for procuring supplies and equipment and the formal competitive purchasing procedure (Sections 2-518 and 2- 519 respectively). The purpose of these laws is to ensure that the City staff does not fall into the habit of blindly placing the City's large orders' for prime pieces of equipment with repeat vendors, either because of convenience, expediency, unethical practices or any of the other negative motivators that can sometimes be attributed to public purchasing. The proposed method of procurement for these three unmarkeid cars for police use has proven successful in the past. Moreover, the "spirit" of the law was met by the 1 i City Purchasing Officer and the Police Department staff by conducting comparative , shopping on-line for "certified" used cars. In fact, a search at autonation.com for similar vehicles revealed a base price of $53,535 for three cars without tax, title and license fees; whereas, the Enterprise base price is $49,987. The following vehicles are those that the Police Department will release to the Purchasing Department as surplus and replace them with the newly acquired cars: 1. 1996 Chevrolet Lumina, License 3TRE039, 128,000 miles, AZPD #D-1 2. 1997 Chevrolet Lumina, License 4ADD736, 118,000 miles, AZPD #D-9 3. 1997 Chevrolet Monte Carlo, License 4EHG942, 116,000 miles, AZPD #D-4 The used Enterprise cars the Police Department proposes under this purchase order are: 1 . 2005 Chevrolet Monte Carlo, VI N# 2G I WM 151(669407648, Enterprise Price $15,999 (Kelley Blue Book Retail Price $21 ,900) 2. 2006 Dodge Charger, VIN# 2B3KA43RX6H390411, Enterprise Price $17,989 (Kelley Blue Book Retail Price $21 ,390) 3. 2005 Toyota Camry, VIN# 4T1 BE32KX5U568424, Enterprise Price $15,999 (Kelley Blue Book Retail Price $16,250) All three of the Enterprise vehicles are still under their manufacturers warranty and a 12 month/12,000 mile power train (i.e. engine and transmission) warranty from Enterprise. The benefits from purchasing low mileage vehicles from a car rental agency are the ability to see the maintenance records of each vehicle, the warranty and a savings of approximately 30% vs. purchasing new cars. FISCAL IMPACT Funding for the purchase of three used cars in the amount of $55,000 was approved by Council on November 20, 2006 as part of the Public Hearing for expenditure of State Citizens' Option for Public Safety (COPS) Program funds, account No. 26-20- 310-000-7135. Prepared by: Captain Gene Street 2 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA WAIVING FORMAL SEALED BIDDING AND AUTHORIZING THE ISSUANCE OFA PURCHASE ORDER FOR AN AMOUNT NOT TO EXCEED $54,257.10 FOR THREE VEHICLES FOR POLICE USE WHEREAS, Section 2-518 of the Azusa Municipal Code requires City purchases over the amount of $25,000 to be subject to the formal competitive purchasing procedure and awarded to the lowest responsive bidder, and WHEREAS, Section.2-519 of the Azusa Municipal Code requires "sealed" bids via the formal competitive purchasing procedure for purchases of more than $25,000, and WHEREAS, Section 2-523 of the Azusa Municipal Code allows the City Manager with City Council concurrence to waive formal sealed bidding upon a finding that it is in the best interest of the City and its administrative operations, that the public welfare would be promoted by dispensing with them, and WHEREAS, by the City PurchasingAgent and Police Department staff have.complied with the "spirit" of the Azusa Municipal Code purchasing procedures by conducting comparative shopping on the internet for "certified" used cars, even though formal "sealed" bids were not solicited, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES HEREBY FIND AS FOLLOWS: A. That the formal "sealed" bidding process is waived, and B. That a Purchase Order, not to exceed $54,257. 10 be issued to Enterprise Rent-A-Car for three vehicles for Police use. PASSED, APPROVED AND ADOPTED this 4`h day of December, 2006. i Diane Chagnon, Mayor Date I 1 HEREBY CERTIFY that the foregoing resolution was duly adopted by the City Council of the City of Azusa at a regular meeting thereof held on the 4`h day of December, 2006, by the following vote of the Council: I AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: I ABSENT: COUNCILMEMBERS: I I I Vera Mendoza, City Clerk Date F' Y. U mill I TO; THE HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: JAMES MAKSHANI FtPUBLIC WORKS DIRECTOR/ASSISTANT CIN MANAGER VIA: F. M. DELACH, CITY MANAGER f fV,. DATE: DECEMBER 4, Ill,G SUBJECT: RESOLUTION OF APPROVAL OF THE MASTER COOPERATIVE AGREEMENT- (MCA) WITH THEMETRO GOLD LINE FOOTHILL EXTENSION CONSTRUCTION AUTHORITY RECOMMENDATION It is recommended that the City Council approve the attached resolution for approval of the Master Cooperative AgreerrSent (MCA) between the City of Azusa and the Metro Gold Line Foothill Extension Construction Authority. BACKGROUND i The California State Legislature created the Pasadena Blue Line Construction authority in 1998 to manage the design and construction of the Metro Gold Line light rail system from downtown Los Angeles to the City of Montclair. The project was divided into two phases based on legislative and Financial commitments. Phase 1 currently operates from Union Station in downtown Los Angeles to the Sierra Madre Villa Ave station in Pasadena, and Phase Il will connect Pasadena to the City of Montclair on the existing Burlington Northern Santa Fe rail right-of-way. In November 2001, the Blue Line Construction Authority was renamed the Metro Gold Line (Foothill Extension Construction Authority to distinguish the line from the Metro Blue Line corridor. The Los Angeles County Metropolitan Transportation Authority (LACMTA) currently operates and maintains Phase l of the Metro Gold Line and will be responsible for Phase II operating services. During the past year, City staff has been actively involved in review sessions with the Authority and other Phase II representatives to address legal language and conditions that impact and/or benefit the com i unities located on the rail right-of-way. The MCA follows the template used by the cities of Los Angeles, South Pasadena and Pasadena for the I Design-Build of Phase I, but has been edited and adapted to meet the demands of Phase ll construction. a The Authority is requesting that each Phase 11 city located on the Foothill Extension light rail corridor adopt a Master Cooperative Agreement (MCA) that defines the process, procedures and responsibilities involved with the planning, design and construction of the light rail extension project. The eleven Phase 11 cities have been divided into two segments in order to manage the large scope of the project and the phased allocation of funds. The Segment 1 cities of Arcadia, Monrovia, Duarte, Irwindale and Azusa will adopt the MCA in FY 2006-07 in order to progress with design efforts and advance into the preliminary engineering phase. The Segment 2 cities of Glendora, San Dimas, La Verne, Pomona, Claremont and Montclair will take action on the MCA in the next two years. DISCUSSION The Master Cooperative Agreement defines the project scope, roles and responsibilities of the Authority and each Phase 11 city involved with the Metro Gold Line extension. The goal and intent of the MCA is to establish a cooperative and coordinated effort in executing all engineering, construction and financial objectives involved with the construction of the rail line. Article I of the MCA provides the project scope and definitions of agencies, facilities, and engineering and construction process used throughout the project life, while Article 2 addresses the coordination efforts and strategy used to review technical documents. Article 2 outlines the Authority's responsibilities specific to advanced conceptual engineering, final environmental impact report, preliminary engineering, procurement of a design-build contract, preparation of final designs, and construction management. The Authority will provide design/engineering/construction plans and "As-Built" drawings for review and will coordinate joint "Design Review" meetings with city staff. The City will have 30 days to respond, in writing, to issues and actions impacting the city resulting from design modification and construction activity. Articles 3 and 4 address the Authority's joint responsibility for work conducted on the City's right-of-way, facilities, or private property located in the city's jurisdiction, including staging and traffic management, encroachments, street closures, night work, permit and license requirements, and audits and inspections. City permits will be required for permanent or temporary construction work, including traffic control. The City will waive permit fees requested by Metro Gold Line contractors, but will receive reimbursement for permit processing costs by the Authority via an annual Work Authorization agreement negotiated between the City and the Authority. Article 5 provides guidance in the event of any disputes, controversy or claims between the City and the Authority specific to the Metro Gold Line project. A good faith effort for negotiating a resolution will be pursued to resolve conflicts, and a three-member panel selected from the Metro Gold Line Technical Advisory Committee will be appointed to review disputes on a confidential case-by-case basis. Disputes that cannot be resolved through direct negotiation will be referred to an independent, neutral arbitrator appointed from a list selected by the City, Gold Line Authority and the Los Angeles County Superior Court. Arbitration shall c"Onform and follow all applicable laws and the decision will be held as binding. "Betterment" refers to an upgraded or enhanced feature requested by a City that is beyond the required, mandatory:scope of design and construction. A City,can request betterments for structural or aesthetic elements in their project area, but will be responsible for cost differential of the enhancement. The authority will provide the betterment as long as the design, safety and implementation does not delay or interfere with!the project. Articles 7 and 8 address indemnification, maintenance, warranties and miscellaneous provisions that are not detailed in Articles I through 6. The Authority agrees to indemnify, defend and hold harmless the City, its officials and employees against any and all liability and expenses connected to the Metro Gold Line project, and will provide insurance for all aspects of the project. FISCAL IMPACT There is no fiscal impact as a result of this specific action. Attachments: Resolution Master Cooperative Agreement i j i h RESOLUTION NO. Y A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING THE MASTER COOPERATIVE AGREEMENT (MCA) BY AND BETWEEN THE METRO GOLD LINE FOOTHILL EXTENSION CONSTRUCTION AUTHORITY AND THE CITY OF AZUSA WHEREAS, the Blue Line Construction Authority was formed in 1998 in accordance with Public Utilities Code Section 132400, et seq. for the purpose of planning, designing and constructing the Los Angeles-Pasadena Metro Blue Line light rail project extending from Union Station in the City of Los Angeles to the City of Claremont; and WHEREAS, the Metro Gold Line Foothill Extension Construction Authority intends to seek legislative authorization to extend Phase 11 to the City of Montclair; and WHEREAS, the Los Angeles-Pasadena Metro Blue Line was renamed the Metro Gold Line by the Los Angeles County Metropolitan Transportation Authority (LACMTA) in November 2001; and WHEREAS, as a result of the name change, the Metro Gold Line is governed and administered by the Metro Gold Line Foothill Extension Construction Authority (Authority); and WHEREAS, the Authority has all of the powers necessary for planning, acquiring, owning, controlling, using, jointly using, disposing of, designing, procuring and building the Metro Gold Line light rail project; and WHEREAS, the Metro Gold Line is divided into Phase I from.Union Station in Los Angeles to Sierra Madre Villa Avenue in east Pasadena, and Phase 11 extending 24 miles east on the existing rail right-of-way to the City of Claremont; and WHEREAS, the cities of Arcadia, Monrovia, Duarte, Irwindale, Azusa, Glendora, San Dimas, La Verne, Pomona, Claremont, Montclair and Pasadena (collectively known as Phase II) in concert with the San Gabriel Valley Council of Governments, the San Bernardino Associated Governments and the Authority have been engaged in preliminary planning and design for Phase 11 construction between the cities of Pasadena and Montclair; and WHEREAS, Phase II of the Metro Gold Line will be constructed in two segments, Segment 1 from Pasadena to Azusa and Segment 2 from Azusa to Montclair; and WHEREAS, the City of Azusa is a municipal government created pursuant to the California State Constitution for man public purposes including, but not limited to, the design, construction and operation of public transportation facilities in the City; and WHEREAS, the City of Azusa has authority to be involved with activities that affect or impact the public right-of-way, private property, the general public, and business with its jurisdiction; and WHEREAS, the Authority, in designing and constructing the Metro Gold Line, has adopted the same design-build method of project delivery as Phase 1 construction, instead of the design- bid-build methodology used by LACMTA on previous regional transit projects; and i WHEREAS, there will be changes required in the design-build approach throughout the planning, engineering, design and construction of the light rail; and WHEREAS, it is intended that the City of Azusa and the Authority will work together with regard to any required modifications to existing or proposed agreements with the LACMTA relating to the Metro Gold Line; and WHEREAS, the City of Azusa and the Authority desire to work jointly and cooperatively to ensure that design and construction activities are undertaken and completed in ways that meet the objectives and goal of all parties; and WHEREAS, the Authority, to the extent allowed by law, has the (responsibility to construct and deliver an operational light rail facility, complete and acceptable to the City of Azusa and the LACMTA. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. The City Council hereby approves that certain Master Cooperative Agreement (MCA, by and between the Metro Gold Line Foothill Extension Construction Authority and the City of Azusa), and authorizes and directs the Mayor and/or the City Manager to execute on behalf of the City (a) the MCA, together witli such insubstantial changes thereto as may be approved by the signator on behalf of the City and by the City Attorney, and (b) any and all other documents necessary and appropriate in order to effectuate the MCA. SECTION 2. The City.Clerk shall certify to the adoption of this Resolution. Passed, approved and adopted this 4th day of December, 2006. MAYOR I HEREBY CERTIFY that the foregoing resolution was duly adopted by the City Council of the City of Azusa at a regular meeting thereof, held on the 4`h day of December, 2006, by the following vote of the Council: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: CITY CLERK i , COOPERATIVE AGREEMENT FOR THE METRO GOLD LINE - PHASE II BY AND BETWEEN THE METRO GOLD LINE FOOTHILL EXTENSION CONSTRUCTION AUTHORITY AND THE CITY OF AZUSA TABLE OF CONTENTS Page ARTICLE 1 - SCOPE AND DEFINITIONS..................................... ..............................3 1.0 Scope of this Agreement ...............................................'..............................:...3 1 .1 Duration of the Agreement............................................... ..............................3 1.2 Conditions Precedent ............................................................:.........................3 1.3 Definitions....:.........i........................................................'..................................4 ARTICLE 2 - DESIGN REVIEW AND CONSTRUCTION OF THE PROJECT ..............12 2.0 Engineeringand Construction Coordination ..................................................12 2.1 Work to be Performed by the Authority........................... .............................13 2.2 Review of Enginee ding and FEIS/R Documents ............!...............................14 2.3 Review of Design/Build Contracting Documents ...........:...............................15 2.4 Review of the Design/Build Contractor Submittals ........!...............................16 2.5 Work to be Performed by the City..................................!...............................17 2.6 City Performance of Rearrangements ............. .............: ...... ..... ................. ..20 2.7 As-Built Drawings of Rearrangements ........................!...............................21 2.8 Underground Service Alert ............................................................................21 ARTICLE 3 - AUTHORIZATIONS AND PROPERTY RIGHTS ......................................22 3.0 Permits ...........................................................................'...............................22 3.1 Work in City Streets.......................................................!...............................22 3.2 Private Encroachments.................................................. ...............................23 3.3 Temporary Street Closures............................................:...............................23 3.4 3.5 Federal, State and Other Agency Permit and License R 24 3.6 Granit of Rights and Construction Stam Plans::::equirements ...........24 g ... . .................. .. ..................25 3.7 City Property Required for Project Rights-Of-Way.........................................25 3.8 Replacement Rights-of-Way ........:......................26 3.9 City License/Ea ement Within Project Right-of-Way......................................26 3.10 Nig ht Work................... ...............................26 4.0 Work Authorizations.............. ................................. ..............................28 ARTICLE 4 - WORK AUTHORIZATION AND BILLINGS ............... 28 4.1 Work Performed bylthe City............................................:..............................28 4.2 Issuance of Work Authorizations and Cost Management..............................28 4.3 Work Authorization Changes.......................................... .............................29 4.4 Termination of Work Authorizations...............................................................29 4.5 Procedures for Payments to the City by the Authority...................................29 4.6 Preparation of Billings....................................................................................29 4.7 Audit and Inspection....................................................... ............................30 4.8 City Contribution to Project............................................. .............................30 Cooperative Agreement I Draft October 23,2006 City of{City Name} I 11410-0010\916953v5.doc ARTICLE 5 - DISPUTES RESOLUTION .......................................................................32 5.0 Disputes.........................................................................................................32 5.1 Dispute Notice ...............................................................................................32 5.2 Provisional Remedies....................................................................................32 5.3 Negotiation and TAC Hearing; Reference Proceeding ..................................32 5.4 Arbitration ......................................................................................................33 5.5 Governing Law; Waiver of Jury......................................................................36 5.6 Scope of Authority ..............................................................36 5.7 Continuing Performance................................................................................37 5.8 Implementation..............................................................................................37 5.9 Cooperation...................................................................................................37 ARTICLE6 - BETTERMENTS.......................................................................................38 6.0 Payments for Betterments .............................................................................38 ARTICLE 7 - INDEMNIFICATION, MAINTENANCE AND WARRANTIES ....................39 7.0 Indemnification of the City .............................................................................39 7.1 Indemnification of the Authority .....................................................................39 7.2 Indemnification of Both City and Authority39 7.3 Insurance Program ........................................................................................39 7.4 Maintenance..................................................................................................40 7.5 Warranties .....................................................................................................41 7.6 Contractor Bonds...........................................................................................41 ARTICLE 8 - MISCELLANEOUS PROVISIONS............................................................42 8.0 Approvals.......................................................................................................42 8.1 Counterparts..................................................................................................42 8.2 Survival of Rights...........................................................................................42 8.3 Severability ...........................42 8.4 Notification or Notices....................................................................................42 8.5 Statutory References.....................................................................................43 8.6 Construction ..................................................................................................44 8.7 Section Headings ..........................................................................................44 8.8 Governing Law ..............................................................................................44 8.9 Pronouns and Plurals ....................................................................................44 8.10 Time of the Essence......................................................................................44 8.11 Legal Rights...................................................................................................44 8.12 Bonds/Fees ...................................................................................................44 8.13 Further Actions ..............................................................................................44 8.14 Force Majeure ...............................................................................................45 8.15 Third Party Beneficiaries................................................................................45 8.16 Damage to Property.......................................................................................45 8.17 Authority of Parties ........................................................................................45 8.18 Funding Sources ...........................................................................................46 8.19 Nondiscrimination..........................................................................................46 8.20 Nonliability of Authority and City Officials ......................................................46 Cooperative Agreement Draft October 23,2006 City of{City Name) II ' 11410-0010\916953v5.doc 8.21 Federal Requirements...................................................................................46 g . ........................... 8.22 Exhibits................... ................ ........ ...... ....... ................................46 8.23 Entire Agreement..�.... ............. ....... .... .. ........ 46 ................................ 8.24 BindingObligation I.............. ....... ..... . ................................47 �I I l I E I i i i j t ' I �I I I. Cooperative Agreement Draft October 23,2006 City of(City Name} 111 11410-0010%916953v5.doc ! COOPERATIVE AGREEMENT FOR THE METRO GOLD LINE — PHASE II BY AND BETWEEN THE METRO GOLD LINE FOOTHILL EXTENSION CONSTRUCTION AUTHORITY AND THE CITY OF {City Name} THIS COOPERATIVE AGREEMENT FOR THE METRO GOLD LINE — PHASE II, dated ("Agreement") is made by and between the Metro Gold Line Foothill Extension Construction Authority ("Authority"), a public entity of the State of California and the City of {City Name} ("City'), a municipal corporation of the State of California. The Authority and the City are referred to collectively as the "Parties" and each individually as a "Party." RECITALS WHEREAS, the Authority, formally known as the Pasadena Metro Blue Line Construction Authority, is a public entity created by the California State Legislature pursuant to Section 132400 of the Public Utilities Code ("PUC") for the exclusive purpose of completing the design and construction of the Metro Gold Line Project, Phase I ("Phase I") of which is defined as the approximately 13.7 mile line from Union Station in the City of Los Angeles to Sierra Madre Villa Station in the City of Pasadena, and Phase II ("Phase 11") of which is defined as any extension further to the east to the City of Claremont, an additional distance of approximately 24 miles; WHEREAS, the Authority intends to seek legislative authorization to extend Phase II to the City of Montclair; and WHEREAS, Phase 11 will be constructed in two phases or segments: Segment 1 from Pasadena to Azusa and Segment 2 from Azusa to Montclair; WHEREAS, the "Project", for purposes of this Agreement, shall only refer to Segment 1 of Phase 11; WHEREAS, the City is a municipal government created pursuant to the California State Constitution for many public purposes including, but not limited to, the design, construction and operation of public transportation facilities in the City; WHEREAS, the City has authority to be involved with activities that affect or impact a public right-of-way, private property, the general public, and businesses within the City of {City Name}; WHEREAS, the Authority, in designing and constructing the Project, has adopted the design/build method of project delivery, similar to Phase I, as contrasted with the design/bid/build method that was used by the Los Angeles County Metropolitan Transportation Authority (METRO) on previous transit projects; Cooperative Agreement Draft October 23,2006 City of{City Name) 1 11410-0010\916953v5.doc I I WHEREAS, there will be numerous changes required in the approach to the Project by the Authority as a result of its adoption of the design/build method of project delivery; WHEREAS, the Authority and the City desire to cooperate to the end that the Project design and construction activities are undertaken and completed in ways that meet the objectives and goals of the Parties; WHEREAS, the Authority has the responsibility to construct and deliver an operational light rail facility, complete and acceptable to the City and to METRO. NOW THEREFORE, the Parties agree as follows: ; I I I i Cooperative Agreement Draft October 23,2006 City of{City Name} 2 11410-0010%916953v5.doo ARTICLE 1 - SCOPE AND DEFINITIONS 1.0 Scope of this Agreement This Agreement specifies the procedures that the Authority and the City will follow in implementing their respective roles and responsibilities in the planning, design, and construction of the Project. Both the Authority and the City agree that each will cooperate and coordinate with the other in all activities covered by this Agreement and any other supplemental agreements. 1.1 Duration of the Aqreement Unless extended in writing by the mutual agreement of the Parties, this Agreement shall automatically terminate on the earlier of: (a) Revenue Operations Date; or (b) 90-Days following the Authority's written notice to the City that (i) all Project Construction within the City or its jurisdiction has been completed or (ii) the Authority has otherwise determined to cease Project Construction and terminate this Agreement. In the event this Agreement is terminated prior to the completion of all Project Construction within the City, such Construction shall thereafter be subject to the City's usual and customary permitting procedures and processes applicable to other contractors; except that, such permitting procedures and processes shall not apply if the Authority otherwise is exempted there from. 1.2 Conditions Precedent The existence of each of the following shall be a condition precedent to the obligations of the Authority hereunder: 1.2.1 The Authority shall have received necessary appropriations, subsidies, grants, payments and contractual commitments from other parties, excluding the City, necessary for it to perform under this Agreement and otherwise to fulfill its obligations hereunder; and 1.2.2 Neither the Authority's performance under this Agreement, nor its obligations hereunder shall (i) violate any terms, covenants or conditions of its appropriations, subsidies, grants or financial assistance, (ii) breach any warranties or contradict any representation made in connection therewith, or (iii) violate any law, rule or regulation to which the Authority is subject. Cooperative Agreement Draft October 23,2006 City of{City Name} 3 11410-001 0\916953v5.doc 1.3 Definitions For the purpose of this Agreement, the following terms shall have the meanings set forth below: j 1.3.1 Abandonment - means the permanent termination of service of an existing City Facility or private facility. 1.3.2 Advanced Conceptual Engineering - means conceptual engineering to support the FEIS/R, in which the design of the general track configurations and geometry, station and parking facility locations, traction power substation locations, maintenance and storage facilities general arrangement, property requirements, utility relocations, and other associated construction is defined to approximately 20% of Final Design.. 1.3.3 Approval means written approval by the City Representative or Authority Representative, as applicable 1.3.4 Arbitrator - Has the meaning set forth in Section 5.4. 1.3.5 Authority - as the meaning.set forth in the Preamble to this Agreement. 1 .3.6 Authority Facility - means real or personal property now, or in the future, under the ownership or control of the Authority, to be located within the Right-of-Way of the Project for the purpose of providing service to the public, including but not limited to transit line and station fixed facilities, transit operations subsystems including but not limited to the trackwork, train control and communication, power distribution and overhead catenary system, and any equipment, retaining walls, drainage facilities, lighting, and street crossing improvements, all facilities to be constructed by the Authority, and all other apparatus and/or structure appurtenant thereto or associated therewith. 1.3.7 Authority Rel presentative - means the Chief Executive Officer of the Authority, or his/her representative who has been authorized in writing by the Chief Executive Office�, who will have the responsibility to manage and coordinate Authority interaction with the City and to produce the necessary Project planning docu i ents, Design/Build procurement documents, issue Work Authorizations, andmake Approvals, as required by this Agreement. The Authority may change its designated Authority Representative by providing written notification to the City. I 1.3.8 Award - Has the meaning set forth in Section 5.4.3. t Cooperative Agreement Draft October 23,2006 City of[City Name] 4 - 11410-0010\916953v5.doc 1.3.9 Betterment - means a Replacement Facility, or a component thereof, or an enhancement to an existing City Rights-of-Way or Facility in place at the time of the Design Freeze, requested by the City and agreed to by the Authority, that increases the service capacity, capability, appearance, efficiency, or function over that provided by the Design Freeze in facilities and systems to be adopted by the Authority, except that the following shall not be considered as Betterments: a. An upgrade which the Parties agree will be part of the Design Freeze; or b. Construction in accordance with City Standards, State and Federal Regulations, CPUC, and METRO requirements as set forth in this document to the extent that each has jurisdiction; or C. Measures to mitigate environmental impacts identified in the Current Scope of the Project, Draft Environmental Impact Statement/Report and Final Environmental Impact Statement/Report; or d. A Replacement Facility or enhancement that is the consequence of changes made by the Authority or its contractors after the Design Freeze. 1.3.10 Cities - means cities located on the proposed Pasadena Gold Line, Phase II route: Pasadena, Arcadia, Monrovia, Duarte, Irwindale, Azusa, Glendora, San Dimas, La Verne, Pomona, Claremont, and Montclair. 1.3.11 City - has the meaning set forth in the Preamble to this Agreement. 1.3.12 City Facility - means a facility under the ownership or the exclusive operation of the City. City Facility shall mean facilities located on City—owned land, easements, or public rights-of-way, including but not limited to, public streets, curbs and gutters, sidewalks, traffic signals, signing, roadways, bridges, retaining walls, alleys, water lines, storm drains, sanitary sewers, parking lots, parks, public landscaping and trees, traffic control devices/systems, street lighting systems, and public, police and fire alarm systems. 1.3.13 City Representative - means the City's City Manager, or his/her representative, designated in writing, who shall assist the Authority in the delivery of the Project and each component thereof in a timely manner. The City Representative will have the responsibility (i) to manage, coordinate, and be the primary point of contact for City interaction with the Authority, (ii) to produce the necessary work documents, reports, Betterments, and (iii) to make or secure Reviews, inspections and Approvals, as required by this Agreement. The City Representative also will be responsible for assisting the Authority and coordinating among City departments, or other constituent entities whenever City Cooperative Agreement Draft October 23,2006 City of{City Name} 5 11410-0010\916953v5.doc I action is called for under the Agreement. The City may change-its designated representative by providing written pre-notification to the Authority. 1.3.14 City Rights-of-Way - means public streets, public easements, and public access-ways (including, but not limited to, alleys, drive approaches) to the extent located on City property or City easements. 1.3.15 City Standards - means those written rules, regulations, ordinances and codes of the City in effect at the time of the Design Freeze. 1.3.16 Conflicting Facility , means a City Facility or private facility existing as of the Effective Date that is so situated as to require Rearrangement in order to design, construct, and operate the Project without adversely affecting the maintenance of that facility as determined by the Parties. 1.3.17 Construction - means the work of removal, demolition, replacement, alteration, realignment building, fabricating, landscaping and all new fixed facilities to be built and systems and equipment to be procured and installed that are necessary to operate and maintain the Project in accordance with approved plans and specifications. 1 .3.18 Cost - meanls all allowable direct and indirect charges as further defined in Section 4.2. 1.3.19 Current Scope of the Project - means the Project as described in the Draft and Final Environmental Impact Statement/Report. A brief summary of the Project is provided in Exhibit A. 1.3.20 Days - means calendar days including Saturdays, Sundays, and legal holidays. See also definition of Working Days. 1.3.21 Design - melans that engineering, architectural and other design work and the resulting maps, plans, specifications, special provisions, drawings, calculations, computer software, and estimates which are needed to construct the Project. 1.3.22 Design/BuilcI Contract - means the documents that are used by the Authority to contract with a contractor to design, build, fabricate, install, and prepare for operations lthe facilities (or part of the facilities) and systems (less purchase of the rail cars, and other material and equipment already in the ownership and possession of METRO and/or the Authority) necessary to operate the Project as specified in the documents, and to demonstrate the operability of the Project through a period of pre-revenue operations. Separate Design/Build Contracts will be developed for Segments 1 and 2. Cooperative Agreement Draft October 23,2006 City of(City Name) 6 11410-0010\916953v5.doc 1 .3.23 Design/Build Contractor - means the contractor and/or team of consultants and contractors that is awarded the Design/Build Contract(s) by the Authority, also referred to as Contractor. 4 Desi n/Build Procurement Documents - means the entire package 1 .3.2 g , of documents, consistent with the Procurement Code, to be sent to potential proposers that may be interested in submitting a proposal for award of a Design/Build Contract, including but not limited to cooperative agreements with the Cities, utilities and METRO; DBE/WBE program; bonding requirements; change order & payment provisions; bidding and proposal requirements; environmental mitigation and requirements; scope of work; technical drawings and specifications; design and construction document reviews, procedures & approvals; quality control; safety program; and construction procedures. Separate Design/Build Procurement Documents will be developed for Segments 1 and 2. 1.3.25 Design Freeze - means the process of adoption of a design, approved by the City, with respect to transit system facilities within the City's jurisdiction, City Facilities and City Rights-of-Way, and the Authority, that constitutes the determination of the established or"frozen" design of the Project or portion of the Project, from which deviations or changes in the Project Design will be measured. The Design Freeze will occur at completion of the Preliminary Engineering process where all costs associated with the design and the project are identified. 1.3.26 Design Review - means the process of critical evaluation of plans, specifications and reference documents by the Authority,.the City, and other agencies, as specified by the Authority, that are developed by consultants and/or the Design/Build Contractor which are necessary for the definition of, and the construction of the Project. 1.3.27 Design Support to the FEIS/R— means the design work required to define the Project sufficiently to support the FEIS/R, including the capital cost estimate. 1.3.28 Dispute - Has the meaning set forth in Section 5.0. 1.3.29 Draft Environmental Impact Statement/Report (DEIS/R) means the Draft Environmental Impact Statement/Report, published April, 2004, that analyzed and evaluated the environmental impacts of the Project and . recommend measures to mitigate the potential adverse impacts. 1.3.30 Effective Date - Shall mean the date set forth in the Preamble. 1.3.31 Facility means real or personal property now or in the future to be located within the Right-of-Way as part of the Project, including but not limited to Cooperative Agreement Draft October 23,2006 City of(City Name) 7 11410-0010\916953v5.doc i roadways, pipes, mains, services, meters, regulators and any equipment, apparatus and/or structure appurtenant thereto or associated therewith. 1 .3.32 Federal Acquisition Regulation (FAR) means Chapter 1 of Title 48, Code of Federal Regulations (CFR), as published by the federal government. 1.3.33 Final'Desig i - means the Design/Builder's production and submittal of the design drawings, specifications, and pertinent documentation for Review, comment, and Approval by the City, and review, comment, and Approval by the Authority. Submittals shall be complete and `issued for construction' (IFC). Each submittal may be in the form of segments or portions of the Project with drawings, specifications; and calculations (where necessary) signed and sealed by the "Engineer of Record" for the Project or portion of the Project after incorporation of comments and final Approval by the City and final Approval by the Authority. i 1.3.34 Final Environmental Impact Statement/Report (FEIS/R) means the Final Environmental Impact Statement/Report that analyzes and evaluates the environmental impacts of the Project and recommend measures to mitigate the potential adverse impacts, and includes any addendum, supplement, or subsequent EIR/S. 1 .3.35 FTA means the Federal Transit Administration. i 1 .3.36 Governmental Authority - means any government or political subdivision, whether federal, state, or local, or any agency or instrumentality of any such government or political subdivision, or any federal, state, or local court or arbitrator, other than the City, METRO, and the Authority; 1.3.37 Industry Re iew - means the period of sixty (60) Days for review by potential bidders/proposers (construction and engineering firms) of the Preliminary Basis for Design/Build Contracting documents providing them the opportunity to comment on the final draft documents before they are released as part of the Design/Build Procurement Documents. Separate Industry Reviews will occur for Segments 1 and 2. 1 .3.38 Joint Devel Ipment - means a partnership for many different forms of public/private sector cooperation in the development or redevelopment of structures and facilities to be built in, around, over, and adjacent to the Right-of- Way. i 1 .3.39 Laws - means any law, rule, regulation, ordinance, statute, code or other requirement of any Governmental Authority. 1 .3.40 List of Potential Arbitrators - Has the meaning set forth in Section 5.4.1. Cooperative Agreement Draft October 23,2006 City of{City Name} 8 11410-0010\916953v5.doc 1.3.41 METRO — means the Los Angeles County Metropolitan Transportation Authority, a public entity created by the California Legislature pursuant to PUC Section 130050.2 et. seq. for many purposes including, but not limited to, the design, construction, and operation of rail and bus transit systems and facilities in Los Angeles County. 1.3.42 Party, Parties — means one or both of the City and the Authority, as set forth in the Preamble to this Agreement. 1 .3.43 Pre-Final Design - means the Design/Builders draft final submittal of the design drawings, specifications, and pertinent documentation for Review, comment, and Approval by the Authority and the City. Submittals shall be near the 100% completion level and may be in the form of segments or portions of the Project. 1 .3.44 Preliminary Basis for Design/Build Contracting - means the basis for detailed design including all design standards and criteria, standard and directive drawings, and all reference drawings packaged by the Authority in the design/build documents that are used for Industry Review by prospective design/build contractors. Separate documents will be developed for Segments 1 and 2. 1 .3.45 Preliminary Engineering (PE) - means the design period following Advanced Conceptual Engineering, in which the design of the general track configurations and geometry, Rail Stations, traction power substations, maintenance and storage facilities, grade crossings, grade separations, property requirements, utility relocations, and other associated construction is defined to approximately 30% of Final Design for the purposes of Design/Build Contracting. 1.3.46 Project - means Segment 1 of Phase ll. 1.3.47 Rail Station - means the Authority Facility where the light rail trains will stop at the locations cited in Exhibit A to allow for passenger boarding and exiting, including the facilities specifically required for passengers, buses, autos, bicycles, and pedestrians to access the site, all consistent with the Americans with Disabilities Act (ADA). 1.3.48 Rearrangement - means the alteration, removal, replacement, reconstruction, support or relocation of a Conflicting Facility or portion thereof, whether permanent or temporary, which the Authority and the City determine must be rearranged in order to design, build, and/or operate the Project. Rearrangements require the Review and Approval of the City. 1 .3.49 Replacement Facility - means a facility which is constructed or provided under the terms of this Agreement as a consequence of the Rearrangement or portion thereof, which meets City Standards as set forth herein and is approved by the City prior to the start of Construction. Cooperative Agreement Draft October 23;2006 City of{City Name) 9 11410-001 0\916953v5.doc 1 .3.50 Revenue Operations Date— means the date METRO commences revenue operations for Segment 1 . 1.3.51 Review - means review by the City Representative and submittal of written comments within the review period stated in this Agreement. 1.3.52 Right-of-Way (ROW) - means the real property required to construct, operate, and maintain the transit facilities and systems that comprise the Project. 1.3.53 ROD Date — means the date the FTA issues a Record of Decision approving the FBS/R. 1.3.54 Segment 1 means the portion of Phase II from the interface with Phase I in Pasadena to the end of the tail tracks for the Azusa Citrus station. 1.3.55 Segment 2 means the portion of Phase II from the interface with Segment 1 in Azusa tol the end of the tail tracks for the Montclair station. 1.3.56 Technical Advisory Committee (TAC) — means that certain committee, comprised A one city manager (or such person's designee) from each of the Cities, that ensures the appropriate level of interaction and coordination occurs be*een the Authority and the Cities. 1.3.57 Temporary Facility - means (i) a City Facility constructed for the purpose of ensuring continued service while a Conflicting Facility is taken out of service, fully or partially, to undergo Rearrangement, or (ii) a facility constructed or used to facilitate or otherwise assist with the Project, including but not limited to, Construction staging and/or material storage areas. 1.3.58 Traffic Man I gement Plan - means a plan that addresses traffic control requirements in Construction areas through a Worksite Traffic Control Plan ("WTCP"), and along detour routes through a Traffic Circulation Plan ("TCP"). A WTCP is a site-specific Design for temporary traffic control and diversion of vehicular and pedestrian traffic through or adjacent to a work area, incorporating base conditions, temporary conditions, construction impact areas, and all temporary/pernj anent traffic controls and advisory signage. On a larger scale, a TCP addresses operation along an alternate routes which bypass(es) a work area, or multiple intersections affected by concurrent Construction, by means of striping, signing, signals, delineators, barricades; warning lights or other traffic control devices. The operation of a Traffic Management Plan is affected by Construction phasing plans and Construction schedules and is subject to provisions of Section 3.1. 1 .3.59 Work Authorization means the document(s) which the Authority will issue upon agreement,by the Parties as to Scope of Work and direct and indirect costs, which document authorizes the City to perform any work, and to be reimbursed therefor, on the preparation and/or Review of design plans, operation Cooperative Agreement Draft October 23,2006 City of{City Name} 10 j 11410-0010\916953v5.doc plans, or other agreed to work plans, and to provide materials, labor inspection, and/or Rearrangements under the terms and conditions of this Agreement. 1.3.60 Working Days - means Days, excluding Saturdays, Sundays, and the legal holidays listed in Exhibit D. Cooperative Agreement Draft October 23,2006 City of(City Name) - 11 11410-00101916953v5.doc I ARTICLE 2 - DESIGN REVIEW AND CONSTRUCTION OF THE PROJECT 2.0 Engineering and Con truction Coordination The Authority and the City shIII establish general guidelines, working relationships, standards of design, Design/Build Design and Construction Approval procedures, and administrative policies and procedures with respect to Review of the Advanced Conceptual Engineering, Preliminary Engineering, the Design/Build Procurement Documents, the Design Review process and the construction activities (including coordination and Rearrangement of City Facilities pursuant to this Agreement) to be implemented by the Design/Build Contractor in order to permit the timely completion of the Project. The major activities and the Project schedule are shown in Exhibit B of this Agreement. By signing this Aggreement, the Authority is not waiving any of its rights to assert exemption from.City ordinances in the event this Agreement is terminated. Unless otherwise indicated, two copies of documents and submittals shall be provided to the City Representative. To insure that work which impacts or affects City Facilities or City Rights-of-Way meets the expectation of both the Authority and the City, and to insure that the Project meets the requirements of the Current Scope of the Project, the Authority will utilize City Standards for the design of all work in City Rights-of—Way, on City Facilities, and on private property within the City. The Authority's design standards and criteria, and City's Standards and criteria shall be contained in the mandatory requirements of the performance specifications of the Design/Build Procurement Documents. The Final Design affecting City Facilities, City Rights-of-Way, or private property within the City shall be submitted to the City for Approval. I Any impact by the Project on City Rights-of-Way, City Facilities, businesses and private property is subject to the Review, Approval, and applicable permitting by the City. Impacts shall include street closures, encroachments, occupation, implementation of traffic control, effects on access, or any other impact as it applies to City Rights-of-Way, City Facilities, businesses, private property, including the following: 2.0.1 Rearrangement s I The Rearrangement ofd each Conflicting Facility shall conform to applicable City Standards in effect at the time of the Design Freeze, as well as applicable State and Federal laws. 2.0.2 Softscaping & Hardscaping Landscaping arrangements affecting trees, softscaped and hardscaped areas under ownership or daily control of the City, including on private property, shall be preserved if practicable. The Authority's Representative shall consult and reach agreement with the City's Representative, and if trees and/or plantings have to be removed, then they shall be replaced by the Authority at its cost and expense, with a tree of similar size, species and quantity, in a location approved Cooperative Agreement- Draft October 23,2006 City of(City Name) 12 11410-0010\916953v5.doc 4 by the City to the extent provided under City Standards. No trees, plantings and/or hardscaped areas within City Rights-of-Way shall be removed without the prior Approval by the City. 2.0.3 Changes in Approved Plans The Authority or the City may agree to make changes in previously approved Designs for work; which affect City Facilities or City property, prior to and during the course of construction only through Approval of the other Party and compliance with the provisions of Article 6, Betterments. 2.1 Work to be Performed by the Authority The Authority, as part of its responsibilities, shall perform the following: 2.1.1 Train Traffic Coordination The Authority shall design, furnish and install hardware and software and, where required by engineering analysis, establish coordination and connection between the City traffic control facilities, the light rail and freight/commuter rail operation. 2.1.2 Advanced Conceptual Engineering Design The Authority will undertake the preparation of Advanced Conceptual Engineering design documents as described in Section 2.2. The product of this effort will be the documents defining the Advanced Conceptual Engineering of the Project. The documents will be furnished to the City for Review to help ensure accuracy, reasonable completeness, timely responses in subsequent stages, and to minimize changes. 2.1.3 Final Environmental Impact Statement/Report (FEIS/R) The Authority will undertake the preparation of FEIS/R documents, and the EIS/R review and Approval process as described in Section 2.2. The product of this effort will be the FEIS/R documents, providing the final definition of environmental impacts and mitigations for the Project. The draft document will be made available to the City for Review and comment. As part of the EIR/S development process, environmental mitigation measures will be presented and discussed with the City. 2.1.4 Preliminary Engineering Design The Authority will undertake the preparation of Preliminary Engineering design documents as described in Section 2.2. The product of this effort will be the documents defining the Preliminary Engineering of the Project. The documents will be furnished to the City for Review to help ensure accuracy, reasonable Cooperative Agreement Draft October 23,2006 City of(City Name) 13 11410-0010\916953v5.doc design definition per the requirements of Design/Build procurement standards, timely responses in subsequent stages, and to minimize changes. 2.1.5 Developmentif Design-Build Contract Documents The Authority will undertake the preparation of Design/Build Procurement Documents, as described in Section 2.3. l 2.1.6 Final Design The Authority will coordinate and manage the Design and Design Review process during Final Design by the Design/Build Contractor as described in Section 2.4. The Authority will forward pertinent design documents to the City for Review and conduct Di sign Review meetings as necessary. 2.1.7 Construction Management II The Authority will provide staff that will make reasonable definitive responses to the City, Design/Build Contractor, residents and business owners regarding impacts and concerns arising from the Project design and construction, and facilitate informational community meetings. The Authority will establish offices in close proximity to the Project for the purpose of responding to residents and business owners concerns during construction. At the discretion of the Design/Build Contractor, a field construction office may be established within the City. L 2.2 Review of Engineering and FEIS/R Documents Documents shall be provided to the City Representative for Review and comment and/or Approval. Review of ei gineering and FEIS/R documents will occur as follows: 2.2.1 City Review of FEIS/R As part of the FEIS/R public process, the City will be provided a copy of the FEIS/R for Review. i 2.2.2 City Review of Advanced Conceptual Engineering The Advanced Conceptual Engineering Design documents'will be provided to the City for Review and comment. The City shall have a period of thirty (30) Days from the date of receipt of the documents from the Authority's Representative to complete the Review akd to make comments. The City Representative and Authority Representative shall hold a joint Design Review meeting, together with the designated representative from each of the other Cities; the Authority's design consultant, and pertinent third parties as necessary to discuss the City's review comments. I -Cooperative Agreement Draft October 23,2006 City of(City Name) 14 11410-0010\916953v5.d oc - 2.2.3 City Review of Pre-Final Preliminary Engineering The pre-final Preliminary Engineering Design documents will be provided to the City for Review and comment. The City shall have a period of thirty (30) Days from the date of receipt of the documents from the Authority's Representative to complete the Review and to make comments. The City Representative and Authority Representative shall hold a joint design review meeting, together with the designated representative from each of the other Cities, the Authority's PE design consultant, and pertinent third parties as necessary to discuss the City's Review comments. 2.2.4 City Review of Final Preliminary Engineering The final Preliminary Engineering Design documents will be provided to the City for Review and Approval. Comments shall be limited to resolution of comments on the pre-final Preliminary Engineering and comments on any other changes from the pre-final Preliminary Engineering. The City shall have a period of forty- five (45) Days from the date of receipt of the documents from the Authority's Representative to complete the Review and to make comments. The City Representative and Authority Representative shall hold a joint design review meeting, together with the designated representative from each of the other Cities, the Authority's PE design consultant, and pertinent third parties as necessary to discuss the City's Review comments. The final Preliminary Engineering Design will become the basis for the Design Freeze and will be incorporated into the Design/Build Procurement Documents. Any subsequent change may be the subject of a Betterment. 2.3 Review of Design/Build Contracting Documents Upon approval by the Federal Transit Administration (FTA), the Authority will commence assembling the Design/Build Contracting Documents. Design/Build Procurement Documents will be developed separately for Segments 1 and 2. Documents shall be provided to the City Representative for Review and comment and/or Approval. Review of Design/Build contracting documents will occur as follows: 2.3.1 City Review of Preliminary Basis for Design/Build Contracting The Authority will assemble a draft set of Design/Build contract documents for Review by the Cities, METRO, Governmental Authorities, and interested Design/Build contractors for a period of Industry Review. The City shall have a period of sixty (60) Days from the date of receipt of the documents from the Authority's Representative to complete the Review and Approval. The City Representative and Authority Representative shall hold a joint design review meeting, together with the designated representative of each of the other Cities, Cooperative Agreement Draft October 23,2006 City of[City Name) 15 - 11410-00101916953v5.doe the Authority's consultants, and pertinent third parties as necessary to discuss the City's Review comments. 2.3.2 City Review of Design/Build Procurement Documents Once all comments have been addressed and incorporated, as applicable, the Authority will assemble the Design/Build Procurement Documents and issue the documents to consultants, contractors, and other third parties interested in bidding for the Design/Build Contract(s). Copies of these documents will be issued to the Cities, METRO and pertinent Governmental Authorities. The City will receive one copy of the Design/Build Procurement Documents and shall receive a copy of all addenda. 2.4 Review of the Design/Build Contractor Submittals I Upon issuance of a Notice To Proceed ("NTP") by the Authority, the Design/Build Contractor will commence Design and Construction of the Project. Design will progress in accordance with the Design/Build Contractor's work plan and schedule. Design submittals will generally be provided at the Pre-final (85%) and Final (100%) Design levels as specified in the Design/Build Contract. Packaging of submittals by to lation, type of work, or subcontractor, will be at the Design/Build Contractor's discretion. Design and Construction for Segments 1 and 2 will progress on separate schedules. 2.4.1 Design/Build Contractor's Responsibilities Upon award of the Design/Build Contract and NTP, the Design/Build Contractor shall have the responsibility for all design and engineering activities including, but not limited to: (1) the implementation of an organizational structure to successfully complete the Project within the schedule and budget while producing a quality product; and (2) effective management of the activities of the design team to providei a coordinated, well-planned project: The Project shall be designed and constructed in accordance with the various Cooperative Agreements entered into between the Authority and the Cities, agencies, and utilities, land as permitted by the CPUC. 2.4.2 Design Review Is by the Authority and the City i, The City will participate fully in the Design Review process and be involved with the Approval of all portions of design and construction performed within City property or affecting City Rights-of-Way or City Facilities to'the extent that the City has authority and i r this Agreement. Design submittals will be forwarded to the City's Representative for Review and Approval of the.Design as it affects City Facilities and City rights-of-Way. The Cooperative Agreement Draft October 23,2006 City of(City Name) 16 11410-0010\916953v5.doc ;f f submittal schedule will be coordinated with the City in accordance with the annual Work Authorization. The Review period shall be 30 Days. Upon receipt of the City's comments, the Authority shall review, meet (as necessary) and confer with the City's Representative to incorporate comments, if any, together with its own comments and those of any other agency into a response to the Design/Build Contractor who shall make the required changes. City shall be responsible for delay damages, if any, incurred by Authority that result from City's failure to submit comments within 30 Days. The City will be provided the plans and specifications for all City Facilities and Authority Facilities crossing over City Rights-of-Way or supporting City Facilities, for review and Approval. The City's Approval of the documents, as they relate to City Facilities, will not be unreasonably withheld. The Design/Build Contractor shall be responsible for obtaining all permits required to build the related work, in accordance with the City's licensing and permitting process. Caltrans permits obtained by the Authority for work that affects City streets shall be submitted to the City. 2.4.3 Design/Build Contractor's Analysis and Response to Design Comments The Design/Build Contract shall require that the Design/Build Contractor, among other things, notify the Authority after receipt of any comments if the Design/Build Contractor believes incorporation of the comments would render the Design documents, Construction documents, or any other contract documents erroneous, defective, or deficient in any respect or which would otherwise adversely affect in any manner the Design or Construction of the Project or the costs and completion schedule of the Project. The Authority shall promptly forward a copy of the Design/Build Contractor's comments to the City and confer with the City regarding these comments. In the event that the City's comments result in a change to the Project from the Design Freeze, exceeds City Standards or codes, or otherwise exceeds the provisions of this Agreement, then the Authority reserves the right to request a Betterment to incorporate the City's comments into the Design and Construction of the Project. 2.5 Work to be Performed by the City The City shall work cooperatively with the Authority, to the extent that is reasonable, in advancing the design/build method of delivery for the Project in a manner complying with the terms of this Agreement. The Parties agree that the City shall have no obligation or duty to begin or complete any work activity described in this Agreement unless and until a fully executed and funded Work Cooperative Agreement Draft October 23,2006 City of(City Name) 17 11410-0010\916953v5.doc Authorization has been issued by the Authority to the City and the City has accepted same. Subject to the foregoing, the City will have five (5) major responsibilities in relation to the design/build program. These responsib ilities'are: r 2.5.1 Participation inl the Organizations and Process The City's Representative will be the point of coordination and communication with the Authority's Representative. In addition, when requested by the Authority, the City will designate individuals to participate in the working groups and technical subcommittees formed by the Authority to address the issues and subjects which arise as part of the design review process described above in Sections 2.1 through 1 2114. 2.5.2 Cooperatively Ilmplement the Design Review Process Consistent with the pr(visions contained herein, the City shall take an active role in the Review of studies and the Review of design plans prepared by the Authority, and the Design/Build Contractor related to the Project. The City shall provide comments in aItimely manner, as defined herein, and will work with the Authority to suggest ways to resolve various issues that arise. 2.5.3 Provide Technical Support The City shall provide seasonable technical support to the Authority throughout the design and construction period of the Project. The support may take many forms. For example, the City shall work with the Authority to Review and, where appropriate or required, shall assist the Authority with obtaining permits, construction easements and clarification of any City Standards. In addition, the Authority and the City may mutually agree that the City will perform the design of one or more specific Rearrangement(s). Under such circumstances, the Authority and the City shall develop the;specific scope of work and authorize the City to perform the activities, through the Work Authorization process described in Article 4 below. The City's schedule for completion, coordination requirements, Review procedures, and related provisions all shall be included as attachments to the Work Authorization which shall also include the estimated cost of completing the design of the specific Rearrangement. 2.5.4 Relocation of Private Utilities and Facilities Within 10 Working Days after receipt of a written request from the Authority's Representative;the City will send a written notice to all utilities, whose facilities conflict with the,Project, instructing them to relocate or remove the conflicting facilities in accordance with provision of the utility's franchise agreements. The Cooperative Agreement Draft October 23,2006 City of{City Name) 18 11410.0010\916953v5.doc City will assign to Authority the City's rights to cause such removal or relocation to be performed in the event that the utility does not accomplish such removal or relocation within the time provided. The City shall not, by issuing such a written request or assigning its rights pursuant to this Section, be construed as having made a determination as to the responsibility of the utility or facility or the Authority to pay the cost of such removal or relocation. The determination of whether the Authority or the utility shall be responsible for the cost of such removal or relocation shall be a matter solely for the Authority and the affected utility to resolve. The Authority shall defend, indemnify, and hold harmless the City, and its officials, officers, and employees from and against any and all claims or causes of action arising out of the City's provision of notice to a utility, the assignment to the Authority of the City's right to effectuate a removal or relocation or cost of removal or relocation pursuant to This Section or the removal or relocation of any such facility by Authority or otherwise related to Authority's actions pursuant to this clause. 2.5.5 City, Inspection, Testing and Audits All work performed by the Design/Build Contractor is subject to independent quality assurance testing and inspection to confirm compliance with contract documents and applicable standards. For portions of the work, this inspection may involve the City witnessing quality control testing and inspection performed by the Contractor. The City will be provided reasonable notice of any such testing procedures. The City shall also have the right to provide such construction testing and inspection for that portion of the Project within the City Rights-of-Way including City Facilities, Rearrangements and structures supporting City Rights- of-Way and City Facilities. The final inspection of any Rearrangement work in the City Rights-of-Way, or to a City Facility within the Project, shall be attended by the City's Inspector. The City Representative and the Authority Representative shall inform the other, in writing within seven (7) Working Days, of deficiencies or discrepancies in any Construction work within the City Rights-of-Way or on a City Facility discovered in the course of such inspection. The Authority shall be responsible for ensuring that corrective action is taken by the Design/Build Contractor to correct all non- compliant work. If the Design/Build Contractor is not diligently prosecuting a problem solution or fails to resolve the problem in a responsive manner as indicated herein, the City with the Authority's support will resolve the problem and will be reimbursed by the Authority for its costs. All such communication to the Design/Build Contractor shall be through the Authority. For portions of the work constructed by the City, the City will be responsible for verifying compliance with approved plans, specifications, and applicable Authority and City Standards in a timely manner. Cooperative Agreement Draft October 23,2006 City of(City Name) 19 11410-0010\916953v5.doc I All work in City Rights-of-Way, or on a City Facility or private property within the City that will impact onpedestrian and vehicular access shall be in accordance with City Standards, City/Authority approved Traffic Management Plans and Documents, and the City adopted sections of the latest Work Area Traffic Control Handbook. The Cost of the City's inspection on the project shall be paid by the Authority through the Work Authorization process described in Article 4 of this Agreement. The Authority shall provide the City with the opportunity to observe the construction performance and perform quality checks of all component facilities and system elements. The Authority shall provide City all documentation describing the performance criteria for all testing within City Rights-of-Way, or affecting City Facilities. The City will provide Construction support and services to the Project for that portion of the Project within the City Rights-of-Way or City Facility, and for the following: • Change Order Review and Approval for work within City Rights-of-Way and for City Facilities. • Review and Approval of required material and shop drawing submittals for work within City Rights-of-Way and for City Facilities. Responses to relquests for Project related information by the Authority. • Issuance of construction related permits. • Review and Approval of construction staging, traffic and detour management, temporary lane closures, work site traffic control, and various plans for traffic related items listed herein. • Review and Approval of haul routes. • Provide various other available support and services, as necessary and agreed to by the,City. i • Review of all fir /life safety plans and field inspection of systems installed, as well as syste acceptance sign-off. Notwithstanding the fo iegoing, the City may provide additional services such as community outreach and information dissemination. I 2.6 City Performance of Rearrangements If the Parties mutually agree that the City shall perform Construction of specific Rearrangements, the Authority shall issue an amended Work Authorization to City for Cooperative Agreement - Draft October 23,2006 City of[City Name] 20 11410-0010\916953v5.doc such Construction and the following provisions shall govern the Construction of such Rearrangements by the City. The City shall commence and thereafter diligently prosecute the Construction of such Rearrangement work to completion as authorized by the Work Authorization and in conformance with the time schedule set forth in the Work Authorization and the Final Design plans and specifications prepared pursuant to Section 2.4 of this Agreement. Such Construction shall coincide, and be coordinated, with the Authority's Construction schedule for the Project, including the schedule for Construction of all utility, cable, pipeline and other facilities in the same segment or portion of the Project. City shall coordinate its work with other property owners and contractors performing work that may connect, complement or interfere with City's work hereunder or with City Facilities. The City shall notify the Authority at least five (5) Working Days prior to commencing each Rearrangement so that the Authority may make arrangements for such inspection and record keeping as it may desire. The cost of such work required for the Project shall be reimbursed to the City by the Authority through the Work Authorization process. 2.7 "As-Built" Drawings of Rearranqements The Design/Build Contractor shall deliver 'As-Built' Drawings to the Authority after substantial completion, but not more than 120 Days following substantial completion, of the respective discipline of work. The Authority shall transmit the 'As-Built' Drawings of all Rearrangements within the City's jurisdiction to the City for final Review and comment. After incorporation of any City comments by the Design/Build Contractor, the Authority shall furnish the City 'As-Built' drawings on 11" x 17" (half scale) format, together with electronic files, showing all Rearrangements installed by the performing Party within the City's jurisdiction. The City shall have a period of forty-five (45) Days from the date of receipt of the documents from the Authority's Representative to complete the Review and to make comments. Where Rearrangements are performed by the City, the reciprocal arrangement shall exist. If the drawings submitted by either Party are incomplete or nonconforming to agreed-upon standards, the drawings will be returned to that Party for correction at that Party's expense. Additionally, within ten (10) Working Days after completion of a temporary traffic signal or temporary Street Lighting System, or temporary modifications to a Street Lighting System, the Party that performed the work shall furnish to the City "red-line As-Builts" — hand drawings showing the approximate locations of the material component elements — of those temporary facilities. 2.8 Underground Service Alert Prior to commencement of any underground work by either Party, an Underground Service Alert shall be a standard procedure, in accordance with state law by the Party contemplating the work, or their contractor. Cooperative Agreement Draft October 23,2006 City of{City Name} - 21 11410-0010\916953v5.doc i ARTICLE 3 - AUTHORIZATIONS AND PROPERTY RIGHTS 3.0 Permits All work on the Project that affects City Rights-of-Way, City Facilities or private property, over which the City has jurisdiction, is subject to the City's licensing and permitting process. As such, the issuance of City permits is required for both, permanent and temporary construction work including the installation of traffic control or temporary street closures. The City shall waive the payment of permit fees for all work under City jurisdiction associated with the Project. The City will be reimbursed by the Authority by the issuance of an annual Work Authorization to cover the permit processing Cost to the City. I The City shall work with the Authority and its Design/Build Contractor to cooperate and expedite permit processing as is reasonable. Based upon the permit request and submission to the City of a complete and previously City-approved set of required documents and in accordance with the Permitting Process, the City will provide a permit for the work within five (5) Working Days in accordance and as allowed within the City's Standards. Any request not allowed within City Standards may require City Council approval. 3.1 Work in City Streets The Authority recognizes that the City has the duties of supervising, maintaining, and controlling City Rights-of-Way, including access to business and residential areas. Accordingly, the City shall be provided advance written notice by the Authority where and when the Project requires work within City Rights-of-Way or affects City Rights-of- Way or City Facilities. The City shall be provided reasonable time to Review and Approve such notices ands upporting documents before the work proceeds and to issue appropriate permits in accordance with the Permitting Process referenced herein. The Authority shall secure City Approval of notifications and supporting documents such as plans for the work. 3.1.1 Construction Staging and Traffic Management Plans The City shall be provided detailed construction staging plans, which provide among other things, for the handling of vehicular and pedestrian traffic on streets adjacent to the Projectland shall show construction phases, temporary street closures, detours, haul routes and staging areas, signing and warning devices. The Design/Build Contractor shall begin the work only after City Approvals have been received and appropriate City permits issued, and shall take all appropriate actions in accordance with City Approvals and permits to ensure safe operations of the work and the continuance of service of City Rights-of-Way and City Facilities. If the Design/Build Contractor fails to perform the work in the manner as called for by the approved contract plans prepared hereunder, and City permits and authorizations issued by the City in connection with such work, the Cooperative Agreement Draft October 23,2006 City of(City Name} 22 I 11410-0010\916953v5.doc City will inform the Authority and the Authority shall have its Design/Build Contractor promptly correct the problem and effect a solution with City concurrence. 3.1.2 Construction Staging Assistance to Local Businesses and Residents by Authority The Authority shall assist the business community and residents in the area of the Project by providing informational and directional signage, loading and unloading access, and other assistance as required to minimize the impacts of construction on the business and residential community. A community relations program shall be developed by the Authority and approved by the City prior to implementation. The City reserves the right to order changes to the Construction staging and Traffic Management Plans at no cost to the City based on field reviews of the site conditions. 3.2 Private Encroachments Upon a determination by the City and the Authority that a private encroachment in, on, over or under any City Facility, must be removed or relocated to accommodate the Project, the City shall act to eliminate, move, remove or otherwise terminate such encroachment at the Authority's reasonable expense unless the encroachment is a City authorized encroachment which the City has no right or ability to eliminate, move, remove or otherwise terminate. If City is unable to eliminate, move, remove or otherwise terminate such encroachments acceptable to the City, the Authority shall make its own arrangements to eliminate, move, remove or otherwise terminate such encroachments, whether through its exercise of its powers of eminent domain, through negotiation with the owner, or otherwise. City shall reasonably cooperate with the Authority to minimize the cost to eliminate, move, remove or otherwise terminate encroachments where determined necessary and, where City agrees to allow an existing encroachment that would not otherwise comply with City Standards, the encroachment shall be allowed to remain as approved by the City. 3.3 Temporary Street Closures The construction of the Project will require temporary closures of City Rights-of-Way. All temporary street closures require the Review and Approval by the City prior to being implemented. Requests for temporary street closures shall be made by the Authority Representative to the City for Review and Approval. Requests shall be in writing with properly prepared plans such as Traffic Management or Construction Staging Plans. The City will expedite processing of these requests and the Authority will cooperate to minimize requests for temporary closure of City Rights-of-Way. Notwithstanding the foregoing, this Article does not preclude the City from requesting that certain streets not be closed to Cooperative Agreement Draft October 23,2006 - City of(City Name) 23 11410-0010\916953v5.doo i accommodate "Special Events" utilizing those streets and the Authority cooperating with such requests. 3.4 Traffic Management and Construction Staging Plans The Authority through its rep r sentatives and contractors shall develop traffic management and construction staging plans in accordance with the requirements of this Agreement. 3.4.1 The Traffic Management Plan will include all relevant traffic information, including: a. The minimum number of lanes and minimum lane width, the time and duration of the i li terruption during peak traffic hours and non-peak traffic hours for each involved street. i b. Streets which may be closed during construction and the duration of the closure. C. Parking restrictions which will be imposed during the construction period including specific time, days, and duration. d. Restrictions on I ork, excavation, or closure due to special events or other seasonally related concerns. 3.4.2 Facilities Inform tion (other than street): a. Facilities in which service must be maintained b. Facilities in which service may be abandoned only during construction but must be restored when construction is complete. C. Proposed phasi g or sequencing of construction of Facility Rearrangements. d. The Authority shall notify the City of those facilities that may be impacted. 3.5 Federal. State and Other Agency Permit and License Requirements Nothing in this Agreement shall be deemed to abridge any applicable federal or state law regarding permits, orders! licenses and like authorizations that may be required or available in connection with the Project. As required by the State;the City shall Review plans for and shall perform inspections as needed throughout the term of the Construction. To the extent the California Public Utilities Commission ("CPUC') has jurisdiction over establishment of street and pedestrian crossings with rail tracks and their subsequent maintenancc or alteration and formal application for establishment or alteration of the crossings is required by the CPUC, the Authority shall prepare and Cooperative Agreement Draft October 23,2006 City of{City Name] 24 11410-001 0\916953v5.doc submit to the CPUC formal applications and various documents as required. The City will support the Authority in this process by reasonably cooperating and timely processing the various plans and documents subject to the City's Review and Approval. Notwithstanding the foregoing, the City is not required to support CPUC applications for permanent street closures. The Authority shall submit CPUC applications to the City for Review prior to submittal to the CPUC and include the City on the Service List of the application to the CPUC. 3.6 Grant of Rights If, prior to the Authority's scheduled date of the commencement of construction in a section or portion of the Project, any Rearrangement necessary to eliminate a conflict has not been completed, the City will grant the Authority sufficient property rights or licenses it ,possesses, if necessary and to the extent permissible in accordance with law, to allow the Authority to proceed with the construction of that section or portion of the Project in accordance with the Authority's schedule; provided, however, that such grant does not unreasonably and adversely interfere with the provisions of City's services to the public. Notwithstanding the foregoing, the City shall be entitled to 15 days notice and opportunity to resolve any impediments to the Rearrangement prior to City assigning its property rights or licenses to the Authority. If a Rearrangement to replace a Conflicting Facility is located within Authority property, the Authority shall provide the City with an appropriate permanent easement or (if agreed to by the City) license if such is necessary to access, maintain, repair and/or operate the Rearrangement. The Authority will dedicate or otherwise transfer jurisdiction to the City all necessary street, sewer, storm drain, water, light and power and all other public utility easements to the City. The Authority may request the City's assistance to secure any grant of rights or licenses it does not posses during the construction of the Project. If the City accepts the request, the Authority shall issue a Work Authorization to the City for all City costs in securing and perfecting the grant and in transferring it to the Authority. 3.7 City Property Required for Project Riqhts-Of-Way The Authority will require additional property in order to construct the Project. The Authority will evaluate the Project's property needs, and notify the City which parcels and interests in property (if any) owned by the City are required for the Project. The City agrees to convey to the Authority the required property interests and/or rights in City owned property, at the request of the Authority. The property interests may be in the form of a "license" for a specified use, permanent or temporary easement, or a release of interests and rights,,as determined by the Authority. In the event that the Project requires a permanent interest, such as fee title or an easement in perpetuity, the Parties shall consider a property exchange, to the extent the Authority owns property in the City that is not needed for the Project. The property conveyance will be at no cost to the Authority or in the event of an exchange no cost to either Party. Neither Party will Cooperative Agreement Draft October 23,2006 City of{City Name} 25 11410-001 0\.916953v5.doe i be required to go through the appraisal, negotiations, offer, or an agreement process, all to the extent permitted by laws The Authority will reimburse the City its processing costs associated with the conveyance by the issuance of a Work Authorization. The Authority will prepare all required documents for conveyance. The City agrees to process the Authority provided documents, once Reviewed and approved by the City, for conveyance before the start of actual construction of that portion of the Project. All conveyances of City property require compliance with City Standards and approval by the City Council. 3.8 Replacement Rights-of-Wav i Replacement rights-of-way for the Rearrangement of Conflicting Facilities shall be determined during Design and, if needed, may be acquired by Authority following Approval by the Parties of the location and type of such replacement rights-of-way. It is mutually understood and agreed, however, that when reasonably possible, Rearrangements shall be located in existing City Rights-of-Way where the Facilities being replaced were in City Rights—of-Way. The required Rights-of-Way shall be acquired so as not to unreasonably impair the Authority's schedule. The City may assist the Authority in the acquisition of any necessary private property. Authority shall be responsible for all costs associated with the acquisition of any necessary private property. The Parties shall mutually agree to eventual conveyance, if permitted by applicable law and agreement, of City real property interests being taken out of service, or for which replacement property interests are provided. The Authority agrees to recognize the City's legitimate interests in maintaining control over property and Facilities providing City services that were impaired or altered due to Project construction and that City access to Facilities for access and maintenance shall not be unreasonably impaired by any Authority action. 3.9 City License/Easeme t Within Proiect Right-of-Wav If a Rearrangement is made to that the Rearrangement will be located within the Project Right—of-Way, the Authority shall provide the City with a replacement license/easement, as determined by the City, to accommodate the Replacement Facility, in a manner and format satisfactory to the City. It is hereby understood that by the City accepting such a replacement license/easement and by the Authority releasing its existing rights, the City shall acquire reasonable rights to install, operate, maintain, and remove Facilities within the replacement license/easement. 3.10 Night Work City recognizes that, in order for the Authority to meet the Construction schedule for the Project, the Authority and its contractors may need to perform a significant amount of work after business hours, ori weekends, and/or by multiple shifts'spanning up to 24 hours per day and up to seven days per week. The Authority shall secure from the City authorization for night and weekend work in accordance with the City Standards, but will Cooperative Agreement Draft October 23,2006 City of(City Name) 26 11410-0010\916953v5.doc cooperate with City to minimize such work where reasonably requested and to provide reasonable mitigation for the impact of such work. In instances where exceptions to City Standards are needed, the Authority shall advise the City a minimum of twenty (20) Working Days in advance of the need. Cooperative Agreement Draft October 23,2006 City of{City Name) 27 11410-0010\916953v5.doc ARTICLE 4 - WORK AUTHORIZATION AND BILLINGS I 4.0 Work Authorizations The Authority will provide funding to reimburse the City for specific work and/or services in connection with the Projectlthrough one or more Work Authorizations. The Parties agree that the City has no obligation to perform any of the activities described in this Agreement prior to the,issuance of a properly conforming and fully executed Work Authorization. The Authority may not refuse to issue a Work Authorization to the City for purposes of preventing the City from receiving copies of documents and providing comments to documents as described in this Agreement. 4.1 Work Performed by t e City Work to be performed by the City under this Agreement shall coincide, as closely as possible, with the Authority's Project schedule as indicated in Exhibit B to this Agreement and the terms established herein. The City agrees to commit sufficient resources necessary to provide the level of service required to meet those schedules. I To assist the City in estimating the level of service to be provided for the Project, the Authority shall submit to the City annually beginning within thirty (30) Days of the Effective Date, and on March l31 in succeeding years, a work plan setting forth each item of work and the documentation associated therewith including corresponding start and finish dates for all milestone activities that the Authority anticipates it will request the City to perform. In return, the City will provide, no later than forty-five (45) Days after receipt of the work plan, a Cost and price analysis of its estimated costs to perform the work. As required, the Authority and the City Will negotiate the final pricing of the work to be performed by the City. All work performed by the City under the terms of this Agreement shall be initiated by an annual Work Authorization, as provided herein. 4.2 Issuance of Work Authorizations and Cost Management The Authority shall issue annl al Work Authorizations to the City on the form provided in Exhibit C. Each Work Autho rlization to the City will authorize the direct and indirect costs involved in the performance of one or more tasks and/or the purchase of materials and equipment required under the terms and conditions of this Agreement. I Direct Costs are defined as labor costs and costs of purchasing equipment and/or materials. Indirect Costs are defined as the allowable overhead rate as determined by the City's existing overhead policy, which shall be subject to external audit. No profit or administrative fees on Direct for Indirect Costs shall be allowed on work performed by City employees. City consultants and contractors may perform any work so authorized. Consultants and contractors engaged by the City to perform work covered by this Agreement shall comply with all applicable labor and other laws, grants, and Cooperative Agreement Draft October 23,2006 City of{City Name} 28 11410-001 0\916953v5.doc - agreements. The City shall cooperate with the Authority and take such action as the Authority may reasonably request to ensure such compliance. Each Work Authorization issued under the terms of this Agreement shall specify the work to be performed and any materials and equipment to be acquired, the estimated cost for the work authorized, and the estimated starting and finishing dates for the work so authorized. The City agrees to manage the agreed-upon scope of work within the agreed not-to- exceed amount and shall adjust and/or control its labor and materials expenditures accordingly. 4.3 Work Authorization Changes Any proposed changes in a Work Authorization issued under this Agreement shall be submitted in writing to the Authority for its prior Approval; provided, however, that any proposed change occasioned by an emergency may be submitted to the Authority orally or by telephone and later confirmed in writing within fifteen (15) Working Days by the City. In such event, the Authority agrees to act on such oral request immediately. Whenever practicable, the City will notify the Authority formally in writing at least ten (10) Working Days prior to the scheduled submission date when it has reason to believe the estimated completion date of a task, a report, or a deliverable will be later than the date set forth in the Work Authorization. The City agrees promptly to notify the Authority and request written revisions of Work Authorization estimated costs and completion dates in the event of unanticipated cost overruns or completion delays. 4.4 Termination of Work Authorizations The Authority or the City may terminate any Work Authorization at any time upon written notification. Upon termination by the Authority, the Authority shall reimburse the City for any outstanding incurred costs in accordance with this Agreement. 4.5 Procedures for Payments to the City by the Authority Subject to Section 4.8, upon execution of Work Authorizations per Section 4.2 and commencement of work by the City, the Authority shall pay invoices (or uncontested portions thereof) within 60 days after receipt of a proper invoice per Section 4.6. 4.6 Preparation of Billings The City, its contractors and subcontractors agree to comply with Federal and State procedures in accordance with the following: (a) Office of Management and Budget Circular A-87, Cost Principles for State and Local Governments; (b) 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments; and (c) Title 21, California Code of Regulations, Section 2500 et seq, when applicable, and other matters connected with the performance of City's Cooperative Agreement Draft October 23,2006 City of{City Name) 29 11410-0010\916953v5.doe contracts with third Parties pursuant to Government Code Section 8546.7. Any costs for which City has received payment that are determined by subsequent audit to be unallowable under the Office of Management and Budget Circular'A-87 or 49 CFR, Part 18 are subject to repayment b, the City to the Authority. The Parties agree that the folllwing procedures will be observed for submission of monthly billings by the City to Authority on a progress basis for work performed by the City under a specific Work Authorization requiring monthly billings. City's billings shall begin as soon as practicable following the commencement of a specific Rearrangement or other work under a given Work Authorization. Billings shall specify Costs incurred for that billing, shall bear Authority's Work Authorization number, shall be submitted every month (within sixty (60) days of when expenses incurred), and shall be supported by copies of invoices, timesheets and other cost data that details hourly rates via payroll register and details overhead rates and shall be maintained for audit on file in City's accounting center and shall be addressed to Authority Representative. Each billing shall be noted as either progress or final. The final billing, with a notation that all work covered by a given Work Authorization has been performed, shall be submitted to Authority as soon as practicable following the completion of the Rearrangement or other work, including resolution of all construction contractor claims, and shall recapitulate prior progress billings and shall show inclusive dates upon which work billed therein was performed. 4.7 Audit and Inspection All accounting records;and other supporting papers of City, its contractors and subcontractors connected with the performance under this Agreement shall be maintained for a minimum of four years from the date of Project completion and shall be held open for inspection and audit by representatives of the Authority, the Federal Transportation Administration, the California State Auditor, representatives of the State and auditors of the Federal Government. The City shall have the right to inspect and audit the Authority records at any time for a like period to that permitted for the Authority to Audit the City records. 4.8 City Contribution to Proiect Project,City will contribute the sum of $1 ,000,000 to the )ect within sixty (60) Days after the ROD Date. The City Contribution may be in the form of a check, or as a credit for up to $1,000,000 of Reimbursable Work to the Project at no cost to Authority, or some combination of the two (City's Contribution). Reimbursable Work performed by the City from the period of December l31, 2004 until the ROD Date is eligible as a portion of the City's Contribution. For purposes of this Section 4.8, "Reimbursable Work" is limited to the work listed in Exhibit G. Notwithstanding the foregoing, any work performed by the City prior to the ROD Date must comply with Sections 416 and 4.7 of this Agreement to be considered eligible as a portion of the City's Contribution. Billings for Reimbursable Work performed prior to the I Cooperative Agreement Draft October 23,2006 City of{City Name] 30 11410-001 0\91 6953v5.doc ROD Date shall specify costs incurred (including specific activities), shall be submitted within sixty (60) Days of the ROD Date, and shall be supported by copies of invoices, timesheets and other cost data that details hourly rates via payroll register and details overhead rates and shall be maintained for audit on file in the City's accounting center and shall be addressed to the Authority Representative. Should the billings for Reimbursable Work performed by the City from the period of December 31, 2004 through the ROD Date of this Agreement not equal or exceed the sum of $1 ,000,000, City shall deliver to Authority a check for the difference, such that the total City Contribution is $1,000,000. Cooperative Agreement Draft October 23,2006 City of(City Name) 31 11410-001 0\9 1 6953v5.doc i I i 'ARTICLE 5 - DISPUTES RESOLUTION 5.0 Disputes In the event of any dispute, controversy or claim arising between the City and the Authority in connection,with or, relating to this Agreement, or any Construction involving or otherwise relating to the Project ("Dispute"), the Parties shall make good faith efforts to resolve the Dispute through) negotiation, a hearing of the dispute by a three-member panel selected from membets of the Technical Advisory Committee (TAC) and, if the Parties so elect, non-binding mediation. Any Dispute that cannot be settled through direct negotiation, may be resolved by arbitration as set forth in Section 5.4. i 5.1 Dispute Notice. I In the event of any Dispute, the complaining Party shall provide a notice of the Dispute ("Dispute Notice") to the other,Party. The Dispute Notice shall describe the facts surrounding the Dispute in sufficient detail to apprise the other Party of the nature of the complaint. The complaining Party may, but will not be required to, aggregate the Dispute with other Disputes into one Dispute Notice. Except with respect to Design and Construction defects that manifest themselves following the conclusion of the Project, the Dispute Notice must be delivered to the other Party no later than sixty (60) Days after Revenue Operations Date. For Design and Construction defects that manifest themselves following the conclusion of the Project, the Dispute Notice must be delivered to the other Party no later than sixty (60) Days after expiration of the warranty period specified in Section 7.5. 5.2 Provisional Remedies I Notwithstanding the requirements of Sections 5.0 and 5.1 hereof, a Party may seek from the Los Angeles County(Superior Court any interim or provisional relief that may be necessary to protect the rights or property of that Party ('Provisional Relief') without first serving a Default Notice or first attempting to settle the Dispute. Notwithstanding the foregoing, no provisional remedy of any type or nature shall be available to stop or otherwise interfere with any Construction relating to the Project, or any portion thereof, . unless requested by Authority, or required to prevent imminent danger to public health or safety. Following the appointment of an Arbitrator pursuant to Section 5.4 hereof, any Provisional Relief which would be available from a court of law shall be available from the Arbitrator, subject to the limitations set forth in Section 5.6 hereof. 5.3 Negotiation and TAC Hearin-g; Reference Proceeding ' The Parties shall attempt to sl tle all Disputes. To this effect, the Parties shall conduct at least one face-to-face meeting in which they shall consult and negotiate with each other, and, recognizing their mutual interests, attempt to reach a solution satisfactory to both Parties. Such meeting shall take place within seven (7) Working Days following delivery of a Dispute Notice. In the event face-to-face negotiations do not reach a solution satisfactoryto both Parties, a three-member panel selected from members of Cooperative Agreement Draft October 23,2006 City of(City Name) 32 11410-0010\916953v5.doc the TAC shall convene a nonpublic, informal hearing (TAC Hearing) of the dispute and issue a non-binding proposed solution. No such proposed solution shall be admissible as evidence in any future arbitration or litigation concerning the same Dispute. The three-member panel will be selected as follows: The City and Authority will each select one member from the TAC and those two members will select the third member who will chair the panel. No members of the panel shall be a TAC representative from a city involved in the Dispute. Except with respect to the provisional relief available from the Arbitrator subject to the limitations set forth in Section 5.6 hereof (as defined below), compliance with the Dispute Notice, TAC Hearing, and negotiation provisions hereof shall be a condition precedent to the filing of any action involving a Dispute. 5.4 Arbitration 5.4.1 Qualification and List of Potential Arbitrators Any Dispute that cannot be settled through direct negotiation and the TAC hearing (including, if the Parties so elect, non-binding mediation)shall be resolved before a neutral arbitrator (the "Arbitrator") selected from the list of retired judges of the Los Angeles County Superior Court or any California appellate court attached as Exhibit E to this Agreement in accordance with this Section 5.4.1. The list of retired judges as set forth on Exhibit E, as may be amended from time to time in accordance with this Section 5.4.1, is hereinafter referred to as the "List of Potential Arbitrators." The List of Potential Arbitrators shall comprise five (5) retired judges selected by the Authority and five (5) retired judges selected by the City. If, at any time, any retired judge listed on Exhibit E dies, retires from acting as an arbitrator in disputes, or is otherwise unwilling to serve as an Arbitrator to decide Disputes under this Agreement, the Party who selected the retired judge may select another retired judge of the Los Angeles County Superior Court or any California appellate court for inclusion on Exhibit E by written notice to the other Party. The Arbitrator selected from the List of Potential Arbitrators to decide any Dispute shall have no material, financial, or personal interest in the results of the arbitration and shall make the disclosures required by Section 1281 .9 of the California Code of Civil Procedure. The Arbitrator shall sign an oath of impartiality upon appointment to hear the Dispute. In addition to the grounds set forth in California Code of Civil Procedure Section 1286.2, failure to disclose any such interest or relation shall be grounds for vacating the award of the Arbitrator in the Dispute. 5.4.2 Selection of Arbitrator The Arbitrator for each Dispute shall be chosen from the List of Potential Arbitrators as follows: Upon the written request of either the City or the Authority for arbitration of any Dispute, the Authority and the City shall, within ten (10) Working Days thereafter, or within such extended period as they shall agree to in Cooperative Agreement Draft October 23,2006 City of{City Name) 33 11410-0010\916953v5.doc writing, attempt to agree upon a mutually satisfactory Arbitrator from the List of Potential Arbitrators. If they are unable to agree, the Authority and the City, prior to the expiration of the ten (10) Working Days or agreed extended period, shall prepare and forward to he other a list of three (3) names from the List of Potential Arbitrators to act as Arbitrator of the Dispute. The Authority and the City shall promptly review the other's list and shall strike up to two names from the list provided by the other part. If the Parties cannot agree to using one of the two names remaining on the respective lists, the two named individuals shall select a neutral Arbitrator, otherl than themselves, from the List of Potential Arbitrators, who shall be the Arbitrator of the Dispute. If the Authority or the City fail to designate its Arbitrator of the Dispute from the List of Potential Arbitrators within ten (10) Working Days after the date of delivery of the demand for arbitration or the agreed extended period, or if the two designated Arbitrators are unable to select a neutral Arbitrator from the List of Potential Arbitrators within five (5) Working Days after their appointment, a neutral Arbitrator shall be designated by the Los Angeles County Superior Court from the List of Potential Arbitrators pursuant to Section 1281.6 of the California Code of Civil Procedure, as modified herein, and the court appointed Arbitrator shall hear the Dispute as the sole Arbitrator. A hearing date on the Dispute shall be set within thirty (30) Days of the selection of the Arbitrati r. The Authority and the City agree that all disputes to be resolved by arbitration under this Agreement arising from the same or related set of circumstances or facts shall be heard by ithe same Arbitrator, if available. If such Arbitrator is unavailable, the Parties shall select another Arbitrator in accordance with the provisions of this Sectiol n 5.4.2. 5.4.3 Hearing; Award No Arbitrator shall be selected who is unable to (a) hear the Dispute within thirty (30) Days after being selected, and (b) render or make and serve on the Parties an award or decision (the "Award") within ten (10) Working Days of the conclusion of the hearing. Notwithstanding Sections 1282.2(b) and 1286.2(e) of the California Code of Civil Procedure (regarding postponement of the hearing), the Arbitrator may not postpone nor adjourn the hearing except for good cause or upon the stipulation of all Parties to the arbitration. The Arbitrator may proceed in absence of a Party who, after due notice, fails to appear. The arbitration shall bei held in Los Angeles County, California. Section 1283.05 of the California Code of Civil Procedure is specifically made applicable; provided however, that the time for responding to any discovery permitted by the California Code of Civil Procedure, including but not limited to, inspection demands and written discovery, shall be fifteen (15) Working Days of any notice or demand, or as otherwise directed I;y the Arbitrator, or as may be extended by mutual agreement by the Parties. i Cooperative Agreement Draft October 23,2006 City of{City Name) 34 11410-0010\916953v5.doc Any Award rendered by the Arbitrator shall be in writing stating a factually detailed, reasoned opinion of the Arbitrator's findings of fact and conclusions of law, and shall be signed by the Arbitrator. The Arbitrator, in deciding any Dispute, shall base his or her Award on the record, shall have no power or authority to award special, consequential, punitive, or exemplary damages, and shall look to the substantive laws, and not the laws of conflicts, of the State of California for the resolution of the Dispute. In deciding a Dispute, the Arbitrator shall follow the express intent of the Parties as set forth in this Agreement. The making of an Award failing to comply with the requirements of this paragraph shall be deemed to be in excess of the Arbitrators' powers and a court shall vacate the Award, if after review, it determines that the Award cannot be corrected without affecting the merits of the decision upon the controversy submitted. In addition, the Award of the Arbitrator shall be subject to vacation for any of the other reasons described in California Code of Civil Procedure Section 1286.2. A petition to confirm, correct, or vacate the Award shall be filed with the Los Angeles County Superior Court pursuant to California Code of Civil Procedure Section 1285 (or successor thereto). In the event the arbitration procedure provided by in this Article is deemed for any reason to infringe upon the jurisdiction of the Los Angeles County Superior Court, the arbitration procedure will be deemed to be a reference agreement and any arbitration Award deemed to be a decision of a referee pursuant to Chapter 6 of the California Code of Civil Procedure subject to the procedures specified in this Article. Notwithstanding the foregoing, any Award rendered by the Arbitrator shall be final and binding on each of the Parties hereto and their respective successors only as follows: a. If the amount that is the subject of the Dispute (the "Disputed Amount") is less than or equal to $500,000, then the Arbitrator's Award shall be final and binding. b. If the Disputed Amount is greater than $500,000, then within six-months following issuance of Award by Arbitrator, either Party may submit the Dispute to judicial resolution by filing a complaint in a court of competent jurisdiction. If the Disputed Amount is greater than $500,000 and the Dispute has not been submitted to judicial resolution by the filing of a complaint in a court of competent jurisdiction within the required six-month period, then the Arbitrator's Award shall be final and binding. 5.4.4 Prevailing Party In the final Award, in addition to any other damages assessed, the prevailing Party shall be entitled to its reasonable attorneys' fees, expert witness fees, and all other costs and expenses incurred in connection with resolving such Dispute, including the prevailing Parry's share of the administrative fee and the arbitrator's Cooperative Agreement - Draft October 23,2006 . City of{City Name} 35 11410-001 0\916953v5.doc y fees and expenses, if any. The attorneys' fees which the prevailing Party is entitled to recover shall be awarded for any supplemental proceedings until the final Award is satisfied. In addition to the forgoing award of attorneys' fees to the prevailing Party,•theprevailing Party shall be entitled to its reasonable attorneys' fees incurred in any po i t arbitrator proceeding to collect or enforce the judgment. i 5.4.5 Injunctive and Other Interim Relief Each of the Parties also reserves the right to file with the Los Angeles County Superior Court an application for temporary or preliminary injunctive relief, attachment, writ of possession, temporary protective order, and/or appointment of a receiver on the grounds that the arbitration award to which the applicant may be entitled may be rendered ineffectual in the absence of such relief. 5.4.6 Confidential Proceedings The arbitration proceedings shall be confidential, except to the extent otherwise provided by applicable(Laws. Neither Party shall disclose any information about the evidence adduced by the other in the arbitration proceeding or about documents produced by the other in connection with the proceeding, except in the course of a judicial,1 regulatory or arbitration proceeding, as may be requested by any Governmental Authority or to the extent required by,applicable Laws. Before making any disclosure permitted by the preceding sentence, the Party shall give the other Party reasonable written notice of the intended disclosure so as to afford the other Party an opportunity to protect its interests and challenge any intended disclosure. The Arbitrator, expert witnesses and stenographic reporters shall sign appropriate nondisclosure agreements: 5.5 Governing Law; Waiver of Jury The Arbitrator shall hear and I ecide the Dispute according to all of the substantive, procedural and evidentiary laws of the State of California, unless the Parties stipulate to the contrary. The Parties may, on a case-by-case basis agree to waive their right to a trial by jury. 5.6 Scope of Authority t Except as set forth in the next sentence, the Arbitrator shall have the authority to award any remedy or relief that a court of this State could order or grant: The Arbitrator shall have no power or authority to award: (a) any injunctive or other relief which would stop or otherwise interfere with aniy Construction relating to the Project, or any portion thereof, unless such relief is requested by the Authority, or required by reason of imminent danger to public health or safety, or (b) special, consequential, punitive, or exemplary damages. The Arbitrator shall be empowered to impose sanctions and to take such other actions with regard to the Parties as the Arbitrator deems necessary to the same extent such actions could be taken by a judge of this State pursuant to the California Rules of Civil Procedure or other applicable law. Cooperative Agreement Draft October 23,2006 City of{City Name) 36 11410-0010\916953v5.doc 5.7 Continuing Performance No Construction or other work or activity relating to the Project shall be stopped, or interfered with in any manner, by reason of a Dispute or otherwise, except at the direction of the Authority, or for reasons of imminent danger to public health or safety. Without limiting the generality of the foregoing, the Parties agree that they will continue their respective performance required hereunder notwithstanding any Dispute, and that such continued performance shall not be construed as a waiver of any rights or defenses. 5.8 Implementation Each Party promptly shall take any action required of it in order to implement an agreed upon Dispute resolution, or a final judgment entered pursuant to the provision of this Agreement. 5.9 Cooperation The Parties shall diligently cooperate with each other and the Arbitrator, and shall perform such acts as may be necessary, to ensure an efficient and expeditious resolution to each Dispute. If either Party fails to cooperate diligently, the other Parry shall give notice of that fact to the non-cooperating Parry, setting forth the Party's basis for its contention of non-cooperation and requesting specific action. Upon a determination that the noticed Party thereafter failed to act with substantial justification, the Arbitrator may sanction the noticed Party for its non-cooperation. Sanctions may include, but are not limited to, the payment of another Party's attomeys' fees and costs incurred to secure the required cooperation. Cooperative Agreement Draft October 23,2006 City of(City Name) 37 11410-00101916953v5.doc ARTICLE 6 - BETTERMENTS I 6.0 Payments for Betterments In accordance with the methodology described in Article 2, the City shall make every effort to define Betterments prior to the Design Freeze of the Project. Nevertheless, the City may make requests for Betterments at anytime, and the Authority shall provide the Betterments, as long as design and implementation of the Betterments would not delay the Project and subject to payment as set forth in this Section 6.0. The Authority shall be paid by the City for work performed under this.Agreement for any Betterments requested by the City. The amount of the payments for Betterments, if any, shall be estimated by the Authority based on City's request(s) for Betterments. After City has reviewed the estimated cost, the City's Representative shall inform the Authority's Representative of any Betterments the City wants included in the Project. Along with the request for any Betterments, the City shall commit to provide funds to implement the Betterments so that the design and construction of the Betterments can be estimated by the Design/Build Contractor and considered for inclusion in the Project. The Authority agrees to incorporate any Betterments requested and paid for by the City, subject to METRO approval. Authority consultants and contractors may perform any work so authorized. Consultants and contractors engaged by the Authority to perform Betterment work shall comply with all applicable labor and other laws, grants, and agreements. The City shall fully compensate the Authority for the direct costs and indirect costs of the Betterments, including Authority personnel, the Authority's consultants, and the .Design/Build Contractor. However, given the administrative effort required to track, compile, and audit the costs for Authority personnel and the Authority's consultants, the City and Authority have the option to agree, in advance, on a flat compensation of 10% of the cost of all Betterments,I in lieu of payment of the actual administrative costs incurred in completing the Betterment(s). Direct Costs are defined as those labor costs and costs of purchasing equipment and/or materials. Indirect Costs are defined as the allowable overhead rate as determined by external audit using applicable Federal Acquisition Regulations (FARs). The Authority shall earn no profit or mark-up fee based on the cost of the Betterments requested by the City. Consultant fees and profits shall be charged in accordance with Authority practice or existing contract limits. i, F Cooperative Agreement - Draft October 23,2006 City of{City Name) 38 11410-0010\916953v5.doc ARTICLE 7 - INDEMNIFICATION, MAINTENANCE AND WARRANTIES 7.0 Indemnification of the City The Authority agrees to indemnify, defend and hold harmless the City, its officials, officers, agents and employees from and against any and all liability, expenses (including engineering and defense costs and legal fees and expert witness fees), claims, losses, suits and actions of whatever kind, and for damages of any nature whatsoever, including but not limited to, bodily injury, death, personal injury, or property damage (including allegations thereof) arising from or connected with Design and Construction performed by, or under the management or control of the Authority. Any rights of the Authority hereunder to inspect, review and/or approve any Design or Construction performed by the City shall not be deemed to render such Design or Construction under the management or control of the Authority. 7.1 Indemnification of the Authoritv The City agrees to indemnify, defend and hold harmless the Authority, its members, agents, officials, officers and employees from and against any and all liability, expenses (including engineering and defense costs and legal fees and expert witness fees), claims, losses, suits and actions of whatever kind, for damages of any nature whatsoever, including but not limited to, bodily injury, death, personal injury or property damage (including allegations thereof) arising from or connected with Design and Construction performed by, or under the management or control of the City. Any rights of the City hereunder to inspect, Review and Approve any Design or Construction performed by the Authority shall not be deemed to render such Design or Construction under the management or control of the City. 7.2 Indemnification of Both City and Authoritv The obligations of the Parties under Sections 7.0, 7.1, 7.2 and 7.3 shall survive the termination or expiration of this Agreement. In contemplation of the provisions of Section 895.2 of the Government Code of the State of California imposing certain tort liability jointly upon public entities solely by reason of such entities being Parties to an agreement as defined by Government Code Section 895, the Parties hereto, as between themselves and pursuant to the authorization contained in Government Code Sections 895.4 and 895.6, will each indemnify and defend the other for the full liability imposed upon it, or any of its officers, officials, agents or employees, by law for injury caused by negligent or wrongful act or omission occurring in the performance of this Agreement to the same extent that such Party would be responsible under Sections 7.0, 7.1, 7.2 and 7.3 hereof. The provisions of Section 2778 of the California Civil Code are a part hereof as if fully set forth herein. 7.3 Insurance Program The Authority intends to provide an Owner Controlled Insurance Program (OCIP) for the Design and Construction of the Project (including areas adjacent to the location where Cooperative Agreement Draft October 23,2006 City of(City Name) 39 11410-00101916953v5.doc incidental operations are performed, excluding permanent locations of any insured Party other than owner) and will enroll the City in the Authority's OCIP and indemnify the City pursuant to the terms of the 01CIP per Article 10.0. to the limits provided herein: 7.3.1 Workers' Compensation and Employers' Liability, with an Employers Liability limit of $1,000,000. 7.3.2 Commercial General Liability, provides coverage for bodily injury, property damage, personal injury and products and completed operations, with a limit of $2 million per occurrence. j 7.3.3 Railroad Protective Liability, with limits of $2 million per occurrence and $6 million aggregate. 7.3.4 Excess Liability, provides $100 million coverage in excess of Sections 7.3.1, 7.3.2, and 7.3.3 for each occurrence and in the aggregate. j 7.3.5 Professional Liability, provides liability coverage for negligent acts, errors and omissions, and pollution protection for all design'team members, construction management consultants, environmental consultants, and all of their respective sub-consultants that are rendering Professional Services (where Professional Services is defined to mean those services that the consultant is legally qualified to perform for others for a fee including, but are not limited to, architecture, engineers,g, land surveying, landscape architecture, construction management, safety consulting, project management, program management, planning, environmental consulting, pollution services or as otherwise defined by . endorsement to the Authority's OCIP) with limits of $50 million per occurrence and in the aggregate. 7.3.6 Builder's Risk, $100,000,000 Builder's Risk Policy insuring property in the course of construction of the Project for direct physical loss, including flood & earthquake. Any non-Authority owned equipment used on the Project is not covered by the Authority's OCIP and must be covered by the equipment's owner. The insurance program, became effective on and will remain in force throughout construction and operational startup of the Project. Commercial General Liability, Railroad Protective Liability, Excess Liability and Professional Liability coverage will remain in force for period of ten (10) year beyond the Project Revenue Operations Date. 7.4 Maintenance The Authority's Design/Build Contractor shall be responsible for the maintenance of all portions of the Project during Construction. Upon completion of Construction, the City shall own and be responsible for the maintenance of all Project elements constructed in the City Rights-of-Way (City Facilities). Authority and its successors shall be responsible for the maintenance of all Project elements constructed in the Right-of-Way. Cooperative Agreement ail Draft October 23,2006 City of[City Name} 40 11410-0010\916953v5.doc - 7.5 Warranties Warranties supplied by Contractors shall be made for the benefit of both the City, for work in City Rights-of-Way and on City Facilities, and the Authority. Additionally and again in connection solely with work performed by the Authority, the City or either of their Contractors, the City and the Authority each warrant to the other for a period of one (1) year from and after acceptance of the work that any work performed by or for them shall be free from defect; this limited warranty is the sole warranty given by the City and the Authority, and, pursuant to this warranty, and for the warranty period only, the City or the Authority, as the case may be, shall remedy any such discovered defect at its sole expense. Such remedy will be commenced and completed, if reasonably feasible, within ten (10) Days after written notice to the warranting Parry. 7.6 Contractor Bonds The City and the Authority shall require their respective contractors to secure payment and performance bonds, or other equivalent sureties, naming both the City and the Authority as an additional obligee or co-beneficiary, as appropriate. Such bonds shall be issued by a California licensed surety, and shall comply with bond requirements specified in Exhibit F. Cooperative Agreement Draft October 23,2006 City of(City Name) 41 11410-001 0\916953v5.doc eFF. ARTICLE 8 - MISCELLANEOUS PROVISIONS 8.0 Approvals Except as otherwise provided herein, where this Agreement requires Approval, consent, permission, satisfaction, agreement or authorization by either Party, such Approval, consent, permission, satisfaction, agreement or authorization shall not be unreasonably withheld, and shall not be effective unless it is in a writing executed by the City Representative or the Authority Representative, as applicable. In the case of Approvals by thl City, absence of written comments and/or disapproval by the City Representative within the later to occur of (a) expiration of the review period stated in this Agreement or (b) five days after the effective date (in accordance with Section 8.4) of a notice from the Authority to the City marked "Second and Final Notice", shall be deemed as Approval by the City Representative. Approval by the City Representative shall not, unless specifically indicated, constitute a waiver of any City Standard, code, or other requirement in this Agreement 8.1 Counterparts This Agreement may be executed in several counterparts, and all counterparts so executed shall constitute one Agreement, binding on all of the Parties hereto, notwithstanding that all of the Parties are not signatory to the original or the same counterpart. 8.2 Survival of Rights Neither Party shall have the right to assign any of its rights, interests or obligations under this Agreement, without the consent of the other Party, except to the extent the Authority transfers the Project or any portion thereof to METRO. This Agreement shall be binding upon, and, as to permitted successors or permitted assigns, inure to the benefit of, the City and the Authority and their respective successors in all cases whether by merger, operations of law or otherwise. 8.3 Severability In the event any Section, or any sentence, clause or phrase within any Section, is declared by a court of competent jurisdiction to be void or unenforceable, such sentence, clause, phrase or Section shall be deemed severed from the remainder of this Agreement and the balance of this Agreement shall remain in full force and effect. 8.4 Notification or Notices Any notice or other communication required or permitted hereunder shall be in writing and shall be deemed to havef been given if personally delivered, transmitted by facsimile (with mechanical confirmatio I of transmission), sent by same-day or overnight courier that provides a receipt showing date and time of delivery or deposited in the United v Cooperative Agreement Draft October 23,2006 City of{City Name) 42 11410-001 0\916953v5.doc - States mail, registered or certified, postage prepaid, addressed to the Parties' addresses set forth below. Notices given in the manner provided for in this Article 8.4 shall be deemed effective on the third Day following deposit in the mail or on the day of transmission if given by facsimile, or on the day of delivery if delivered by hand or same- day or overnight courier. Notices must be addressed to the Parties hereto at the following addresses, unless the same shall have been changed by notice in accordance herewith: If to the City: City of {City Name} Attention: City Manager {Address} Tel.: Fax: With a Copy to: {City's Attomey} {Address} Tel.: Fax: If to the Authority: Metro Gold Line Foothill Extension Construction Authority 406 E. Huntington Drive, Suite 202 Monrovia, California 91016 Attn: Mr. Habib Balian, Chief Executive Officer Fax: (909) 471-9049 With a Copy to: Richards, Watson & Gershon 355 South Grand Avenue, 40th Floor Los Angeles, California 90071 Attn: Michael Estrada, General Counsel Fax: (213) 626-0078 8.5 Statutory References All statutory references in this Agreement shall be construed to refer to that statutory section mentioned, related successor sections, and corresponding provisions of subsequent law, including all amendments. Cooperative Agreement Draft October 23,2006 City of{City Name} 43 11410-001 0\91 6953v5.doc i 8.6 Construction j The language in all parts of this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the Parties. 8.7 Section Headings The captions of the Articles or Sections in this Agreement are for convenience only and in no way define, limit, extend or describe the scope or intent of any of the provisions hereof, shall not be deemed part of this Agreement and shall not be used in construing or interpreting this Agreement i 8.8 Governing Law This Agreement has been executed by the Authority and the City in the State of California and this Agreement)shall be governed by and construed according to the laws of the State of California, without giving effect to the principles of conflicts of law thereof. 8.9 Pronouns and Plural Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine and neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa. 8.10 Time of the Essence 'r Except as otherwise provided herein, time is of the essence in connection with each and every provision of this Agreement. 8.11 Legal Rights The rights and remedies of the Authority and the City for default in performance under this Agreement or any Work Authorization are in addition to any other rights or remedies provided by law. 8.12 Bonds/Fees Except as specifically agreed to in this Agreement, the City waives and relinquishes all of its rights, if any, to seek or obtain bonds, fees or other security or payments from the Authority or its contractors. 8.13 Further Actions i The City and the Authority hereby agree to execute, acknowledge and deliver such additional documents, and take such further actions, as may reasonably be required from time to time to carry out each of the provisions, and the intent, of this Agreement. Cooperative Agreement - Draft October 23,2006 City of[City Name) 44 1141 0-0010\916953v5.doc - -- 8.14 Force Maieure Neither Party shall be held liable for any loss or damage due to delay or failure in performance of any part of this Agreement from any cause beyond its control and without its fault or negligence; such causes may include acts of God, acts of civil or military authority, government regulations (except those promulgated by the Party seeking the benefit of this section), embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances or unusually severe weather conditions; provided, however, lack of funds or funding shall not be considered to be a cause beyond a Party's control and without its fault or negligence. The foregoing events do not constitute force majeure events where they are reasonably foreseeable consequences of Construction. 8.15 Third Party Beneficiaries There are no third Party beneficiaries of this Agreement. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with this Agreement. 8.16 Damaqe to Property The Authority shall be responsible for restoring to original condition, damage to public or private property occurring as a result of Construction activity on the Project, exclusive of any Construction undertaken by City. 8.17 Authority of Parties Each of the Parties hereby represents and warrants that it has full legal authority and is duly empowered to enter into this Agreement, and has taken all actions necessary to authorize the execution and delivery of this Agreement. Each Party further agrees and represents and warrants that the execution, delivery, and performance by it of this Agreement does not and will not: 8.17.1 require any consent or approval not heretofore obtained of any person or judicial or administrative body; 8.17.2 violate any order, writ, judgment, injunction, decree, determination or award having applicability to such Party; 8.17.3 result in a breach of or constitute a default under, cause or permit the acceleration of any obligation owed under, or require any consent under, any indenture or any agreement, contract, lease, or instrument to which such Party is bound or affected. Cooperative Agreement - Draft October 23,2006 City of{City Name] 45 11410-0010\916953v5.doc Further, the Parties represent hat, to their actual knowledge, there are no orders, judgments, injunctions, awards, decrees, rulings, charges or writs of any Governmental Authority in effect preventing the consummation of, nor any pleadings filed in connection with any actions seeking an injunction against, any of the transactions contemplated by this Agreement. 8.18 Funding Sources I The City shall at the request of the Authority, assist in identifying and securing funds for the Project. The City and Authlority shall work jointly to optimize funding alternatives for the Project. 8.19 Nondiscrimination Authority and City each covenant to the other that in the performance of their respective obligations under this Agreemlent there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or 6ncestry. 8.20 Nonliability of Authority and City Officials No officer, official, employee, 'agent, representative, or volunteer of the Authority or City shall be personally liable in the event of any default or breach by the defaulting Parry or for any amount which may become due to the non-defaulting Party or to its successor, or for breach of any obligation of the terms of this Agreement. I 8.21 Federal Requirements The City agrees to include thel clauses set forth in Exhibit F in all contracts promulgated through this Agreement for which the Authority is reimbursing all or part of the costs to the City from Federal funds. In the event of any change in applicable Federal law during the term of this Agreement, the City shall also include such additional or revised clauses as may be appropriate in light of such changes in applicable Federal law. 8.22 Exhibits Every exhibit to which reference is made in this Agreement is hereby incorporated in this Agreement by this reference. i 8.23 Entire Agreement This Agreement constitutes the entire agreement of the Parties and supersedes all prior written and oral agreements, understandings, and negotiations with respect to the subject matter hereof. Any and all prior agreements, understandings or representations relating to the transactions referred to herein are herby terminated and canceled in their entirety and are of no further'forceand effect. i Cooperative Agreement Draft October 23,2006 City of(City Name) 46 11410-0010\916953v5.doc I 8.24 Binding Obligation This Agreement is when executed and delivered, the legal, valid and binding obligation of the Parties hereto. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above. CITY OF {Name of City} By: Mayor Attest: City Clerk APPROVED AS TO FORM: By: City Attorney LOS ANGELES TO PASADENA METRO BLUE LINE CONSTRUCTION AUTHORITY By: Habib Balian Chief Executive Officer APPROVED AS TO FORM: By: General Counsel Cooperative Agreement Draft October 23,2006 City Of(City Name) 47 11410-0010\916953v5.doc i Exhibit A i DESCRIPTION OF THE PROJECT The Pasadena to Montclair Light Rail Project, referred to as the Foothill Extension, is an approximate 24-mile east-west light rail extension of the Pasadena Gold Line. The alignment generally follows the foothills of the San Gabriel Mountains from east Pasadena to Montclair. The Project begins just east of the existing Pasadena Gold Line Sierra Madre Villa station in Pasadena and runs along the former Burlington Northern Santa Fe (BNSF) railroad Pasadena Subdivision, generally paralleling Interstate 210 (1- 210). The Pasadena Subdivision joins the San Gabriel Subdivision in Pomona and the light rail tracks will parallel they existing Metrolink/BNSF tracks through to the terminus in Montclair. The Foothill Extension will connect the historic downtowns of Arca ldia, Monrovia, Duarte, Irwindale, Azusa, Glendora, San Dimas, La Verne, Pomona, Claremont, and Montclair (see Figure 1) J MeneM i g i4s �4 s v' tiir? t .N y4'Y v" c'ti s 24 - uvec.� ,rforvranni ' �S sy „1['foWY¢BM! 1 t TA.COem}.'- SLWII SFW{ . R�ix¢ ax:Lxee fni6 ilre Kne'fit4 Gceearbn'- i Figure 1 - Gold Line Foothill Extension Proposed Alignment In April 2002, the Study Steeling Committee, comprised of representatives from each corridor city, accepted'the Alternatives Analysis Final Report Draft and recommended Alternative 4: Light Rail Transit (LRT), as the Locally Preferred Alt emative (LPA). The corridor City Councils, the Governing Board of the San Gabriel Valley Council of Governments (COG), and the Authority's Board of Directors then adopted this alternative as the LPA. The LPA provides two dedicated light rail tracks and a third track dedicated to freight operatiorlis. Freight operations will run from the current San Gabriel Subdivision connection in Pomona and will terminate at the Miller,Brewing plant in Irwindale. The Foothill Extension is planned to begin operations in 2011 from Pasadena to Azusa (Segment 1) and in 2014 from Azusa to Montclair (Segment 2). The Project includes 12 stations and associated parking facilities; a light (service & inspection) maintenance facility,.widening of existing bridge structures to accommodate Cooperative Agreement Draft October 23,2006 City of(City Name} A-1 I 11410-0010\916953v5.doc up to three tracks, numerous at-grade crossings with gate protection, and an extension of the existing Pasadena Gold Line power, signaling and communications systems. Cooperative Agreement Draft October 23,2006 City of{City Name] A-2 11410-0010\916953v5.doo 1 Exhibit B I PROJECT SCHEDULE [ATTACHED] C i 1, i t i i 1 I� ' 1 Cooperative Agreement Draft October 23,2006 City of{City Name) B"1 11410-0010\915953v5.doc Exhibit C WORK AUTHORIZATION LOS ANGELES TO PASADENA METRO BLUE LINE CONSTRUCTION AUTHORITY Work Authorization # Effective Date: TASK or DESCRIPTION OF WORK AMOUNT SUBTASK DURATION OF WORK TOTAL AMOUNT FROM: TO: $ FOR: FOR AUTHORITY ACCEPTED: BY: NAME TITLE TITLE DATE DATE The attached Scope of work and detailed cost data are made a part of this document. Cooperative Agreement Draft October 23,2006 City of(City Name) C-1 11410-0010\916953v5.doc Exhibit D LEGAL HOLIDAYS i, New Year's Day Martin Luther King, Jr. Day President's Day Memorial Day i Independence Day Labor Day Veterans Day Thanksgiving Day Day after Thanksgiving Christmas Eve Day Christmas Day I i 4 i r Cooperative Agreemerrt IIS, Draft October 23,2006 City of{City Name} D-1 11410-0010\916953v5.doc Exhibit E LIST OF POTENTIAL ARBITRATORS A. Authority Selections 1. Eli Chernow 2. Philip Saeta 3. Steven J. Stone 4. Robert Feinerman 5. Harvey A. Schneider B. City Selections 1. 2. 3. 4. 5. Cooperative Agreement -- Draft October 23,2006 City of{City Name) E-1 11410-0010\916953v5.doc Exhibit F FEDERAL REQUIREMENTS The City agrees to include the following clauses in all contracts promulgated through this Agreement for which the Authority is reimbursing all or part of the costs to the City from Federal funds: a. Federal Changes: Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without _ limitation to thosb listed directly or by reference in this Agreement, as they may be amended or promulgated from time to time during the term of this Agreement. Contractor's failure to so comply shall constitute a material breach of this Agreement. b. Fly America: Col tractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act inlaccordance with the General Services Administration's regulations at 41 CFR Part 301-10, which provide that recipients and sub recipients of Federal funds and their Contractors are, required to use U.S. Flag air carriers for U.S Government-financed interntional air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air c�rrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation. C. Energy Conservation: Contractor agrees to comply with mandatory standards and policies relating to energy efficiency, which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. d. Clean Water: CI ntractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. Contractor agrees to report each violation to the Authority and understands and'agrees that the Authority will, in turn, report each violation as required to assure notification to Fi A and the appropriate EPA Regional Office. Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. Cooperative Agreement Draft October 23,2006 City of{City Name) F-1 11410-0010\916953v5.doc e. Lobbying: Pursuant to the Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.], Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal Contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal funds with respect to that Federal Contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the Authority. This requirement shall pass through to any and all Subcontractors engaged to perform services under this Agreement. f. Access to Records and Reports:Contractor agrees to provide the Authority, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this agreement for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Firm access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a) 1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. Contractor agrees to maintain all books, records, accounts and reports required under this-Agreement for a period of not less than three years after the date of termination or expiration of this Agreement, except in the event of litigation or settlement of claims arising from the performance of this Agreement, in which case Contractor agrees to maintain same until the Authority, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. g. Clean Air: Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq. Contractor agrees to report each violation to the Cooperative Agreement Draft October 23,2006 City of(City Name) F-2 , 11410-001 0\916953v5.doc Authority and understands and agrees that the Authority will, in turn, report each violation as required to assure notification to FTA and the appropriate EPAI Regional Office. Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. h. Recovered Materials: Contractor agrees to comply with all requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Orderi12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247. i. No Government Obligation to Third Parties: The Authority and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Goverment in or approval of the solicitation or award of the underlying Cont fact, absent the express written consent by the Federal Government, the Federal Government is not a partylo this Contract and shall not be subject to any obligations or liabilities to the Authority, Contractor, or any other party (whether or not a parry to that Contract) pertaining to any matter resulting from the underlying Contract. i Contractor agre s to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed tliat the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. j. Program ;Fraud 'and False or Fraudulent Statements or Related Acts: Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31 , apply to its actions pertaining to this Project. Upon execution of the underlying agreement, Contractor certifies or affirms the truthfulness and accuracy of anyl statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying Contract or,the FTA assisted project for whic this Contract work is being performed. In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a Contract connected with a project that 'r Cooperative Agreement Draft October 23,2006 City of{City Name) F-3 11410-0010\916953v5.doc is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. k. Debarment and Suspension: Contractor shall comply with U.S. DOT regulations, "Government wide Debarment and Suspension" (Non- procurement). This requirement shall pass to any and all subcontractors engaged to perform services under the Agreement. I. Privacy: Contractor agrees to comply with, and assures the compliance of its employees with, the information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C. § 552a. Among other things, Contractor agrees to obtain the express consent of the Federal Government before Contractor or its employees operate a system of records on behalf of the Federal Government. Contractor understand that the requirements of the Privacy Act, including the civil and criminal penalties for violation of that Act, apply to those individual involved, and that failure to comply with the terms of the Privacy Act may result in termination of this Agreement. Contractor also agrees to include these requirements in each subcontract to administer any system of records on behalf of the Federal Government financed in whole or in part with Federal assistance provided by FTA. M. Civil Rights: Nondiscrimination — In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, sex, disability, age, or national origin. In addition, Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. Race, Color, Creed, National Origin, Sex— In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, Contractor agrees to comply with all applicable Cooperative Agreement Draft October 23,2006 City of(City Name) F-4 11410-0010\916953v5.doc equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,"41 C.F.R. Parts 60 et seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer,recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, Contractor agrees to comply with any implementing requirements FTA may issue. Age — In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623 and Federal transit law at 49 U.S.C. § 5332, Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition,)Contractor agrees to comply with any implementing requirements FTA may issue. Disabilities— In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, Contractor agrees to comply with any implementing requirements FTA may issue. Contractor also agrees to include these requirements in each subcontract financed'in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. n. Drug Free Workplace: Contractor shall comply with the terms of the U.S. DOT regulations for Drug Free Workplace Requirements, 49 C.F.R. Part 29, Subpart F. o. Interest of Members of or Delegates to Congress: In accordance with 18 U.S.C. Section 431, no member of, or delegate to, the Congress of the United States shall be admitted to any share or part of the Agreement or to any benefit arising there from. Cooperative Agreement Draft October 23,2006 City of(City Name) F-5 li 11410-0010\916953v5.doc P. Environmental Protection: Contractor agrees to comply with all applicable requirements of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321 et seq. consistent with Executive Order No. 11514, as amended, "Protection and Enhancement of Environmental Quality," 42 U.S.C. § 4321 note; FTA statutory requirements on environmental matters at 49 U.S.C. § 5324(b); Council on Environmental Quality regulations on compliance with the National Environmental Policy Act of 1969, as amended, 40 C.F.R. Part 1500 et seq.; and joint FHWA/FTA regulations, "Environmental Impact and Related Procedures," 23 C.F.R. Part 771 and 49 C.F.R. Part 622. q. Access Requirements For Persons With Disabilities: Contractor agrees to comply with the requirements of 49 U.S.C. § 5301(d) which expresses the Federal policy that the elderly and persons with disabilities have the same right as other persons to use mass transportation service and facilities, and that special efforts shall be made in planning and designing those services and facilities to implement those policies. Contractor also agrees to comply with all applicable requirements of section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits discrimination on the basis of handicaps, and with the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12101 et seq., which requires the provision of accessible facilities and services, and with the following Federal regulations, including any amendments thereto: (1) U.S. DOT regulations, `Transportation Services for Individuals with Disabilities (ADA)," 49 C.F.R. Part 37; (2) U.S. DOT regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance,"49 C.F.R. Part 27; (3) U.S. DOT regulations, "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs," 49 C.F.R. Part 26; (4) Joint U.S. Architectural and Transportation Barriers Compliance Board/U.S. DOT regulations, "Americans With Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 36 C.F.R. Part 1192 and 49 C.F.R. Part 38; (5) U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability in State and Local Government Services," 28 C.F.R. Part 35; (6) U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities," 28 C.F.R. Part 36; Cooperative Agreement - Draft October 23,2006 City of[city Name) F-6 11410-0010\916953v5.doc (7) U.S. GSA regulations, "Accommodations for the Physically Handicapped," 41 C.F.R. Subpart 101-19; i (8) U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630; (9) U.S. Federal Communications Commission regulations, "Telecommunications Relay Services and Related Customer Premises)Equipment for the Hearing and Speech Disabled," 47 C.F.R. Palrt 64, Subpart F; (10) FTA regulations, 'Transportation for Elderly and Handicapped Persons,' 49 C.F.R. Part 609; and (11) Any implementing requirements FTA may issue. r. Buy America: Contractor shall comply with 49 U.S.C. 53236) and 49 CFR Part 661 , which(provide that Federal funds may not be obligated unless steel, iron, and manufactured products used in FTA-funded projects are produced in the Unites States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 C.F.R. 661.711 and include final assembly in the Unites States for 15 passenger vansi and 15 passenger wagons produced by Chrysler Corporation, microcomputer equipment, software, and small purchases (currently less than $100,000) made with capital, operating, or planning funds. Separate requirements for rolling stock are set out at 49 U.S.C. 53236)(2)(c) and 49 CFR 661.11. Rolling stock must be assembled in the United States and have a 60 percent domestic content. Authority may investigate Contractor's, and subcontractor's, and any supplier's compliance with this article. If an investigation is initiated, Contractor, subcontractor, and supplier shall document its compliance, in accordance with 49 CFR 661.15, and cooperate with the investigation. Contractor shall incorporate the Buy America conditions set forth in this article in:everysubcontract or purchase order and shall enforce such conditions. S. Cargo Preference - Use of United States-Flag Vessels: The Contractor agrees to: (i) use privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying Contract to the extent such vessels are available at fair and reasonable rates for United States-Flag commercial vessels; (ii) furnish within 20 working days following the date of loading for shipments Cooperative Agreement Draft October 23,2006 City of{City Name) F-7 11410-001 0\916953v5.doc originating within the United States or within 30 working days following the date of leading for shipments originating outside the United States, a legible copy of a rated, "on-board" commercial ocean bill-of-lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590 and to the Authority (through the Contractor in the case of a subcontractor's bill-of-lading); and (iii) include these requirements in all subcontracts issued pursuant to this Contract when the subcontract may involve the transport of equipment, material, or commodities by ocean vessel. t. Construction Activities: Davis-Bacon and Copeland Anti-Kickback Acts Minimum Wages (i) All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under .the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each Cooperative Agreement Draft October 23,2006 City of[City Name} F-8 11410-0010\916953v5.doc classification for the time actually worked therein: Provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classifications and wage rates conformed under paragraph (1)(ii) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (ii) (A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the Contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met: (1) Except with respect to helpers as defined as 29 CFR 5.2(n)(4), the work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination; and (4) With respect to helpers as defined in 29 CFR 5.2(n)(4), such a classification prevails in the area in which the work is performed. (B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting Cooperative Agreement Draft October 23,2006 City of(City Name) _ F-9 11410-0010\916953v5.doc officer within the 30-day period that additional time is necessary. (C) In the event the Contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(ii) (B) or (C) of this section, shall be paid to all workers performing work in the . classification under this Contract from the first day on which work is performed in the classification. (iii) Whenever the minimum wage rate prescribed in the Contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (iv) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. (v) (A) The contracting officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the Contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met: Cooperative Agreement Draft October 23,2006 City of{City Name] F-10 11410-0010\916953v5.doc (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment standards Administration, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day ft period that additional time is necessary. (C) In the event the Contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. Tl a Administrator, or an authorized representative, will issue a determination with 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (D) Th,e wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(v) (B) or (C) of this section, shall be paid to all workers performing work in the classification under this Contract from the first day on which work is performed in the classification: i Cooperative Agreement - - Draft October 23,2006 City of(Cry Name) F-11 11410-0010\916953v5.doc I Withholding The Authority shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this Contract or any other Federal Contract with the same prime Contractor, or any other federally-assisted Contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime Contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the Contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work (or under the United States Housing Act of 1937 or,under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the Contract, the Authority may, after written notice to the Contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. Payrolls And Basic Records (i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the Contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall Cooperative Agreement - Draft October 23,2006 City of(City Name) F-12 11410-0010\916953v5.doo maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. i (ii) (A) The Contractor shall submit weekly for each week in which any Contract work is performed a copy of all payrolls to the Authority for transmission to-the Federal Transit Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under section 5.5(a)(3)(i) of Regulations , 29 CFR part 5. This information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1), U.S. Government Printing Office, Washington, DC 20402. The prime Contractor is responsible for the submission of copies of payrolls by all.subcontractors. (B) Eal h payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the Contract and shall certify the following: (1) That the payroll for the payroll period contains the information required to be maintained under section 5.5(a)(3)(i) of Regulations, 29 CFR part 5 and that such information is correct and complete; (2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the Contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part 3; (3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the Contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall it Cooperative Agreement Draft October 23,2006 City of(City Name) F-13 11410-0010\916953v5.doc I I satisfy the requirement for submission of the "Statement of Compliance" required by paragraph (a)(3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the Contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code. (iii) The Contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the Federal Transit Administration or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the Contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records.upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. Apprentices And Trainees (i) Apprentices - Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the Contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered Cooperative Agreement Draft October 23,2006 City of[City Name) F-14 11410-00101916953v5.doc program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a Contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the Contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprenticies shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator of the Wage and Hour Division of the U.S. Department of Labor determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, dor a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship program,.the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees - Except as provided in 29 CFR 5.16; trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified,in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee programl If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator;of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved Cooperative Agreement ! Draft October 23,2006 City of{city Name] F-1 5 11410-0010\916953v5.doc , by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal employment opportunity - The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. Compliance With Copeland Act Requirements The Contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this Contract. Subcontracts The Contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as the Federal Transit Administration may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime Contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the Contract clauses in 29 CFR 5.5. Contract Termination: Debarment A breach of the Contract clauses in 29 CFR 5.5 may be grounds for termination of the Contract, and for debarment as a Contractor and a subcontractor as provided in 29 CFR 5.12. Compliance With Davis-Bacon And Related Act Requirements All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this Contract. Cooperative Agreement Draft October 23,2006 City of(City Name) F-16 11410-0010\916953v5.doc I Disputes Concerning Labor Standards t Disputes arising out of the labor standards provisions of this Contract shall not be subject to the general disputes clause of this Contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the Contractor (or any of its subco i tractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. Certification Of Eligibility 4 (i) By enteri�hg into this Contract, the Contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor's firm is a person or firm ineligible to be awarded Government Contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). (ii) No part of this Contract shall be subcontracted to any person or firm ineligible for award of a Government Contract by virtue of section 3i a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. Contract Work Houri and Safety Standards Overtime Requirements No Contractor c r subcontractor contracting for any part of the Contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in whiich he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hoi rs worked in excess of forty hours in such workweek. Violation Liability For Unpaid Wages: Liquidated Damages In the event of 'any violation of the clause set forth in paragraph (1) of this section the Contractor and any subcontractor responsible therefor shall be liable for.the unpaid wages. In addition, such Contractor and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in Cooperative Agreement Draft October 23,2006 City of{City Name) F-17 - 11410.00101916953v5.doe excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section. Withholding For Unpaid Wages And Liquidated Damages The Authority shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such Contract or any other Federal Contract with the same prime Contractor, or any other federally- assisted Contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section. Subcontracts The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this section. U. Bonding: Bid Bond Requirements (Construction) (1) Bid Security A Bid Bond must be issued by a fully qualified surety company acceptable to Authority and listed as a company currently authorized under 31 CFR, Part 223 as possessing a Certificate of Authority as described there under. (2) Rights Reserved In submitting this Bid, it is understood and agreed by bidder that the right is reserved by Authority to reject any and all bids, or part of any bid, and it is agreed that the Bid may not be withdrawn for a period of [ninety (90)] days subsequent to the opening of bids, without the written consent of Authority. It is also understood and agreed that if the undersigned bidder should withdraw any part or all of his bid within [ninety (90)] days after the bid Cooperative Agreement Draft October 23,2006 City of{City Name} F-18 11410-0010\916953v5.doc opening without the written consent of Authority, shall refuse or be unable to enter into this Contract, as provided above, or refuse or be unable to furnish adequate and acceptable Performance Bonds and Labor and Material Payments Bonds, as provided above, or refuse or be unable to furnish adequate and acceptable insurance, as provided above, he shall forfeit his bid security to the extent of Authority's damages occasioned by such withdrawal or refusal, or inability to enter into an agreement, or provide adequate security therefor. . E It is further understood and agreed that to the extent the defaulting bidder's Bid Bond, Certified Check, Cashier's Check; Treasurer's Check, and/or Official Bank Check (excluding any income generated thereby which has been retained by Authority as provided in [Item x "Bid Security" of the Instructions to Bidders]) shall prove inadequate to fully recompense Authority for the damages occasioned by default, then the undersigned bidder agrees to indemnify Authority and pay over to Authority the difference between the bid security and Authority's total damages, so as to make Authority whole. The undersigned understands that any material alteration of any of the above or any of the material contained on this form, other than that requested, will render the bid unresponsive, Performance and Pavment Bonding Requirements (Construction) The Contractor shall be required to obtain performance and payment bonds as follows: I (i) Performance bonds (A) The penal amount of performance borids shall be 100 percent of the original Contract price, unless the Authority determines that a lesser amount would be adequate for the pri tection of the Authority. t (B) The Authority may require additional performance bond protection when a Contract price is increased. The increase in protection shall generally equal 100 percent of the increase in Contract price. The Authority may secure additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond. (ii) PaymenI bonds (A) The penal amount of the payment bonds shall equal: Cooperative Agreement Draft October 23,2006 City of{City Name} F-19 k 11410-0010\916953v5.doc (1) Fifty percent of the Contract price if the Contract price is not more than $1 million. (2) Forty percent of the Contract price if the Contract price is more than $1 million but not more than $5 million; or (3) Two and one half million if the Contract price is more than $5 million. (B) If the original Contract price is $5 million or less, the Authority may require additional protection as required by subparagraph 1 if the Contract price is increased. Performance and Payment Bonding Requirements (Non-Construction) The Contractor may be required to obtain performance and payment bonds when necessary to protect the Authority's interest. (i) The following situations may warrant a performance bond: (A) Authority property or funds are to be provided to the Contractor for use in performing the Contract or as partial compensation (as in retention of salvaged material). (B) A Contractor sells assets to or merges with another concern, and the Authority, after recognizing the latter concern as the successor in interest, desires assurance that it is financially capable. (C) Substantial progress payments are made before delivery of end items starts. (D) Contracts are for dismantling, demolition, or removal of improvements. (ii) When it is determined that a performance bond is required, the Contractor shall be required to obtain performance bonds as follows: (A) The penal amount of performance bonds shall be 100 percent of the original Contract price, unless the Authority determines that a lesser amount would be adequate for the protection of the Authority. (B) The Authority may require additional performance bond protection when a Contract price is increased. The increase Cooperative Agreement Draft October 23,2006 City of(City Name) F-20 11410-0010\916953v5.doc in protection shall generally equal 1 00percent of the increase in Contract price. The Authority may secure additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond. (iii) A paymel I It bond is required only when a performance bond is required, and if the use of payment bond is in the Authority's interest. (iv) When it is determined that a payment bond is' required, the Contractor shall be required to obtain payment bonds as follows: The penal amount of payment bonds shall equal: (i) Fifty percBnt of the Contract price if the Contract price is not more than $1 million; (ii) Forty percent of the Contract price if the Contract price is more than $1, million but not more than $5 million; or (iii) Two and Dne half million if the Contract price is increased. . Advance Payment Bonding Requirements The Contractor l ay be required to obtain an advance payment bond if the Contract contains an advance payment provision and a performance bond is not furnished. The Authority shall determine the amount of the advance payment bond necessary to protect the Authority. Patent Infringe I ent Bonding Requirements (Patent Indemnity) The Contractor I ay be required to obtain a patent indemnity bond if a performance bond is not furnished and the financial'responsibility of the Contractor is unknown or doubtful. The Authority shall determine the amount of the patent indemnity to protect the Authority. Warranty of the Work and Maintenance Bonds The Contractor arrants to Authority, the Architect and/or Engineer that all materials and equipment furnished under this Contract will be of highest quality and newt unless otherwise specified by Authority, free from faults and defects and in conformance with the Contract Documents. All work not so conforming to these standards shall be considered defective. If required by the Authority, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. Cooperative Agreement Draft October 23,2006 City of(City Name) F-21 11410-0010\916953v5.doc i I The Work furnished must be of first quality and the workmanship must be the best obtainable in the various trades. The Work must be of safe, substantial and durable construction in all respects. The Contractor hereby guarantees the Work against defective materials or faulty workmanship for a minimum period of one (1) year after Final Payment by Authority and shall replace or repair any defective materials or equipment or faulty workmanship during the period of the guarantee at no cost to Authority. As additional security for these guarantees, the Contractor shall, prior to the release of Final Payment [as provided in Item x below], furnish separate Maintenance (or Guarantee) Bonds in form acceptable to Authority written by the same corporate surety that provides the Performance Bond and Labor and Material Payment Bond for this Contract. These bonds shall secure the Contractor's obligation to replace or repair defective materials and faulty workmanship for a minimum period of one (1) year after Final Payment and shall be written in an amount equal to ONE HUNDRED PERCENT (100%) of the CONTRACT SUM, as adjusted (if at all). V. Seismic Safety: The Contractor agrees that any new building or addition to an existing building will be designed and constructed in accordance with the standards for Seismic Safety required in Department of Transportation Seismic Safety Regulations 49 CFR Part 41 and will certify to compliance to the extent required by the regulation. The Contractor also agrees to ensure that all work performed under this Contract including work performed by a subcontractor is in compliance with the standards required by the Seismic Safety Regulations and the certification of compliance issued on the project. W. Nonconstruction Activities: Contract Work Hours and Safety Standards Overtime Requirements No Contractor or subcontractor contracting for any part of the Contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. Violation: Liability For Unpaid Wages; Liquidated Damages In the event of any violation of the clause set forth in paragraph (1) of this section the Contractor and any subcontractor responsible therefor.shall be liable for the unpaid wages. In addition, such Contractor and subcontractor Cooperative Agreement Draft October 23,2006 City of{City Name) F-22 .. 11410-0010\916953v5.doc shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of $10 for each calendar day onl which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section. Withholding For Unpaid Wages And Liquidated Damages The Authority shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such Contract or any other Federal Contract with the same prime Contractor, or any other federally- assisted Contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided'in the clause set forth in paragraph (2) of this section. Subcontracts The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) of this section and also a clause requiring the subcontractors to include these'clauses in any lower tier subcontracts. The prime Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this section. X. Conformance With National ITS Architecture: To the extent applicable, the contactor agrees to conform to the National Intelligent Transportation Systems (ITS) Architecture and Standards as required by TEA-21 § 5206(e) ; 23 U.S.C. § 502 note, and comply with FTA Notice, "FTA National'ITS Architecture Policy on Transit Projects" 66 Fed. Reg. 1455 et seq., January 8� 2001, and other Federal requirements that may be issued. Y. Notification Of Federal Participation: To the extent required by law, in the announcement of any third party Contract award for goods or services (including construction services) having an aggregate value of $500,000 or more, the At agrees to specify the amount of Federal assistance intendedto be used to finance that acquisition and to express that amount of that Federal assistance as a percentage of the total cost of that third party Contract. i Cooperative Agreement - Draft October 23,2006 City of{City Name] F-23 11410-0010\916953v5.doc _ f Z. Incorporation of Federal Transit Administration (FTA) Terms: The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding Contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1 E, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. Contractor shall not perform any act, fail to perform any act, or refuse to comply with any Authority requests, which would cause Authority to be in violation of the FTA terms and conditions. Cooperative Agreement Draft October 23,2006 City of{City Name} F-24 11410-0010\916953v5.doc Exhibit G REIMBURSABLE WORK (Section 4.0.1) FEIS/PE Coordination Meetings • Station Design and Art Review (SDAR) Committee Meetings Technical Advisory Committee (TAC) Meetings Design Review • Advanced Conceptual Engineering • Preliminary Engineering Final Design & Construction, i • Traffic Signals & Stripir g • Street Lighting • CPUC Details at Crossings (e.g., vehicular and pedestrian gates) • Landscaping • As-built Drawing Construction Inspection of City Facilities (in city ROW) • Utility Relocations • Street Improvements • Traffic Signals & Striping Street Lighting . • CPUC Details at Crossings (e.g., vehicular and pedestrian gates) • Landscaping Permitting (e.g., temporary road closures, lane closures, haul routes, etc.) Fire Life Safety Meetings an Inspections (city fire department anid police department) Resolution of Policy Issues (e.g., potential CPUC requested crossing closures) Property Transfer Managem nt, if applicable Maintenance Agreements, if applicable Coordination Meetings Cooperative Agreement Draft October 23,2006 City of(City Name) G-1 11410-0010\916953v5.doc i imamq(lFOR� I AGENCY AGENDA ITEM TO: HONORABLE CHAIRPERSON AND MEMBERS OF THE AGENCY BOARD L FROM: BRUCE COLEMAN, ECONOMIC &COMMUNITY DEVELOPMENT DIRECTOR VIA: F. M. DELACH, EX JCUTIVE DIRECTOR �(�til�� DATE: DECEMBER 4, 2006 SUBJECT: AUTHORITY TO ISSUE TAX ALLOCATION BONDS ,AND RETAIN FINANCIAL CONSULTANT RECOMMENDATION It is recommended that the Agency Board authorize staff to initiate the process for the issuance of tax allocation bonds, waive the Formal Request for Qualifications process, and authorize the Executive Director to execute the attached professional services agreement with C.M. de Crinis &Co., Inc., to provide financial advisory serviced for the proposed tax allocation bond issuance. BACKGROUND The purpose of the proposed bond is to repay loans made to the Agency from the City of Azusa. As is typical of redevelopment agencies throughout the state, the Agency proposes to issue tax allocation bonds and will pledge to utilize ta.x increment revenues as the source of repayment of the bonds. The amount of bond proceeds available for projects will depend on a number of factors including market interest rates, credit, and other economic factors. The Agency could expect to receive an estimated $10,000,000 to $ 15,000,000 dollars as a result of this bond issue. The bond issuance requires that the Agency retain a number of professionals to assist in the bond issuance process. Staff recommends that the Agency Board approve hiring C.M. de Crinis&Co., Inc. as the Agency Financial Consultant. In both 2003 and 2005, C.M. de Crinis was the Financial Consultant for the Agency's Tax Allocation Bonds Issuance/Refinance. Therefore, the firm has a good working knowledge of the Agency's finances and was successful in assisting the Agency in both the 2003 and 2005 issuances and in' obtaining insurance that allowed the Agency to secure a favorable bond rating. C.M. de Crinis will assist in the procurement of other necessary professionals through a Request For Proposals process to accomplish the financing goals of the Agency. The recommendation for award of these contracts will be brought before the Agency Board at a subsequent meeting. Prior to execution, the details of the financing plan and documents will be returned to the Agency Board for final authorization. FISCAL IMPACT Financial advisory services fee is not to exceed $48,500, plus no more than 5% additional for out of pocket expenses (excluding out of state travel). With the Agency Board's approval, extra work not The Honorable Chairman and Members of the Agency Board Tax Allocation Bonds ✓i Retain Financial Consultant 7 December 4, 2006 + Page 2 of 2 included in the scope of services•will be billed at a current hourly rate of $285.00. If a portion of the bonds is escrowed requiring an escrow series, an additional fee of $7,500.00 will be required. Attachments: Professional Services Agreement t REDEVELOPMENT AGENCY OF THE CITY OF AZUSA PROFESSIONAL SERVICES AGREEMENT i 1. PARTIES AND DATE. This Agreement is made and entered into this 4th day of December, 2006, by and between the Redevelopment Agency of the City of Azusa, a public body, corporate and politic, organized under the laws of the State of California with its principal place of business at 213 East Foothill Boulevard, Azusa, California 91702-1295 ("Agency") and C.M. de Crinis & Co., Inc., a corporation with its principal place of business at 15300 Ventura Blvd. Ste. 404, Sherman Oaks, CA 91403 ("Consultant"). Ageni cy and Consultant are sometimes individually referred to as "Party" and collectively as "Parties." 2. RECITALS. 2.1 Consultant. t Consultant desires to perform and assume responsibility for the provision of certain professional services required by the Agency on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing financial advisory services to public clients, 2.2 Project. Agency desires to engage Consultant to render such services for the issuance of tax allocation bonds ("Projects") as set forth in this Agreement. 3. TERMS. 3.1 . Scope of Services and Term. 3.1.1 General Scope of Services. Consultant promises and agrees to famish to the Agency all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional financial advisory consulting services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.1.2 Term. The term of this Agreement shall be from December 4ch 2006 to December 20th 2007 unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. 3.2 Responsibilities of Consultant. 3.2.1 Control and Payment of Subordinates, Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Agency retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of Agency and shall at all times be under Consultant's exclusive direefion and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously,within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, Agency shall respond to Consultant's submittals in a timely manner. Upon request of Agency, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of Agency. 3.2.4 Substitution of Key Personnel. Consultant has represented to Agency that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of Agency. In the event that Agency and Consultant cannot agree as to the substitution of key personnel, Agency shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the Agency, or who are determined by the Agency to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the Agency. The key personnel for performance of RVPUBWGS\544364 2 b this Agreement are as follows: Michael Williams and Curt de Crinis 3.2.5 Agency's Representative. The Agency hereby designates Bruce Coleman, Economic and Community Development Director, or his designee, to act as its representative for the performance of this Agreement("Agency's Representative"). Agency's Representative shall have the power to act on behalf of the Agency for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the Agency's Representative or his or her designee. i, 3.2.6 Consultant's Representative. Consultant hereby designates Michael Williams, or his or her designee to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services,:using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with Agency staff in the performance of Seryices and shall be available to Agency's staff, consultants and other staff at all reasonable times. i 3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally,required to perform the Services, including an Agency Business License, and that such licenses and approvals shall be maintained throughout the term hof this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the Agency, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the Agency to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the Agency, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws,rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and RVPUMNC X544364 3 J i regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Agency, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall , indemnify and hold Agency, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure to comply with such laws, rules or regulations. 3.2.10 Insurance. 3.2.10.1 Time for Compliance. Consultant shall not commence Work under this Agreement until it has provided evidence satisfactory to the Agency that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the Agency that the subcontractor has secured all insurance required under this section. 3.2.10.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: • (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage(occurrence form CG 0001); (2)Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury,personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the.general aggregate limit shall be twice the required occurrence limit; (2)Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of$1,000,000 per accident for bodily injury or disease. 3.2.10.3 Professional Liability. Consultant shall maintain, errors and omissions liability insurance appropriate to their profession so long as it is commercially available at a reasonable cost. Such insurance shall be in an amount not less than $1,000,000 per claim. RVPUMNGSl544364 4 3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the Agency to add the following provisions to the insurance policies: (A) General Liability. The general liability policy shall be endorsed to state that: (1)the Agency, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insured with respect to the Work or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; andl(2) the insurance coverage shall be primary insurance as respects the Agency, its directors, officialIs, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self.-insurance maintained by the Agency, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (B) Automobile Liability. Any insurance or self-insurance maintained by the Agency, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (C) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the Agency, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise fro i work performed by the Consultant. f (D) All Coverages. Each insurance policy, except automobile and professional liability,required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended,voided,reduced or canceled except after thirty(30) days prior written notice by certified mail, return receipt requested,has been given to the Agency; and(B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the Agency, its directors, officials, officers, employees, agents and volunteers. 3.2.10.5 Separation of Insureds; No Special Limitations. All insurance required by this Section, except automobile liability, shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the Agency, its directors, officials, officers, employees, agents, and volunteers. 3.2.10.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Agency. 3.2.10.7 Acceptability of Insurers. Insurance is to be placed with RVPUBWGS'344364 5 insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the Agency. 3.2.10.8 Verification of Coverage. Consultant shall finnish Agency with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Agency. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the Agency if requested. All certificates and endorsements must be received and approved by the Agency before work commences. The Agency reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.2.11 Safe . Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying cut its Services, the Consultant shall at all rimes be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include,but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders,bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and(C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed Forty eight thousand five hundred dollars ($48,500) without written approval of Agency's representative. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Payment of Compensation. Consultant shall submit to Agency an itemized statement which indicates work completed and out-of-pocket expenses incurred by Consultant at the closing of the financing transaction. Payment will be due at closing. The statement shall describe the Services and expenses provided since the initial commencement date. on a project by project basis. If no financing is undertaken, Consultant will provide a final bill for any hourly consulting work and Agency shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Agency. RVPUBWGS1544364 6 3.3.4 Extra Work. At any time during the term of this Agreement, Agency may request that Consultant performs Extra Work. As used herein, "Extra Work" means any work which is determined by Agency to be necessary for the proper completion of the Project,but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from Agency's Representative. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect tolall costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of Agency during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created.pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents,proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.5 General Provisii ns. 3.5.1 Termination of Agreement. 3:5.1.1 Grounds for Termination. Agency may,by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven(7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to Agency, and Consultant.shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, Agency may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. I Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.5.1.3 A ditional Services. hi the event this Agreement is terminated in whole or in part as provided herein, Agency may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. I i I RVPUBWGSl544364 7 l t 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: Michael Williams C.M. de Crinis & Co., Inc. 11846 Ventura Blvd. Ste. 102 Studio City, CA 91604 Agency: Redevelopment Agency of the City of Azusa 213 East Foothill Blvd. Post Office Box 1395 Azusa, CA 91702-1395 Attn.: Bruce Coleman, Econ. & Comm. Development Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48)hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentiality. 3.5.3.1 Documents &Data: Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for Agency to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement("Documents & Data"). Consultant shall require all subcontractors to agree in writing that Agency is granted a non-exclusive and perpetual license for any Documents &Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents &Data which were prepared by design professionals other than Consultant or provided to Consultant by the Agency. Agency shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Agency's sole risk. RVPUBVJGS'644364 8 3.5.3.2 Confidentiality. All ideas, memoranda, specifications,plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Agency, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not con4cted with the performance of the Services or the Project. Nothing furnished to Consultant, which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Agency's name or insignia,photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper,newspaper, television or radio production or other similar medium without tie prior written consent of Agency. I 3.5.4 Cooperation, Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Attornevs Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement,the prevailing partylin such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs of such action.' 3.5.6 Indemnification.Financial Consultant agrees to indemnify(upon request by Agency)Agency, its officers, agents,volunteers, and employees [1DENINITTEES] against, and will hold and save them and each of them harmless from, and all actions, claims damages to persons or property,penalties obligations or liabilities that may be asserted or claimed by anyperson,firm, entity,corporation,political subdivision or other organization arising out willful misconduct, errors or omissions of Financial Consultant,its agents,employees,subcontractors or invitees, including each person or entity responsible for the provision of services hereunder save actions arising from Agency's or agents and consultants active negligence in performing their duties hereunder. f 3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles County. 3.5.9 Time of Essence. Time is of the essence for eachand every provision of this Agreement. 3.5.10 Agency's iRight to Employ Other Consultants. Agency reserves right to RVPUBWGSl544364 9 employ other consultants in connection with this Project. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the Agency. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to Agency include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage,brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Agency shall have the right to rescind this Agreement without liability. RVPUB NGSl544364 10 For the term of this Agreement, no member, officer or employee of Agency, during the term of his or her service with Agency, shall have any direct interest in this Agreement, or obtain any present or anticipated material Uenefit arising therefrom. 3.5.19 Equal 0 1 ortunity Employment. Consultant represents that it is an equal opportunity employer and it shaill not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin; handicap, ancestry, sex or age. Such non-discrimination shall include,but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of Agency's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. f 3.5.21 Authori to Enter Agreement. Consultant has all requisite power and authority to conduct its businessand to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. i 3.5.22 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of Agency. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. j RVPUMNGS1544364 11 i REDEVELOPMENT AGENCY OF THE C.M.DE CRINIS & CO.,INC. CITY OF AZUSA By: BY: Francis Delach Michael Williams Executive Director Sr. Vice President Attest: City Clerk Approved as to Form: Best Best&Krieger LLP City Attorney RVPUBWGS%541364 12 EXHIBIT "A" SCOPE OF SERVICES Financial Consultant agrees to perform the following services in a competent and professional manner to the satisfaction of the Agency. A. The Consultant agrees to assist the Client in developing a Plan of Finance for the issuance of tax allocation bonds. The Plan of Finance will include an analysis of the current and projected tax revenues . The Consultant will assist the Client in reviewing the Agency's existing tax allocation bonds, OPA's, DDA's and other debt and prepare a Plan of Finance taking into account the Agency's financing objectives. B. Assist the Agency in the selection of professionals as necessary, to complete the Plan of Finance including underwriter,bond counsel and disclosure counsel if requested. C. Financial Consultant agrl es to assist the Client and,in the case of a negotiated sale of bonds, the selected managing underwriter in the coordination and management of the implementation of the Plan of Finance and the financing process. This will include attending meeting as necessary and the completion of analysis and reports. D. Make necessary present(tions to the staff, Agency Boards, and Council in the review and approval of the financing. E. Work cooperatively with the other consultants to insure that the Agency's financial goals are accomplished in a timely manner. F. Review and comment of all financing documents and make recommendations regarding structure, covenants, terms, and other conditions necessary to insure marketability of the Bonds and to assure the(Agency's financing objectives are achieved. The Consultant will also review and make recommendations related to the Agency's Continuing Disclosure obligation. j G. Recommend the establishment of funds and accounts and provisions for investment of funds. H. The Financial Consultant agrees to assist the Client's Disclosure Counsel in the preparation and distribution of an Official Statement,which will form the basis of the Bond offering and which will contain comprehensive information with respect to the Bonds, the Client, the project, the legal documents and other pertinent information. I. Assist in the preparatio I of presentations to Moody's Investors Service and Standard and Poor's Corporation, if applicable, to obtain ratings for bonds. Assist in the negotiations of the terms and conditionsrequired by those ratings agencies and discuss the impacts on future financings with Agency staff. I RVPUBNW544364 A-1 1 i i 7 J. Assist in the preparation of presentations to municipal bond insurers, if applicable, for possible credit enhancement for the bonds. Assist the Agency in evaluating various insurance bid proposals and covenants. Assist in the negotiations of the terms and conditions required by those insurers. K. The Consultant will review the marketing plan proposed by the underwriter, in the case of a negotiated sale, including marketing to retail investors, formation of a selling group, timing of the Agency's bond sale and other bond issues the underwriter may be involved in at the time of the sale. L. The consultant will review with the Agency the bond pricing proposed by the underwriter, in the case of a negotiated sale, including call features, selling bonds at premiums or discounts, the use of serial and one or more term bonds and the cost or benefits to the Agency. M. In the case of a negotiated sale,the Consultant will provide accurate and timely information to the Client on market conditions on the day of pricing. The Consultant will review the results of the underwriters' sales effort and assist the Client in negotiating the terms of the Bond Purchase Agreement. N. Consultant will review the Clients options with regard to defeasance securities and recommend the timing and method of acquisition and expected savings target in the event any existing bonds are refunded. O. The consultant will review and comment on the final legal documents and review and comment on the final official statement. P. The Consultant will coordinate the closing of the transaction including the signing of documents,the receipt of the sales proceeds for the bonds,the payment of the bond insurance premium,the payment of cost of issuance and depositing the moneys in the various funds and accounts with the trustee. Q. The consultant will assist the Agency with the investment of the Debt Service Reserve and the other Funds. R. The Consultant will provide the Client with a final distribution list,bond record,which shall include details regarding the Bonds and their sale, a final debt service schedule and a list of the bond CUSIP numbers. S. The Consultant will be available after the bond closing to answer questions of Agency staff regarding the results of the bond underwriting. xvaus\NGW44364 A-2 EXHIBIT "B" COMPENSATION 1. It our understanding the Agency intends to retain a managing underwriter and therefore our fee will not exceed $48,500 plus expenses of 5% excluding out of state travel. If the a portion of the bonds are escrowed requiring an escrow series or term bond, an additional fee of $7,500 will be required. These fees will be contingent upon Lompletion of the transaction. 2. In the event bonds are not issued within the term of this Agreement or the financing is abandoned by the Agency, Consultant will be compensated hourly for time spent, at Consultants then current hour rate not to exceed the Consultants proposed fee i, 3. Extra work requested by the Agency not included in the scope of services will be discussed with the Agency representative and approved prior to commencement. The Consultant will bill the Agency at its normal hourly billing rate, for hourly work at its' current rate of$285. I i I� &VPUBWGs\544364 B-1 U � AGENCY AGENDA ITEM TO: HONORABLE CHAIRPERSON AND MEMBERS OF THE AGENCY BOARD FROM: BRUCE COLEMAN, ECONOMIC/COMMUI1 NITnnY DEVELOPMENT DIRECTOR VIA: F. M. DELACH, EXECUI IVE DIRECTOR�III}+�J DATE: DECEMBER 4, 2006 SUBJECT: SETTLEMENT AGREEMENT FOR THE ACQUISITION OF THE REAL PROPERTY LOCATED AT 100 EAST FOOTHILL BOULEVARD (WAYNE&VALDA FLETCHER)AND THE RELOCATION OF WIMPEY'S PAWN SHOP (JIM YENYO &SHANNON YENYO-ESPINOSA) RECOMMENDATION It is recommended that the Agency Board adopt a resolution approving the Settlement Agreement for the acquisition of the property located at 100 East Foothill Boulevard and the relocation of the business located on the site (Wimpey's Pawn Shop), commonly known as Los Angeles County Assessor's Parcel #8611-003-006. BACKGROUND In order to eliminate all remaining blight in the Central Business District area, in 2003, the Agency adopted the Amended and Restated I,light Plan for the Merged Central Business District and West End Redevelopment Projects. One vehicle for the elimination of blight is the assemblage of improved, odd-shaped parcels into a single, larger "squared-off' parcel. Such assemblage can have the economic benefit of (a) eliminating any functional inefficiency or obsolescence caused by the "odd- shaped" nature of a parcel, and (b) creating a larger parcel that can accommodate certain projects (i.e. community shopping centers or mixed use developments) that smaller parcels would be unable to accommodate due to their size. i The Redevelopment Agency of the Gity of Azusa ("Agency") has entered into an Exclusive Negotiating Agreement with Lowe Enterprises for the development of a 2.85-acre site in the Downtown District commonly known as Block 36. Approximately 1.33 acres of land, including the real property located at 100 E. Foothill Boulevard, is privately owned. i On May 1, 2006, the Agency Board adopted a Resolution of Necessity authorizing the acquisition of the property located at 100 East Foothill Boulevard, by eminent domain. Agency Counsel subsequently filed the court action for the acquisition of the property via eminent domain. The court issued the Agency an Order of Immediate Possession foil the property that is set to take effect on January 31, 2007. Throughout this period Agency staff have continued to negotiate with the property and business owners for the acquisition of the site and relocation of the business.As a result of these negotiations, all parties have negotiated, subject to Agency Board approval, a settlement in the amount of$1,463,000 (Exhibit A Agreement). The financial terms of the settlement agreement are as follows; The Honorable Chairman and Members of the Agency Board Subject:Acquisition of 100 Fast Foothill Blvd;, December 4,2006 Page 2 of 2 Wayne &Valda Fletcher— Property Owners Real Property (100 East Foothill Blvd.) $855,000 Fixtures &Equipment (related to real property) $120,000 Total Real Property Acquisition $975,000 Jim Yenyo &Shannon Yenyo Espinosa— Business Owners Relocation $178,000 Fixtures &Equipment (related to business) $160,000 Goodwill $150,000 Total Business Relocation $488,000 The subject property lies at the Southeast corner of Foothill Boulevard and Azusa Avenue. The property consists of a 4,500 square foot site (APN#861 1-003-006) or .10 acres, that is improved with a 4,500 square foot single story commercial building(LVimpey's Pawn Shop). At the request of the Agency, R. P. Laurain & Associates, Inc., appraised the property and the appraised value was determined to be $855,000. The Agency additionally conducted appraisals to determine the goodwill, relocation and furniture, fixtures and equipment values for the property and/or business. The settlement amount includes, without limitation, full payment of just compensation and all relocation benefits, reestablishment costs, leasehold interest,goodwill, furniture, fixtures and equipment,attorneys' fees, costs, interest, and damages in complete settlement of all claims (known and unknown), causes of action and demands of Seller against the Buyer because of Buyer's purchase of the Property, and for any and all claims in complete settlement of all claims (known and unknown) arising from or relating to the purchase and sale of the property. The Agency also grants to Wayne &Valda Fletcher an option to purchase an 18,255 square foot unimproved parcel located at 975 West Foothill Boulevard. The option shall remain in effect for two (2) years from the Close of Escrow described in the attached Agreement; provided that the all conditions outlined in the Agreement are met. The purchase price for the 18,255 square foot parcel shall be Six Hundred Eighty-One Thousand Six Hundred Dollars ($681,600). The rights and interest of the purchase agreement is assigned to the Redevelopment Agency of the City of Azusa ("Buyer"). Therefore, the Agency will take the lead on the acquisition of the property. FISCAL IMPACT The total cost for this acquisition of the property and relocation of the business is $1,463,000 exclusive of escrow costs (title report, etc). The source of funding for the purchase of the site is tax-exempt bond proceeds from the 2005 Agency bond issue. EXHIBITS: Resolution "A" Settlement Agreement "B" Resolution EXHIBIT B RESOLUTION NO. Y i A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA APPROVING A SETTLEMENT AGREEMENT FOR THE PURCHASE OF CERTAIN REAL PROPERTY AND RELOCATION OF THE BUSINESS GENERALLY LOCATED AT 100 EAST FOOTHILL BOULEVARD WITHIN THE MERGED CENTRAL BUSINESS DISTRICT AND WEST END REDEVELOPMENT PROJECT AREA THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA DOES RESOLVE AS FOLLOWS: SFCTI[NJ t_ The Redevelopment Agency ("Agency") of the City of Azusa does hereby find, determine and declare as follows: A. The Agency has negotiated a settlement for the purchase of certain improved real property and relocation of the business generally located at 100East Foothill Boulevard ("Property"); ' i B. The Property is located in the Agency's Merged Central Business District and West End Redevelopment Project Area(the"Project Area"): C. The Agency desires to purchase the Property and relocate the Tenant on the terms and conditions set forth in the Settlement Agreement; D. The Agency is authorized to acquia the Property for purposes of redevelopment pursuant to Section 33391 of the Community Redevelopment law(Health&Safety Code §33000,et seq); E. The acquisition of the Property will further the health, safety and general welfare of the residents of Azusa; F. This agreement pertains to and affects the ability of the Agency to finance Its activities and carry out its statutory obligations and the goals of the Redevelopment Plan. It is intended to be a contract within the meaning of Government Code§53511;and I G. In taking this action. the Agencv has determined that the acquisition of the Drooertv is not a "Droiect" under the Drovisions of the California Environmental Ouality Act, the California Environmental Oualitv Act Guidelines (Title 14 C.C.R. 15 15004)and the Civ of Azusa's environmental Drocedures. i cFrTIQN 7_ Based on all of the foregoing, the Redevelopment Agency of the City of Azusa hereby approves that certain Settlement Agreement for die purchase of property and relocation of the tenant for the property generally located at 100 East:Foothill boulevard in the form attached hereto as Exhibit "B" and incorporated herein by reference. The Agency further authorizes the Executive Director of the Agency to execute said agreement in substantially the same form as depicted on Exhibit"B". %ECTIO l a. A copy of the Settlement Veement, executed by the Executive Director, the Seller and the Tenant of the Property shall be kept on file at City Hall. Staff is directed to do all that is necessary to effectuate the intent of the Agreement and consummate the purchase of the Property. I` SFrTTOW a, The Agency Secretary shall ceritify the adoption of this Resolution. l i I PASSED AND APPROVED this day of , 2006. Chairman i I HEREBY CERTIFY that the foregoing Resolution was duly passed, approved, and adopted by the . Board of Directors of the Redevelopment Agency of the City of Azusa, at a regular meeting of said Board held on the_day of , 2006,by the following vote of the Board: AYES: BOARDMEMBERS: NOES: BOARDMEMBERS: ABSTAIN: BOARDMEMBERS: ABSENT: BOARDMEMBERS: i i Secretary I r AGREEMENT FOR ACQUISITION OF REAL PROPERTY, RELOCATION SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS This AGREEMENT FOR ACQUISITION OF REAL PROPERTY, RELOCATION SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS ("Agreement") is entered into by and among (i) THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, a public body, corporate and politic, exercising governmental functions and powers, and organized and existing pursuant to the Community Redevelopment Law of the State of California, Health and Safety Code Sections 33000, et seq. (the "Agency"); (ii) WAYNE R. AND VALDA R. FLETCHER, individuals (collectively, "Fletcher"); and (iii) JIM YENYO AND SHANNON YENYO-ESPINOSA, individuals (collectively, "Yenyo"). The Agency, Fletcher and Yenyo are sometimes referred to herein individually as "Party" and collectively as "Parties". RECITALS A. The City of Azusa, California ("City") approved and adopted the redevelopment plan ("Redevelopment Plan") for the redevelopment project area known as the "Merged Central Business District Redevelopment Area" ("Project Area"); and B. The Agency is the fee owner of that certain real property commonly known as 975 West Foothill Blvd., Azusa (the "Larger Parcel"). The Larger Parcel is approximately 65,814 gross square feet in size. C. Fletcher currently owns fee simple title to that certain real property and improvements located within the Project Area and commonly known as 100 East Foothill Blvd., Azusa (the "Wimpey's Parcel"). The Wimpey's Parcel is legally described on Exhibit `B" attached hereto and incorporated herein. D. The Wimpey's Parcel is currently occupied by Yenyo pursuant to a leasehold interest. Yenyo is the owner of the business located on the Wimpey's Parcel commonly.known as Wimpey's Pawn Shop (the "Business"). E. On May 16, 2006, the Agency instituted an action in condemnation against Fletcher and Yenyo entitled City of Azusa Redevelopment Agency v. Wayne R. Fletcher; Valda R. Fletcher; et. al., Los Angeles County Superior Court Case No. BC 352467 (the "Action"). The Action sought judicial condemnation of the Wimpey's Parcel and its improvements. In connection with the Action, the Agency deposited with the State of California Treasurer the amount of Eight Hundred Fifty-Five Thousand Dollars ($855,000) (the "Fletcher Deposit") as probable compensation due to Fletcher in connection with the Agency's acquisition of the Wimpey's Parcel and the sum of Fifty Thousand Seven Hundred Forty Dollars ($50,740) (the "Yenyo Deposit") as probable compensation due to Yenyo in connection with the Agency's acquisition of the furnitures, fixtures and equipment associated with the operation of the Business. RVPUBXRANDOLPH1723901.3 1 F. Under applicable law, Fletcher, as the owner of the Wimpey's Parcel, and Yenyo, as the tenant of the Wimpey's Parcel and the owner of the Business, may be entitled to certain rights and benefits including, but not limited to, statutory relocation benefits, moving expenses, reestablishment expenses, just compensation, severance damages, loss of goodwill interest, litigation expenses, attorneys' fees and costs, damages for inverse condemnation, unreasonable pre-condemnation delay, unreasonable pre-condemnation activities and other expenses and losses associated with the Action and the Agency's acquisition of the Wimpey's Parcel and the displacement of Yenyo from the Wimpey's Parcel (all of the foregoing, collectively, "Benefits"). G. Fletcher has been advised and informed of its rights under applicable law and the Benefit which it may be entitled to claim. In lieu of such Benefits, Fletcher desires to receive from the Agency the Fletcher Payment. H. Yenyo has been Idvised and informed of its rights under applicable law as to the Benefits which it may be entitled to claim. In lieu of such Benefits, Yenyo desires to receive from the Agency the Yenyo Payment. ent. I. The Agency and enyo are parties to that certain "Wimpey's Pawn Shop Lease" (the "Agency Lease") dated March 21, 2005 pertaining to certain Agency-owned real property (the "Leased Premises") located adjacent to the Wimpey's Parcel at 112 East Foothill Boulevard, Azusa, CA 91702. As additional consideration to the Agency for execution of this Agreement, Yenyo shall surrender and terminate the Agency Lease, shall deliver exclusive possession of the Leased Premises to the Agency, and shall remove all personal property from the Leased Premises, all upon thl Close of Escrow. J. The Agency, Fletcher and Yenyo now wish to resolve and settle once and for all, all present, past and future controversies, claims, causes of action or purported causes of action, defenses, and disputes, both real and potential, which the Fletcher and Yenyo may have against the Agency with respect to the Action, the Agency's acquisition of the Wimpey's Parcel, termination of Yenyo's leasehold interest, Yenyo's surrender of possession of the Wimpey's Parcel, the relocation of the Business, and any and all Benefits to which Fletcher or Yenyo may be entitled. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION AND THE MUTUAL PROMISES AND I COVENANTS OF THE PARTIES SET FORTH IN THIS AGREEMENT, THE AGENCY, FLETCHER AND YENYO AGREE AS FOLLOWS: I ARTICLE 1 REAL PROPERTY ACQUISITION AND PAYMENT FOR FURNISHINGS FIXTURES AND EQUIPMENT 1.1. Effective Date. This Agreement shall be effective as of the date it is approved and signed by all Parties ("Effective Date"). If the Effective Date has not occurred on or before December 31, 2006,this Agreement shall automatically terminate and be of no force or effect. RVPURIKRAND0LPM723902.3 2 I I 1.2. Settlement Consideration. In exchange for the conveyance of the Wimpey's Parcel and the agreements, releases, acknowledgments and waivers from Fletcher and Yenyo as provided by this Agreement, the Agency shall: (1) pay to Fletcher the amount of Nine Hundred Seventy-Five Thousand Dollars ($975,000) (the "Fletcher Payment"), (2) pay to Yenyo the amount of Four Hundred Eighty-Eight Thousand Dollars ($488,000) (the "Yenyo Payment"), and (3) grant to Fletcher an option (the "Option") to acquire the Agency Parcel, all on the terms more specifically hereinafter set forth. 1.3. Definitions. 1.3.1. "Agency Parcel" means and refers to that approximately 18,255 square foot portion of the Larger Parcel. The Agency Parcel, which is currently unimproved, is legally described and depicted on Exhibit "A-1" and "A_2" attached to this Agreement and incorporated herein by this reference. The Agency shall, at its expense, complete a lot line adjustment to create the Agency Parcel from the Larger Parcel. 1.3.2. "Escrow" shall have the meaning ascribed to such term where it first appears in this Agreement. 1.3.3. "Escrow Closing Date" means the recording of the Wimpey's Parcel Grant Deed in the Official Records of the Recorder of the County of Los Angeles, California. 1.3.4. "Escrow Holder" means located at , California. 1.3.5. "Leased Premises" means that parcel of Agency-owned property locat A at 112 East Foothill Blvd., Azusa. �. �N `` 1.3.6. "Outside Closing Date" means and refers to V 3 Loa.:rY � 1.3.7. "Title Company" means Title Company, located at , California 1.3.8. "Wimpey's Parcel" means and refers to that certain real property and improvements commonly known as 100 East Foothill Blvd. (APN 8611-003-006). The Wimpey's Parcel is legally described in Exhibit`B" attached to this Agreement and incorporated herein by this reference. 1.3.9. "Wimpey's Parcel Grant Deed" means and refers to means and refers to the Title Company's standard form of grant deed conveying the Wimpey's Parcel to Agency. 1.3.10. "Wimpey's Parcel Title Policy" means and refers to a standard CLTA owner's policy of title insurance issued by the Title Company, with coverage. in the amount of Nine Hundred Seventy-Five Thousand Dollars ($975,000) and insuring fee title to the Wimpey's Parcel vested in the Agency, subject only to statutory liens and encumbrances and non- delinquent property tax liens. RVPMKRANDOLPH 723902.3 3 1.3.11. "Wimpey's Pawn Shop" means and refers to the pawn shop business owned and operated by Yenyo, who, currently have a leasehold interest in the Wimpey's Parcel. All other initially capitalized terms appearing in this Agreement and not defined above shall have the meanings ascribed to such terms where they first appear in this Agreement. ARTICLE 2 i t ACQUISITION AND CONVEYANCE OF WIMPEY'S PARCEL, PURCHASE OPTION FOR AGENCY PARCEL 2.1. Purchase of Wi IDev's Parcel by Agency. In accordance with the terms of this Agreement, Fletcher agrees to (convey the Wimpey's Parcel to the Agency and the Agency agrees to acquire the Wi.npey's Parcel from Fletcher pursuant to the terms and conditions of this Agreement. 2.2. Purchase Option for Agency Parcel. The Agency hereby grants to Fletcher an option to purchase the Agency Parcel (the "Option"), together with all the Agency's right, title, and interest in and to all rights, privileges, and appurtenances owned by the Agency and pertaining to or accruing to the use or benefit of the Agency Parcel. The Option shall remain in effect for two (2) years;from the Close of Escrow described in this Agreement (the "Option Period"); provided that the Option shall terminate without further notice to Fletcher if the Close of Escrow for the Wimpey's Paicel has not occurred by the Outside Closing Date, as it may be extended by agreement of the Parties, or upon Fletcher's or Yenyo's material uncured breach of this Agreement. The purchase price for the Agency Parcel shall be Six Hundred Eighty-One Thousand Six Hundred Dollars $681,600). 2.2.1. Exercise of Option. Fletcher may exercise the Option during the Option Period by notifying the Agency lin writing (the "Option Notice") of Fletcher's intent to purchase the Agency Parcel at any time prior to the expiration of the Option Period. The purchase and sale of the Agency Parcel shall be subject to a purchase and sale agreement reasonably acceptable to Agency and Fletcher, consistent with this Agreement and otherwise containing terms and conditions customarily contained in agreements for the sale of similar real property in Los Angeles County. 2.2.2. Fletcher'is Due Diligence Review of Agency Parcel. Fletcher shall be entitled to conduct at its sole cost such due diligence and suitability studies and investigations of the Agency Parcel during an iIhitial investigation period as Fletcher shall deem necessary to determine, to Fletcher's satisfaction in its sole discretion, if the Agency Parcel is acceptable for Fletcher's intended use ("Suitability Investigation"), which Suitability Investigation may include, without limitation, a review and satisfaction of the following matters: 2.2.2.1. Review of applicable zoning and I land use ordinances and requirements, plat and/or plan of development requirements, existing zoning conditions and violations and Fletcher's potential needs for any change of zoning classification and/or any variances and special or conditional use permits; I R VPUBMMATDOLPH17239OZ3 4 _ i a 2.2.2.2. Review of site access and costs pertaining to off-site improvements; and 2.2.2.3. Obtaining site inspection and environment investigation reports and surveys, soils and engineering reports, maps and agreements affecting the Agency Parcel. 2.2.3. Time for Fletcher to Conduct Suitability Investigation. Fletcher shall complete its Suitability Investigation prior to delivering the Option Notice. ARTICLE 3 JOINT ESCROW INSTRUCTIONS 3.1. Opening of Escrow Escrow Instructions. The Parties shall cause an escrow (the "Escrow") to be opened with Escrow Holder within five (5) days following the Effective Date. Escrow Holder shall promptly confirm to each of the Parties the date of the Opening of Escrow. This ARTICLE 3 shall constitute joint escrow instructions of the Agency, Fletcher and Yenyo to Escrow Holder for the conduct of the Escrow. 3.2. Conditions to Close of Escrow. The conditions set forth in this Section 3.2 shall be satisfied or waived by the respective benefited Party on or before the Outside Closing Date or the Party benefited by any unsatisfied condition shall not be required to proceed to Close the Escrow. Where satisfaction of any of the foregoing conditions requires action by Fletcher or by Agency, such Party shall use its reasonable best efforts, in good faith, and at its own cost, to satisfy such condition. Where satisfaction of any of the conditions requires the approval of a Party, such approval shall be in such Party's reasonable discretion. Either Party may waive any of the conditions set forth in this Agreement, but any such waiver shall be effective only if contained in a writing signed by the waiving Parry and delivered to the Escrow Holder and the other Parties. 3.2.1. Fletcher's Conditions Precedent. Fletcher's obligation to convey the Wimpey's Parcel shall be conditioned upon the satisfaction or Fletcher's written waiver of the following conditions precedent ("Fletcher's Conditions Precedent"), prior to the Close of Escrow: 3.2.1.1. The Title Company is unconditionally committed to issue the Wimpey's Parcel Title Policy to Agency; 3.2.1.2. The Agency deposits all of the items into Escrow required by Section 3.4; 3.2.1.3. If applicable, the Parties have fully executed the lease described in Section 3.16, and 3.2.1.4. The representations, warranties and covenants of Agency set forth in this Agreement are true and correct in all material respects on the Effective Date and on the Escrow Closing Date. R VPUBIKRANDOLPH1723902.3 5 3.2.2. Aeencv'sConditions Precedent. Agency's obligation to acquire the Wimpey's Parcel shall be conditioned upon the satisfaction or the Agency's written waiver of the following conditions precedent ("Agency's Conditions Precedent"), prior to the Close of Escrow: 3.2.2.1. Fletcher and Yenyo deposit all of the items into Escrow required by Section 3.3; 3.2.2. . The Title Company is unconditionally committed to issue the Wimpey's Parcel Title Policy to Agency; 3.2.2!3. Fletcher and Yenyo performs all of their material obligations required to be performed by Fletcher and/or Yenyo under this Agreement prior to Close of Escrow; 3.2.2.4. If applicable, the Parties have fully executed the lease described in Section.3.16, i 3.2.2.5. The representations, warranties and covenants of Fletcher and Yenyo set forth in this Agreement are true and correct in all material respects on the Effective Date and on the Escrow Closing Date, and i 3.2.2.6. Fletcher and Yenyo have removed all personal property from the Leased Premisesand have surrendered possession of the Leased Premises and executed such instrument as the Agency may reasonably request to evidence such termination of the Agency Lease. 3.3. Fletcher's and Y nvo's Escrow Deposits. Fletcher and Yenyo shall deposit the following items into Escrow atl least two (2) business days prior to the Escrow Closing Date scheduled by Escrow Holder by Iwntten notice delivered to the Parties: 3.3.1. Any amounts required to be deposited into Escrow by Fletcher and Yenyo under the terms of this Agreement to Close Escrow, all in immediately available funds. 3.3.2. A duly 'executed and notarized Wimpey's Parcel Grant Deed and, if applicable,the lease described in Section 3.16. 3.3.3. Two (2) duplicate original copies of the Closing Statement described in Section 3.8.2, executed by Fletcher and Yenyo. 3.3.4. A FIRPTA affidavit and California Franchise Tax Board Form 593-W executed by Fletcher and Yenyo, in the customary form provided by the Escrow Holder. 3.3.5. The stip lations and other instruments described in Section 3.15. 3.3.6. Any other documents, instruments or funds required to be delivered by Fletcher or Yenyo under the teIrms of this Agreement or as otherwise reasonably requested by Escrow Holder or Title Company in order to Close Escrow. R VP UE WRANDOLPH)72 3902.3 6 i 3.4. Agency's Escrow Deposits. Agency shall deposit the following items into Escrow at least two (2) business days prior to the Escrow Closing Date scheduled by Escrow Holder by written notice delivered to the Parties: 3.4.1. Any amounts required to be deposited into Escrow by Agency under the terms of this Agreement to Close Escrow, including the Fletcher Payment and Yenyo Payment, all in immediately available funds. 3.4.2. The Agency's certificate of acceptance of the Wimpey's Parcel Grant Deed and, if applicable, the lease described in Section 3.16. 3.4.3. A PCO Statement executed by the authorized representative(s) of Agency for the Wimpey's Parcel. 3.4.4. Two (2) duplicate original copies of the estimated Closing Statement described in Section 3.8.2, executed by the authorized representative(s) of Agency. 3.4.5. Any other documents, instruments, funds and records required to be delivered by Agency under the terms of this Agreement or as otherwise reasonably requested by Escrow Holder or Title Company in order to Close Escrow. 3.5. Closing Procedure. When each of Fletcher's and Yenyo's Escrow deposits, as set forth in Section 3.3, and each of Agency's Escrow deposits, as set forth in Section 3.4, are deposited into Escrow, Escrow Holder shall request confirmation in writing from all Parties that each of their respective conditions to the Close of Escrow, as set forth in Section 3.2, are satisfied or waived. Upon Escrow Holder's receipt of written confirmation from all Parties that each of their respective conditions to the Close of Escrow are satisfied or waived, Escrow Holder shall"Close Escrow" by doing all of the following: 3.5.1. Recordation of Documents. File the Wimpey's Parcel Grant Deed in the Office of the Recorder of Los Angeles County, California. 3.5.2. Distribution of Recorded Documents. Distribute conformed copies of each recorded document to the Party or other person designated for such distribution in Section 3.7; 3.5.3. PCO Statement. File the PCO Statement with the Office of the Recorder of Los Angeles County, California; 3.5.4. FIRPTA Affidavit. File the FIRPTA Affidavits with the United States Internal Revenue Service; 3.5.5. Form 593. File the Form 593-W with the California Franchise Tax Board; 3.5.6. Title Policy(ies). Obtain and deliver to the Agency the Wimpey's Parcel Title Policy; RVPUBIKR9NDOLPX1723902.3 7 3.5.7. Fletcher Pa ent. Deliver the Fletcher Payment to Fletcher; and 3.5.8. Yenvo Pal ment. Deliver the Yenyo Payment to Yenyo. 3.6. Close of Escrow) Close of Escrow shall occur following satisfaction of all conditions precedent therefor set forth in Section 3.2 and elsewhere in this Agreement have occurred. If the Close of Escrow has not occurred by the Outside Closing Date, then any Parry not then in default of this Agreement may terminate this Agreement and cancel the Escrow, without liability to the other Party or any other person for such termination and cancellation, by delivering written notice of termination to the other Parties and Escrow Holder and, thereafter, the Parties shall proceed pursuant to Section 3.10. Without limiting the termination rights of the Parties as provided for in the previous sentence, if Escrow does not close on or before the Outside Closing Date, and no Party has yet exercised its contractual right to cancel the Escrow and terminate this Agreement,the Close of Escrow shall occur as soon as reasonably possible. 3.7. Recordation and Distribution of Documents. Escrow Holder shall cause the following documents to be recorded in the official records of the Recorder of Los Angeles County, California, in the following order of priority at Close of Escrow: (i) the Wimpey's Parcel Grant Deed, and (ii) any other documents to be recorded through Escrow upon the joint instructions of the Parties. Immediately after Closing, Escrow Holder shall deliver: (i) a certified copy of the Wimpey's Parcel Grant Deed to Agency and a copy to Fletcher and Yenyo, each showing all recording information, (ii) the original of any other documents recorded at the Close of Escrow to the Party or other person designated in the joint escrow instructions of the Parties for such recordation and a copy of each such document to the other Party or Parties, each showing all recording information, and (iii) such other unrecorded documents delivered to Escrow Holder to the Party or Parties designated by this Agreement to receive•the same. 3.8. Escrow and Titl Costs. Agency shall pay all of the customary and reasonable escrow fees that may be charged by the Escrow Holder in connection with the Close of Escrow. Agency shall also pay the cost of the premium for the Wimpey's Parcel Title Policy. 3.8.1. Any other Escrow-related transaction expenses or Escrow closing costs incurred by the Escrow Holder m connection with this transaction shall be apportioned and paid for by the Parties to this Agreement in the manner customary in Los Angeles County, California. 3.8.2. No later 'than five (5) business days prior to the Closing Date, the Escrow Holder shall prepare and deliver,for approval by Fletcher, Yenyo and Agency a closing statement (the "Closing Statement") on the Escrow Holder's standard form indicating, among other things, the Escrow Holder's estimateI of all closing costs, pay-off amounts for the release and reconveyance of all non-tax liens secured by the Wimpey's Parcel, and prorations made pursuant to this Agreement, if any. Fletcher, Yenyo and Agency shall assist the Escrow Holder in determining the amount of any and all prorations. 3.9. Escrow Cancell)tion Charges. If the Escrow fails to close due to Agency's material default under this Agreement,then Agency shall pay all ordinary and reasonable Escrow and Title Company cancellation charges. If the Escrow fails to close due to Fletcher's or Yenyo's material default under this Agreement, then Fletcher and Yenyo shall pay all ordinary i RVPUBWRANDOLPM723901.3 8 and reasonable Escrow and Title Company cancellation charges. If the Escrow fails to close for any reason other than the material default of either Fletcher, Yenyo or Agency, then Fletcher, Yenyo and Agency shall each pay one-third (1/3) of any ordinary and reasonable Escrow and Title Company cancellation charges. 3.10. Escrow Cancellation. If this Agreement is terminated pursuant to a contractual right granted to a Party in this Agreement to terminate this Agreement (other than due to the default of another Party), the Parties shall do each of the following: 3.10.1. Cancellation Instructions. The Parties shall, within three (3) business days of Escrow Holder's written request, execute any reasonable Escrow cancellation instructions requested by Escrow Holder; 3.10.2. Return of Funds and Documents. Within ten (10) business days of receipt by the Parties of a settlement statement of Escrow and Title Company cancellation charges from Escrow Holder: (i) Fletcher and Yenyo or Escrow Holder shall return to Agency any documents previously delivered by Agency to Fletcher and Yenyo or Escrow Holder, (ii) Agency or Escrow Holder shall return to Fletcher and Yenyo all documents previously delivered. by Fletcher and Yenyo to Agency or Escrow Holder; and (iii) Escrow Holder shall return to the depositing Party any funds deposited in Escrow by such Party, less that Party's share of customary and reasonable Escrow and title order cancellation charges, if any. 3.11. Report to IRS. After the Close of Escrow and prior to the last date on which such report is required to be filed with Internal Revenue Service, if such report is required pursuant to Section 6045(e) of the Internal Revenue Code, Escrow Holder shall report the gross proceeds of the purchase and sale of the Wimpey's Parcel to the Internal Revenue Service on Form W-9 or such other form(s) as may be specified by the Internal Revenue Service pursuant to Section 6045(e). Concurrently with the filing of such reporting form with IRS, Escrow Holder shall deliver a copy of the filed form to Agency, Fletcher and Yenyo. 3.12. Maintenance of Wimpey's Parcel and Business. Fletcher and Yenyo shall, prior to the Close of Escrow, continue to maintain the Wimpey's Parcel and the Business in substantially the same condition as of the Effective Date of this Agreement, shall keep it free of weeds and debris, and shall not farther encumber, or suffer to be encumbered, the Wimpey's Parcel with any liens or other non-statutory encumbrances, nor shall Fletcher or Yenyo enter into any contracts with respect to the Wimpey's Parcel which will survive the Close of Escrow without Agency's prior written consent, which may be given or conditioned in Agency's sole and absolute discretion. 3.13. Dismissal of Action. Within five (5) days following the Closing Date, the Agency shall file with the Los Angeles County Court a request for dismissal with prejudice of the Action and shall provide a conformed copy thereof to Fletcher and Yenyo. 3.14. Right to Possession• Right to Removal of Trade Fixtures and Equipment. The Agency shall have the right to exclusive possession and occupancy of the Wimpey's Parcel immediately upon the Close of Escrow; provided, however, that if Fletcher and Yenyo elect to lease the Wimpey's Parcel as provided in Section 3.16, exclusive possession shall be tendered to RVPUBKMJVDOLPH1713902.3 9 the Agency on January 31, 2007. Section 3.12 notwithstanding, Fletcher and Yenyo shall have the right to remove from the Wimpey's Parcel and Leased Premises such furniture, fixtures, equipment and other personal property as they may elect in their sole and absolute discretion prior to the Close of Escrow or, if applicable, the end of the lease term, i.e., January 31, 2007. Any such items remaining upon e Wimpey's Parcel or the Leased Premises following the Close of Escrow or, if applicable, the end of the lease term, i.e., January 31, 2007, may be considered by the Agency to be abandoned property and Fletcher and Yenyo shall be deemed to have waived and relinquished any right or claim with respect thereto, without further consideration from the Agency or any other per'son or entity. 3.15. Agency Entitled to Return Deposits. The Agency shall be entitled at any time following the Close of Escrow to withdraw both the Fletcher Deposit and Yenyo Deposit. Fletcher and Yenyo shall execute such stipulations, consents, or other instruments required, in the opinion of Agency legal counsel, to cause the release of such Deposits to the Agency. It is a condition to the Close of Escrow for the Agency's benefit that all such required instruments be fully executed and delivered to Escrow Holder for distribution to the Agency upon the Close of Escrow. 3.16. Fletcher/Yenyo Lease of Wimpey's Parcel Post-Close of Escrow. Fletcher and Yenyo shall have the right to elect to lease the Wimpey's Parcel for the period (if any) following the Close of Escrow through January 31, 2007. Written notice of such election must be delivered, if ever, no less than fifteen (15) days following the Opening of Escrow. Following the Agency's receipt of such notice,) all Parties shall negotiate in good faith the form of such lease, which shall be for a nominal rent of One Dollar ($1.00) for the term of the lease and which shall contain such reasonable and customary terms for commercial leases of a similar nature. ARTICLE 4 GENERAL RELEASE 4.1. Release. For and in consideration of the Agency's obligations under Article 2 of this Agreement, both Fletcher and Yenyo hereby release, waive and discharge the Agency and each of its respective officers, officials, employees, agents, volunteers, contractors and attorneys from any and all alleged and actual claims, damages, remedies, causes of action, demands, and other liabilities (collectively, "Liabilities") which Fletcher or Yenyo now have or may have arising out of or in any,way related to the Action, the Agency's acquisition of the Wimpey's Parcel, Yenyo's surrender of its leasehold interest in Wimpey's Parcel, Yenyo's displacement from the Wimpey's Parcel, and any Benefits to which Fletcher and/or Yenyo are or may be entitled. The foregoing release and waiver ("Release"), applies to all Liabilities and Benefits, whether retrospective, current, or prospective, known or unknown, foreseeable or unforeseeable. The Release is made by Fletcher and Yenyo for themselves, their agents, assigns, heirs and related entities. 4.2. Section 1542 Waiver. Except as otherwise provided inithis Agreement, it is the intention of the Parties that the Release shall be effective as a bar to all claims, causes of action, actions, damages, losses, demands, accounts, reckonings, rights, debts, liabilities, obligations, and attorneys' fees, of every character and kind, known or unknown, existing or contingent, RVPUBWRANDOLPM7239023 10 ' ' it I latent or patent; and in furtherance of such intention, Fletcher and Yenyo expressly waive any and all rights conferred upon them by the provisions of California Civil Code Section 1542, which reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." 4.3. Applicable to Future Discoveries. Fletcher and Yenyo acknowledge that they may hereafter discover facts or law different from or in additional to those which they now believe to be true with respect to the Release. Fletcher and Yenyo agree that the Release shall be and remain effective in all respects notwithstanding such different or additional facts or law or any party's discovery thereof. Neither Fletcher nor Yenyo shall be entitled to any relief in connection therewith, including, but not limited to any damages or any right or claim to set aside or rescind this Agreement. u l J Initials of Fletcher Initials of,Y nyo ARTICLE 5 TERMINATION,DEFAULTS AND REMEDIES. 5.1. Exercise of Rights to Terminate. In the event any Party elects to exercise its rights to terminate this Agreement and the Escrow as provided herein, that Parry may so terminate by giving notice, in writing, prior to the Close of Escrow, of such termination to the other Parties and Escrow Holder. In such event, the Parties shall pay all Escrow Holder and Title Company termination fees and charges (collectively, "Termination Costs") in the manner described in Section 3.9. Upon such termination, all obligations and liabilities of the Parties under this Agreement, excepting for the obligation of the Party so terminating to pay Termination Costs as provided herein, shall cease and terminate. 5.2. Defaults and Remedies. In the event a Party breaches any obligation under this Agreement which that Party is to perform prior to the Close of Escrow, and fails to cure such breach within a reasonable period of time determined at the sole discretion of a non-breaching Party that has given written notice to other Parties of such breach, then, in addition to pursuing any other rights or remedies which such non-breaching Party may have at law or in equity, such non-breaching Party may, at its option, elect to either: (i) terminate this Agreement and the Escrow by giving notice, in writing, prior to Close of Escrow, of such termination to the other Parties and Escrow Holder; or (ii) initiate an action for specific performance of this Agreement. Should such non-breaching Party elect to terminate this Agreement and the Escrow as provided herein, then the breaching Party shall pay all Termination Costs. Upon such termination, all obligations and liabilities of the Parties under this Agreement, excepting for the breaching Party's obligation to pay Termination Costs as provided herein, shall cease and terminate. . R VPUBWR4ND0LP1-P723902.3 11 5.3. Return of Funds and Documents: Release of Liability as to Escrow Holder. In the event Escrow Holder receives a notice, in writing, prior to Close of Escrow, from any Party of its election to terminate the Escrow as provided in this Article 5,then Escrow Holder shall promptly terminate the Escrow and return all funds, less Termination Costs, as appropriate, and documents to the Party depositing the same. The Parties hereby release Escrow Holder, and shall hold Escrow Holder free and harmless, from all liabilities associated with such termination excepting for Escrow Holder's obligations to return funds and documents as provided herein. ARTICLE 6 MISCELLANEOUS 6.1. Notices and Demands. All notices or other communications required or permitted between the Parties hereunder shall be in writing, and shall be (i) personally delivered, (ii) sent by United States registered or certified mail, postage prepaid, return receipt requested, (iii) sent by facsimile transmission with I confirmation of receipt, or (iv) sent by nationally recognized overnight courier service (e.g., Federal Express or United Parcel Service), addressed to the Party to whom the notice is given at the addresses provided below, subject to the right of any Party to designate a different address for itself by notice similarly given. Any notice so given by registered or certified United States mail shall be deemed to have been given on the third business day after the same is deposited in the United States mail. Any notice not so given by registered or certified mail, such as notices delivered by personal delivery, facsimile transmission or courier service, shall be deemed given upon receipt, rejection or refusal of the same by the Parry to whom the notice is given. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice or other communication sent. To Agency: Redevelopment Agency of the City of Azusa 213 East Foothill Blvd. Azusa, California 91702 Attention: Executive Director Facsimile: (626) 812-5328 With Copy to: Best Best& Krieger LLP Attn: Kevin K. Randolph, Esq. 3750 University Avenue Riverside, CA 92501 Facsimile: (951) 686-3083 To Fletcher: Wayne R. and Valda R. Fletcher To Yenyo: Jim Yenyo and Shannon Yenyo-Espinosa r RVPUBIKBANDOLPHV23902.3 12 6.2. Brokers and Sales Commissions. Each Parry represents and warrants to the other Parties that it has not retained the services of any real estate agent or broker and that no sales or brokerage commissions, finder's fees or other commissions are payable by that Parry with respect to the transaction that is the subject of this Agreement. Each Party shall indemnify, protect, defend and hold harmless the other Parties and their respective successors from and against any and all claims, liabilities, obligations, losses, damages, costs and expenses, including, without limitation, reasonable attorney's fees, court costs and litigation expenses, arising from or in connection with any sales or brokerage commissions, finder's fees or other commissions which are, or are claimed to be, payable in connection with the transaction which is the subject of this Agreement by reason of the actions, or alleged actions, of such indemnifying Party. The terms of this Section 6.2 shall survive the Close of Escrow. 6.3. Authority. Each Party represents and warrants to the other Parties that it is a duly organized and validly existing entity under the laws of the State of California; that it has full legal right, power and authority to enter into this Agreement and to carry out and consummate the transaction contemplated by this Agreement and its obligations under this Agreement; that by proper action it has duly authorized the execution and delivery of this Agreement; and that each of its representatives executing this Agreement is fully authorized to execute the same. 6.4. Survival of Covenants. The covenants, representations and warranties of each Parry set forth in this Agreement shall survive the Close of Escrow. 6.5. Time of Essence. Time is of the essence of each and every term, condition, obligation and provision hereof. 6.6. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. 6.7. Captions. Any captions to, or headings of, the paragraphs or subparagraphs of this Agreement are solely for the convenience of the Parties, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. 6.8. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate any of the Parties to, any person or entity other than the Parties. 6.9. Exhibits. The Exhibits attached hereto are hereby incorporated herein by this reference. 6.10. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. 6.11. Applicable Law. All questions with respect to this Agreement, and the rights and liabilities of the Parties and venue hereto, shall be governed by the laws of the State of California. Any and all legal actions sought to enforce the terms and provisions of the Agreement shall be brought in the courts of the County of Los Angeles. RVPUBWRANDOLPX723902.3 13 6.12. Assimnent. No Party shall assign this Agreement, and any right or obligation herein, to any other party without the prior consent or approval of the other Parties, which consent may be given or withheld in each of the other Parties' sole discretion. Any attempt at such an assignment without the express written consent of the other Parties shall be null and void and of no effect. 6.13. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and!assigns of the Parties hereto. 6.14. Severability. If any term or provision of this Agreement shall be held invalid or unenforceable,the remofainder this Agreement shall not be affected. 6.15. Leal Fees. Each Party shall be responsible for payment of its own attorney's fees with respect to negotiation and ;preparation of this Agreement and processing of the Escrow. In the event of the bringing of any action or proceeding to enforce or construe any of the provisions of this Agreement, the prevailing Party(ies) in such action or proceeding, whether by final judgment or out of court settlement, shall be entitled to have and recover of and from the other Party(ies) all costs and expenses of suit, including actual attorney's fees'and costs of experts. 6.16. Fees and Other Expenses. Except as otherwise provided herein, each of the Parties shall pay its own fees and expenses in connection with this Agreement. 6.17. Entire A¢.reeml nt. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the Parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by any Parry, or by or to an employee, officer, agent or representative of any Party, shall be of any effect unless it is in writing and executed by the Party to be bound thereby. 6.18. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the Parties hereto. I 6.19. Necessary Acts. Each Party shall perform any further acts and execute and deliver any further documents that may be reasonably necessary to carry out the provisions of this Agreement. 6.20. Authority To Sign. Each Party warrants that the individuals who have signed this Agreement on behalf of that (Party have the legal power, right, and authority to so sign and thereby bind that Party and its/Ihis heirs, personal representatives, successors and assigns and any person or entity that may otherwise be entitled to grant the Release. 6.21. No Interpretation Against Drafter; Advice of Counsel' This Agreement is to be construed fairly and not in favor of or against any Party regardless�of which Party or Parties drafted or participated in the drafting of its terms. Each Party acknowledges it has had the opportunity to receive independent legal advice with respect to the advisability of making this Agreement and with respect to the meaning of California Civil Code Section 1542 and that they are freely and voluntarily entering in this Agreement and understand this Agreement in its entirety. 14 RVPUBV:RANDOLPHV239023 I IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date(s) set forth below next to their respective signatures. [Signatures on the following pages] RVPUBIKRANDOLPHV23902.3 15 SIGNATURE PAGE TO AGREEMENT OF ACQUISITION OF REAL PROPERTY, RELOCATION SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS r f Date: — — FLETCHER: By: Way � �R. Letcher i By- �U \� \T— Valda R. Fletcher I I I i I RVPUBWRANDOLPM723902.3 16 �I SIGNATURE PAGE TO AGREEMENT OF ACQUISITION OF REAL PROPERTY, RELOCATION SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS Date: 11 3 O 'U YENYO: By: Yenyo By: Shannon Yenyo-Eipin6sa ll f^ RVPUBWRANDOLPHl723902.3 17 SIGNATURE PAGE TO AGREEMENT OF ACQUISITION OF REAL PROPERTY, RELOCATION SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS i Date: AGENCY: REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, a public body, corporate and politic I P I By: F. M. Delach Executive Director ATTEST: I Agency Secretary APPROVED AS TO FORM: BEST BEST &KRIEGER LLP By: Agency Counsel I ,I RVPUBWRAND0LP1P723902.3 18 EXHIBIT A-1 TO AGREEMENT FOR ACQUISITION OF REAL PROPERTY,RELOCATION SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS Legal Description of Agency Parcel [attached behind this page] EXHIBIT A-1 RVPUBWR4ND0LPH1723902.3 EXHIBIT A-2 TO AGREEMENT FOR ACQUISITION OF REAL,PROPERTY, RELOCATION SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS Depiction of Agency Parcel and Larger Parcel ` i [attached behind this page] I I II I, EXHIBIT A-2 RVPUBI PUNDOLPM723902.3 EXHIBIT B TO AGREEMENT FOR ACQUISITION OF REAL PROPERTY,RELOCATION SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS Legal Description of WimpeY's Parcel [attached behind this page] EXHIBIT B RVP UB I KR9 NDOLPM723902.3 i AGREEMENT FOR ACQUISITION OF REAL PROPERTY, RELOCATION,I SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS This AGREEMENT FOR ACQUISITION OF REAL PROPERTY, RELOCATION SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS ("Agreement") is entered into by and among (i) THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, a public body, corporate and politic, exercising governmental functions and powers, and organized and existing pursuant to the Community Redevelopment Law of the State of California, Health and Safety, Code Sections 33000, et seq. (the "Agency"); (ii) WAYNE R. AND VALDA R. FLETCHERJ1 individuals (collectively, "Fletcher"); and (iii) JIM YENYO AND SHANNON YENYO-ESPINOSA, individuals (collectively, "Yenyo"). The Agency, Fletcher and Yenyo are sometimes referred to herein individually as "Party" and collectively as "Parties". RECITALS A. The City of Azusa, California ("City") approved and adopted the redevelopment plan ("Redevelopment Plan") for the redevelopment project area known as the"Merged Central Business District Redevelopment Area" ("Project Area"); and B. The Agency isle fee owner of that certain real property commonly known as 975 West Foothill Blvd., Azusa (the "Larger Parcel"). The Larger;Parcel is approximately 65,814 gross square feet in size. C. Fletcher currently owns fee simple title to that certain real property and improvements located within the Project Area and commonly known as 100 East Foothill Blvd., Azusa (the "Wimpey's Parcel'). The Wimpey's Parcel is legally described on Exhibit "B" attached hereto and incorporated herein. D. The Wimpey's Parcel is currently occupied by Yenyo pursuant to a leasehold interest. Yenyo is the owner o the business located on the Wimpey's Parcel commonly known as Wimpey's Pawn Shop (the "iusiness"). E. On May '16, 2006, the Agency instituted an action in condemnation against Fletcher and Yenyo entitled City of Azusa Redevelopment Agency v. Wayne R. Fletcher; Valda R. Fletcher; et. al., Los Angeles County Superior Court Case No. BC 352467 (the "Action"). The Action sought judicial condemnation of the Wimpey's Parcel and its improvements. In connection with the Action, the Agency deposited with the State of California Treasurer the amount of Eight Hundred FiftyFive Thousand Dollars ($855,000) (the "Fletcher Deposit") as probable compensation due to Fletcher in connection with the Agency's- acquisition of the Wimpey's Parcel and the sum of Fifty Thousand Seven Hundred Forty Dollars ($50,740) (the "Yenyo Deposit") as probablel compensation due to Yenyo in connection with the Agency's acquisition of the fumitures, fixtures and equipment associated with the operation of the Business. RVPMBV:MND0LPHV23902.3 1 r F. Under applicable law, Fletcher, as the owner of the Wimpey's Parcel, and Yenyo, as the tenant of the Wimpey's Parcel and the owner of the Business, may be entitled to certain rights and benefits including, but not limited to, statutory relocation benefits, moving expenses, reestablishment expenses, just compensation, severance damages, loss of goodwill interest, litigation expenses, attorneys' fees and costs, damages for inverse condemnation, unreasonable pre-condemnation delay, unreasonable pre-condemnation activities and other expenses and losses associated with the Action and the Agency's acquisition of the Wimpey's Parcel and the displacement of Yenyo from the Wimpey's Parcel (all of the foregoing, collectively, "Benefits"). G. Fletcher has been advised and informed of its rights under applicable law and the Benefit which it may be entitled to claim. In lieu of such Benefits, Fletcher desires to receive from the Agency the Fletcher Payment. H. Yenyo has been advised and informed of its rights under applicable law as to the Benefits which it may be entitled to claim. In lieu of such Benefits, Yenyo desires to receive from the Agency the Yenyo Payment. I. The Agency and Yenyo are parties to that certain "Wimpey's Pawn Shop Lease" (the "Agency Lease") dated March 21, 2005 pertaining to certain Agency-owned real property (the "Leased Premises") located adjacent to the Wimpey's Parcel at 112 East Foothill Boulevard, Azusa, CA 91702. As additional consideration to the Agency for execution of this Agreement, Yenyo shall surrender and terminate the Agency Lease, shall deliver exclusive possession of the Leased Premises to the Agency, and shall remove all personal property from the Leased Premises, all upon the Close of Escrow. J. The Agency, Fletcher and Yenyo now wish to resolve and settle once and for all, all present, past and future controversies, claims, causes of action or purported causes of action, defenses, and disputes, both real and potential, which the Fletcher and Yenyo may have against the Agency with respect to the Action, the Agency's acquisition of the Wimpey's Parcel, termination of Yenyo's leasehold interest, Yenyo's surrender of possession of the Wimpey's Parcel, the relocation of the Business, and any and all Benefits to which Fletcher or Yenyo may be entitled. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION AND THE MUTUAL PROMISES AND COVENANTS OF THE PARTIES SET FORTH IN THIS AGREEMENT, THE AGENCY, FLETCHER AND YENYO AGREE AS FOLLOWS: ARTICLE 1 REAL PROPERTY ACQUISITION AND PAYMENT FOR FURNISHINGS FIXTURES AND EQUIPMENT 1.1. Effective Date. This Agreement shall be effective as of the date it is approved and signed by all Parties ("Effective Date"). If the Effective Date has not occurred on or before December 31, 2006,this Agreement shall automatically terminate and be of no force or effect. RVPUBWR4NDOLPH1723902.3 2 1.2. Settlement Consideration. In exchange for the conveyance of the Wimpey's Parcel and the agreements, releases, acknowledgments and waivers from Fletcher and Yenyo as provided by this Agreement, the Agency shall: (1) pay to Fletcher the amount of Nine Hundred Seventy-Five Thousand Dollars' ($975,000) (the "Fletcher Payment"), (2) pay to Yenyo the amount of Four Hundred Eighty-Eight Thousand Dollars ($488,000) (the "Yenyo Payment"), and (3) grant to Fletcher an option (the "Option") to acquire the Agency Parcel, all on the terms more specifically hereinafter set forth. 1.3. Definitions. 1.3.1. "Agency Parcel" means and refers to that approximately 18,255 square foot portion of the Larger Parcel. The Agency Parcel, which is currently unimproved, is legally described and depicted on Exhibit "A-1" and "A=2" attached to this Agreement and incorporated herein by this reference. The Agency shall, at its expense, complete'a lot line adjustment to create the Agency Parcel from the Larger Parcel. 1.3.2. "Escro " shall have the meaning ascribed to such term where it first appears in this Agreement. 1.3.3. "Escrow Closing Date" means the recording of the Wimpey's Parcel Grant Deed in the Official Records of the Recorder of the County of Los Angeles, California. 1.3.4. "Escro Holder" means located at California. 1.3.5. "Leased Premises" means that parcel of Agency-owned property located at 112 East Foothill Blvd., Azusa. 1.3.6. "Outsid i Closing Date" means and refers to ( '� 1.3.7. "Title Company" means Title Company, located at California 1.3.8. ".Wimp ly's Parcel' means and refers to that certain real property and improvements commonly known as 100 East Foothill Blvd. (APN 8611-003-006). The Wimpey's Parcel is legally described in Exhibit"B" attached to this Agreement and incorporated herein by this reference. 1.3.9. "Wimpey's Parcel Grant Deed" means and refers to means and refers to the Title Company's standard form of grant deed conveying the Wimpey's Parcel to Agency. 1.3.10. "Wimpey's Parcel Title Policy" means and refers to a standard CLTA owner's policy of title insurance issued by the Title Company, with coverage in the amount of Nine Hundred Seventy-Five Thousand Dollars ($975,000) and insuring fee title to the Wimpey's Parcel vested in the Agency, subject only to statutory liens and encumbrances and non- delinquent property tax liens. R VPUBXRANDOLPM723902.3 3 1.3.11. "Wimpey's Pawn Shop" means and refers to the pawn shop business owned and operated by Yenyo,who currently have a leasehold interest in the Wimpey's Parcel. All other initially capitalized terms appearing in this Agreement and not defined above shall have the meanings ascribed to such terms where they first appear in this Agreement. ARTICLE 2 ACQUISITION AND CONVEYANCE OF WIMPEY'S PARCEL; PURCHASE OPTION FOR AGENCY PARCEL 2.1. Purchase of Wimpey's Parcel by Agency. In accordance with the terms of this Agreement, Fletcher agrees to convey the Wimpey's Parcel to the Agency and the Agency agrees to acquire the Wimpey's Parcel from Fletcher pursuant to the terms and conditions of this Agreement. 2.2. Purchase Option for Agency Parcel. The Agency hereby grants to Fletcher an option to purchase the Agency Parcel (the "Option"), together with all the Agency's right, title, and interest in and to all rights, privileges, and appurtenances owned by the Agency and pertaining to or accruing to the use or benefit of the Agency Parcel. The Option shall remainin effect for two (2) years from the Close of Escrow described in this Agreement (the "Option Period"); provided that the Option shall terminate without further notice to Fletcher if the Close of Escrow for the Wimpey's Parcel has not occurred by the Outside Closing Date, as it may be extended by agreement of the Parties, or upon Fletcher's or Yenyo's material uncured breach of this Agreement. The purchase price for the Agency Parcel shall be Six Hundred Eighty-One Thousand Six Hundred Dollars ($681,600). 2.2.1. Exercise of Option. Fletcher may exercise the Option during the Option Period by notifying the Agency in writing (the "Option Notice") of Fletcher's intent to purchase the Agency Parcel at any time prior to the expiration of the Option Period. The purchase and sale of the Agency Parcel shall be subject to a purchase and sale agreement reasonably acceptable to Agency and Fletcher, consistent with this Agreement and otherwise containing terms and conditions customarily contained in agreements for the sale of similar real property in Los Angeles County. 2.2.2. Fletcher's Due Diligence Review of Agency Parcel. Fletcher shall be entitled to conduct at its sole cost such due diligence and suitability studies and investigations of the Agency Parcel during an initial investigation period as Fletcher shall deem necessary to determine, to Fletcher's satisfaction in its sole discretion, if the Agency Parcel is acceptable for Fletcher's intended use ("Suitability Investigation"), which Suitability Investigation may include,without limitation, a review and satisfaction of the following matters: 2.2.2.1. Review of applicable zoning and land use ordinances and requirements, plat and/or plan of development requirements, existing zoning conditions and violations and Fletcher's potential needs for any change of zoning classification and/or any variances and special or conditional use permits; R VPU3KMND0LPH723902.3 4 2.2.2.2. Review of site access and costs pertaining to off-site improvements; and 2.2.2.3. Obtaining site inspection and environment investigation reports and surveys, soils and engineering reports, maps and agreements affecting the Agency Parcel. 2.2.3. Time for Fletcher to Conduct Suitability Investigation. Fletcher shall complete its Suitability Investigation prior to delivering the Option Notice. ARTICLE 3 JOINT ESCROW INSTRUCTIONS 3.1. OOnenina of Escr sw Escrow Instructions. The Parties shall cause an escrow (the "Escrow") to be opened with Escrow Holder within five (5) days following the Effective Date. Escrow Holder shall promptly confirm to each of the Parties the date of the Opening of Escrow. This ARTICLE 3 shall constitute joint escrow instructions of the Agency, Fletcher and Yenyo to Escrow Holder for the conduct of the Escrow. 3.2. Conditions to Cl se of Escrow. The conditions set forth in this Section 3.2 shall be satisfied or waived by the respective benefited Party on or before the Outside Closing Date or the Party benefited by any unsatisfied condition shall not be required to proceed to Close the Escrow. Where satisfaction of any of the foregoing conditions requires action by Fletcher or by Agency, such Party shall use its reasonable best efforts, in good faith, and at its own cost, to satisfy such condition. Where satisfaction of any of the conditions requires the approval of a Party, such approval shall be in such Party's reasonable discretion. Either Party may waive any of the conditions set forth in_this Agreement, but any such waiver shall be effective only if contained in a writing signed by the waiving Party and delivered to the Escrow Holder and the other Parties. 3.2.1. Fletcheris Conditions Precedent. Fletcher's obligation to convey the Wimpey's Parcel shall be conditioned upon the satisfaction or Fletcher's written waiver of the following conditions precedent ("Fletcher's Conditions Precedent'), prior to the Close of Escrow: 3.2.1.1. The Title Company is unconditionally committed to issue the Wimpey's Parcel Title Policy to Agency; 3.2.11.2. The Agency deposits all of the items into Escrow required by Section 3.4; 3.2.1.3. If applicable, the Parties have fully executed the lease described in Section 3.16, and 3.2.1.4. The representations, warranties and covenants of Agency set forth in this Agreement are true and correct in all material respects on the Effective Date and on the Escrow Closing Date. R VP UB WRANDOLPM 723 902.3 5 3.2.2. Agency's Conditions Precedent. Agency's obligation to acquire the Wimpey's Parcel shall be conditioned upon the satisfaction or the Agency's written waiver of the following conditions precedent ("Agency's Conditions Precedent"), prior to the Close of Escrow: 3.2.2.1. Fletcher and Yenyo deposit all of the items into Escrow required by Section 3.3; 3.2.2.2. The Title Company is unconditionally committed to issue the Wimpey's Parcel Title Policy to Agency; 3.2.2.3. Fletcher and Yenyo performs all of their material obligations required to be performed by Fletcher and/or Yenyo under this Agreement prior to Close of Escrow; 3.2.2.4. If applicable, the Parties have fully executed the lease described in Section 3.16, 3.2.2.5. The representations, warranties and covenants of Fletcher and Yenyo set forth in this Agreement are true and correct in all material respects on the Effective Date and on the Escrow Closing Date, and 3.2.2.6. Fletcher and Yenyo have removed all personal property from the Leased Premises and have surrendered possession of the Leased Premises and executed such instruments as the Agency may reasonably request to evidence such termination of the Agency Lease. 3.3. Fletcher's and Yenvo's Escrow Deposits. Fletcher and Yenyo shall deposit the following items into Escrow at least two (2) business days prior to the Escrow Closing Date scheduled by Escrow Holder by written notice delivered to the Parties: 3.3.1. Any amounts required to be deposited into Escrow by Fletcher and Yenyo under the terms of this Agreement to Close Escrow, all in immediately available funds. 3.3.2. A duly executed and notarized Wimpey's Parcel Grant Deed and, if applicable,the lease described in Section 3.16. 3.3.3. Two (2) duplicate original copies of the Closing Statement'described in Section 3.8.2, executed by Fletcher and Yenyo. 3.3.4. A FIRPTA affidavit and California Franchise Tax Board Form 593-W executed by Fletcher and Yenyo, in the customary form provided by the Escrow Holder. 3.3.5. The stipulations and other instruments described in Section 3.15. 3.3.6. Any other documents, instruments or funds required to be delivered by Fletcher or Yenyo under the terms of this Agreement or as otherwise reasonably requested by Escrow Holder or Title Company in order to Close Escrow. RVPUB"ANDOLPH1723902.3 6 3.4. Agency's Escrow Deposits. Agency shall deposit the following items into Escrow at least two (2) business days prior to the Escrow Closing Date scheduled by Escrow Holder by written notice delivered to the Parties: 3.4.1. Any amol is required to be deposited into Escrow by Agency under the terns of this Agreement to Close Escrow, including the Fletcher Payment and Yenyo Payment, all in immediately available funds. 3.4.2. The Age I cy's certificate of acceptance of the Wimpey's Parcel Grant Deed and, if applicable,the lease described in Section 3.16. j 3.4.3. A PCO Statement executed by the authorized representative(s) of Agency for the Wimpey's Parcel. 3.4.4. Two (2) duplicate original copies of the estimated Closing Statement described in Section 3.8.2, executed by the authorized representative(s) of Agency. 3.4.5. Any other documents, instruments, funds and records required to be delivered by Agency under the terms of this Agreement or as otherwise reasonably requested by Escrow Holder or Title Company in order to Close Escrow. 3.5. Closine Procedure When each of Fletcher's and Yenyo's Escrow deposits, as set forth in Section 3.3, and each lof Agency's Escrow deposits, as set forth in Section 3.4, are deposited into Escrow, Escrow Holder shall request confirmation in writing from all Parties that each of their respective conditions to the Close of Escrow, as set forth in Section 3.2, are satisfied or waived. Upon Escrow Holder's receipt of written confirmation from all Parties that each of their respective conditions to the Close of Escrow are satisfied or waived, Escrow Holder shall"Close Escrow" by doing all of the following: 3.5.1. Recordation of Documents. File the Wimpey's Parcel Grant Deed in the Office of the Recorder of Los A.6geles County, California. 3.5.2. Distribution of Recorded Documents. Distribute conformed copies of each recorded document to the Party or other person designated for such distribution in Section 3.7; 3.5.3. PCO Statement. File the PCO Statement with the Office of the Recorder of Los Angeles County,.California; 3.5.4. FIRPTA Affidavit. File the FIRPTA Affidavits with the United States Internal Revenue Service; 3.5.5. Form 593. File the Form 593-W with the California Franchise Tax Board; 3.5.6. Title Policy(ies). Obtain and deliver to the Agency the Wimpey's Parcel Title Policy; i t RVPUBIKRANDOLPM723902.3 7 3.5.7. Fletcher Payment. Deliver the Fletcher Payment to Fletcher; and 3.5.8. Yenyo Payment. Deliver the Yenyo Payment to Yenyo. 3.6. Close of Escrow. Close of Escrow shall occur following satisfaction of all conditions precedent therefor set forth in Section 3.2 and elsewhere in this Agreement have occurred. If the Close of Escrow has not occurred by the Outside Closing Date, then any Party not then in default of this Agreement may terminate this Agreement and cancel the Escrow, without liability to the other Party or any other person for such termination and cancellation, by delivering written notice of termination to the other Parties and Escrow Holder and, thereafter, the Parties shall proceed pursuant to Section 3.10. Without limiting the termination rights of the Parties as provided for in the previous sentence, if Escrow does not close on or before the Outside Closing Date, and no Parry has yet exercised its contractual right to cancel the Escrow and terminate this Agreement, the Close of Escrow shall occur as soon as reasonably possible. 3.7. Recordation and Distribution of Documents. Escrow Holder shall cause the following documents to be recorded in the official records of the Recorder of Los Angeles County, California, in the following order of priority at Close of Escrow: (i) the Wimpey's Parcel Grant Deed, and (ii) any other documents to be recorded through Escrow upon the joint instructions of the Parties. Immediately after Closing, Escrow Holder shall deliver: (i) a certified copy of the Wimpey's Parcel Grant Deed to Agency and a copy to Fletcher and Yenyo, each showing all recording information, (ii) the original of any other documents recorded at the Close of Escrow to the Party or other person designated in the joint escrow instructions of the Parties for such recordation and a copy of each such document to the other Party or Parties, each showing all recording information, and (iii) such other unrecorded documents delivered to Escrow Holder to the Party or Parties designated by this Agreement to receive the same. 3.8. Escrow and Title Costs. Agency shall pay all of the customary and reasonable escrow fees that may be charged by the Escrow Holder in connection with the Close of Escrow. Agency shall also pay the cost of the premium for the Wimpey's Parcel Title Policy. 3.8.1. Any other Escrow-related transaction expenses or Escrow closing costs incurred by the Escrow Holder in connection with this transaction shall be apportioned and paid for by the Parties to this Agreement in the manner customary in Los Angeles County, California. 3.8.2. No later than five (5) business days prior to the Closing Date, the Escrow Holder shall prepare and deliver for approval by Fletcher, Yenyo and Agency a closing statement (the "Closing Statement") on the Escrow Holder's standard form indicating, among other things, the Escrow Holder's estimate of all closing costs, pay-off amounts for the release and reconveyance of all non-tax liens secured by the Wimpey's Parcel, and prorations made pursuant to this Agreement, if any. Fletcher, Yenyo and Agency shall assist the Escrow Holder in determining the amount of any and all prorations. 3.9. Escrow Cancellation Charges. If the Escrow fails to close due to Agency's material default under this Agreement, then Agency shall pay all ordinary and reasonable Escrow and Title Company cancellation charges. If the Escrow fails to close due to Fletcher's or Yenyo's material default under this Agreement, then Fletcher and Yenyo shall pay all ordinary RPPUBW"ND0LAM 723902.3 8 and reasonable Escrow and Title Company cancellation charges. If the Escrow fails to close for any reason other than the material default of either Fletcher, Yenyo or Agency, then Fletcher, Yenyo and Agency shall each pay one-third (1/3) of any.ordinary and reasonable Escrow and Title Company cancellation charges. 3.10. Escrow Cancellation. If this Agreement is terminated pursuant to a contractual right granted to a Party in this Agreement to terminate this Agreement (other than due to the default of another Party), the Parties shall do each of the following: 3.10.1. Cancellation Instructions. The Parties shall, within three (3) business days of Escrow Holder's written request, execute any reasonable Escrow cancellation instructions requested by Escrow Holder; v 3.10.2. Return of Funds and Documents. Within ten (10) business days of receipt by the Parties of a settlement statement of Escrow and Title Company cancellation charges from Escrow Holder: (i) Fletcher and Yenyo or Escrow Holder shall return to Agency any documents previously delivered by Agency to Fletcher and Yenyo or Escrow Holder, (ii) Agency or Escrow Holder shall return to Fletcher and Yenyo all documents previously delivered by Fletcher and Yenyo to Agency or Escrow Holder; and (iii) Escrow Holder shall return to the depositing Party any funds deposited in Escrow by such Parry, less that Parry's share of customary and reasonable Escrow and title order cancellation charges, if any. 3.11. Report to IRS. After the Close of Escrow and prior to the last date on which such report is required to be filed with Internal Revenue Service, if such report is required pursuant to Section 6045(e) of the Internal 12evenue Code, Escrow Holder shall report the gross proceeds of the purchase and sale of the Wiinpey's Parcel to the Internal Revenue Service on Form W-9 or such other form(s) as may be specified by the Internal Revenue Service pursuant to Section 6045(e). Concurrently with the filing of such reporting form with IRS, Escrow Holder shall deliver a copy of the filed form t I o Agency, Fletcher and Yenyo. 3.12. Maintenance of Wimpey's Parcel and Business. Fletcher and Yenyo shall, prior to the Close of Escrow, continue to maintain the Wimpey's Parcel and the Business in substantially the same condition as of the Effective Date of this Agreement, shall keep it free of weeds and debris, and shall not further encumber, or suffer to be encumbered, the Wimpey's Parcel with any liens or other non-statutory encumbrances, nor shall Fletcher or Yenyo enter into any contracts with respect to the Wimpey's Parcel which will survive the Close of Escrow without Agency's prior written consent, which may be given or conditioned in Agency's sole and absolute discretion. 1 3.13. Dismissal of Action. Within five (5) days following the Closing Date, the Agency shall file with the Los Angeles County Court a request for dismissal with prejudice of the Action and shall provide a conformed copy thereof to Fletcher and Yenyo. 3.14. Right to Possession: Right to Removal of Trade Fixtures and Equipment. The Agency shall have the right to exclusive possession and occupancyof the Wimpey's Parcel immediately upon the Close of,Escrow; provided, however, that if Fletcher and Yenyo elect to lease the Wimpey's Parcel as provided in Section 3.16, exclusive possession shall be tendered to I RVPUBWRANDOLM723902.3 9 I the Agency on January 31, 2007. Section 3.12 notwithstanding, Fletcher and Yenyo shall have the right to remove from the Wimpey's Parcel and Leased Premises such furniture, fixtures, equipment and other personal property as they may elect in their sole and absolute discretion prior to the Close of Escrow or, if applicable, the end of the lease term, i.e., January 31, 2007. Any such items remaining upon the Wimpey's Parcel or the Leased Premises following the Close of Escrow or, if applicable, the end of the lease term, i.e., January 31, 2007, may be considered by the Agency to be abandoned property and Fletcher and Yenyo shall be deemed to have waived and relinquished any right or claim with respect thereto, without further consideration from the Agency or any other person or entity. 3.15. Agency Entitled to Return Deposits. The Agency shall be entitled at any time following the Close of Escrow to withdraw both the Fletcher Deposit and Yenyo Deposit. Fletcher and Yenyo shall execute such stipulations, consents, or other instruments required, in the opinion of Agency legal counsel, to cause the release of such Deposits to the Agency. It is a condition to the Close of Escrow for the Agency's benefit that all such required instruments be fully executed and delivered to Escrow Holder for distribution to the Agency upon the Close of Escrow. 3.16. Fletcher/Yenyo Lease of Wimpev's Parcel Post-Close of Escrow. Fletcher and Yenyo shall have the right to elect to lease the Wimpey's Parcel for the period (if any) following the Close of Escrow through January 31, 2007. Written notice of such election must be delivered, if ever, no less than fifteen (15) days following the Opening of Escrow. Following the Agency's receipt of such notice, all Parties shall negotiate in good faith the form of such lease, which shall be for a nominal rent of One Dollar ($1.00) for the term of the lease and which shall contain such reasonable and customary terns for commercial leases of a similar nature. ARTICLE 4 GENERAL RELEASE 4.1. Release. For and in consideration of the Agency's obligations under Article 2 of this Agreement, both Fletcher and Yenyo hereby release, waive and discharge the Agency and each of its respective officers, officials, employees, agents, volunteers, contractors and attorneys from any and all alleged and actual claims, damages, remedies, causes of action, demands, and other liabilities (collectively, "Liabilities") which Fletcher or Yenyo now have or may have arising out of or in any way related to the Action, the Agency's acquisition of the Wimpey's Parcel, Yenyo's surrender of its leasehold interest in Wimpey's Parcel, Yenyo's displacement from the Wimpey's Parcel, and any Benefits to which Fletcher and/or Yenyo are or may be entitled. The foregoing release and waiver ("Release"), applies to all Liabilities and Benefits, whether retrospective, current, or prospective, known or unknown, foreseeable.or unforeseeable. The Release is made by Fletcher and Yenyo for themselves, their agents, assigns, heirs and related entities. 4.2. Section 1542 Waiver. Except as otherwise provided in this Agreement, it is the intention of the Parties that the Release shall be effective as a bar to all claims, causes of action, actions, damages, losses, demands, accounts, reckonings, rights, debts, liabilities, obligations, and attorneys' fees, of every character and kind, known or unknown, existing or contingent, RVPUMUNDOLPM723902.3 10 n � latent or patent; and in furtherance of such intention, Fletcher and Yenyo expressly waive any and all rights conferred.upon them.by the provisions of California Civil Code Section 1542, which reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing thel release, which if known by him or her must have materially affected his or her settlement with the debtor." 4.3. Applicable to F ture Discoveries. Fletcher and Yenyo acknowledge that they may hereafter discover facts or law different from or in additional to those which they now believe to be true with respect to the Release. Fletcher and Yenyo agree that the Release shall be and remain effective in all respects notwithstanding such different or additional facts or law or any party's discovery thereof. Neither Fletcher nor Yenyo shall be 'entitled to any relief in connection therewith, including, but not limited to any damages or any right or claim to set aside or rescind this Agreement. Initials of Fletcher Initials of Yen ARTICLE 5 TERMINATION, DEFAULTS AND REMEDIES. 5.1. Exercise of Righ s to Terminate. In the event any Party elects to exercise its rights to terminate this Agreement and the Escrow as provided herein, that Party may so terminate by giving notice, in writing, prior to the Close of Escrow, of such termination to the other Parties and Escrow Holder. In such event, the Parties shall pay all Escrow Holder and Title Company termination fees and charges (collectively, "Termination Costs") in the manner described in Section 3.9. Upon such termination, all obligations and liabilities of the Parties under this Agreement, excepting for the oliligation of the Party so terminating to pay Termination Costs as provided herein, shall cease and terminate. 5.2. Defaults and Remedies. In the event a Party breaches any obligation under this Agreement which that Party is Ito perform prior to the Close of Escrow, and fails to cure such breach within a reasonable period of time determined at the sole discretion of a non-breaching Party that has given written notice to other Parties of such breach, then, in addition to pursuing any other rights or remedies which such non-breaching Party may have at law or in equity, such non-breaching Party may, at its option, elect to either: (i) terminate this Agreement and the Escrow by giving notice, in writing, prior to Close of Escrow, of such termination to the other Parties and Escrow Holder; or (ii) initiate an action for specific performance of this Agreement. Should such non-breaching Party elect to terminate this Agreement and the Escrow as provided herein, then the breaching Party shall pay all Termination Costs. Upon such termination, all obligations and liabilities of the Parties under this Agreement, excepting for the breaching Party's obligation to pay Termination Costs as provided herein, shall cease and terminate. RVPUBIKR4NDOLP1I1723902.3 11 i 5.3. Return of Funds and Documents; Release of Liability as to Escrow Holder. In the event Escrow Holder receives a notice, in writing, prior to Close of Escrow, from any Party of its election to terminate the Escrow as provided in this Article 5, then Escrow Holder shall promptly terminate the Escrow and return all funds, less Termination Costs, as appropriate, and documents to the Party depositing the same. The Parties hereby release Escrow Holder, and shall hold Escrow Holder free and harmless, from all liabilities associated with such termination excepting for Escrow Holder's obligations to return funds and documents as provided herein. ARTICLE 6 MISCELLANEOUS 6.1. Notices and Demands. All notices or other communications required or permitted between the Parties hereunder shall be in writing, and shall be (i) personally delivered, (ii) sent by United States registered or certified mail, postage prepaid, return receipt requested, (iii) sent by facsimile transmission with confirmation of receipt, or (iv) sent by nationally recognized overnight courier service (e.g., Federal Express or United Parcel Service), addressed to the Party to whom the notice is given at the addresses provided below, subject to the right of any Party to designate a different address for itself by notice similarly given. Any notice so given by registered or certified United States mail shall be deemed to have been given on the third business day after the same is deposited in the United States mail. Any notice not so given by registered or certified mail, such as notices delivered by personal delivery, facsimile transmission or courier service, shall be deemed given upon receipt, rejection or refusal of the same by the Party to whom the notice is given. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice or other communication sent. To Agency: Redevelopment Agency of the City of Azusa 213 East Foothill Blvd. Azusa, California 91702 Attention: Executive Director Facsimile: (626) 812-5328 With Copy to: Best Best&Krieger LLP Attn: Kevin K. Randolph,Esq. 3750 University Avenue Riverside, CA 92501 Facsimile: (951) 686-3083 To Fletcher: Wayne R. and Valda R. Fletcher r � r 1 To Yenyo: Jim Yenyo and Shannon Yenyo-Espinosa r 1 r 1 RVPUBWRANDOLPX723902.3 12 6.2. Brokers and Sales Commissions. Each Party represents and warrants to the other Parties that it has not retained the services of any real estate agent or broker and that no sales or brokerage commissions, finder's Ifees or other commissions are payable by that Party with respect to the transaction that is the subject of this Agreement. Each Party shall indemnify, protect, defend and hold harmless the other Parties and their respective successors from and against any and all claims, liabilities, obligations, losses, damages, costs and expenses, including, without limitation, reasonable attorney's fees, court costs and litigation expenses, arising from or in connection with any sales or brokerage commissions, finder's fees or other commissions which are, or are claimed to be, payable in connection with the transaction which is the subject of this Agreement by reason of;the actions, or alleged actions, of such indemnifying Party. The terms of this Section 6.2 shall survive the Close of Escrow. 6.3. Author; : Each Party represents and warrants to the other Parties that it is a duly organized and validly existing entity under the laws of the State of California; that it has full legal right, power and authority, to enter into this Agreement and to carry out and consummate the transaction contemplated by this Agreement and its obligations under this Agreement; that by proper action it has duly authorized the execution and delivery of this Agreement; and that each of its representatives executing this Agreement is fully authorized to execute the same. 6.4. Survival of Covenants The covenants, representations and warranties of each Party set forth in this Agreement shall survive the Close of Escrow. 6.5. Time of Essencel. Time is of the essence of each and every term, condition, obligation and provision hereof. 6.6. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. 6.7. Captions. Any captions to, or headings of, the paragraphs or subparagraphs of this Agreement are solely for the convenience of the Parties, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. 6.8. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate any of the Parties to, any person or entity other than the Parties_ 6.9. Exhibits.' The Exhibits attached hereto are hereby incorporated herein by this reference. 6.10. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. 6.11. Applicable Law. All questions with respect to this Agreement, and the rights and liabilities of the Parties and I enue hereto, shall be governed by the laws of the State of California. Any and all legal actions sought to enforce the terms and provisions of the Agreement shall be brought in the courts of the County of Los Angeles! RVPUBWRANDOLPM723902.3 13 � I' 6.12. Assignment. No Party shall assign this Agreement, and any right or obligation herein, to any other party without the prior consent or approval of the other Parties, which consent may be given or withheld in each of the other Parties' sole discretion. Any attempt at such an assignment without the express written consent of the other Parties shall be null and void and of no effect. 6.13. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties hereto. 6.14. Severability. If any term or provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall not be affected. 6.15. Legal Fees. Each Party shall be responsible for payment of its own attorney's fees with respect to negotiation and preparation of this Agreement and processing of the Escrow. In the event of the bringing of any action or proceeding to enforce or construe any of the provisions of this Agreement, the prevailing Party(ies) in such action or proceeding, whether by final judgment or out of court settlement, shall be entitled to have and recover of and from the other Party(ies) all costs and expenses of suit, including actual attorney's fees and costs of experts. 6.16. Fees and Other Expenses. Except as otherwise provided herein, each of the Parties shall pay its own fees and expenses in connection with this Agreement. 6.17. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the Parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by any Party, or by or to an employee, officer, agent or representative of any Party, shall be of any effect unless it is in writing and executed by the Party to be bound thereby. 6.18. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the Parties hereto. 6.19. Necessary Acts. Each Party shall perform any further acts and execute and deliver any further documents that may be reasonably necessary to carry out the provisions of this Agreement. 6.20. Authority To Sign. Each Party warrants that the individuals who have signed this Agreement on behalf of that Party have the legal power, right, and authority to so sign and thereby bind that Party and its/his heirs, personal representatives, successors and assigns and any person or entity that may otherwise be entitled to grant the Release. 6.21. No Interpretation Against Drafter; Advice of Counsel. This Agreement is to be construed fairly and not in favor of or against any Party regardless of which. Party or Parties drafted or participated in the drafting of its terms. Each Party acknowledges it has had the opportunity to receive independent legal advice with respect to the advisability of making this Agreement and with respect to the meaning of California Civil Code Section 1542 and that they are freely and voluntarily entering in this Agreement and understand this Agreement in its entirety. RVPUBWRANDOLPID723902.3 14 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date(s) set forth below next to their respective signatures. I [Signatures on the following pages] I k i i t I Irl RVPUEWPANDOLPA1723902.3 15 I SIGNATURE PAGE TO AGREEMENT OF ACQUISITION OF REAL PROPERTY,RELOCATION SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS Date: I (' J C� �2 _ FLETCHER: By: iWaynenR�her j Valda R. Fletcher RVPUBIKRAND0LPH723901.3 16 SIGNATURE PAGE TO AGREEMENT OF ACQUISITION OF REAL PROPERTY,RELOCATION SETTLEMENT AND GENERAL RELEASE; AND JOINT ESCROW INSTRUCTIONS i Date: YENYO: i I By: Yenyo 9 1 By: ` S annon Yeny -#spinosa k t I i E i i k 4 i i i i R VPUBWRANDOLPH)72390Z 3 - 17 j II f SIGNATURE PAGE TO AGREEMENT OF ACQUISITION OF REAL PROPERTY,RELOCATION SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS Date: AGENCY: REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, a public body, corporate and politic By: F. M. Delach Executive Director ATTEST: Agency Secretary APPROVED AS TO FORM: BEST BEST & KRIEGER LLP By: Agency Counsel R VPUBIKRANDOLPHI723902.3 18 EXHIBIT A-1 TO AGREEMENT FOR ACQUISITION OF REAL PROPERTY,RELOCATION SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS L gal Description of Agency Parcel [attached behind this page] i I i EXHIBIT A-1 R VPUBI KRANDOLPHI723902.3 EXHIBIT A-2 TO AGREEMENT FOR ACQUISITION OF REAL PROPERTY,RELOCATION SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS Depiction of Agency Parcel and Larger Parcel [attached behind this page] EXHIBIT A-2 R VPUBWRANDOLPM723902.3 EXHIBIT B TO AGREEMENT FOR ACQUISITION OF REAL PROPERTY; RELOCATION SETTLEMENT AND GENERAL RELEASE, AND JOINT ESCROW INSTRUCTIONS Legal Description of Wimpey's Parcel [attached behind this page] i i EXHIBIT B RVPUBXRAND0LPH1723902.3 O co)r, N may. '4x5 'a ,afiS ��` �' i C9iIPOP�T MAN CITY OF AZUSA MINUTES OF THE REDEVELOPMENT AGENCY REGULAR MEETING MONDAY, NOVEMBER 20,2006-8:37 P.M. The Board of Directors of the Redevelopment Agency of the City of Azusa met in regular session at the above date and time in the Azusa Auditorium. Director Chagno I called the meeting to order. I. ROLL CALL Call to Order PRESENT: DIRECTORS: HARDISON,CARRILLO,ROCHA, HANKS,CHAGNON Roll Call ABSENT: DIRECTORS: NONE ALSO PRESENT: General Counsel Carvalho,Executive Director Delach,Assistant Executive Director Person,City Also Present Department Heads,Secretary Mendoza,Administrative Technician Hernandez. SCHEDULED ITEMS Scheduled Items Economic and Co mmunity Development Director Coleman,addressed Directors giving them a B.Coleman summaiy of the Outreach Consultant Services-Downtown North Redevelopment Projects,with Dwntn N. Redev Watt being considered for the project.This Includes approximately 10 blocks in the downtown Project area close to the proposed Gold Line Station.This project is for a variety of land uses including mixed uses, retail, dining, residential and office, as well as public uses as part of the transit related design.TAere have been various discussions with residents and other stake holders In the community regarding this project.Because of the nature of this particular project,It would be appropriate for the Agency to pursue an outreach effort to assist with the public Input and obtain more community Involvement as the plans are being reviewed. Request for Proposals were sent to consultants specialized in the area of community outreach ,and three responses were received. Director Rocha addressed the item asking if the cost for the consultant will be divided between Rocha Redevelopment Agency and Watt.Community Development Director Coleman responded that Comments the Agency has a certain level of responsibility In attempting to determine the public input into this process;therefore,the cost will be absolved by the Agency. . Charlperson Ch I agnon addressed the item stating that this is an envision of Phase 11 of the Chagnon Citizens Congress,and sees this as an extension of Implementing some of the portions of the Comments Development Code, and Zoning Code and emphasized on the importance of the community Involvement. Moved by Chairperson Chagnon,seconded by Director Hardison and unanimously carried to Moore lacofano approve Moore lacofano Goltsman,Inc. (MIG)to provide Outreach Consultant Services,and Goltsman Agmnt authorize the Executive Director to execute the City's standard professional services Appvd agreement. The CONSENT CALENDAR consisting of Items F-1 to F-2,was approved by motion of Director Consent Cal. Carrillo,seconded by Director Hanks,and unanimously carried. ! Approved 1. Minutes of a regular meeting of November 6, 2006,were approved as written. Min approved rt i I 2. The following Resolutions were adopted and entitled: A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA ALLOWING Res. No O6-R47 CERTAIN CLAIMS AND DEMANDS TO BE PAID OUT OF REDEVELOPMENT AGENCY Warrants FUNDS. It was consensus of the Redevelopment Agency Boardmembers to adjourn. Adjourn TIME Of ADJOURNMENT: 8:55 P.M. SECRETARY NETT RESOLUTION NO.06-R48. NETT ORDINANCE NO.05-1101. 11/20/2006 PAGE TWO U � F. REDEVELOPMENT AGENCY CONSENT ITEM TO: HONORABLE CHAIRPERSON AND AGENCY MEMBERS FROM: MARCENE HAMILTON, REDEVELOPMENT AGENCY TREASURER DATE: DECEMBER 4, 2006 SUBJECT: REDEVELOPMENT AGENCY OF THE CITY OF AZUSA TREASURER'S STATEMENT OF CASH BALANCES FOR THE MONTH OF OCTOBER 2006 RECOMMENDATION It is recommended that the Agency Members receive and file the Agency Treasurer's Statement of Cash Balances for the Redevelopment Agency of the City of Azusa for the month of October 2006. BACKGROUND I Transmitted herewith is the Agency Treasurer's Statement of Cash Balances for the Redevelopment Agency of the City of Azusa ("Agency") for the month of October 2006. Agency investments are made in accordance with the Redevelopment Agency Investment Policy approved and adopted with Resolution No. 06-1118 dated June 5, 2006, and Government Code Section 53601 . Investment activity is summarized in the "Treasury Book Balances-Cash and Investments" schedule, attached herewith and an integral part of this report. In October, Agency cash and investment balances increased by $177,622.32. Cash received during the month totaled $1901230.32, and one debt service disbursement of $12,608.00 to the Utility Department was made. The Agency is the issuer of sev ral Merged Project Tax Allocation Bonds. Of the total cash and investments of $17,751,231.34, Wells Fargo Bank, the fiscal agent, held $10,529,757.62 on behalf of the Agency. These funds are restricted for payment of debt service on the bonds and special bond-funded projects. The remaining $7,221 ,473.72 was available for Agency operating, debt service, restricted expenses, and outstanding liabilities. FISCAL IMPACT The balance of cash and investments and projected revenues for the next six months is expected to be sufficient to meet cash disbursement requirements for at least the next six months. Prepared by: Roseanna J.Jara,Sr.Acct.-Redevelopment MH:RJJ/cs i �� �;:_ k., � . CITY OF AZUSA REDEVELOPMENT AGENCY AGENCY TREASURER'S STATEMENT OF CASH AND INVESTMENT BALANCES OCTOBER 2006 i i Beginning Cash Balance $17,573,609.02 (All Restricted and Unrestricted Accounts & Investments) i Receipts (All Sources) 190,230.32 Disbursements (12,608.00) Ending Cash Balance $17,751,231.34 (All Restricted and Unrestricted Accounts & Investments) Marcene Hamilton, Agency Treasurer I i 4 � r ) 2 ( ( \ ) ( } ) § } ) ) (5 } \ 0 � } / a2 ■ § ! ` ` 2 § / \ j _ _ , ] - - , ci » \ / ] / § / \ 16 ; E ! � - k E � f - ! 0 « § ) ; } i \ ) ) | ) ) k . | ) | mo m - _ # § _ - - _ / - � / _ \ \ \ \ } / � j j \ / / \ \ \ \ / Ell/ / j ( \ ) \ \ \ { - § I { ' 2 / ( � § § - § _ � " � w � � m ) \ \ \ \ � \ \ Ir2 L) ! - 20 § ; ; . . ; \ ; jj jj _ - \ { ) / 3 f / - -6 E# \ & ! \ \ Lt 3 , 0 - - 2 } \ k \ ) / ] | ` \ \ ) E' E WARRANT REGISTER NO.09 FISCAL YEAR 2006-07 WARRANTS DATED 11/01/06 THROUGH 11/15/06 FOR REDEVELOPMENT AGENCY MEETING OF 12-04-06 SOLUTION NO. A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA ALLOWING CERTAIN CLAIMS AND DEMANDS TO BE PAID OUT OF REDEVELOPMENT AGENCY FUNDS THE REDEVELOPMENT AGENCY OF THE CITY OF AZUISA DOES RESOLVE AS FOLLOWS: SECTION 1. That the following claims and demands have been audited as required by law and that the same are hereby allowed in the amounts and ordered paid out of the Redevelopment Agency Funds as hereinafter set forth: 80-110-REDEVELOPMENT ADMINISTRATION FUND $ 19.310.91 80-125-CBD CAPITAL PROiCTS FUND 43.069.69 80-135-WED CAPITAL PROJECTS FUND - 5,270.70 80-135-WED CAPITAL PROJECTS FUND 80-165-618-2005 TAX ALLOCATION BONDS FUND 81-155-TAX INCREMENT SET-ASIDE FUND 82-125-CBD DEBT SERVICE FUND 82-135-WED DEBT SERVICE FUND 82-185-RANCH CENTER DEBT SERVICE FUND TAL ALL FUNDS: $ 67,65 30 SECTION 2. That the Secretary shall certify to the adoption of this resolution and shall deliver a certified copy thereof to the Agency Treasurer and shall retain a certified copy thereof in his own records. ADOPTED AND APPROVED THIS DAY OF 2006. I Chairman I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Redevelopment Agency of the City of Azusa at a regular meeting ihereof,held on the day of 2006. AYES: AGENCY MEMBERS: NOES: AGENCY MEMBERS: ABSTAIN: AGENCY MEMBERS: ABSENT: AGENCY MEMBERS: i Secretary t i paqe City of Aa a HP 9000 11/30/06 O P E N H O L D D B L I S T I N G By i NNam1 s , NJJ 30, 2006, 1:39 FM --req: 1�------le3: G, JL--lcc: BI-TEM---job` 480917 W2582---pr0g: CH400 <1.3 >--report id: G h�L R02 S FUND Gds: 80-82 ; Clerk Issue Dates: 110106-111506 PE ID PE Nam ACSTJSTr NMM / JCB MkEE2 Invoice Nurber D scriPticn St Disc. Pte. Dist. Part. V05613 AT&T 8010110000-6915 092406 0517751058001 PD 0.00 6.80 PEID d; 0.00 Total: 6. 80 V01305 AZUSA C= FPD C 8000000000-3035 2610/0601023 PR#23/06 PD 00.00 193.38 PEID 0 ped: 193.38 Total: 193.38 V00355 AZL'EA PA ROLL AC 8000000000-3005 PR2306 Taxes Pbl/Wi PD 0.00 1,257.74 V00355 AZUSA PANRCLL AC 8000000000-3003 PR2306 Taxes PD 0.00 648.98 V00355 ALM PA]7OLL AC 8000000000-3001 PR2306 Taxes i FD 0.00 4,128.89 id- PEID d: 6,0305.601 Total: 61035.61 LM-FW CLB FD 0.00 671.70 V0580044 EMTEEST E & KRIE KRIE 8010135000 6301%503301-6301 52701 469 9%06 LGL,-PRC CZB PD 0.00 1,599.00 V05804 BEST BEST & K[ttE 8010125000-6301/505700-6301 5272 9%06 LGC PLN 6 LCL-ELK 36 PJD PNN PD 0.00 1 234.00 V05804 BEST Er & Kp= 8010110000-6301 V058044 �S' BEST & KRZE 8010125000 6301%501500-6301 1 527047 527045 9%06 LGCrWD 36 PD 0.00 8,253.50 V05804 EESr � & KRIE FR= 8010125000-6301%650201 6301 527043 9%06 LGL PLN EY FD SEYS PD 0.00 1,423.60 V05804 �r BESr & KLZZE 8010125000-6340/502801-6340 527042 9/06 la PLN 36A1vPD 0.00 2,666.32 V05804 BEST BEST & KRIE 8010110000-6301 527045 9/06 IC��BLFC 36 FD id: 117.00 UTC-d. 6.00 Paid: 23,596.81 Total: 23,596.81 V00469 BJZ[g1i1SKI & CW 8010125000-6325/505800-6325 100106 APPRW803 N IIAL PD 0.00 2,150.00 pE]D �i d: 0.00 Paid: 2,150.00 Total: 2,150.00 V00348 HEALTH I 8000000000-3054 2435/0601023 PR#23/06 FD 0.00 19.25 City of Azusa HP 9000 11/30/06 O P E N H O L D D B LISTING By FersaVEhtittyy Imre 2 NJJ 30, 2006, 1:39 HK --req: ROSE------leg: GL JL--lcc: BI-TF]:I�i---Ocb: 480917 #J2582---prop: C-I400 <1.3h>--report id: C�02 S= FU\ID Codes: 80-82 ; ick Issue Dates: 110106-111506 FE ID PE Nxre ACC= NIVBFR / .C% NUvEEFt Invoice Mirber D:s;s-ipticn St Disc. Ant. Dist. Ant. PEIDUmaid: 0.00 Paid: 19.25 Tbtal: 19.25 V07721 ID MW= 8010125000-6399/501500-6399 100606ZERBE JASKM FL PD 0.00 3,291.25 V07721 DE3�ID MMK= 8010125000-6399/501500-6399 093006 WUGVME FL PD 0.00 11900.00 PEID 0.00 Paid: 5,191.25 Tbtal: 5,191.25 V00131 FMMAL F0RFSS$O1OI25O00-6625%508600-6625 847833983 117052788 PD 0.00 18.68 PEID d: 0.00 Paid: 18.68 Tbtal: 18.68 V05443 CE3GPAFMC3 8010110000-6625 11873 IESIQQ & FAH2iCA PD 0.00 4,736.69 PEIDd: 0.00 d: 4,736.69 Total: 4,736.69 V06713 HELLEP AS90CIAJE 8000000000-2724 1225/0601023 PR#23/06 PD 0.00 4.68 PEID Uuxaid: 0.00 P d: 4.68 Tbtal: 4.68 V05993 I.M.P.A.C. CMT 8010110000-6235 4055016001150922 ICSC BJCTIH PD 0.00 344.00 PEID Lhid: 0.00 344.00. - - Total: 344.00 V01916 JARA PEPTY CASH, 8010125000-6625 101206 II1m Yl IG/oum PD 0.00 24.22 V01916 TPRA PETTY MSH, 8010110000-6563 101206 �li� FD 0.00 7.95 V01916 JARA PE= CASH, 8010125000-6625/505405-6625 101206 PD 0.00 19.52 V01916 JARA PEM CASH, 8010125000-6625/508800-6625 101206 BRSWY CTP FD 0.00 55.91 PEID Upaid: 0.00 Paid: 107.60 Ci of Azusa HP 9000 11/30/06 O P E N H O L D D B L I S T I N G By /Ertlty Paqe MIT, IM 30, 2006, 1:39 FM --�: �------leg: GL JL--loc: BI-'I931---Jcb: 480917 #J2582---prcg: C%I400 <1.34>-- ort 1d: CXIELZR02 SST RAID Oxbs: 80-82 ; Check Issue Dates: 110106-111506 PE ID PE Nacre ACJJLNr NLNESZ / J� MJEE 2 Invoice Unler Dzscripticn St Disc. Art. Dist. Art. Total; 107.60 V10011 LANQ'-VERICA SMTP 8010125000-7105/505800-7105 HJ31538 AACCJJ��V�I ESDdJW DEP/ FD 0.00 5,000.00 V10011 T ANaAIV StICA B:LTT 8010125000-7105/505800-7105 BiA1612 AQgT ESC P Zq LEP/ PJ id- 2,500.00 P8ID id; 0.00 ped; 7,500.00 Total.: 7,500.00 V96319 LgPAIN & ASBCCT 8010125000-6325/505800-6325 8014 APPRSLr335/353 F FD 0.00 3,800.00 V96319 LAURP.IN & AS93CT 8010125000-6325/505800-6325 8013 APFRSL/ 150 W FIII PD 0.00 31300.00 PEID Paidc 7,100:00 Total: 7,100.00 V03126 LII3JDLN =CR�L 8000000000-3010 1320/0601023 F 23/06 PD PD 0.00 170.88 .50 V03126 LINJJLN =CI\AL 8000000000-3010 y pEID ped: 0.0 238.38 Total: 238.38 V03222 MEIN pE= CA 8010125000-6625/505800-6625 102406 Program Else PD 0.00 25.00 pEID do 25.00 Total: 25.00 V00353 PCIDLIC II�PIDYEES 8000000000-2728 10064 Pers e FD 0.00 3,353.44 V00353 PUBLIC EMPLMEES 8000000000-3070 10064 FNP FET`SJ1 WK PD 0.00 29.32 0.00 PEID do 3,382.76 Total: 3,382.76 V04138 RECSA�fAF LIFE I 8000000000-3053 2215/0601023 Rp�f3/06 FD 0.00 2.50 V04138 RELJASPAR LIFE I 8000000000-3054 2410/0601023 H2#23/06 PJ 0.00 1.87 PEIDd 4.37 Total: 4.37 Ci of Azusa HP 9000 11/30/06 O P E N HOLD D B L I S T I N Gty � MV 30, 2006, 1:39 FM --req: RCEE------leg: GL JL--loc: BI-TD I---jcb: 480917 4M582---p r: CE4 0<1.34> ieport id: CHFLTP02 SELFX;T FUND Cis: 80-82 ; Ch--k Issue Dates: 110106-111506 PE ID PE A0NT NCDBFR / JCB NCNBFR Invoice Urdoer D`s=pticn St Disc. Ant. Dist. Ant. V08192 SQ DENRgM & PSS 8010125000-6345/508800-6345 093006 PRJ= PHASE 2 FD 0.00 2,860.00 PEID Utgd: 0.00 Paid: 2,860.00 Total: 2,860.00 V02371 SIh7TNT 8010110000-6915 581031978090906 B.CMMvPN/SPRIIJP FD 0.00 37.62 PEID id: 0.00 Paid: 37-62 Total: 37.62 V08056 S EARD IIS MPN 8000000000-3044 1255/0601023PR#23/06 PD 0.00 179.94 V08056 ST*EARD INKPAN 8000000000-2725 1220/0601023 23/06 PD 0.00 60.47 PEID d: 0.00 Paid: 240.41 Total: 240.41 V01899 STATIfFV PEST CCN 8010125000-6815 781040 FY 06/07 FEST SV FD 0.00 55.00 V01899 SPIN= PEST (IN 8010125000-6815 781041 FY 06/07 PEST SV PD 0.00 95.00 MID .d: 0.00 Ulm-d: 150.00 Total: 150.00 V02675 SPATE OF CALLUM 8000000000-3051 82006110226000 FRFM ACITVE� PD 0.00 2,262.03 V02675 S= OF CALIFCR 8000000000-2724 H2006110226000 Health Ins PD 0.00 9.94 PEID [Iluid: 0.00 Paid: 2,271.97 - - - - -- -- - - -- - Total:T - 2,271.97- - V06783 S= SST RW 8000000000-3010 1310/0601023 23/06 FD 0.00 186.08 O601023 23O6 PD 0.00 577.55 V06783 SPATE S= BAN 8000000000-3010 2310/0601023 237Z 06 FD 0.00 431.20 PEID Utgdd: 0.00 Pai : 1,194.83 Total: 1,194.83 ci STING , �Aa1Sa HP 2 06, 1:39 FM --rp-q: 06)'E------a7:C JLr loc BI_TR:-I---job:I480917 W2582--- rog X00<1134> -�oi't id: CHFLTP02 SEMIFUD Cbdes: 80-82 ; Check Issue Dates: 110106-111506 FE ID PE Name ACINI' NNffi2 / JCB NCFVEER hwoice Nurber Descripticn St Disc. At. Dist. Ant. V00876 FASHR N MTILA 8000000000-3010 2335/0601023 PpR�$23/06 FD 0:00 170.88 V00876 Vg15FI MCN MJILA 8000000000-3010 2330/0601023 PR#23/06 PD 0.00 70.33 PEIDd: 0.00 d: 241.21 Total: 241.21 GRAND TOTAL CPaidyd: 0.00 : 67,651.30 Tbtal: 67,651.30