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HomeMy WebLinkAboutAgenda Packet - November 01, 2010 - CC U �. J c'�<ironr�P AGENDA REGULAR MEETING OF THE CITY COUNCIL, THE REDEVELOPMENT AGENCY, AND THE AZUSA PUBLIC FINANCING AUTHORITY AZUSA AUDITORIUM MONDAY, NOVEMBER 1, 2010 213 EAST FOOTHILL BOULEVARD 6:30 P.M. AZUSA CITY COUNCIL JOSEPH R. ROCHA MAYOR KEITH HANKS ANGEL CARRILLO COUNCILMEMBER COUNCILMEMBER URIEL E. MACIAS ROBERT GONZALES COUNCILMEMBER MAYOR PRO-TEM NOTICE TO THE PUBLIC Copies ofstaff reports or other written documentation relating to each item of business referred to on the Agenda are on file 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 ofthe Agenda, shall fill out a card requesting to speak and shall submit it to the City Clerkprior to the start ofthe City Council meeting. When called, each person may address any item on or off the agenda during the public participation. 6:30 P.M. CEREMONIAL Presentation of Certificates of Appreciation to sponsors of refreshments for the Cityl inks Program: Athens Services, Vulcan Materials Company, and Waste Management Presentation of proclamation proclaiming the week of November 10-14`h as School Psychology Week. CLOSED SESSION 11/01/10 1 1. CONFERENCE WITH LABOR NEGOTIATOR(Gov. Code Sec. 54957.6) Agency Negotiators: Administrative Services Director-Chief Financial Officer Kreimeier and City Manager Delach Organizations AMMA, SEIU, APOA, APMA and ACEA 2. PUBLIC EMPLOYEE PERFORMANCE EVALUATION (Gov. Code Sec. 54957) Title: City Manager Any person wishing to comment on any of the Closed Session items listed above may do so now. 7:30 P.M. - REGULAR MEETING OF THE CITY COUNCIL. 1. Call to Order 2. Pledge to the Flag 3. Invocation—Pastor Dale Winslow of the Foothill Community Church A. PUBLIC PARTICIPATION (Person/Group shall be allowed 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.) B. REPORTS UPDATES,AND ANNOUNCEMENTS FROM STAFF/COUNCIL C. SCHEDULED ITEM 1. ORDINANCE AMENDING CHAPTER 14 AZUSA MUNICIPAL CODE AND ADOPTION OF 2010 CALIFORNIA BUILDING STANDARDS CODES. RECOMMENDED ACTION: Introduce the proposed ordinance,read its complete title,and set the public hearing for November 15,2010. 2. PUBLIC HEARING -EXPENDITURE PLAN— STATE AWARDED GRANT FUNDS RECOMMENDED ACTION: Open the Public Hearing;receive testimony,close the Hearing. Approve the proposed expenditure plan and purchases from funds to be received from the State Citizens' Option for Public Safety(COPS)Program.The anticipated funding from this program is$100,000.The proposed expenditure plan is detailed in report and includes $79,946 in carryover funds from F/Y 09/10. 3. PUBLIC HEARING—TO ADOPT A RESOLUTION APPROVING THE ISSUANCE OF BONDS BY THE CALIFORNIA MUNICIPAL FINANCE AUTHORITY FOR AZUSA PACIFIC 11/01/10 - 2 - UNIVERSITY A CALIFORNIA NON-PROFIT CORPORATION TO PROVIDE FOR THE FINANCING FO THE PROJECT, SUCH ADOPTION IS SOLELY FOR THE PURPOSES OF SATISFYING THE REQUIREMENTS OF TEFRA. RECOMMENDED ACTION: Open the Public Hearing;receive testimony,close the Hearing. Waive further reading and adopt Resolution No. 10-C80, approving the issuance of the Bonds by the CMFA for the benefit of Azusa Pacific University, a California nonprofit corporation,to provide for the financing of the Project,such adoption is solely for the purposes of satisfying the requirements of TEFRA,the Code and the California Government Code Section 6500(and following). The resolution will further authorize the Mayor,City Manager or designee thereof to execute the Joint Exercise of Powers Agreement with the California Municipal Finance Authority(CMFA). 4. RESOLUTION AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $9.0 MILLION AGGREGATE PRINCIPAL AMOUNT CITY OF AZUSA COMMUNITY FACILITIES DISTRICT NO 2002-1 (SPECIAL TAX REFUNDING BONDS, SERIES 2010), APPROVING THE EXECUTION AND DELIVERY OF A FISCAL AGENT AGREEMENT,ESCROW AGREEMENT, A BOND PURCHASE AGREEMENT, AND THE PREPARATION OF AN OFFICIAL STATEMENT AND OTHER MATTERS RELATED THERETO. RECOMMENDED ACTION: Direct staff and the finance team to pursue the refinancing of the Community Facilities District 2002-1 Special Tax Bonds (Mountain Cove) and to initiate the sale of the bonds once homeowner savings are no less than 9% per year. 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 SPECL9L CALL ITEMS. I. APPROVAL OF THE MINUTES OF THE REGULAR MEETING OF OCTOBER 18, 2010 AND THE SPECIAL MEETING OF OCTOBER 11, 2010. RECOMMENDED ACTION: Approve Minutes as written. 2. HUMAN RESOURCES ACTION ITEMS. RECOMMENDED ACTION: Approve Personnel Action Requests in accordance with the City of Azusa Civil Service Rules and applicable Memorandum of Understanding(s). 3. CITY TREASURER'S REPORT AS OF SEPTEMBER 30,2010. RECOMMENDED ACTION: 11/01/10 3 - Receive and file the report. 4. BID AWARD FOR SLAUSON PARK PICNIC SHELTER IMPROVEMENTS (CDBG PROJECT 4601332-10). RECOMMENDED ACTION: Award the contract for Slauson Park Picnic Shelter Improvements (CDBG NO. 601332-10) to Creative Contractors Corporation in the amount of$51,075. 5. ACCEPTANCE OF SURETY BONDS AND SUBDIVISION AGREEMENTS FOR TRACTS NO. 54057-08 54057-14,AND 64417 -01 FILED BY CITYVIEW ROSEDALE 98,LP AS SUCCESSOR TO FIELDSTONE COMMUNITIES, INC. RECOMMENDED ACTION: Accept Surety Bonds and Subdivision Agreements from Lee Homes to replace Bonds and Agreements posted by Fieldstone communities, Inc. for Tracts No. 54057-08 (Greenbrier), 54057-14 (Heritage Oaks) and 64417-01 (Arborview) as substitute developer for the completion of needed Public and Private improvements for these three subdivisions. The City Council through this action will release the bonds and agreements posted by Fieldstone Communities, Inc. 6. RESOLUTION CALLING FOR A GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY MARCH 8 2011 AND RESOLUTION REQUESTING THE BOARD OF SUPERVISORS OF THE COUNTY OF LOS ANGELES TO RENDER SPECIFIED SERVICES TO THE CITY RELATING TO THE CONDUCT OF THE ELECTION. RECOMMENDED ACTION: Adopt Resolutions Nos. 10-C81 and 10-C82. 7. NOTICE OF COMPLETION FOR SIERRA MADRE AVENUE CONCRETE IMPROVEMENTS. RECOMMENDED ACTION: Approve a Notice of Completion for the following project and authorize staff to file the Notice of Completion with the Los Angeles County Clerk: Sierra Madre Avenue Concrete Improvements Project— $24,991.00—Grigolla& Sons, Azusa, CA 91702 8. CLASS SPECIFICATION REVISION / SALARY RANGE ADJUSTMENT — POLICE COMMUNICATIONS SUPERVISOR RECOMMENDED ACTION: 11/01/10 -4 - The Personnel Board recommends, pursuant to the City of Azusa Civil Service Rules Sections 3.5 and 4.3, that the City Council adopt the class specification revisions and salary range adjustment for Police Communications Supervisor. 9. CLASS SPECIFICATION REVISION ASSISTANT CITY LIBRARIAN RECOMMENDED ACTION: The Personnel Board recommends, pursuant to the City of Azusa Civil Service Rules Section 3.5, that the City Council adopt the revised class specifications for Assistant City Librarian. 10. APPROVAL OF RESOLUTION — AUTHORIZING THE CALIFORNIA RESOURCE CONNECTION(CRC)TO ACCEPT A$279,000 GRANT ON BEHALF OF THE CITY FROM THE RIVERS AND MOUNTAINS CONSERVANCY(RMC)AND AUTHORIZATION FOR STAFF TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH CRC. RECOMMENDED ACTION: Adopt Resolution No. 10-C83, authorizing the California Resource Connection (CRC)to accept a grant in the amount of$279,000 on behalf of the City of Azusa from the Rivers and Mountains Conservancy(RMC). The grant is to be used for the design and construction of a geology interpretive park. 11. WARRANTS. RESOLUTION AUTHORIZING PAYMENT OF WARRANTS BY THE CITY. RECOMMENDED ACTION: Adopt Resolution No. 10-C84. E. AGENCY SCHEDULED ITEMS None. 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. 1. APPROVAL OF THE MINUTES OF THE REGULAR MEETING OF OCTOBER 18,2010. RECOMMENDED ACTION: Approve Minutes as written. 2. AGENCY TREASURER'S REPORT AS OF SEPTEMBER 30, 2010. RECOMMENDED ACTION: Receive and file report. 11/01/10 5 - 3. LICENSE AGREEMENT WITH THE TARGET CORPORATION FOR USE OF AGENCY- OWNED PROPERTY LOCATED AT 812 N.AZUSA/801 N.ALAMEDA(FORMERLY JOHNNY'S TOWING) RECOMMENDED ACTION: Approve the License Agreement with Target Corporation and authorize the Executive Director to execute the License Agreement to permit the temporary use of the Agency-owned property. 4. WARRANTS. RESOLUTION AUTHORIZING PAYMENT OF WARRANTS BY THE AGENCY. RECOMMENDED ACTION: Adopt Resolution No. 10-R35. G. AZUSA PUBLIC FINANCING AUTHORITY The Consent Calendar adopting the printed recommended actions will be enacted with one vote. If Directors 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 OCTOBER 18, 2010. RECOMMENDED ACTION: Approve Minutes as written. 2. AZUSA PUBLIC FINANCING AUTHORITY TREASURER'S REPORT AS OF SEPTEMBER 30, 2010. RECOMMENDED ACTION: Receive and file the report. H. ORDINANCES/SPECIAL RESOLUTIONS 1. PROPOSED ORDINANCE APPROVING THE FIRST AMENDMENT TO THE STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT FOR THE CITRUS CROSSING PROJECT LOCATED AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE. 11/01/10 - 6 - RECOMMENDED ACTION: Waive further reading and adopt Ordinance No. 10-06, Adopting and Approving an Amendment to the Statutory Development Agreement and Owner Participation Agreement Between the City of Azusa, the Azusa Redevelopment Agency and JAR University Common, LLC, Governing,Certain Real Property Located at the Southwest Corner of Alosta Avenue and Citrus Avenue, Azusa, California, Relating to the Citrus Crossing Shopping Center L ADJOURNMENT 1. Adjourn UPCOMING MEETINGS: November 15, 2010, City Council Meeting—6:30 p.m. Azusa Auditorium. November 22, 2010, Utility Board Meeting—6:30 p.m. Azusa Light and Water Conference Room December 6, 2010, City Council Meeting—6:30 p.m. Azusa Auditorium. December 20, 2010, City Council Meeting—6:30 p.m. Azusa Auditorium. In compliance with Government Code Section 54957.5, agenda materials are available for inspection by members of the public at the following locations: Azusa City Clerk's Office -213 E. Foothill Boulevard, Azusa City Library - 729 N. Dalton Avenue, and Azusa Police Department Lobby- 725 N.Alameda,Azusa, California. In compliance with theAmericans with Disabilities Act,ifyou need special assistance to participate in a city meeting,please contact the City Clerk at 626-812-5229. Notification three(3)working days prior to the meeting when special services are needed will assist staff in assuring that reasonable arrangements can be made to provide access to the meeting. 11/01/10 - 7 - U' of pClIOP�''�P IA AGENDA ITEM TO: THE HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL wu FROM: KURT CHRISTIANSEI , DIRECTOR OF ECONOMIC AND COMMUNITY DEVELOPMENT VIA: F. M. DELACH, CITY MANAGER DATE: NOVEMBER 01, 2010 SUBJECT: ORDINANCE AMENDING CHAPTER 14 AZUSA MUNICIPAL CODE AND ADOPTION OF 2010 CALIFORNIA BUILDING STANDARDS CODES RECOMMENDATION Introduce the proposed ordinance, read its complete title, and set the public hearing for November 15, 2010. BACKGROUND California Health and Safety Code mandates that the California Building Standards Commission adopt and publish the California Building Standards Code (California Code of Regulation, Title 24) on a triennially basis. The 2010 edition of the California Code of Regulation, Title 24 incorporates the 2009 edition of the International Building Code, 2009 International Residential Code, 2010 California Existing Building Code, 2010 California Green Building Standards Code, 2009 National Electrical Code, 2009 Uniform Mechanical Code, the 2009 Uniform Plumbing Code and becomes effective on January 1, 2011. The most substantial change in this triennial adoption of the 2010 Building Standards Code is the adoption of the new 2010 California Residential Building Code based the 2009 International Residential Code, and the new 2010 California Green Building Standard Code. 7 The new California Residential code regulates the construction of all one and two family dwellings, II and townhomes. The most significant new requirement found in the 2010 California Residential Code include the mandatory installation of automatic fire sprinkler systems in all one and two family dwellings and townhomes. The intent is to provide a fire life safety element to all new residential occupancies. The design of the system is based on the National Fire Protection Agencies (NFPA) 13d referenced standards. This system is designed to provide amble time for,occupants to evacuate the structure. In addition to the installation of automatic fire sprinkler requirement, the 2010 California Residential code also mandates the installation of approved Carbon Monoxide detectors in all one and two family dwellings and townhomes. The new California Green Building Standard Code is the first mandatory green code introduced in the United States. The purpose of the code is to improve public health, safety, and general welfare by enhancing the design and construction of buildings through the use of building concepts having a reduced negative impact or positive environmental impact and by encouraging sustainable construction practices in the following categories: 1. Planning and design 2. Energy efficiency 3. Water efficiency and conservation 4. Material conservation and iesource efficiency 5. Environmental quality Mandatory measures for residential occupancies include: • Building maintenance and operation manual for new buildings. • Twenty percent reduction on indoor water use through the use of low flow fixtures. • Reduce construction waste by fifty percent through a construction waste management plan. • VOC limits for adhesives, sealants, and architectural coatings. • Installation of automatic irrigation controllers that can determine soil and weather conditions. Mandatory measures for Non-residential occupancies include: • Requirements to provide space for bicycle parking and recycling areas. • Provide designated parking for low-emitting, fuel-efficient and carpool/vanpool vehicles. • Twenty percent reduction indoor water use and wastewater discharge through the use of low flow fixtures. • Reduce construction waste by fifty percent through a construction waste management plan. • VOC limits for adhesives, sealants, and architectural coatings. • Reduction in outdoor water use by developing a water budget that complies with a local or State water efficiency landscape ordinance. California Health and Safety Code require cities to adopt building standards that are consistent with those contained in the California Building Standards Code. State law also allows a local jurisdiction to amend, add or repeal sections of the California Building Standards Code providing there are express findings that show each such modifications is "reasonably necessary because of local climatic, geological or topographical conditions." The attached ordinance fulfills the City of Azusa Requirements for meeting these provisions as set forth by the State of California. In summary the attached ordinance will revise Chapter 14 of the Azusa Municipal Code as follows: 1. Replace the 2007 Editions of the California Building Code, with the 2010 California Building Code. 2. Adopt the 2010 California Residential Building Code. 3. Adopt the 2010 California Green Building Standards Code. . 4. Replace the 2007 California Mechanical Code and California Plumbing Code with the 2010 Editions. 5. Replace the 2007 California Electrical Code with the 2010 Edition. 6. Replace the 2006 Uniform Swimming Pool & Hot Tub Code with the 2009 Edition. 7. Replace the 2007 California Existing Building Code with the 2010 Edition. 8. Amend Sections 14-1 and 14-51 as needed to properly reference the 2010 California Building Codes. 9. Amend Sectionsl4-201 and 14-202. 10. Amend Section 14-4 to include provisions for expiration of building permits. 11. Add Section 14-69 to amend Section R4902.1.3 of the 2010 California Residential Code so it is consistent with Section 14-55 of AMC. 12. Delete Section 14-58, 14-60, 14-65. 14-66, 14-67 and 14-68. These amendments are no longer needed as the provisions of these amendments are now incorporated into the new 2010 California Building Code. 13. Delete Section 14-59, this amendment is no longer needed as the provisions of this amendment are now incorporated into the American Society of Civil Engineers (ASCE) Publication SCE 7-05. 14. Delete Section 14-61, this amendment is no longer needed as the provisions of this amendment are now incorporated into American Concrete Institute (ACI) 318-08 which is referenced by the 2010 California Building Code. 15. Delete Section 14-63, this amendment is no longer needed as the provisions of this amendment are now incorporated into California Building Code and California Residential Code. 16. Delete Section 14-61, this amendment is no longer needed because appendix H is not being adopted. 17. Amending Sections 14-53, 14-55, 14-57, 14-62 and 14-64 adopts the following Code amendments to the 2010 California Building Code: • Section 14-53 A.M.C. - Amends C.B.C. Table 15.05.1 to require Class B roofs throughout the City. This is consistent with previous amendments to the 2007 C.B.C. • Section 14-55 A.M.C. — Amends 2007 C.B.C. Section 1505.1.3 to require the entire roof of any structure to be replaced with a Class B Roof when more than 20 percent of the total roof area is repaired or replaced. This is consistent with previous amendments to the 2007 C.B.C. • Section 14-57 A.M.C. — Adds Section 1507.2.9.4 to the 2010 C.B.C. which requires all attic vents, dormer vents etc. to be painted to match the roof coloring. This is consistent with previous amendments to the 2007 C.B.C. • Section 14-62 A.M.C. — Amends 3109.4.4, 3409.4.4.1 and 3109.4.4.2 of the 2007 C.B.C. to clarify that pool barriers (pool enclosures) are required for all swimming pools within the City as required by the A.M.C. • Section 14-64 A.M.C. — Amends Appendix "J" of the 2010 I.B.C. to replace the word "Building Official' with the word "City Engineer" throughout the Appendix. This is consistent with previous amendments to the 2007 C.B.C. FISCAL IMPACT There is no additional fiscal impact to the City. ATTACHMENT Copy of proposed ordinance. ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA AMENDING CHAPTER 14 OF THE AZUSA MUNICIPAL CODE,BY AMENDING SECTIONS 14- 1,14-4,14-51, 14-53,14-55,15-57,14-62,14-64, 14-201 and 14-202;ADDING SECTION 14-69,AND DELETING SECTIONS 14-58,14-59, 14-60,14-61,14-63,14-65, 14-66, 14- 67 AND 14-68; AND ADOPTING BY REFERENCE THE 2010 EDITION OF THE CALIFORNIA BUILDING STANDARDS CODE (CALIFORNIA CODE OF REGULATIONS,TITLE 24),INCLUDING THE CALIFORNIA BUILDING CODE VOLUMES 1 & 2 INCLUDING APPENDIX J (2010 EDITION, INCORPORATING AND AMENDING THE 2009 INTERNATIONAL BUILDING CODE); THE CALIFORNIA RESIDENTIAL CODE (2010 EDITION, INCORPORATING AND AMENDING THE 2009 INTERNATIONAL RESIDENTIAL CODE); THE CALIFORNIA GREEN BUILDING STANDARDS CODE (2010 EDITION); THE CALIFORNIA MECHANICAL CODE (2010 EDITION, INCORPORATING AND AMENDING THE 2009 UNIFORM MECHANICAL CODE); THE CALIFORNIA PLUMBING CODE(2010 EDITION,INCORPORATING AND AMENDING THE 2009 UNIFORM PLUMBING CODE); THE CALIFORNIA ELECTRICAL CODE (2010 EDITION, INCORPORATING AND AMENDING THE 2008 NATIONAL ELECTRICAL CODE); THE CALIFORNIA EXISTING BUILDING CODE (2010 EDITION),TOGETHER WITH CERTAIN ADDITIONS,INSERTIONS,DELETIONS AND CHANGES THERETO; AND ADOPTING BY REFERENCE THE UNIFORM SWIMMING POOL, SPA AND HOT TUB CODE (2009 EDITION), AND THE UNIFORM HOUSING CODE CHAPTERS 4,5,6 AND SECTIONS 701.2 AND 701.3 (1997 EDITION). WHEREAS, Government Code Section 50022, et seq. and California Health& Safety Code Section 17922 empower the City of Azusa("City")to adopt by reference the California Building Standards Code as provided in Title 24 of the California Code of Regulations,adopting various model codes,including the 2009 International Building Code ("IBC'), 2009 Uniform Mechanical Code ("UMC'), 2009 Uniform Plumbing Code("UPC'),2008 National Electrical Code('NEC'),2009 International Existing Building Code ("IEBC"),and other model codes,including,without limitation,the 2009 Uniform Swimming Pool,Spa and Hot Tub Code; and WHEREAS, the City previously adopted by reference various model codes, including the 2006 International Building Code, 2006 Uniform Mechanical Code, 2006 Uniform Plumbing Code, 2005 National Electrical Code,2006 Uniform Housing and 2006 Uniform Swimming Pool,Spa and Hot Tub Code subject to particular additions,amendments and deletions set forth in the Ordinances adopting such codes,and codified in Azusa Municipal Code Sections 14-1, 14-51, 14-91, 14-111, 14-150, 14-201, and 14-205; and WHEREAS,the publishers of the international and uniform codes recently published updated editions of such codes, and the California Building Standards Commission ("Commission") adopted such codes and has established January 1, 2011 as the effective date of the most recent edition of the California Building Standards Code; and WHEREAS,California Health&Safety Code, Section 17958.5 and 18941.5 authorize cities and counties to modify the California Building Standards Code by adopting more restrictive standards and modifications if such standards and modifications are accompanied by express findings that they are reasonably necessary because of local climatic, geological or topographical conditions, and WHEREAS, the City Council of the City of Azusa ("City Council") finds that these local climatic, geological or topographical conditions include, but are not limited to, the following: 1. The City is subject to relatively low amounts of precipitation,very low humidity levels and extremely high temperatures. These climatic conditions are conducive to the spread of drought conditions and fires. For example, during July, August and September, temperatures often exceed 100 degrees Fahrenheit. During the same months humidity is usually less than 40% and measurements of less than 10% are not uncommon; and 2. The warm, dry climate is conducive to swimming pools which creates a higher probability of child drownings where pools are unprotected. WHEREAS,the aforementioned geologic and climatic conditions have also contributed to the loss or damage of, 262 homes in the Anaheim fire of 1982, 71 homes in Baldwin Hills fire of 1985,33 homes in the Porter Ranch fire of 1988, 162 homes in the Santa Barbara fire of 1990,3300 homes in the Oakland fire of 1991, 2,24)2 homes in:the Cedar fire of 2003, and most recently, 1500 homes in the Southern California Wildfires of 2007; and WHEREAS,these fires have resulted in the tragic loss of lives along with enormous property losses; and WHEREAS, based upon the recommendations of the Building Official, the City Council finds that the proposed amendments to the California Building Standards Code and model codes ("amendments"),as set forth herein,are more restrictive than the standards adopted by the California Building Standards Commission, would decrease the potential incidence of property damage, injury and death due to fires, and are reasonably necessary to mitigate the Aforementioned local climatic, geologic or topographical condition. Specifically: 1. The amendments to Sections 1505,Table 1505.1, 1507.2.9.5 of the California Building Code and Section R902.1.3 of the California Residential Code will provide a higher level of fire protection to roofs than required by the 2010 California Building Standards Code. These modifications will decrease the potential incidence of property damage,injury and death due to fires and are reasonably necessary to mitigate the aforementioned local climatic conditions which make the City more vulnerable to fires,as described in the recitals above. 2. The amendments to Sections 3109.4.4, 3409.4.4.1, 3109.4.4.2 of the California Building code will decrease the potential incidence of injury or death due to pool drownings, and are reasonably necessary to mitigate the aforementioned local climatic condition. THE CITY COUNCIL OF THE CITY OF AZUSA DOES ORDAIN AS FOLLOWS: SECTION 1. The Recitals contained in this ordinance are hereby adopted as Findings of Fact by the City Council, as if fully set forth herein. SECTION 2. Section 14-1 of the Azusa Municipal Code is hereby amended in its entirety to read as follows: "See 14-1 Codes Adopted. The City adopts by reference and makes part of this Chapter by reference, subject to those certain amendments set forth in this Chapter,the following California Building Standards Codes(California Code of Regulations, Title 24) and uniform codes: 1. The California Building Code, 2010 Edition, Volumes 1 and 2 (California Code of Regulations, Title 24, Part 2) including appendix J; incorporating and amending the 2009 International Building Code as published by the International Code Council; 2. The California Residential Code,2010 Edition(California Code of Regulations,Title 24, Part 2.5; incorporating and amending the 2009 International Residential Code published by the International Code Council); 3. The California Electrical Code,2010 Edition(California Code of Regulations,Title 24, Part 3; incorporating and amending the 2008 National Electrical Code published by the National Fire Protection Agency); 4. The California Mechanical Code,2010 Edition(California Code of Regulations,Title 24, Part 4; incorporating and amending the 2009 Uniform Mechanical Code published by the International Association of Plumbing and Mechanical Officials); 5. The California Plumbing Code,2010 Edition(California Code of Regulations,Title 24, Part 5; incorporating and amending the 2009 Uniform Plumbing Code published by the International Association of Plumbing and Mechanical Officials); 6. The California Existing Building Code,2010 Edition(California Code of Regulations, Title 24,Part 10,based on the 2009 International Existing Building Code published by the International Code Council); z 7. The California Green Building Standards Code 2010 Edition (California Code of Regulations, Title 24, Part 11, published by the California Building Standards Commission.); 8. The Uniform Swimming Pool,Spa and Hot Tub Code,2009 Edition(published by the International Association of Plumbing and Mechanical Officials); 9. The Uniform Housing Code, 1997 Edition(published by the International Conference of Building Officials). At least one copy of each code has been filed in the Office of the City Clerk and each is incorporated herein by reference as though set forth in full, shall be the standards,provisions, and conditions . to be observed and followed in the regulation and control of design,construction,quality,and materials,use, and occupancy,location and maintenance of all buildings,structures,and certain equipment regulated by this Chapter within the City of Azusa. In the event there is any inconsistency between the provisions of the codes and modifications adopted by this Chapter,and other provisions of the Azusa Municipal Code,then the more restrictive provision with respect to building regulations shall apply." SECTION 3. Section 14-4 of the Azusa Municipal Code is hereby amended to read as follows: "Sec. 14-4. Reinspection fees; plan review fees; expiration of applications and permits, renewal fees; (a) Reinspection fees shall be subject to the following: (1) A re-inspection fee may be assessed for each inspection or re-inspection when such portion of work for which inspection is called is not complete or when required corrections have not been made. (2) Re-inspection fees may be assessed when the approved plans are not readily available to the inspector or for failure to provide access on the date for which inspection is required or for deviating from plans requiring the approval of the building official. (3) To obtain re-inspection,the applicant,if a re-inspection fee is required by the building official, shall pay the re-inspection fee set forth in the fee schedule resolution and request a re- inspection. (4) This subsection is not to be interpreted as requiring re-inspection fees the first time a job is rejected for failure to comply with the requirements of this Code, but as controlling the practice of calling for inspections before the job is ready for inspection or re-inspection. (b) When a plan or other data are required to be submitted for plan review,a plan review fee shall be paid at the time of submitting plans and specifications for review. The plan review fees shall be as set forth in the fee schedule resolution. The plan review fees specified in this section are separate fees from the permit and issuance fees. When plans are incomplete or changed so as to require additional plan review, an additional plan review fee shall be charged as set forth in the fee schedule resolution. (c). Applications for which no permits are issued within 180 days following the date of application shall expire by limitation, and plans and other data submitted for review may thereafter be returned to the applicant or destroyed by the building official. The building official may extend the time for action by the applicant, in writing, for a period not exceeding 180 days upon request by the applicant showing that circumstances beyond the control of the applicant have prevented action from being taken. No application shall be extended more than once unless deemed necessary by the building official.In order to renew action on an application after expiration,the applicant shall resubmit plans and pay a new plan review fee. (d) Every permit issued shall expire and become invalid unless the work authorized by such permit is commenced within 180 days after its issuance,or if the work authorized by such permit is suspended or abandoned for a period of 180 days after the time the work is commenced.Before such work can be recommenced,a new permit shall be first obtained to do so,and the fee therefore shall be one half the amount required for a new permit for such work,provided no changes have been made or will be made in the original plans and specifications for such work, and provided further that such suspension or abandonment has not exceeded one year. If the suspension or abandonment exceeds one year,a full permit fee shall be required to renew the permit. The building official may extend the time for action by the permittee for a period not exceeding 180 days on written request by the permittee showing that circumstances beyond the control of the permittee have prevented action from being taken.No permit shall be extended more than once unless deemed necessary by the building official. (e) Whenever any work for which a permit is required by this chapter has been commenced without first obtaining a permit,a special investigation shall be made before a permit may be issued for such work. A special investigation fee shall be collected prior to the issuance of a permit. The investigation fee shall be equal to the amount of the permit fee that would be required by this chapter if a permit were to be issued and shall be in addition to the permit fee if a permit is required. The payment of such investigation fee shall not exempt any person from compliance with all other provisions ofthis chapter nor from any penalty prescribed by law. (1) Refunding of fees shall be subject to the following: (1) The building official shall authorize the refunding of any fee paid under this section which was erroneously paid or collected. (2) The building official may authorize the refunding of not more than 80 percent of the permit fee paid when no work has been done under a permit issued in accordance with this chapter. M1 (3) The building official may authorize the refunding of not more than 80 percent of the plan review fee paid when an application for a permit for which a plan review has been paid is withdrawn or canceled before any plan review effort has been expended. (4) The building official shall not authorize the refunding of any fee paid except upon written application filed by the original permittee not later than 180 days after the date offee payment. (g) This section shall apply to all codes adopted by section 141." SECTION 4. Section 14-51 of the Azusa Municipal Code is hereby amended to read as follows: "Sec. 14-51. Building Code— Generally. The California Building Code,2010 Edition,as adopted by Section 14-1,is amended,added to or modified as set out in this division. If there is any inconsistency between the provisions of the California Building Code, as adopted, and the modifications adopted by this division and other provisions of this Code, the more restrictive provision with respect to building regulations shall apply." SECTION 5. Section 14-53 of the Azusa Municipal Code is hereby amended in its entirety to read as follows: "Sec. 14-53. Roof Covering Classifications. Table 1505.1 of the 2010 California Building Code is hereby amended, in its entirety, to read as follows: TABLE 1505.1 MINIMUM ROOF COVERING CLASSIFICATIONS FOR TYPES OF CONSTRUCTIONS . IA 1B 11A 11B 111A 111B 1V VA VB B B B B B B B B B SECTION 6. Section 14-55 of the Azusa Municipal Code is hereby amended in its entirety to read as follows: "Sec. 14-55. Roof Coverings in All Other Areas. Section 1505.1.3 of the 2010 California Building Code is hereby amended to read as follows: 1505.1.3 Roof coverings within all other areas.The entire roof covering of every existing structure where more than 20 percent of the total roof area is replaced within any one year period,the entire roof covering of } every new structure,and any roof covering applied in the alteration,repair,or replacement of the roof of every existing structure, shall be.a fire-retardant roof covering that is a least class B. Exception: Class C roof coverings may be installed on patios with less than 300 square feet in roof area." SECTION 7. Section 14-57 of the Azusa Municipal Code is hereby amended in its entirety to read as follows: . "Sec. 14-57. Flashings. Section 1507.2.9 of the 2010 California Building Code is hereby amended by adding Section 1507.2.9.5 to read as follows: 507.2.9.5 Flashing Protection. Any attic vents, ventilators, ventilation turbines, or dormer vents shall be painted the same color as the roof covering it is penetrating or surrounding unless deemed not necessary by the Building Official." SECTION 8. Section 14-62 is hereby added to the Azusa Municipal Code to read as follows: "Sec. 14-62. Pool Barriers—Private Swimming Pools. Sections 3409.4.4.1 and 3109.4.4.2 of the 2010 California Building Code are amended to read as follows: Section 3109.4.4.1 is amended by adding the following definition: PRIVATE POOL means any constructed pool,permanent or portable,which is intended for non-commercial use as a swimming pool by not more than three owner families and their guests. Section 3109.4.4.2 is amended by deleting the first paragraph in its entirety and substituting a new paragraph to read as follows: 3109.4.4.2 Construction permit; safety features required. Commencing, January 1, 1998 except as provided in Section 3109.4.4.5, whenever a construction permit is issued for construction of a new private pool at a residence,it shall have an enclosure complying with Section 3109.4.4.3 and it shall be equipped with at least one of the following safety filatures" SECTION 9. Section 14-64 is hereby added to the Azusa Municipal Code to read as follows: "See. 14-64. Amendment to Appendix J. Appendix J as adopted in Section 14-01 of this Chapter shall be amended to read as follows: Throughout Appendix J where the word 'Building Official" appears it shall be amended to read "City Engineer". M1 t SECTION 10. Section 14-69 of the Azusa Municipal Code is hereby added to read as follows: "Sec. 14-69. Roof Coverings in All Other Areas. Section R902.1.3 of the 2010 California Residential Code is hereby amended to read as follows: R902.1.3 Roof coverings within all other areas.The entire roof covering of every existing structure where more than 20 percent of the total roof area is replaced within any one year period,the entire roof covering of every new structure,and any roof covering applied in the alteration,repair,or replacement of the roof of every existing structure, shall be a fire-retardant roof covering that is a least class B. Exception: Class C roof coverings may be installed on patios with less than 300 square feet in roof area" SECTION 11. Section 14-201 Azusa Municipal Code is hereby amended to read as follows: and Section 14-202 is hereby amended to read as follows: "Sec. 14-201. Uniform Housing Code—Generally. The Uniform Housing Code,as adopted in section 14-1,is amended,added to or modified as set out in this division. If there is any inconsistency between the provisions of the Uniform Housing Code, as adopted,and the modifications adopted by this division and other provisions of this Code,the more restrictive provision with respect to sign regulations shall apply" SECTION 12. Section 14-202 Azusa Municipal Code is hereby amended to read as follows: "Sec. 14-202. Uniform Housing Code—Amended. All sections of the Uniform Housing Code are deleted except Chapters 4,5,6 and Sections 701.2 and 701.3." SECTION 13. Section 14-58 of the Azusa Municipal Code is hereby repealed. SECTION 14. Section 14-59 of the Azusa Municipal Code is hereby repealed. SECTION 15. Section 14-60 of the Azusa Municipal Code is hereby repealed. SECTION 16. Section 14-61 of the Azusa Municipal Code is hereby repealed. SECTION 17. Section 14-63 of the Azusa Municipal Code is hereby repealed. SECTION 18. Section 14-65 of the Azusa Municipal Code is hereby repealed SECTION 19. Section 14-66 of the Azusa Municipal Code is hereby repealed SECTION 20. Section 14-67 of the Azusa Municipal Code is hereby repealed r a SECTION 21. Section 14-68 of the Azusa Municipal Code is hereby repealed SECTION 22. Prior Ordinances Repealed. Upon the effective date of this Ordinance, all former ordinances or parts thereof conflicting or inconsistent with the provisions of this ordinance of the codes herein adopted by reference including,but not limited to, Ordinance No. and any other ordinance in conflict herewith are hereby repealed and declared to be of no further force and effect. SECTION 23. CEQA. The City Council hereby finds and determines that it can be seen with certainty that there is no possibility that this ordinance may have a significant adverse effect on the environment. This ordinance would set forth new construction code requirements,which are required to be implemented by state law,and any specific development projects that would be subject to the requirements of these new regulations, would require separate environmental review. Thus,the adoption of this ordinance is exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15061(b) (3) of the CEQA Guidelines. Staff is directed to file a Notice of Exemption with the Los Angeles County Clerk's office within five (5) working days of project approval. SECTION 24. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase added by this Ordinance, or any part thereof,is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection,subdivision,paragraph,sentence,clause or phrase thereof irrespective of the fact that any one or more subsections,subdivisions,paragraphs,sentences,clauses or phrases are declared unconstitutional, invalid or ineffective. SECTION 25. Certification/Summary. The City Clerk shall certify the passage of this ordinance and shall, within fifteen (15) days after the passage and adoption thereof, cause the same to be published as required by law, in a local weekly newspaper of general circulation and which is hereby designated for that purpose. Alternatively, the City Clerk may cause a summary of this Ordinance to be prepared and published as provided by California Government Code § 36933 (c)(1). The summary shall be published in a local weekly newspaper of general circulation and a certified copy of the full text of this Ordinance shall be posted in the Office of the City Clerk at least five (5) days prior to the City Council meeting at which this Ordinance is to be adopted. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall cause a summary to be published in a local weekly newspaper of general circulation with the names of those City Council members voting for and against this Ordinance and shall post in the Office of the City Clerk a certified copy of the full text of this Ordinance along with the names of those City Council members voting for and against this Ordinance. SECTION 26. Effective Date. This Ordinance shall be in full force and effect thirty(30)days after its passage or on January 1, 2011, whichever is later. PASSED, APPROVED AND ADOPTED this_day of , 2010. Joseph R. Rocha Attest: Mayor Vera Mendoza City Clerk Approved as to Form: Best Best & Krieger LLP City Attorney COUNTY OF LOS ANGELES )ss. CITY OF AZUSA ) I, Vera Mendoza, City Clerk of the City of Azusa hereby certify that the foregoing Ordinance No. 10- was duly introduced and placed upon its first reading at a regular meeting of the City Council of the City of Azusa held on the day of 2010, and that thereafter, said ordinance was duly adopted and passed at a regular meeting on the day of 2010,by the following vote of the Council: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: Vera Mendoza City Clerk Approved as to Form: Best Best & Krieger LLP City Attorney i U V' PUBLIC HEARING TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROBERT B. GARCIA, CHIEF OF POLICE VIA: F.M. DELACH, CITY MANAGER,/ DATE: NOVEMBER 1, 2010 SUBJECT: EXPENDITURE PLAN— STATE AWARDED GRANT FUNDS RECOMMENDATION It is recommended that the City Council hold a Public Hearing to include appropriations of funds to be received from the State Citizens' Option for Public Safety (COPS) Program and approve the proposed expenditure plan and purchases in one City Council action. The anticipated funding from this program is $100,000. The proposed expenditure plan is detailed below and also includes $79,946 in carryover funds from F/Y 09/10. BACKGROUND The following expenditures are recommended: State COPS Total Awarded F/Y 10/11: $100,000 $ 75,100 Mobile Digital Video Cameras in Patrol Cars $ 12,000 Hazard Mitigation Plan Consultant $ 5,400 Centurion Scout Mobile Security System stem $ 4,000 Cameras for Front Entry & Jail Doors; Intercom for North Door $ 3,000 First Aid Supplies for Patrol Cars $ 500 Overhead Expense $100,000 Total 1 Mobile Digital Video Cameras in Patrol Cars The Department plans to purchase the infrastructure and cameras for an in-car mobile digital video system in the patrol cars. The infrastructure and approximately half the patrol fleet will be funded with Justice Assistance Grant (JAG) and COPS Grant funds. The balance of the fleet will have cameras installed as future grants and/or other funding become available. Hazard Mitigation Plan Consultant The City of Azusa does not have a Local Hazard Mitigation Plan as mandated through FEMA's Disaster Mitigation 2000 Planning Guidance which came out in 2002. Because of the complexities of this plan and required inclusion of multiple departments, most cities contracted a consultant to assist in developing their plans. The Department wants to follow identified "best practices" by hiring an experienced consultant to help develop this plan. Centurion Scout Mobile Security System The Department's detective bureau needs to replace the 27+year old mobile burglary alarm system and replace it with a new, more technologically advanced system to help capture burglars in targeted areas. Cameras for Front Enta & Jail Doors• Intercom for North Door The Department needs additional cameras and intercoms at designated areas to help increase station security. First Aid Supplies for Patrol Cars The first aid products in patrol cars are in regular need of replacement or rotation. Overhead Expenses The COPS Grant stipulates that overhead (administrative) expenses are allowable in the amount of.5% ($500). Carryover from F/Y 09/10: $79,946 $37,750 El Monte Helicopter Service & Supplies $11,224 Mobile Digital Video Cameras for Patrol Cars (see above) $12,950 Enterprise Vehicle Lease $ 8,600 Lexipol Policy Manual Updates & Daily Training Bulletins $ 6,925 Portable Radios $ 1,256 WSSBIA (Burglary Conference) $ 1,241 ALEA (Helicopter) Conference $79,946 Total 2 Helicopter Services The City has agreed to continue its participation in the regional helicopter program. This participation will cost $37,500 for helicopter services from the City of El Monte, and an additional $250 for supplies. Entervrise Vehicle Lease The Department will continue to lease three vehicles for the patrol lieutenants through Enterprise Fleet Services. Lexipol Policv Manual Updates & Daily Training Bulletins The Azusa Police Department continues to use the Lexipol police policy manual. The Lexipol product corresponds with the Department's vision for a more professional, accountable and well trained police agency. The costs associated with continued modifications, revisions and training from Lexipol LLC is outlined above. Portable Radios The Department needs to buy seven new portable radios to replace outdated and/or inoperable radios for patrol officers. WSSBIA (Burglary Conference Western States Safe & Burglary Investigators Association (WSSBIA) conducts an annual conference to teach property detectives new investigative and interview techniques in the area of burglary and property theft; legal updates and other topical matters (e.g. identity theft, organized retail crime, etc.) are discussed as well. ALEA (Airborne Law Enforcement Association) Western Safety Seminar Training to support, promote and advance the safe and effective utilization of aircraft by law enforcement agencies through networking, advocacy and educational programs will be attended by the Department's flight observer or supervisor. The exact amounts in each category are subject to change due to fluctuations in pricing. All funds shall be expended for supplemental front line law enforcement services only, as provided . by law and mandated by grant guidelines. FISCAL IMPACT The proposed expenditures will be funded solely by grant awarded funds and will not utilize any general funds. Prepared by: Captain Sam Gonzalez 3 _ i , PUBLIC HEARING TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: JAMES W. MAKSHANOFF, ASSISTANT CITY MANAGER VIA: F.M. DELACH, CITY MANAGER�� DATE: NOVEMBER 1, 2010 SUBJECT: HOLD A PUBLIC HEARING TO ADOPT A RESOLUTION APPROVING THE ISSUANCE OF BONDS BY THE CALIFORNIA MUNICIPAL FINANCE AUTHORITY FOR AZUSA PACIFIC UNIVERSITY, A CALIFORNIA NON- PROFIT CORPORATION TO PROVIDE FOR THE FINANCING OF THE PROJECT, SUCH ADOPTION IS SOLEY FOR THE PURPOSES OF SATISFYING THE REQUIRMENTS OF TEFRA, THE RESOLUTION WILL FURTHER AUTHORIZE THE MAYOR, CITY MANAGER OR DESIGNEE THEREOF TO EXECUTE THE JOINT EXERCISE OF POWERS AGREEMENT WITH CMFA. RECOMMENDATION 1) Conduct the public hearing under the requirements of TEFRA and the Internal Revenue Code of 1986, as amended (the "Code"). 2) Adopt the resolution approving the issuance of the Bonds by the CMFA for the benefit of Azusa Pacific University, a California nonprofit corporation (the "University"), to provide for the financing of the Project, such adoption is solely for the purposes of satisfying the requirements of TEFRA, the Code and the California Government Code Section 6500 (and following). The resolution will also authorize the Mayor, City Manager or designee thereof to execute the Joint Exercise of Powers Agreement with the California Municipal Finance Authority (CMFA). 1 BACKGROUND The CMFA was created on January 1, 2004 pursuant to a joint exercise of powers agreement to promote economic, cultural and community development, through the financing of-economic development and charitable activities throughout California. To date, over 100 municipalities have become members of CMFA. The CMFA was formed to assist local governments, non-profit organizations and businesses with the issuance of taxable and tax-exempt bonds aimed at improving the standard of living in California. The CMFA's representatives and its Board of Directors have considerable experience in bond financings. The University requested that the CMFA serve as the municipal issuer of the Bonds in an aggregate principal amount not to exceed $180,000,000 of tax-exempt revenue bonds. The University will use the proceeds of its loan, together with other available funds, to refinance and refund certain California Statewide Communities Development Authority, Variable Rate Demand Revenue Bonds (Azusa Pacific University Project) Series 2007 issued to finance the costs of(a) the acquisition, construction, and equipping of an approximately 68,000 square foot science center located at 701 East Foothill Boulevard on the West Campus of the University, (b) the acquisition of the Crestview Apartments, an approximately 320 unit apartment facility located at 801 East Alosta Avenue adjacent to the West Campus of the University, for the purpose of providing housing to students of the University and other qualified occupants and (c) the prior refunding of the University's Taxable Variable Rate Demand Revenue Bonds, Series 2003, in the aggregate principal amount of$16,000,000, previously issued by the University for the purpose of financing certain facilities of the University, including a residence facility, a dining facility, a mail center and related infrastructure, all located at or in the vicinity of 901 East Alosta on the Main Campus of the University, with all of the foregoing having been completed in 2009 (collectively, the "Project"). The Project is located at the campus of the University in Azusa, California. The Project is or will be owned and operated initially by the University. In order for all or a portion of the Bonds to qualify as tax-exempt bonds, the City of Azusa must conduct a public hearing (the "TEFRA Hearing") providing for the members of the community an opportunity to speak in favor of or against the use of tax-exempt bonds for the financing of the Project. Prior to such TEFRA Hearing, reasonable notice must be provided to the members of the community. Following the close of the TEFRA Hearing, an "applicable elected representative" of the governmental unit hosting the Project must provide its approval of the issuance of the Bonds for the financing of the Project. In order for the CMFA to have the authority to serve as the issuer of the bonds for the Project, it is necessary for the City of Azusa to become a member of the CMFA. Attached to this report is a copy of the Joint Exercise of Powers Agreement to be executed by a designated signatory of the City. The Joint Exercise of Powers Agreement provides that the CMFA is a public entity, separate and apart from each member executing such agreement. The debts, liabilities and obligations of the 2 CMFA do not constitute debts, liabilities or obligations of the members executing such agreement. The Bonds to be issued by the CMFA for the Project will be the sole responsibility of the Borrower, and the City will have no financial, legal, moral obligation, liability or responsibility for the Project or the repayment of the Bonds for the financing of the Project. All financing documents with respect to the issuance of the Bonds will contain clear disclaimers that the Bonds are not obligations of the City or the State of California, but are to be paid for solely from funds provided by the Borrower. There are no costs associated with membership in the CMFA and the City will in no way become exposed to any financial liability by reason of its membership in the CMFA. In addition, participation by the City in the CMFA will not impact the City's appropriations limits and will not constitute any type of indebtedness by the City. Outside of holding the TEFRA hearing, adopting the required resolution and executing the Joint Exercise of Powers Agreement of the CMFA, no other participation or activity of the City or the City Council with respect to the issuance of the Bonds will be required. The Joint Exercise of Powers Agreement expressly provides that any member may withdraw from such agreement upon written notice to the Board of Directors of the CMFA. In the case of the proposed bond financing for the Borrower, the City following its execution of the Joint Exercise of Powers Agreement, could, at any time following the issuance of the Bonds, withdraw from the CMFA by providing written notice to the Board of Directors of the CMFA. The Board of Directors of the California Foundation for Stronger Communities, a California non-profit public benefit corporation (the "Foundation"), acts as the Board of Directors for the CMFA. Through its conduit issuance activities, the CMFA shares a portion of the issuance fees it receives with its member communities and donates a portion of these issuance fees to the Foundation for the support of local chanties. With respect to the City of Azusa, it is expected that 25% ($33,000) of the issuance fee will be granted by the CMFA to the general fund of the City. Such grant may be used for any lawful purpose of the City. The University will be the beneficiary of our charitable donation through a 25%reduction in issuance fees. FISCAL IMPACT There is no fiscal impact. ATTACHMENTS Letter dated September 28, 2010 from Mark S. Dikerson to Alan Kreimeier. CMFA Joint Exercise Powers Agreement Resolution 3 i RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA,APPROVING,AUTHORIZING AND DIRECTING EXECUTION OF A JOINT EXERCISE OF POWERS AGREEMENT RELATING TO THE CALIFORNIA MUNICIPAL FINANCE AUTHORITY AND APPROVING THE ISSUANCE OF ITS REVENUE BONDS(AZUSA PACIFIC UNIVERSITY PROJECT), SERIES 2010,IN ONE OR MORE SERIES IN BOTH FIXED RATE AND VARIABLE RATE FORM AND AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $180,000,000,FOR THE PURPOSE OF REFINANCING AND REUNDING BONDS PREVIOUISLY ISSUED TO FINANCE CERTAIN FACILITIES AND IMPROVMENTS FOR AZUSA PACIFIC UNIVERSITY,AND CERTAIN OTHER MATTERS RELATING THERETO WHEREAS, pursuant Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the "Act'), certain public agencies (the "Members") have entered into a Joint Exercise of Powers Agreement Relating to the California Municipal Finance Authority, dated as of January 1, 2004 (the "Agreement') in order to form the California Municipal Finance Authority (the "Authority"), for the purpose of promoting economic, cultural and community development, and in order to exercise any powers common to the Members, including the issuance of bonds, notes or other evidences of indebtedness; and WHEREAS, the City of Azusa (the "City"), has determined that it is in the public interest and for the public benefit that the City become a Member of the Authority in order to facilitate the promotion of economic, cultural and community development activities in the City, including the financing of projects therefor by the Authority; and WHEREAS, there is now before this City Council (the "City Council') the form of the Agreement; and WHEREAS, the Agreement has been filed with the City, and the members of the City, with the assistance of its staff, have reviewed said document; and WHEREAS, the Authority is authorized to issue and sell revenue bonds for the purpose, among others, of financing or refinancing the construction of capital projects; and WHEREAS, the Azusa Pacific University, a California nonprofit religious corporation (the "Corporation"), has requested that the Authority participate in the issuance of one or more series of revenue bonds in an aggregate principal amount not to exceed $180,000,000 (the "Bonds"), to refund and refinance certain bonds previously issued by the California Statewide Communities Development Authority for the acquisition, construction and equipping of a science center, the acquisition of an apartment complex for student housing and the refinancing of certain obligations previously issued to finance the acquisition, construction and equipping of certain university buildings, all for the Corporation (the "Facilities") owned and operated by the Corporation and located within the City of Azusa, California (the "City") and for the purpose of paying costs and expenses in connection with such refunding and refinancing; and 535320 WHEREAS, pursuant to Section 147(f) of the Internal Revenue Code of 1986 (the "Code"), the issuance of the Bonds by the Authority must be approved by the City because the Facilities are located within the territorial limits of the City; and WHEREAS, the City Council of the City (the "City Council") is the elected legislative body of the City and is one of the applicable elected representatives required to approve the issuance of the Bonds under Section 147(f) of the Code; and WHEREAS, the Authority has requested that the City Council approve the issuance of the Bonds by the Authority in order to satisfy the public approval requirement of Section 147(f) of the Code and the requirements of Section 4 of the Agreement; WHEREAS, pursuant to Section 147(f) of the Code, the City Council has, following notice duly given, held a public hearing regarding the issuance of the Bonds, and now desires to approve the issuance of the Bonds by the Authority; NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Azusa as follows: Section 1. The Agreement is hereby approved and the Mayor, City Manager or designee thereof is hereby authorized and directed to execute said document, and the City Clerk or such Clerk's designee is hereby authorized and directed to attest thereto. Section 2. The City Council hereby approves the issuance of the Bonds by the Authority. It is the purpose and intent of the City Council that this resolution constitute approval of the issuance of the Bonds by the Authority, for the purposes of(a) Section 147(f) of the Code, by the applicable elected representative of the issuer of the Bonds and the governmental unit having jurisdiction over the area in which the Facilities are located, in accordance with said Section 147(f) and (b) Section 4 of the Agreement. Section 3. The issuance of the Bonds shall be subject to the approval of the Authority of all financing documents relating thereto to which the Authority is a party. The City shall have no responsibility or liability whatsoever with respect to the Bonds. Section 4. The officers of the City are hereby authorized and directed,jointly and severally, to do any and all things and to execute and deliver any and all documents which they deem necessary or advisable in order to carry out, give effect to and comply with the terms and intent of this resolution-and the financing transaction approved hereby. Section 5. The adoption of this Resolution shall not obligate the City or any department thereof to (i) provide any financing to acquire or construct the Project or any refinancing of the Project; (ii) approve any application or request for or take any other action in connection with any planning approval, permit or other action necessary for the acquisition, rehabilitation or operation of the Project; (iii) make any contribution or advance any funds whatsoever to the Authority; or (iv) take any further action with respect to the Authority or its membership therein. Section 6. This resolution shall take effect immediately upon its adoption. 535320 y PASSED AND ADOPTED by the City Council of the City of Azusa, California this 18th day of October, 2010. AYES: NOES: ABSENT: [SEAL] Attest: By: City Clerk, City of Azusa, California 535320 JOINT EXERCISE OF POWERS AGREEMENT RELATING TO THE CALIFORNIA MUNICIPAL FINANCE AUTHORITY THIS AGREEMENT, dated as of January 1, 2004, among the parties executing this Agreement (all such parties, except those which have withdrawn as provided herein, are referred to as the "Members" and those parties initially executing this Agreement are referred to as the "Initial Members"): WITNESSETH WHEREAS, pursuant to Title 1, Division 7, Chapter 5 of the California Government Code (in effect as of the date hereof and as the same may from time to time be amended or supplemented, the "Joint Exercise of Powers Act'), two or more public agencies may by agreement jointly exercise any power common to the contracting parties; and WHEREAS, each of the Members is a "public agency" as that term is defined in Section 6500 of the Joint Exercise of Powers Act; and WHEREAS, each of the Members is empowered by law to promote economic, cultural and community development, including, without limitation, the promotion of opportunities for the creation or retention of employment, the stimulation of economic activity, the increase of the tax base, and the promotion of opportunities for education, cultural improvement and public health, safety and general welfare; and WHEREAS, each of the Members may accomplish the purposes and objectives described in the preceding preamble by various means, including through making grants, loans or providing other financial assistance to governmental and nonprofit organizations; and WHEREAS, each Member is also empowered by law to acquire and dispose of real property for a public purpose; and WHEREAS, the Joint Exercise of Powers Act authorizes the Members to create a joint exercise of powers entity with the authority to exercise any powers common to the Members, as specified in this Agreement and to exercise the additional powers granted to it in the Joint Exercise of Powers Act and any other applicable provisions of the laws of the State of California; and WHEREAS, a public entity established pursuant to the Joint Exercise of Powers Act is empowered to issue or execute bonds, notes, commercial paper or any other evidences of indebtedness, including leases or installment sale agreements or certificates of participation therein (herein "Bonds"), and to otherwise undertake financing programs under the Joint Exercise of Powers Act or other applicable provisions of the laws of the State of California to accomplish its public purposes; and WHEREAS, the Members have determined to specifically authorize a public entity authorized pursuant to the Joint Exercise of Powers Act to issue Bonds pursuant to the Joint Exercise of Powers Act or other applicable provisions of the laws of the State of California; and WHEREAS, it is the desire of the Members to use a public entity established pursuant to the Joint Exercise of Powers Act to undertake the financing and/or refinancing of projects of any nature, including, but not limited to, capital or working capital projects, insurance, liability or retirement programs or facilitating Members use of existing or new financial instruments and mechanisms; and WHEREAS, it is further the intention of the Members that the projects undertaken will result in significant public benefits to the inhabitants of the jurisdictions of the Members; and WHEREAS, by this Agreement, each Member desires to create and establish the "California Municipal Finance Authority" for the purposes set forth herein and to exercise the powers provided herein; NOW, THEREFORE, the Members, for and in consideration of the mutual promises and agreements herein contained, do agree as follows: Section 1. Purpose. This Agreement is made pursuant to the provisions of the Joint Exercise of Powers Act. The purpose of this Agreement is to establish a public entity for the joint exercise of powers common to the Members and for the exercise of additional powers given to a joint powers entity under the Joint Powers Act or any other applicable law, including, but not limited to, the issuance of Bonds for any purpose or activity permitted under the Joint Exercise of Powers Act or any other applicable law. Such purpose will be accomplished and said power exercised in the manner hereinafter set forth. Section 2. Term. This Agreement shall become effective in accordance with Section 17 as of the date hereof and shall continue in full force and effect until such time as it is terminated in writing by all the Members; provided, however, that this Agreement shall not terminate or be terminated until all Bonds issued or caused to be issued by the Authority (defined below) shall no longer be outstanding under the terms of the indenture, trust agreement or other instrument pursuant to which such Bonds are issued, or unless a successor to the Authority assumes all of the Authority's debts, liabilities and obligastions. Section 3. Authoritv. A. CREATION AND POWERS OF AUTHORITY. Pursuant to the Joint Exercise of Powers Act, there is hereby created a public entity to be known as the "California Municipal Finance Authority" (the "Authority"), and said Authority shall be a public entity separate and apart from the Members. Its debts, liabilities and obligations do not constitute debts, liabilities or obligations of any Members. B. BOARD. The Authority shall be administered by the Board of Directors (the "Board," or the "Directors" and each a "Director") of the California Foundation for Stronger Communities, a nonprofit public benefit corporation organized under the laws of the State of California (the "Foundation"), with each such Director serving in his or her individual capacity as a Director of the Board. The Board shall be the administering agency of this Agreement and, as such, shall be vested with the powers set forth herein, and shall administer this Agreement in accordance with the purposes and functions provided herein. The number of Directors, the appointment of Directors, alternates and successors, their respective terms of office, and all other provisions relating to the qualification and office of the Directors shall be as provided in the Articles and Bylaws of the Foundation, or by resolution of the Board adopted in accordance with the Bylaws of the Foundation. All references in this Agreement to any Director shall be deemed to refer to and include the applicable alternate Director, if any, when so acting in place of a regularly appointed Director. Directors may receive reasonable compensation for serving as such, and shall be entitled to reimbursement for any expenses actually incurred in connection with serving as a Director, if the Board shall determine that such expenses shall be reimbursed and there are unencumbered funds available for such purpose. The Foundation may be removed as administering agent hereunder and replaced at any time by amendment of this Agreement approved as provided in Section 16; provided that a successor administering agent of this Agreement has been appointed and accepted its duties and responsibilities under this Agreement. C. OFFICERS; DUTIES; OFFICIAL BONDS. The officers of the Authority shall be the Chair, Vice-Chair, Secretary and Treasurer (defined below). The Board, in its capacity as administering agent of this Agreement, shall elect a Chair, a Vice-Chair, and a Secretary of the Authority from among Directors to serve until such officer is re-elected or a successor to such office is elected by the Board. The Board shall appoint one or more of its officers or employees to serve as treasurer, auditor, and controller of the Authority (the "Treasurer") pursuant to Section 6505.6 of the Joint Exercise of Powers Act to serve until such officer is re-elected or a successor to such office is elected by the Board. Subject to.the applicable provisions of any resolution, indenture, trust agreement or other instrument or proceeding authorizing or securing.Bonds (each such resolution, indenture, trust agreement, instrument and proceeding being herein referred to as an "Indenture") providing for a trustee or other fiscal agent, and except as may otherwise be specified by resolution of the Board, the Treasurer is designated as the depositary of the Authority to have custody of all money of the Authority, from whatever source derived and shall have the powers, duties and responsibilities specified in Sections 6505, 6505.5 and 6509.5 of the Joint Exercise of Powers Act. The Treasurer of the Authority is designated as the public officer or person who has charge of, handles, or has access to any property of the Authority, and such officer shall file an official bond with the Secretary of the Authority in the amount specified by resolution of the Board but in no event less than $1,000. The Board shall have the power to appoint such other officers and employees as it may deem necessary and to retain independent counsel, consultants and accountants. The Board shall have the power, by resolution, to the extent permitted by the Joint Exercise of Power Act or any other applicable law, to delegate any of its functions to one or more of the Directors or officers, employees or agents of the Authority and to cause any of said Directors, officers, employees or agents to take any actions and execute any documents or instruments for and in the name and on behalf of the Board or the Authority. D. MEETINGS OF THE BOARD. (1) Ralph M. Brown Act. All meetings of the Board, including, without limitation, regular, adjourned regular, special, and adjourned special meetings shall be called, noticed, held and conducted in accordance with the provisions of the Ralph M. Brown Act (commencing with Section 54950 of the Government Code of the State of California), or any successor legislation hereinafter enacted (the"Brown Act'). (2) Regular Meetings. The Board shall provide for its regular meetings; provided, however, it shall hold at least one regular meeting each year. The date, hour and place of the holding of the regular meetings shall be fixed by resolution of the Board. To the extent permitted by the Brown Act, such meetings may be held by telephone conference. (3) Special Meetings. Special meetings of the Board may be called in accordance with the provisions of Section 54956 of the Government Code of the State of California. To the extent permitted by the Brown Act, such meetings may be held by telephone conference. (4) Minutes. The Secretary of the Authority shall cause to be kept minutes of the regular, adjourned regular, special, and adjourned special meetings of the Board and shall, as soon as possible after each meeting, cause a copy of the minutes to be forwarded to each Director. (5) Quorum. A majority of the Board shall constitute a quorum for the transaction of business. No action may be taken by the Board except upon the affirmative vote of a majority of the Directors constituting a quorum, except that less than a quorum may adjourn a meeting to another time and place. E. RULES AND REGULATIONS. The Authority may adopt, from time to time,by resolution of the Board such rules and regulations for the conduct of its meetings and affairs as may be required. Section 4. Powers. The Authority shall have the power, in its own name, to exercise the common powers of the Members and to exercise all additional powers given to a joint powers entity under any of the laws of the State of California, including,but not limited to, the Joint Exercise of Powers Act, for any purpose authorized under this Agreement. Such powers shall include the common powers specified in this Agreement and may be exercised in the manner and according to the method provided in this Agreement. The Authority is hereby authorized to do all acts necessary for the exercise of such power, including, but not limited to, any of all of the following: to make and enter into contracts; to employ agents and employees; to acquire, construct, provide for maintenance and operation of, or maintain and operate, any buildings, works or improvements; to acquire, hold or dispose of property wherever located; to incur debts, liabilities or obligations; to receive gifts, contributions and donations of property, funds, services, and other forms of assistance from person, firms, corporations and any governmental entity; to sue and be sued in its own name; to make grants, loans or provide other financial assistance to governmental and nonprofit organizations (e.g., the Members or the Foundation) to accomplish any of its purposes; and generally to do any and all things necessary or convenient to accomplish its purposes. Without limiting the generality of the foregoing, the Authority may issue or cause to be issued Bonds, and pledge any properly or revenues as security to the extent permitted under the Joint Exercise of Powers Act, or any other applicable provision of law; provided, however, the Authority shall not issue Bonds with respect to any project located in the jurisdiction of one or more Members unless the governing body of any such Member, or its duly authorized representative, shall approve, conditionally or unconditionally, the project, including the issuance of Bonds therefor. Such approval may be evidenced by resolution, certificate, order, report or such other means of written approval of such project as may be selected by the Member (or its authorized representative) whose approval is required. No such approval shall be required in connection with Bonds that refund Bonds previously issued by the Authority and approved by the governing board of a Member. The manner in which the Authority shall exercise its powers and perform its duties is and shall be subject to the restrictions upon the manner in which a California general law city could exercise such powers and perform such duties. The manner in which the Authority shall exercise its powers and perform its duties shall not be subject to any restrictions applicable to the manner in which any other public agency could exercise such powers or perform such duties, whether such agency is a party to this Agreement or not. Section 5. Fiscal Year. For the purposes of this Agreement, the term "Fiscal Year" shall mean the fiscal year as established from time to time by resolution of the Board,being, at the date of this Agreement, the period from July 1 to and including the following June 30, except for the first Fiscal Year which shall be the period from the date of this Agreement to June 30, 2004. Section 6. Disposition of Assets. At the end of the term hereof or upon the earlier termination of this Agreement as set forth in Section 2, after payment of all expenses and liabilities of the Authority, all property of the Authority both real and personal shall automatically vest in the Members in the manner and amount determined by the Board in its sole discretion and shall thereafter remain the sole property of the Members; provided, however, that any surplus money on hand shall be returned in proportion to the contributions made by the Members. Section 7. Bonds. From time to time the Authority shall issue Bonds, in one or more series, for the purpose of exercising its powers and raising the funds necessary to carry out its purposes under this Agreement. The services of bond counsel, financing consultants and other consultants and advisors working on the projects and/or their financing shall be used by the Authority. The expenses of the Board shall be paid from the proceeds of the Bonds or any other unencumbered funds of the Authority available for such purpose. Section 8. Bonds Only Limited and Special Obligations of Authority. The Bonds, together with the interest and premium, if any, thereon, shall not be deemed to constitute a debt of any Member or pledge of the faith and credit of the Members or the Authority. The Bonds shall be only special obligations of the Authority, and the Authority shall under no circumstances be obligated to pay the Bonds except from revenues and other funds pledged therefor. Neither the Members nor the Authority shall be obligated to pay the principal of, premium, if any, or interest on the Bonds, or other costs incidental thereto, except from the revenues and funds pledged therefor, and neither the faith and credit nor the taxing power of the Members nor the faith and credit of the Authority shall be pledged to the payment of the principal of, premium, if any, or interest on the Bonds nor shall the Members or the Authority in any manner be obligated to make any appropriation for such payment. No covenant or agreement contained in any Bond or related document shall be deemed to be a covenant or agreement of any Director, or any officer, employee or agent of the Authority in his or her individual capacity and neither the Board of the Authority nor any Director or officer thereof executing the Bonds shall be liable personally on any Bond or be subject to any personal liability or accountability by reason of the issuance of any Bonds. Section 9. Accounts and Reports. All funds of the Authority shall be strictly accounted for. The Authority shall establish and maintain such funds and accounts as may be required by good accounting practice and by any provision of any Indenture (to the extent such duties are not assigned to a trustee of Bonds). The books and records of the Authority shall be open to inspection at all reasonable times by each Member. The Treasurer of the Authority shall cause an independent audit to be made of the books of accounts and financial records of the Authority by a certified public accountant or public accountant in compliance with the provisions of Section 6505 of the Joint Exercise of Powers Act. In each case the minimum requirements of the audit shall be those prescribed by the State Controller for special districts under Section 26909 of the Government Code of the State of California and shall conform to generally accepted auditing standards. .When such an audit of accounts and records is made by a certified public accountant or public accountant, a report thereof shall be filed as a public record with each Member and also with the county auditor of each county in which a Member is located; provided, however, that to the extent permitted by law, the Authority may, instead of filing such report with each Member and such county auditor, elect to post such report as a public record electronically on a website designated by the Authority. Such report if made shall be filed within 12 months of the end of the Fiscal Year or Years under examination. The Treasurer is hereby directed to report in writing on the first day of July, October, January, and April of each year to the Board and the Members which report shall describe the amount of money held by the Treasurer for the Authority, the amount of receipts since the last such report, and the amount paid out since the last such report (which may exclude amounts held by a trustee or other fiduciary in connection with any Bonds to the extent that such trustee or other fiduciary provided regular reports covering such amounts.) Any costs of the audit, including contracts with, or employment of, certified public accountants or public accountants in making an audit pursuant to this Section, shall be borne by the Authority and shall be a charge against any unencumbered funds of the Authority available for that purpose. In any Fiscal Year the Board may, by resolution adopted by unanimous vote, replace the annual special audit with an audit covering a two-year period. s Section 10. Funds. Subject to the applicable provisions of any Indenture, which may provide for a trustee or other fiduciary to receive, have custody of and disburse Authority funds, the Treasurer of the Authority shall receive, have the custody of and disburse Authority funds pursuant to the accounting procedures developed under Sections 3.0 and 9, and shall make the disbursements required by this Agreement or otherwise necessary to carry out any of the provisions of purposes of this Agreement. Section 11. Notices. Notices and other communications hereunder to the Members shall be sufficient if delivered to the clerk of the governing body of each Member; provided, however, that to the extent permitted by law, the Authority may, provide notices and other communications and postings electronically(including, without limitation,through email or by posting to a website). Section 12. Additional Members/Withdrawal of Members. Qualifying public agencies may be added as parties to this Agreement and become Members upon: (1) the filing by such public agency with the Authority of an executed counterpart of this Agreement, together with a copy of the resolution of the governing body of such public agency approving this Agreement and the execution and delivery hereof; and (2) adoption of a resolution of the Board approving the addition of such public agency as a Member. Upon satisfaction of such conditions, the Board shall file such executed counterpart of this Agreement as an amendment hereto, effective upon such filing. A Member may withdraw from this Agreement upon written notice to the Board; provided, however, that no such withdrawal shall result in the dissolution of the Authority so long as any Bonds remain outstanding. Any such withdrawal shall be effective only upon receipt of the notice of withdrawal by the Board which shall acknowledge receipt of such notice of withdrawal in writing and shall file such notice as an amendment to this Agreement effective upon such filing. Section 13. Indemnification. To the full extent permitted by law, the Board may authorize indemnification by the Authority of any person who is or was a Director or an officer, employee of other agent of the Authority, and who was or is a party or is threatened to be made a parry to a proceeding by reason of the fact that such person is or was such a Director or an officer, employee or other agent of the Authority, against expenses, including attorneys fees,judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding, if such ' person acted in good faith in a manner such person reasonably believed to be in the best interests of the Authority and, in the case of a criminal proceeding, bad no reasonable cause to believe the conduct of such person was unlawful and, in the case of an action by or in the right of the Authority, acted with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. Section 14. Contributions and Advances. Contributions or advances of public funds and of the use of personnel, equipment or property may be made to the Authority by the Members for any of the purposes of this Agreement. Payment of public funds may be made to defray the cost of any such contribution or advance. Any such advance may be made subject to repayment, and in such case shall be repaid, in the manner agreed upon by the Authority and the Member making such advance at the time of such advance. It is mutually understood and agreed to that no Member has any obligation to make advances or contributions to the Authority to provide for the costs and expenses of administration of the Authority, even though any Member may do so. The Members understand and agree that a portion of the funds of the Authority that otherwise may be allocated or distributed to the Members may instead be used to make grants, loans or provide other financial assistance to governmental units and nonprofit organizations (e.g., the Foundation) to accomplish any of the governmental unit's or nonprofit organization's purposes. Section 15. Immunities. All of the privileges and immunities from liabilities, exemptions from laws, ordinances and rules, and other benefits which apply to the activity of officers, agents or employees of Members when performing their respective functions within the tentorial limits of their respective public agencies, shall apply to the same degree and extent to the Directors, officers, employees, agents or other representatives of the Authority while engaged in the performance of any of their functions or duties under the provisions of this Agreement. Section 16. Amendments. Except as provided in Section 12 above, this Agreement shall not be amended, modified, or altered, unless the negative consent of each of the Members is obtained. To obtain the negative consent of each of the Members, the following negative consent procedure shall be followed: (a) the Authority shall provide each Member with a notice at least sixty (60) days prior to the date such proposed amendment is to become effective explaining the nature of such proposed amendment and this negative consent procedure; (b) the Authority shall provide each Member who did not respond a reminder notice with a notice at least thirty (30) days prior to the date such proposed amendment is to become effective; and (c) if no Member objects to the proposed amendment in writing within sixty (60) days after the initial notice, the proposed amendment shall become effective with respect to all Members. Section 17. Effectiveness. This Agreement shall become effective and be in full force and effect and a legal, valid and binding obligation of each of the Members on the date that the Board shall have received from two of the Initial Members an executed counterpart of this Agreement, together with a certified copy of a resolution of the governing body of each such Initial Member approving this Agreement and the execution and delivery hereof. Section 18. Partial Invalidity. If any one or more of the terms, provisions, promises, covenants or conditions of this Agreement shall to any extent be adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, promises, covenants and conditions of this Agreement shall not be affected thereby, and shall be valid and enforceable to the fullest extent permitted by law. Section 19. Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors of the parties hereto. Except to the extent expressly provided herein, no Member may assign any right or obligation hereunder without the consent of the other Members. Section 20. Miscellaneous. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The section headings herein are for convenience only and are not to be construed as modifying or governing the language in the section referred to. Wherever in this Agreement any consent or approval is required, the same shall not be unreasonably withheld. This Agreement shall be governed under the laws of the State of California. This Agreement is the complete and exclusive statement of the agreement among the Members, which supercedes and merges all prior proposals,. understandings, and other agreements, whether oral, written, or implied in conduct, between and among the Members " relating to the-subject matter of this Agreement. A IN WITNESS WHEREOF, the City of Azusa has caused this Agreement to be executed and attested by its duly authorized representatives as of the_day of 2010. Member: CITY OF AZUSA By Name: Title: ATTEST: Clerk - A A® /AZUSAP/CIFkG U'-N I V E-R-S I T Y Office of the General Counsel September 28,2010 Physical Address:680 Alosta Avenue, Suite 204 Mailing Address:901 East Alosla Avenue PO aox 7000, Azusa. California 91702-7000 Phone: (626) 387-5763 Fax: (626) 334-0718 Mr.Alan Kreimeier Administrative Services Director/CFO City of Azusa 213 E. Foothill Blvd Azusa, CA 91702 Re: APU TEFRA Hearing Dear Mr. Kreimeier: I received your letter dated September 23; 2010 regarding our request for a TEFRA hearing.We are certainly willing to reaffirm the commitments we made in my May 3, 2007 letter addressed to Fran Delach(and made in greater detail in a TEFRA agreement between APU and the City dated May 18, 2007). Thank you for your attention to this matter. If there is a publication that the City prefers for purposes of publishing the Notice of the TEFRA hearing, please let me know. My telephone number is 626.387.5763 and my email address is mdickerson(&apu.edu. Sincerely, Mark S. Dickerson MSD/jlf 0 uoF:;a2G U" SCHEDULED TTEm TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ALAN KREIMEIER, ADMISTRATIVE SERVICES DIRECTOR/CFO VIA: F.M. DELACH, CITY MANAGER* DATE: NOVEMBER 1, 2010 SUBJECT: RESOLUTION AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $9.0 MILLION AGGREGATE PRINCIPAL AMOUNT CITY OF AZUSA COMMUNITY FACILITIES DISTRICT NO. 2002-1 (SPECIAL TAX REFUNDING BONDS, SERIES 2010), APPROVING THE EXECUTION AND DELIVERY OF AN FISCAL AGENT AGREEMENT, ESCROW AGREEMENT, A BOND PURCHASE AGREEMENT, AND THE PREPARATION OF AN OFFICIAL STATEMENT AND OTHER MATTERS RELATED THERETO STAFF RECOMMENDATION That City Council direct staff and the finance team to pursue the refinancing of the Community Facilities District 2002-1 Special Tax Bonds (Mountain Cove) and to initiate the sale of the bonds once homeowner savings are no less than 9%per year. BACKGROUND On December 19, 2002, the City of Azusa issued $8,980,000 Special Tax Bonds, 2002 Series A for the Community Facilities District No. 2002-1 (Mountain Cove) (the "2002 Bonds"). The 2002 Bonds were issued with a 6.0% coupon in 2032 and are currently callable on March 1, 2011 at a price of 102%. The City of Azusa currently has an opportunity to refinance the outstanding Special Tax Bonds, 2002 Series A for the Community Facilities District No. 2002-1 (Mountain Cove) (the "2002 Bonds") for savings. Interest rates for municipal bonds have been declining substantially over the past few months, with the benchmark "AAA" municipal rate decreasing by 0.35% over the last 4 months. Based on current interest rates, refinancing and restructuring the Bonds could produce $1,800,000 of cumulative savings to property owners. The refinancing is contingent on favorable interest rates which can change at any time; interest rates will be determined at the time of the bond sale. Staff is recommending the bond sale move forward when interest rates 1 provide, at a minimum, average homeowner reduction in payments of 9% - 14% ($90,000) per year over the next 22 years. DISCUSSION Financing Summary The proposed 2010 Bonds would be approximately $9.32 million in par amount with a final maturity in 2032, which is the same as the final maturity for the 2002 Bonds. The final interest rate structure will be determined when the 2010 Bonds are priced and sold. The pricing date would be targeted for sometime in November, assuming that interest rates are attractive. The bond closing and distribution of net proceeds is expected to occur the first week of December, making this a "current" refunding. This proposal, therefore, preserves the City's one time (under current IRS regulations) advance refunding ability for future use. By closing the first week of December, the City is able to redeem the 2002 Bonds on a current basis on March 1, 2011. Based on current interest rates and the use of funds held by the Trustee, total savings over the life of the bonds is $1,800,000 or approximately $90,000 annually. This results in net present value savings of$350,000, or 4.1% of refunded par amount. Savings from the refinancing will lower the special tax on average $275 annually for each of the 327 residential units within the Mountain Cove subject to the CFD assessment. Documents To Be Approved Approval of the Resolution approving, authorizing and directing execution of certain tax allocation documents, authorizing and directing the sale of Special Tax Bonds, approving a Preliminary Official Statement, and authorizing and directing certain actions with respect thereto will authorize the execution of the following documents: (All except the Resolution are not attached with this staff report due to their length, but are available for review in the City Clerk's Office) • City Resolution. A Resolution of the City Council of the City of Azusa approving the issuance by the City of Azusa of its Community Facility District 2001-1 Series 2010 Special Tax Bonds. (Attached) • Fiscal Agent Agreement. This document contains the terms of the Bonds, including payment and redemption provisions, definition and pledge of Special Tax Revenues to pay the Bonds, Rights and Duties of the Trustee, remedies upon a default in the payment of the Bonds, and final discharge of the Bonds and other related matters. • Escrow Agreement. This document contains the terms and conditions between the City and the Trustee for funds held in escrow, which are pledged to redeem bonds on March 1, 2011. • Preliminary Official Statement. This is the City's document pursuant to which the Bonds will be offered for purchase by the public. This document must contain all facts material to the Bonds and the City (with certain permitted exceptions to be completed in the final Official Statement) and must not omit any such material facts. • Bond Purchase Contract. This document contains the obligation of the underwriter to accept and pay for the Bonds, provided that all of the covenants and representations of the City are met and certain other conditions excusing performance by the underwriter do not exist. FISCAL IMPACT The bonds are limited obligations of the District, payable solely from special tax revenue. The proposed CFD refunding bonds will not be a direct obligation of the City of Azusa. Neither the faith or credit, nor the taxing power of the City, County, State or any political subdivision is pledged to the repayment of the bonds. The refinancing of the bonds will provide estimated savings of$90,000 annually, beginning in the next property tax cycle (2011-12), to the homeowners through a reduction to the annual tax levy established to repay the initial CPD bonds. RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA AUTHORIZING THE ISSUANCE OF SPECIAL TAX REFUNDING BONDS FOR CITY OF AZUSA COMMUNITY FACILITIES DISTRICT NO. 2002-1 IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $9,000,000 AND APPROVING CERTAIN DOCUMENTS AND TAKING CERTAIN OTHER ACTIONS IN CONNECTION THEREWITH WHEREAS, the City Council of the City of Azusa (the ("City") has heretofore undertaken proceedings and issued bonds in the aggregate principal amount of$8,980,000 (the "2002 Bonds") on behalf of the City of Azusa Community Facilities District No. 2002-1 (Mountain Cove), County of Los Angeles, State of California (the "Community Facilities District") pursuant to the terms and conditions of the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California(the "Act'); and WHEREAS, the City Council (the "City Council") has been advised that due to the interest rates at which municipal bonds are currently being sold it may be possible to issue bonds of the District for the purpose of refunding the 2002 Bonds at interest rates that will be significantly lower than the interest rates on the 2002 Bonds and to thereby provide savings to the property owners in the District through reduced special taxes that will be levied on parcels of taxable property in the District to pay the principal of and interest on the 2002 Bonds (the bonds that may be issued for the District to defease and refund the 2002 Bonds are hereinafter referred to as the "Refunding Bonds."); and WHEREAS, the Refunding Bonds of the District shall be designated"Community Facilities District No. 2002-1 (Mountain Cove) Special Tax Refunding Bonds, Series 2010; and WHEREAS, the aggregate principal amount of the Refunding Bonds that may be issued for the District shall not exceed $9,000,000; and WHEREAS, payment of the principal of and interest on the 2002 Bonds are secured by special taxes that are levied on parcels of taxable property in the District (the "Special Taxes'); and WHEREAS, payment of the principal of and interest on the Refunding Bonds that may be issued by the District will be secured by such Special Taxes; and WHEREAS, pursuant to Section 53345.8 of the California Government Code, the City Council, as the legislative body of the District, may sell bonds of the District only if it determines prior to the award of the sale of such bonds that the value of the real property that would be subject to the Special Tax to pay debt service on the bonds will be at least three (3) times the principal amount of the bonds to be sold and the principal amount of all other bonds outstanding that are secured by a special tax levied pursuant to the Mello-Roos Community Facilities Act of 1982 (Section 53311, et seq., of the California Government Code) or a special assessment levied on property within the District; and 45635.01423\1575313.1 WHEREAS, the total assessed value of taxable property in the District, as provided by Special District Financing & Administration, LLC, the special tax consultant to the City, based on a review of the Los Angeles County Assessor's Assessment Roll for fiscal year 2010-11 is $178,680,875; and WHEREAS, upon the issuance of the Refunding Bonds of the District and the deposit of the appropriate portion of the proceeds of the sale of the Refunding Bonds in the escrow fund to be established to accomplish the defeasance and refunding of the 2002 Bonds, such 2002 Bonds will be defeased and the property in the District will no longer be subject to the levy of special taxes to pay debt service on the 2002 Bonds; and WHEREAS, if the Refunding Bonds of the District are issued and sold in an aggregate principal amount that does not exceed the aggregate principal amount authorized herein, then the value of the parcels of real property within the District that will be subject to the levy of the Special Taxes will be more than three (3) times the principal amount of such Refunding Bonds; and WHEREAS, there will be no other bonds outstanding, other than the Refunding Bonds, that are secured by a special tax or a special assessment levied on property within the District; and WHEREAS, the City Council has determined in accordance with Section 53360.4 of the California Government Code that a negotiated sale of the Refunding Bonds with Nollenberger Capital Partners, Inc. (the "Underwriter") in accordance with the terms and conditions of the Bond Purchase Agreement (the "Bond Purchase Agreement") approved as to the form by the City Council will result in a lower overall cost to the Community Facilities District than a public sale; and WHEREAS, the City on behalf of the Community Facilities District, has caused to be prepared a Preliminary Official Statement (the "Preliminary Official Statement") containing certain information with respect to the Community Facilities District. NOW, THEREFORE, the City Council of the City of Azusa resolves as follows: Section 1. Findings. The City Council finds as follows: (1) each of the above recitals is true and correct; (2) that the sale of the Refunding Bonds at a private sale will result in a lower overall cost to the Community Facilities District; and (3) based upon the report of assessed values by Special District Financing & Administration, LLC; that the value of the real property subject to the Special Tax and the improvements thereon is more than three times the aggregate principal amount of Bonds; and (4) upon the issuance of the Refunding Bonds of the District there will be no other bonds, other than such Refunding Bonds, that will be secured by a special tax or a special assessment levied on property within the District; and Section 2. Approval of Issuance of Refunding Bonds and Fiscal Agent Agreement. The issuance of the Refunding Bonds in a principal amount of not to exceed $9,000,000 is hereby authorized pursuant to the Act. The Refunding Bonds shall mature on the dates, pay interest at the rates and shall be substantially in the form set forth in the Fiscal Agent Agreement presented at this meeting. All other provisions of the Refunding Bonds shall be 45635.0142311575313. 1 2 governed by the terms and conditions set forth in such Fiscal Agent Agreement, which form of agreement is hereby approved and the Fiscal Agent Agreement, and the Mayor, City Manager or Assistant City Manager are authorized to execute and deliver said Fiscal Agent Agreement for and in the name of the City on behalf of the Community Facilities District with such additions thereto and changes therein as are recommended or approved by Bond Counsel to the Community Facilities District and the officers executing the same, with such approval to be conclusively evidenced by the execution and delivery of the Fiscal Agent Agreement. The last maturity date of the Refunding Bonds shall not be later than the last maturity date of any of the 2002 Bonds. Pursuant to Section 53363.8 of the California Government Code, the City Council determines that the Designated Costs of Issuing the Refunding Bonds shall include (i) all expenses incident to the calling, retiring, or paying of the outstanding 2002 Bond, and incident to the issuance of the Refunding Bonds, including the charges of any agent in connection with the issuance of the Refunding Bonds or in connection with the redemption or retirement of the outstanding 2002 Bonds, (ii) the interest on the 2002 Bonds to the date upon which each of such 2002 Bonds will be paid pursuant to the fiscal agent agreement authorizing the issuance of such 2002 Bonds, and (iii) any premium necessary in calling or retiring any of the outstanding 2002 Bonds. Section 3. Execution of Bonds. The Refunding Bonds shall be executed on behalf of the Community Facilities District by the manual or facsimile signature of the Mayor or the City Manager and attested with the manual or facsimile signature of the City Clerk. Section 4. Appointing of Fiscal Agent. Wells Fargo, N.A. is hereby appointed to act as Fiscal Agent for the Bonds and to assume the duties and obligations of Fiscal Agent under the Fiscal Agent Agreement. Payment of principal of and interest on the Refunding Bonds shall be made at the principal offices of the Fiscal Agent. Section 5. Approval of Escrow Agreement. The form of the Escrow Agreement which provides for (i) the defeasance and redemption of the 2002 Bonds, (ii) the creation and administration by the Escrow Agent of the Escrow Fund for the benefit of the owners of the 2002 Bonds, and (iii) the performance of other duties by the Escrow Agent, is approved in the form made available to the City Council at the meeting at which this resolution is adopted, and the Mayor, the City Manager, the Assistant City Manager, or the Chief Financial Officer/Administrative Services Director is authorized to execute and deliver, on behalf of the City and District, the Escrow Agreement. Notwithstanding the preceding provisions of this section, as required by Section 53363.9 of the California Government Code, the amount of the proceeds of the sale of the Refunding Bonds and other amounts to be deposited in the Escrow Fund with respect to the 2002 Bonds, and earnings from the investment thereof, shall be in an amount sufficient to pay the principal of and interest on such outstanding bonds prior to and on March 1, 2011 and to pay the principal and redemption premium due on the 2002 Bonds on such date, and the Designated Costs of Issuing the Refunding Bonds, as certified by a certified public accountant licensed to practice in the State of California. 45635.0142351575313. 1 3 Section 6. Appointment of Escrow Agent. Wells Fargo, N.A. is appointed as Escrow Agent pursuant to the Escrow Agreements to take any and all action provided therein to be taken by the Escrow Agent. Section 7. Approval of Bond Purchase Agreement. The form of Bond Purchase Agreement presented at this meeting and the sale of the Refunding Bonds pursuant thereto upon the terms and, conditions set forth therein is hereby approved and, subject to the provisions of Section 8 hereof, the Mayor, City Manager, or Chief Financial Officer/Administrative Services Director is authorized to execute and deliver the Bond Purchase Agreement in the name of and on behalf of the Community Facilities District and the City in said form with such changes therein as the officer executing the same may approve and such matters as are authorized by Section 8 hereof, such approval to be conclusively evidenced by the execution and delivery thereof. Section 8. Establishment of Final Terms of the Sale of the Refunding Bonds. The City Manager, Assistant City Manager or Chief Financial Officer/Administrative Services Director, upon such advice of staff as they may deem necessary, is hereby authorized and directed to act on behalf of the City to establish and determine (i) the final principal amount of the Refunding Bonds, which amount shall not exceed $9,000,000 including Refunding Bonds which may be issued at an original issue discount, (ii) the final amounts of the various maturities and sinking fund payments of the Refunding Bonds the final maturity of such Refunding Bonds to be no later than the final maturity of the 2002 Bonds, (iii)the final interest rate on the Refunding Bonds, which rate shall not exceed six percent (6.00%) per annum for any maturity of the Refunding Bonds, and (iv) the Underwriter's discount for the purchase of the Refunding Bonds, which shall not exceed .95% of the aggregate principal amount of the Refunding Bonds. Notwithstanding the preceding provisions of this section or any other section of this resolution, Refunding Bonds shall not be issued and sold unless (a) the interest rates which will be contained in the Bond Purchase Agreement with respect to all maturities of the Refunding Bonds will result in a net present value savings in total debt service with respect to the outstanding bonds of such District of at least three percent (3.00%), or a reduction in the amount of the Special Tax that will be levied in each fiscal year on all parcels in the District of at least three percent (3.00%), and (b) the total net interest cost to maturity of such Refunding Bonds, plus the principal amount of such Refunding Bonds will be less than the total net interest cost to maturity with respect to the 2002 Bonds, plus the principal amount of such outstanding bonds. Section 9. Approval of Preliminary Official Statement; Preparation of Final Official Statement. The Preliminary Official Statement is approved, and the City Manager or Assistant City Manager, is authorized to consent to and assist in the preparation of such modifications thereto as may be specified by Disclosure Counsel. The City Manager or Chief Financial Officer/Administrative Services Director, are authorized to determine, with the assistance of Bond Counsel, when the Preliminary Official Statement is to be deemed final within the meaning of Rule 15c2-12 of the Securities and Exchange Commission under the Securities Exchange Act of 1934 and to deliver a certificate to that effect to the Underwriter. The City Manager or Chief Financial Officer/Administrative Services Director, may authorize the Underwriter to distribute the Preliminary Official Statement as approved hereby, or as 45635.01423\1575313. 1 4 r modified with the consent of the City Manager or Assistant City Manager, to prospective purchasers of the Refunding Bonds. The City Manager or Chief Financial Officer/Administrative Services Director, is authorized to participate in the preparation of the Final Official Statement, based on the Preliminary Official Statement, and such modifications thereto as may be agreed to by Disclosure Counsel and the Underwriter. The City Manager or Chief Financial Officer/Administrative Services Director, is authorized to sign the Final Official Statement on behalf of the City and the Community Facilities District. Section 10. Findings Regarding the Levy and Rates of Special Taxes. The City Council finds that the Community Facilities District will covenant in the Fiscal Agent Agreement, for the benefit of the owners of the Refunding Bonds, that to the extent it is legally permitted to do so (a) it will levy the Special Taxes for the payment of the Administrative Expenses (as defined therein) which are expected to be incurred in each fiscal year, and (b) it will not initiate proceedings under the Mello-Roos Community Facilities Act of 1982 to reduce the maximum Special Tax Rates (the "Maximum Rates") on property below the amounts which are necessary to pay such Administrative Expenses and to provide Special Tax Revenues (as defined therein) in an,amount equal to one hundred ten percent (110%) of Maximum Annual Debt Service (as defined therein) on the outstanding Bonds. Section 11. Approval of Continuing Disclosure Certificate. The Continuing Disclosure Certificate is approved in the form submitted to the City Council at the meeting at which this resolution is adopted, and the City Manager or Chief Financial Officer/Administrative Services Director is authorized to execute and deliver said certificate on behalf of the Community Facilities District. Section 12. Covenants. The covenants set forth in the Fiscal Agent Agreement to be executed in accordance with Section 10 above shall be deemed to be covenants of the City in its capacity of the legislative body of the Community Facilities District. Section 13. Engagement of Professional Services. The City Council hereby approves the engagement of the firm Best Best & Krieger LLP, as bond counsel and disclosure counsel, and the firm of Urban Futures, as financial advisor to the City in connection with the issuance and sale of the Refunding Bonds. Section 14. Other Acts. All actions heretofore taken by officers and agents of the City and the Community Facilities District with respect to the sale and issuance of Bonds are hereby approved, confirmed and ratified, and the City Manager, Assistant City Manager, the Chief Financial Officer/Administrative Services Director and the City Clerk and other appropriate officials of the City and the Community Facilities District are hereby authorized and directed to take any actions and execute and deliver any and all documents as are necessary to accomplish the issuance, sale and delivery of the Bonds in accordance with the provisions of this Resolution. 45635.01423\1575313. 1 5 ii PASSED, APPROVED and adopted by the City Council of the City Council of the City of Azusa at a regular meeting thereof held November 1, 2010, and approved by the following vote: Mayor ATTEST: City Clerk 45635.01423V1575313. 1 6 per/* U t CITY OF AZUSA MINUTES OF THE CITY COUNCIL REGULAR MEETING MONDAY,OCTOBER 18,2010—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 located at 213 E.Foothill Boulevard,Azusa,CA 91702. CLOSED SESSION Closed Session The City Council recessed to Closed Session at 6:31p.m. 1. CONFERENCE WITH LABOR NEGOTIATOR(Gov.Code Sec.54957.6) Conf w/labor Agency Negotiators: Administrative Services Director-Chief Financial Officer Kreimeier and Negotiators City Manager Delach Organizations: AMMA,SEIU,HPOA,APMA and ACEA 2. LIABILITY CLAIM PURSUANT TO GOVERNMENT CODE SECTION 54956.95 Liability Claim CLAIMANT: J.Stanton,Agency claimed against: City of Azusa J.Stanton 3. PUBLIC EMPLOYEE PERFORMANCE EVALUATION(Gov.Code Sec.54957) Pub Emp Eval Title: City Manager City Mgr The City Council reconvened at 7:35p.m.The City Attorney Carvalho advised that there was no reportable No Reports action taken in Closed Session, Closed Session Mayor Rocha called the meeting to order. Call to Order Mr.Josh Wallace led in the Flag Salute and Invocation was given by Pastor Ariel Verayo of Jesus Is Lord Flag Salute Church Invocation ROLL CALL Roll Call PRESENT: COUNCILMEMBERS: GONZALES,CARRILLO.MACIAS.HANKS,ROCHA ABSENT: . COUNCILMEMBERS: NONE ALSO PRESENT: Also Present City Attorney Carvalho, City Manager Delach,Assistant City Manager Makshanoff,Police Chief Garcia, Director of Public Works Haes, Economic and Community Development Director Christiansen, Administrative Services Director-Chief Financial Officer Kreimeier,Recreation Supervisor Gonzales,and Recreation Superintendent Gonzales, Library Director Johnson, Public Information Officer Quiroz, Assistant Director of Economic and Community Development McNamara,Director of Utilities Morrow, _ Director of Information Technology Graf,City Clerk Mendoza,Deputy City Clerk Toscano. PUBLIC PARTICIPATION Pub Part Mr. Mike Lee addressed Council congratulating students of Azusa,Bill Baca. and announcing the success M.Lee of several events. He then expressed his opinion regarding the Referendum process. Comments Mr. JoshWallaceannounced his Eagle Scout project which is collecting games for Divine Savoir school J.Wallace and asked to place a box at city hall. Comments Ms. Stephanie Mills addressed Council expressing her opinion regarding the referendum process and S.Mills requesting Council rescind their vote of the proposed ordinance. Comments Ms. Jeri Vogel read into the record information regarding the proposed development agreement with J.Vogel Vulcan. Comments Mr. Lynn Eaton addressed Council expressing his opinion regarding the vote on the Referendum for L.Eaton Vulcan Mining and commented on the newspaper article about the issue. Comments Mr. Jeff Melching addressed Council expressing his opinion on the effects of the Ordinance regarding the J.Melching development agreement with Vulcan and talked about the staff report and referendum opposition. Comments l Ms.Peg Casey addressed Council expressing her opinion regarding the presentation of the Vulcan project P.Casey as well as the elements of the project.- Comments Ms.Veronica Diaz addressed Council requesting sponsorship for her daughter Ashely Diaz,a 51"grader at V.Diaz Victor Hodge Elementary School,who will be going to Washington D.C.in June. Comments Mr.Matthew Deem addressed Council stating that he was a circulator of the Vulcan Referendum and he is M.Deem 19 years old and a registered voter according to Los Angeles County Registrar Recorder. Comments Mr. Richard Deem addressed Council requesting that the Special Election on the Vulcan Referendum be R.Deem held with the General Municipal Election of March 8". Comments Mr. Jorge Rosales addressed Council stating that there has been misleading information received in the J.Rosales mail sent by Canyon City Alliance,and detailed information regarding the Vulcan Mining. Comments Mr. George Gomez addressed Council requesting that they investigate a property in the city as documents G.Gomez have been forged and also to investigate city departments. Comments Ms. Carolyn Crawford of the Rotary Club requested a proclamation for Polio Day on October 24'"which C.Crawford would raise the awareness of countries that still have polio epidemics. Comments Mr. Jacob Anid of Azusa High School Academic Decathlon addressed Council requesting donation for J.Anid printing costs and food when they are practicing. Comments Mr. Russ Rentschler addressed Council expressing his opinion regarding comments by the Mayor and R.Rentschler having a special election instead of combining it with the March election. Comments Ms. Sandra Rentschler addressed Council expressing her opinion regarding the mining referendum,mining S.Rentschler of hillsides,the cost for a special election,and Duarte. Comments It was consensus of Councilmembers to direct staff to provide sponsorship to Ashley Diaz of Hodge Direction to Staff School in the amount of$100, provide $200 to Jamb Anid for the Decathlon expenses, and prepare a Sponsorships& proclamation for Carolyn Crawford for polio awareness. .Proclamation REPORTS,UPDATES COUNCIL BUSINESS AND ANNOUNCEMENTS-STAFF Rpts,Updates Moved by Mayor Pro-Tem Gonzales, seconded by Cocuncilmember Hanks and unanimously carried to Sponsorship approved request for sponsorship for $100 to Malia Cisneros of Hodge Elementary School for the fifth Approved grade student trip to Washington D.C. Reports were received from recipients of the Canyon City Foundation, as follows: Foothill Family Canyon City Services, Stepping Stones for Women, Homework House, Azusa Senior Center, Convalescent Aid Foundation Society,Azusa Unified School District,Neighborhood Wellness Center and City Library. Recipients Mayor Pro-tem Gonzales congratulated all who participated in the BMX Show,thanked all involved in the Gonzales Target Ribbon cutting, Congratulated Jeffrey Comejo and the Golden Days Committee on the success of Comments the events and asked that the meeting be adjourned in memory of Roman Banuelos. Councilmember Macias congratulated Jeffrey Comejo and the Azusa Golden Days Committee on the Macias success of the event and thanked City Manager for the BMX Event. Comments Councilmember Hanks congratulated the Golden Days Committee,welcomed Target and asked that$100 Sponsor J. sponsorship be given to Josh Wallace to donate towards his Eagle Project. - Wallace Councilmember Carrillo thanked and congratulated all of the Golden Days Committee,welcomed Target, Carrillo thanked the BMS show and Mercedes Castro of the Lions Club for the 2000 helmets donated and noted Comments that a donation of$100 will purchase 15 helmets,you can send donation to P.O.Box 82,Azusa Ca. Mayor Rocha stated that the meeting will be adjourned in memory of Roman Barnacles, congratulated Rocha Jeffrey Comejo and the Golden Days Committee on the success of the event,thanked to staff for Target. Comments announced the Trunk or Treat at Memorial Park on October 24"12—6 p.m.,Community Garden event on Saturday,October 30'from 8-2 p.m.,and keep soldiers in prayer. SCHEDULED ITEMS Sched Items REFERENDUM PETITIONS CONCERNING ORDINANCE NO. 10-05, APPROVING A Referendum DEVELOPMENT AGREEMENT WITH VULCAN MATERIALS. Petitions 10/18/10 PAGE TWO Discussion was held regarding the Referendum Petitions, Ballot Language. Fiscal Impact, the Discussion Development Agreement and options available to the City Council. Each Councilmember voiced their Motion to hold opinion on the issue of the proposed Special Election. Ms.Jennie Avila addressed Council and objected to A Special the process of the proposed vote. After additional comments, it was moved by Councilmember Carrillo, Election seconded by Mayor Pro-Tem Gonzales and carried to hold a Special Election concerning Ordinance No. 10-05 on January 25,2011. Mayor Rocha dissented. City Council recessed at 9:38 p.m. to discuss ballot language and reconvened at 9:58 p.m. It was moved Recess/Reconvene by Councilmember Carrillo,seconded by Councilmember Macias to reconsider the vote for calling of the Motion to re- Special Election. Moved by Councilmember Carrillo, seconded by Mayor Pro-Tem Gonzales and Consider vote unanimously carried to hold a Special Election concerning Ordinance No. 10-05 on January 25,2011. to hold election. Before the following resolutions were adopted City Attorney Carvalho read the revised ballot language for Ballot Language - Measure A,with additions by Councilmembers. Discussion was held. Councilmember Macias offered a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, CALLING Res. 10-C75 FOR THE HOLDING OF A SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY. Call for Elect JANUARY 25,2011,FOR THE SUBMISSION TO THE QUALIFIED VOTERS AN ORDINANCE. 1/25/10 Moved by Councilmember Macias, seconded by Mayor Pro-Tem Gonzales to waive further reading and adopt. Resolution passed and adopted by the following vote of the Council: AYES: COUNCILMEMBERS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA NOES: COUNCILMEMBERS- NONE ABSENT:COUNCILMEMBERS: NONE Councilmember Carrillo offered a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA. CALIFORNIA, Res. 10-C76 REQUESTING THE BOARD OF SUPERVISORS OF LOS ANGLES COUNTY TO RENDER Requesting SPECIFIED SERVICES TO THE CITY RELATING TO THE CONDUCT OF A SPECIAL County Svs MUNICIPAL ELECTION TO BE HELD ON TUESDAY,JANUARY 25,2011. Moved by Councilmember Carrillo, seconded by Councilmember Hanks to wave further reading and adopt. Resolution passed and adopted by the following vote of the Council: AYES: COUNCILMEMBERS: GONZALES,CARRILLO.MACIAS,HANKS,ROCHA NOES: COUNCILMEMBERS: NONE ABSENT:COUNCILMEMBERS: NONE It was consensus of Councilmembers that Councilmember Hanks and Mayor Pro-Tem Gonzales be Cncl allowed to allowed to participate in the arguments in Favor of the proposed Ordinance. The Argument will be Participate submitted to the City Clerk's office and the Councilmembers who wish to sign off on it. Arguments Mayor Pro-Tem Gonzales offered a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, SETTING Res. 10-C77 PRIORITIES FOR FILING'WRITTEN ARGUMENTS REGARDING A MEASURE AND DIRECTING Arguments THE CITY ATTORNEY TO PREPARE AN IMPARTIAL ANALYSIS. Impartial Analysis AYES: COUNCILMEMBERS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE Councilmember Hanks offered a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA,CALIFORNIA,PROVIDING Res. 10-C78 FOR THE FILING OF REBUTTAL ARGUMENTS FOR CITY MEASURES SUBMITTED AT A Rebuttal SPECIAL ELECTION TO BE HELD ON TUESDAY,JANUARY 25,2011. Arguments Moved by Councilmember Hanks, seconded by Mayor Pro-Tem Gonzales to waive further reading and adopt. Resolution passed and adopted by the following vote of the Council: AYES: COUNCILMEMBERS: GONZALES.CARRILLO,MACIAS,HANKS,ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE APPROVAL OF ROSEDALE LAND PARTNERS 11 LLC FINANCING OF PARTIAL Rosedale Land DEVELOPMENT AGREEMENT PAYMENT. Partners 11 LLC 10/18/10 PAGE THREE After discussion it was moved by Councilmember Carrillo, seconded by Councilmember Hanks and Approved unanimously carried to approve the postponement of a portion of the $1.5 million Development Agreement payment by financing the balance and authorize the City Manager to complete the necessary 14 promissory note and deed of trust,with any non-substantive revisions approved by the City Attorney. The CONSENT CALENDAR consisting of Items D-1 through D-6 was approved by motion of Mayor Consent Calendar Pro-tem Gonzales,seconded by Councilmember Hanks and unanimously carried. Mayor Rocha abstained Approved from the Special Meeting minutes of September 13th as he was absent. I. The minutes of the regular meeting of October 4. 2010, and the special meeting of September 13, Min appvd 2010,were approved as written. 2. HUMAN RESOURCES ACTION ITEMS. HR Action Items Human Resources Action Items were approved as follows: Merit Increase and/or Regular Appointment: S. Gerszewski, P. Branconier, T. Tate, and R. - Nodarse. Flexible Staff Promotion: V.Villagomez,Street Maintenance Worker III. 3. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, Res. 10-C61 ADOPTING THE INVESTMENT POLICY. Invest Policy 4. Formal sealed bids were waived in accordance with Azusa Municipal Code Section 2-523 section Purchase D, no competitive market, the 2 year Charter Business Service Agreement was approved, and Bandwidth $11,500 was appropriated from the Light and Water Consumer Services Fund for the purchase of Charter additional internet bandwidth from Charter Communications 1332-10. 5. THE FOLLOWING RESOLUTIONS WERE ADOPTED APPOINTING MEMBERS TO Resos appoint VARIOUS CITY BOARDS AND COMMISSIONS: Brds&Com A RESOLUTION'OF THE CITY COUNCIL OF THE CITY OF AZUSA APPOINTING STEVIE Res. 10-C62 HEATH TO THE ARCHITECTURAL BARRIERS COMMISSION. S.Heath ABC A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA RE-APPOINTING JULE Res. 10-C63 AREVALO TO THE CULTURAL AND HISTORIC PRESERVATION COMMISSION, Arevalo C&H A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA RE-APPOINTING Res. 10-C64 JEFFREY L. CORNEJO JR. TO THE CULTURAL AND HISTORIC PRESERVATION Comejo C&H COMMISSION. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA RE-APPOINTING Res. 10-C65 EDITH RUSSEK TO THE CULTURAL AND HISTORIC PRESERVATION COMMISSION. Russek to C&H A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPOINTING LII, Res. 10-C66 SASS TO THE HUMAN RELATIONS COMMISSION. L.Sass to HRC A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPOINTING JOANNE Res. 10-C67 HINOJOSA TO THE HUMAN RELATIONS COMMISSION. Hincjosa HRC A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA RE-APPOINTING Res. 10-C68 MARIA A.PACINO TO THE LIBRARY COMMISSION. Pacino Lib A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPOINTING JAMES Res. 10-C69 SINNEMA TO THE LIBRARY COMMISSION. Summa Lib A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA:RE-APPOINTING Res. 10-70 ROSSANA HELBERT TO THE PARKS AND RECREATION COMMISSION. Helbert P&R A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPOINTING FRED A. Res. 10-71 MADJAR TO THE PERSONNEL BOARD. - Madjar Psnl A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA RE-APPOINTING Res. 10-72 CHRISTOPHER DODSON TO THE PLANNING COMMISSION. Dodson PC A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA RE-APPOINTING Res. 10-73 SHAWN MILLNER TO THE PLANNING COMMISSION. Millner PC 6. The following resolution was adopted and entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA ALLOWING Res. 10-C74 CERTAIN CLANS AND DEMANDS AND SPECIFYING THE FUNDS OUT OF WHICH Warrants THE SAME ARE TO BE PAID. 10/18/10 PAGE FOUR THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY CONVENED JOINTLY AT CncUCRA ? 10:27 P.M.TO ADDRESS THE FOLLOWING ITEMS: Convene Jntly CONTINUED JOINT PUBLIC HEARING - CONSIDERATION OF THE FIRST AMENDMENT TO Joint Pub Hrg THE STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT First Amendment FOR THE CITRUS CROSSING PROJECT LOCATED AT THE SOUTHWEST CORNER OF ALOSTA OPA Citrus AVENUE AND CITRUS AVENUE. Crossing Economic and Community Development Director Christiansen presented the item. The Mayor/Chairman K.Christiansen declared the Joint Public Hearing open. The City Clerk/Secretary read the affidavit of proof of publication Hrg Open of notice of said Hearing published in the San Gabriel Valley Tribune on August 8,2010. Mr. Andy Trachman addressed the Hearing requesting to partner with him to bring Applebee's to Azusa A.Trachman and finish the project,and congratulated staff and Council for bringing Target to Azusa. Comments Testimony was received from Mr. Mike Lee in favor of the project. Moved by Mayor Pro-Tem/Director Testimony Gonzales, seconded by Councilmember/Director Hanks and unanimously carried to close the Joint Public Hrg Clsd Hearing. Director Carrillo offered a Resolution entitled: A RESOLUTION OF THE GOVERNING BOARD OF THE REDEVELOPMENT AGENCY OF THE Res. 10-1131 CITY OF AZUSA, CALIFORNIA, APPROVING AN AMENDMENT TO THE STATUTORY Approving DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT BY AND Amendment BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, THE CITY OF AZUSA OPA Citrus AND JAR-UNIVERSITY COMMONS,LLC, GOVERNING CERTAIN REAL PROPERTY LOCATED Crossings AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE, AZUSA, CALIFORNIA,RELATING TO THE CITRUS CROSSING SHOPPING CENTER. Moved by Director Carrillo, seconded by Director Gonzales to waive further reading and adopt. Resolution passed and adopted by the following vote of the Agency. AYES: DIRECTORS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA NOES: DIRECTORS: NONE ABSENT: DIRECTORS: NONE Mayor Pro-Tem Gonzales offered an Ordinance entitled: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA ADOPTING 1"Rdg Ord AND APPROVING AN AMENDMENT TO THE STATUTORY DEVELOPMENT AGREEMENT Adopting and AND OWNER PARTICIPATION AGREEMENT BETWEEN THE CITY OF AZUSA, THE AZUSA Approving REDEVELOPMENT AGENCY AN JAR UNIVERSITY COMMONS, LLC, GOVERNING CERTAIN Amendment REAL PROPERTY LOCATED AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND OPA Citrus CITRUS AVENUE IN AZUSA CALIFORNIA RELATING TO THE CITRUS CROSSING SHOPPING Crossings CENTER. Moved by Mayor Pro-Tem Gonzales, seconded by Councilmember Hanks and unanimously carried to Ord introduced introduce the proposed ordinance. THE CITY COUNCIL RECESSED AND THE REDEVELOPMENT AGENCY CONTINUED AT COO Recess 10:35 P.M. THE REDEVELOPMENT AGENCY RECESSED AT 10:39 P.M. AND THE AZUSA CRA Cont PUBLIC FINANCING AUTHORITY CONVENED AT 10:39 P.M. THE CITY COUNCIL APFA Convene RECONVENED AT 10:40 P.M. Cncl Rcnd It was consensus of Councilmembers to adjourn in memory of Roman Banuelos Adjourn in Memory TIME OF ADJOURNMENT: 10:40 P.M. R.Banuelos CITY CLERK NEXT RESOLUTION NO.2010-C79 NEXT ORDINANCE NO.2010-06. 10/18/10 PAGE FIVE OF CITY OF AZUSA MINUTES OF THE CITY COUNCIL _ SPECIAL MEETING MONDAY,OCTOBER 11,2010-6:33 P.M. - The City Council of the City of Azusa met in regular session,at the above date and time,at the Azusa Light and Water Conference Room located at 729 North Azusa Avenue,Azusa,California. Mayor Rocha called the meeting to order. Call to Order ROLL CALL Roll Call PRESENT: COUNCILMEMBERS:GONZALES,CARRILLO,MACIAS.HANKS,ROCHA ABSENT: COUNCILMEMBERS:NONE ALSO PRESENT: Also Present City Clerk Mendoza,Deputy City Clerk Toscano. PUBLIC PARTICIPATION - Pub Part None, None AGENDAITEM Interviews were held for applicants for the following City Boards and Commissions: Interviews for . Architectural Barriers Cultural and Historical Preservation City Boards& Human Relations Library Commissions Parks and Recreation Personnel Planning Final appointments were made at the meeting of October 6,2010. Adjourn It was consensus of Councilmembers to adjourn. TIME ADJOURNMENT: 9:12P.M. CITY CLERK NEXT RESOLUTION NO.2010-C61. 4 07) �OA A . k CONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: KERMIT FRANCIS, INTERIM DIRECTOR OF HUMAN RESOURCES/PERSONNEL OFFICER VIA: F.M. DELACH, CITY MANAGER) DATE: NOVEMBER 1, 2010 SUBJECT: HUMAN RESOURCES ACTION ITEMS RECOMMENDATION 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 Understanding(s). BACKGROUND I On October 26, 2010,the Personnel Board confirmed the following Department Head recommendations regarding the following Personnel Action requests. A. MERIT INCREASE AND/OR REGULAR APPOINTMENT: DEPARTMENT . NAMECLASSIFICATION ACTION/EFF_ RANGE%STEP DATE BASE-MO SALARY UTL Vince Benavidez Apprentice Line Mechanic Merit Increase 5204/4 09/10/2010 $6323.15 B. SEPARATION: The following separations are submitted for informational purposes. DEPARTMENT INANE' - CLASSIFICATIONEFFECTIVE DATE UTL John Szabo WaterProductionOperator III 11/12/2010 FISCAL IMPACT There is no fiscal impact, as positions listed are funded in approved department budgets. J rk17f(]P�1� TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: MARCENE HAMILTON, CITY TREASURER DATE: NOVEMBER 1, 2010 SUBJECT: CITY TREASURER'S STATEMENT OF CASH AND INVESTMENT BALANCES FOR THE MONTH OF SEPTEMBER 30 2010 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 September 2010. BACKGROUND: Transmitted herewith is the City Treasurer's Statement of Cash Balances for the City of Azusa for the month of September 2010. City investments are made in accordance with the City's Investment Policy adopted and approved with Resolution No. 05 — C16 dated, October 18, 2010 and Government Code Section 53600 et seq. FISCAL IMPACT: The balances 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. The change in total cash in bank and investments from August 31, 2010 to September 30, 2010 is a net decrease of 51,884,120.97. CITY OF AZUSA TREASURER'S REPORT Treasury Checking Accounts and Certificates of Deposit September 30, 2010 Held in Wells Fargo Bank Prepared by: Marcene Hamilton, Treasurer Face Maturity Interest or Account Number Balance Amount Date Coupon Description or CUSIP or Rate Market Value Checking Accounts General Checking Account XXX-XXX1244 239,808.00 Stagecoach Sweep Account DDA XXX-XXX1244 1,275,849.02 Worker's Compensation Checking XXXX-XX0318 0.00 Flexible Reimbursement XXXX-XX5036 0.00 Payroll Checking(ZBA account) XXXX-XX1393 0.00 Police Petty Cash Fund XXX-XXX0334 189.12 Section 108 0.970% Choice IV-Public Fund Account XXX-XXX2239 30,861.69 200,000 11/14/06 3.060% FHLB 3.060 11/14/06 (Matured) 3133X6PD2 0.00 ISO Collateral Account 300,000 Every 30 Days 0.050% Certificate of Deposit XXX-XXX1658 314,109.09 1,975,001 04/07/07 3.748% Certificate of Deposit XXX-XXX2840 2,359,938.98 Covington Endowment Money Market Mutal Funds WF13 XXXX7554 17,696.46 100,000 06/29/09 4.200% Certificate of Deposit- 25467JG21 WFB 25467JG21 100,000.00 TOTALS 4,338,452.36 CITY OF AZUSA TREASURER'S REPORT TREASURY INVESTMENTS September 30,2010 Preparcdby, Marcenc Hamillon,Trrasurcr Coupon - SedlMarkel Pratt Broken Face Amount Description Rate Malurlry Dal A.VCualp No. emem Date PdnziPal' (Changes Mashes Value- ..alhly) City of Azusa Investments - AAA Rated Federal Agency Bonds Wachovia Sec 2.0W,oE FHLB 312511/17/11 3.125% 11/1]111 3133XSM70 11/17,08 2.000.000.00 100.313000 1006,26000 Warhavia Sec 2,000000 FFCB 2.5002/17/12 2.250•% 02/17/12 31331GND7 03116"9 1.999,000.00 102.3"000 2.046.880.00 WOchovia Sec I,W0,00 FHLB 2.250 W113112 L250eA 04113/12 3133%TAW6 01116109 999,500.00 102]50000 1,027,500.0 Hiscies Capital 2,((E, 0 FHLMC 2.50004I08113 L500% NMU13 3128XBT25 04108109 2.000,000.00 101.059000 2,021,100.00 Wachovia Sec 2.000.000 FFCB L6CW 0417/13 1.6005. 06/17/13 311311RR6 W17110 2,00.0.00 100.625000 2.011500.0 Wachovia Ser I.W.Wp FHLB 2.00 IVOI13 2, 0 A 12/09113 3133XYPX7 W09110 1,000,000.00 100.250000 L02,5W.W Gilrood Soc I ,000,0.0 FHLB 1.15012116113 1.150% IVIU13 313370MS 09110410 I.00OOOW 10.219000 1.002,190.00 Gallants. 2,WJ.000 FHLB 2.500 IVD113 2.500% 11313113 3133%W7B3 IN3/09 1,997.OJ.CO IW406M 2,1048,120.00 GilFod Sm 1000,000 FFCB 2.200"11/14 2.4207. 02/11114 313311D" ONI 1110 1.000,00000 100563000 1,005,63000 Gilford Seo 1,000000 FHLB 240003514114 2.400%, 034114 3133XXLU9 03/24/10 998,400.00 100.906000 L009,00.0 Gilford Sec 1,000,000 FHLB 2.50001518114 2.500& 0428114 3131X52.2 04128110 I.M.0W.001 100.183000 101,880.0 Gillum Sec 2000.00 FFCB 2.45005113114 2.450% 05/13114 31331JNMI 05/14110 2.00.000.00 101.156000 2.023.12000 Warhovia5m 1000.000 FHLB 115007Q9/14 1.250.6 07/29114 313370YK8 M117110 1.000,000.00 100.375000 IAJ3,75000 Wachovia Sec 1,000,000 FHLB 145008/15/14 1.45011 08/25114 31337 84 00125110 1000,000.00 99.594000 995,94000 Wachovia Sec 1.0000 FFCB 1,450 WW14 145P/. W/oN14 311311041 09/01`10 11000.000.00 IW00000 100.mm HfiaainsCailei 2000.00 FHLB 1.500 Sul,Up to 6.000 1.50%/. 1U26/14 3133XYKV6 05/26110 2,000000.00 IW 188000 1003,7600 Gilfom Sec 1,000,000 FFCB 2.9500102/15 2.95VA 0MY15 3133110X9 050110 - 11003,80000 IC09060JJ 1,009.060.00 Gilfom S. 2.00,000 FFCB 2.9800440/15 2.9801/. 0128/15 3133 ULB7 044WI0 1000,000.00 102.281000 L045,620.00 W.hovis S. 2.000.000 FHLB2.000S1 t1 to3.3W 2.00014 05118/15 3133XYCC7 05/18/10 1,998,750.Wl 101.375000 2.G27.5W.W W.hwia Sec 1,800,000 PHLB 1.00 Ste,,Up t00% I.OP'P/. 08125/15 313370129 0845110 1.000,000.00 100.011000 1,000.310.00 Gill dSec 1,000.000 FHLB 1.125 Ste,u,193.5% 1.M% 09114/15 313370VF2 09/14/10 999.250.00 1W.031pW 10W,310M TOTALS 30.0.00 19,99I,9W.00 W,253,070.04) WFB-CIT' I THIRD PARTY CUSTODIAL TRUST ACCT- 0.150% NIA N/A NIA ISW,000.00 100.00000 1500,000.00 Light S Water Fund lnveLments - AAA Rated Federal Agency Bonds Higgins Cahn/ 1.215.000.00 FHLB 210009/06111 2AWA 09106/11 313AXTA97 03/05/09 1115.000.00 101.656010 1,235,120.40 Hi ins Cailal 2,000,000.00 FNMA 2.2500124112 2.250°6 02124112 3136FHCF0 0227/00 2.000.00000 100.68800 2.013.760.00 niclwvia S. I,OW,WO.W FHLB 1.40007/12/13 IAO'J/. 0711V13 3133702W7 07/INTO 1,0.13,000.0 IW.844000 1,003440.0 Gilford Sec I,OW,000.W FHLB 16908/1V14 1.690% 0811114 31337MSI 08/12/10 1,0]0,000.00 101.0110211 1010.310.00 Higgins Capital 1,000,000.00 FHLB 1.750 8f15/14 1.7501 0325/14 313370HC5 08Q5/10 .L.W0,M.00 100469%10 1004.69000 Higgins Carival 100.000.0 FHLB 11W 9/13/14 1.2WI. 09113/14 313370RS9 W/13110 1000,000.0 IW.219000 2.004.380.0 Wachovia Sec I,000,oW OG FHLB LSW IVIS114 .5WA 17/15114 313370UH9 0/15/10 LIXAOW.W 100.219000 1,002,190.00 TOTALS 9,215.00.0 9,215,0110.00 9,278,890.40 WFB-L&W - THIRD PARTY CUSTODIAL TRUST ACCT 0.150% NIA NIA NIA -0.0 1000000 0.0 LAIF-CITY LOCAL AGENCY INVESTMENT FUND 0.500% NIA N/A N/A 8.624,607.90 IMOB00W 8.624,607.90 TOTAL INVESTMENTS IN FEDERAL AGENCIES,WFR INSTITUTIONAL TRUSTS,and LAIF 49}31507.90 49,656.56830 INTEREST RECEIVED FROM INVESTMENTS FISCAL YEAR-TO-DATE (From July 1,2010) 320,671.81 Inc"Principal"column ocher the balance on the lass day of the mond,m the'Iustmiwl cent" ,at to puschasc a sccunt, .-Th,"Mask.Value. is ehc wlmnt Eric.at which a sccudsv,can be nuded or sold. Tre35urer Real SflMmb¢r 2010 TimM ROman.ns 1W14R010 8'45PM CITY OF AZUSA TREASURER'S REPORT INVESTMENT INTEREST EARNINGS Thrill September 30,2010 Prepared by: Marcene Hamilton,Treasurer Scheduled Scheduled Interest Face Amount Net Amount Coupon Maturity Dat Acct/Cusip No. Payment 201012011 Semi-Annual Received Rate Schedule Interest Payment Fiscal Year to Earnings Amount Date- City of Azusa Investments - AAA Rated Federal Agency Bands 1,000,000 1,000,000 - - 2.700% CALLED 3128X9UU2 7/21& 1/21 0:00 13,500.00 11,250.0 2,000,000 2,000,000 3.680% CALLED 31331GJ59 8/18&2/18 . 73,600.00 36,800.00 36.800.0 2,000,000 2,000,000 3.050% CALLED .3128X9XE5 8/24&2/24 . 61;000:00 30,500,00 30,500.0 2,000,000 2,000,000 2.450% CALLED 3133XYR31 12/9&6/9 49,000.00 24,500.00 12,250.00 1,000,000 1,000,000 -3.000% - CALLED 3133XXH42 - 923&3/23 30,000.00 15,000.00 - 15,000.00 2,000,000 2,000.000 3.125% 11/17/11 3133XSM70 11/17&5/17 62,500.00 31,250.00 2,000.000 1,999,000 2.250% 02/17/12 31331GND7 8/16&2/17 45.000.00 22,500.00 22,500.0 1,000,000 999,500 2.250% 04/13/12 3133XTAW6 10/13&4/13 22,500.00 11.250.00 2,000,000 2,000,000 2.500% 04/08/13 3128X8TZ5 10/8&4/8 50,000,001 25,000.00 2,000,000 2,000.000 1.600% 06/17/13 313311RR6 12/17&6/17 32,000.00 16,000.00 1,000,000 1,000,000 2.000% 12/09/13 3133XYPX7 12/9&6/9 20,000.00 10,000.00 1,000000 1,000,000 1.150% 12/16/13 313370VW5 9/16&3/16.- 5,750.00 5,750.00 2,000,000 1,997,000 2.500% 12/23/13 3133XW7E3 1223&623 50,000.00 25.000.00 1,000,000 1,000,000 2.420% 02/l 1/14 313311DL4 8/11&2/11 24.200.00 12,100.00 12,100.0 1,000,000 998,400 2.400% 0324/14 3133XXLU9 924&324 24,000.00 12,000.00 12,000.00 1,000.000 1,000,000 2.500% 0428/14 3133XY2A2 10/28&428 25.000.00 12.500.00 2,000,000 2.000,000 1 2.450% 05/13/14 1 31331JNMl - 11/13&5/13 49,000.00 24,500.00 1,000,000 1,000,000 1.250% 07/29/14 313370YK8 729,&129 4,583.33 6,250.00 1,000,000 1,000,000 1.450% 08/25/14 31337OQ84 8/25&2/25 7,250.00 7.250.00 1,000,000 1,000,000 1..450% 09/02/14 - -31331JC43 92&3/2 7,250.00 - 7,250.00 2.000.000 2,000,000 1.500% 11/26/14 3133XYKV6 112&5/26 30,000.00 15,000.00 1,000,000 1,000,000 2.950% 02/15/15 31331JCX9. 8/2&2/2 29,500.00 14,750.00 14,750.0 1,000.000 1,000,000 1.0-4.0% 02/25/15 313370LZ9 825&225 - 5,000.00 5,000.00 2,000,000 2,000,000 2.980% 0420115 31331JLB7 10/20&420 59,600.00 29,800.00 2,000,000 1,998,750 2.000% 05/18/15 3133XYCC7 11118&5/18 40000.00 20,000.00 1,000,000 999,250 - 1.125% 09/14!15 - 313370VF2 9/14&3114 5,625.00 5,625.00 30,000,000 29,991,900.00 ACTIVE INVESTMENT - '-812,358.33 439,075.00 167,150.00 CITY-Wells Fargo Bank Institutional Third Party Custodial Money Market Account-Liquid Asset 1,500,000.00 0.150% n/a N/A Monthly Per Balance and Rate 658.0 Light&Water Fund Investments-AAA Rated Federal A enc,Bonds 3,000,000 3,000,000 -3.000% CALLED 31398AE81 7/29&1/29 45,000.00- -45,000.00 45,000.0 3;0007000 3,000,000 3.680% CALLED _ `31331GJ59 8/18.&2/18 " -1.10,400.00 -55,200.00 55,200.0 1,215.000 L215,000 2.100% 09/06111 3133XTA97 9/6&3/6 25,515.00 12,757.50 - 12,757.50 1,000,000 1,000,000 1.500% 12/15/14 313370UH9 9/15&3/15 7,500.00 7,500.00 2,000,000 2.000,000 1.200% . 09/13/14 313370RS9 9/13&3/13 12,000.00, 12,000.00 2,000,000 2.000,000 2.250% 0224/12 3136FHCFO 8/24&224 45,000.00 22,500.00 22.500.00. L000,000 1.000,000 1.400% 07/12/13 3133702W7 7/12& 1/12 7.000.00 7.000.00 1,000,000 1,000,000 1.690% 08/12/14 313370GS1 8/.12&2/12 8,450.00 8,450.00 1,000,0000'0'"0' 1.750% 0825/14 313370HC5 8/25&2/25 81750.00 8,750.00 9,215,000 9,215,000.. ACTIVE INVESTMENTS 269,615.00 179,157.50 - 135,457.50 Light&Water Stablization-Wells Fargo Bank Institutional Third Party Custodial Money Market Account-Liquid Asset -0.00 -0.150% N/A _ -:N/A .Monthly Per Balance and Rate :349.9 0.00 CITY-Local Agency Investment Fund-Liquid Asset 8,624,607.90 U00% .N/A . „ N/A Quarterly _ Per Balance and Rate 17,056.3 i Fiscal Year: July 1-dune 30 TOTAL INTEREST EARNED YTD 320,671.81 CITY OF AZUSA TREASURER'S REPORT Quarterly Comparison Summary September 30, 2010 Prepared by: Marcene Hamilton,Treasurer Account Quarterly Balances Description June 30,2010 -September 30,2010 . December 31,2010 March 31, 2011 June 30,2011 WFB--Checking and Sweep Accounts $ 21637,281.94 $ 1,515,846.14 WFB-Section 108 Choice IV $ 30,855.22 $ 30,861.69 Public Fund Account WFB-Certificate of Deposit-ISO Collateral $ 2,674,008.81 S 2,674,048.07 Account WFB-Certificate of Deposit-Covington Trust $ 117,693.49 $ 117,696.46 Account Local Agency Investment Fund $ 12,907,551.52 $ 8,624,607.90 (LAIF) WFB-3rd Party Custodial Trust Investment Account $ 2,525,001.01 $ 1,500,000.00 City of Azusa- Agency $ 31,992,650.00 $ 29,991,900.00 Securities Investments Light&Water Rate Stabilization- Agency Securities $ 8,215,000.00 $ 9,215,000.00 Investments Total Cash in Bank and $ 62,100,041.99 $ 53,669,960.26 $ - - - $ - $ Investments ' pFq U l� CONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: JOE JACOBS, DIRECTOR OF RECREATION AND FAMILY SERVICES VIA: F.M. DELACH, CITY MANAGER ta4o DATE: NOVEMBER 1, 2010 ���� SUBJECT: AWARD OF CONTRACT FOR SLAUSON PARK PICNIC SHELTER IMPROVEMENTS (CDBG PROJECT NO. 601332-10) TO CREATIVE CONTRACTOR CORPORATION IN THE AMOUNT OF $51,075. RECOMMENDATION It is recommended that the City Council award the contract for Slauson Park Picnic Shelter Improvements (CDBG NO. 601332-10) to Creative Contractors Corporation in the amount of $51,075. BACKGROUND On January 5, 2010, the City Council approved the Slauson Park Picnic Shelter Improvements Project as part of the adopted FY 2010/11 CDBG Program. On June 21, 2010, the project was approved in the adopted FY 2010/11 CIP Budget. Picnic opportunities in the City are at a premium, and this project would add picnic shelter amenities at Slauson Park. The project would include construction of new concrete pads, and purchase and installation of a 20' X 24' powder coated picnic shelter, ADA accessible concrete tables and benches, trash receptacles and barbecue grills. This project benefits a low-to-moderate income area and improves handicapped access. The mandatory job walk was held on October 4, 2010 and the bid opening on October 18, 2010. Four (4) contractors participated and the bids received are as follows: 1. Creative Contractor Corporation $51,075.00 2. Micon Construction Company $58,688.00 3. Malibu Pacific Tennis Court $69,700.00 4. Fleming Environmental Inc. $78,700.00 All references have been verified. Pending approval, work will commence in December 2010. FISCAL IMPACT The project is fully funded from CDBG Account No: 18-80-000-910-7130. Attachments. Public Works Construction Contract F l CITY OF AZUSA SLAUSON PARK PICNIC SHELTER IMPROVEMENTS PROJECT NO: 601332 CONTRACT DOCUMENTS TABLE OF CONTENTS Page No. NOTICEINVITING BIDS............................................................................................................. I INSTRUCTIONSTO BIDDERS ................................................................................................... 3 BIDDER'S PROPOSAL (PAGES 10-29)0.................................................................................... 10 CONTRACT................................................................................................................................. 30 PERFORMANCEBOND............................................................................................................. 33 PAYMENTBOND....................................................................................................................... 37 GENERALCONDITIONS .......................................................................................................... 39 SPECIALCONDITIONS............................................................................................................. 76 TECHNICAL SPECIFICATIONS ............................................................................................... 77 PLANSAND DRAWINGS.......................................................................................................... 79 s CITY OF AZUSA NOTICE INVITING BIDS SLAUSON PARK PICNIC SHELTER IMPROVEMETNS (PROJEFT: 601332-10) The City of Azusa ("City") will receive sealed bids for the Slauson Park Picnic Shelter Improvements Project at the office of the City Clerk no later than October 18, 2010 at 10:00 A.M., at which time or thereafter said bids will be opened and read aloud. Bids received after this time will be returned unopened. Bids shall be valid for 60 calendar days after the bid opening date. Bids must be submitted on the City's Bid Forms. Bidders may obtain a copy of the Contract Documents from the Recreation and Family Services Department at: 320 N. Orange Place, Azusa CA 91702, (626) 812-5280, at a cost of$45 per set. The City will not make the Contract Documents available for review at one or more plan rooms. Bid Bonds: Bids must be accompanied by cash, a certified or cashier's check, or a Bid Bond in favor of the City in an amount not less than ten percent (10%) of the submitted Total Bid Price. A mandatory Pre-Bid Conference and Job Walk will be held at Memorial Park on the following date and time: October 4, 2010 at 10:00 A.M. Each and every Bidder must attend the Pre-Bid Conference and Job Walk. Prospective bidders may visit the Project Site without making arrangements through the Parks Superintendent. Bids will not be accepted from any bidder who did not attend the Pre-Bid Conference. Each bid shall be accompanied by the security referred to in the Contract Documents, the non- collusion affidavit, the list of proposed subcontractors, and all additional documentation required by the Instructions to Bidders. Performance & Payment Bonds: The successful bidder will be required to furnish the City with a Performance Bond equal to 100% of the successful bid, and a Payment Bond equal to 100% of the successful bid, prior to execution of the Contract. All bonds are to be secured from a surety that meets all of the State of California bonding requirements, as defined in Code of Civil Procedure Section 995.120, and is admitted by the State of California. Pursuant to Public Contract Code Section 22300, the successful bidder may substitute certain securities for funds withheld by City to ensure his performance under the Contract. Wage Rates: This is a federally-assisted construction contract. Federal Labor standards Provisions, including prevailing wage requirements of the Davis-Bacon and Related Acts will be enforced. In the event of a conflict between Federal and Sate wage rates, the higher of the two will prevail. The Director of Industrial Relations has determined the general prevailing rate of per diem wages in the locality in which this work is to be performed for each craft or type of worker needed to execute the Contract which will be awarded to the successful bidder, copies of which are on file and will be made available to any interested party upon request at the Parks and NOTICE INVITING BIDS 1 Recreation Department or online at http://www.dir.ca.gov/dlsr. A copy of these rates shall be posted by the successful bidder at the job site. The successful bidder and all subcontractor(s) under him, shall comply with all applicable Labor Code provisions, which include, but are not limited to the payment of not less than the required prevailing rates to all workers employed by them in the execution of the Contract, the employment of apprentices, the hours of labor and the debarment of contractors and subcontractors. Each bidder shall be a licensed contractor pursuant to the Business and Professions Code and shall be licensed in the following appropriate classification(s) of contractor's license(s), for the work bid upon, and must maintain the license(s) throughout the duration of the Contract: (B) General Builder a (C-8) Concrete licenses required. Pursuant to Public Contract Code Section 3400(b), if the City has made any findings designating certain materials, products, things, or services by specific brand or trade name, such findings and the materials, products, things, or services and their specific brand or trade names will be set forth in the Special Conditions. Award of Contract: The City shall award the Contract for the Project to the lowest responsible bidder as determined from the base bid alone by the City. The City reserves the right to reject any or all bids or to waive any irregularities or informalities in any bids or in the bidding process. All questions relative to this project prior to the opening of bids shall be directed to Roy Chavez, Project Manager (see enclosed Instructions to Bidders). Bidders are encouraged to submit their pre-bid questions as early as possible, in writing by mail, fax, or email, so they can be answered in writing through an addendum if necessary. Pre-bid questions will be received up to 5:00 P.M. on October 9h, 2010, after which they will not be answered. NOTICE INVITING BIDS - 2 - T CITY OF AZUSA INSTRUCTIONS TO BIDDERS 1. AVAILABILITY OF CONTRACT DOCUMENTS Bids must be submitted to the City on the Bid Forms which are a part of the Bid Package for the Project. Prospective bidders may obtain one (1) complete set of Contract Documents at no cost. Contract Documents may be obtained from the City at the location(s) and at the time(s) indicated in the Notice Inviting Bids. Prospective bidders are encouraged to telephone in advance to determine the availability of Contract Documents. Any applicable charges for the Contract Documents are outlined in the Notice Inviting Bids. 2. EXAMINATION OF CONTRACT DOCUMENTS The City has made copies of the Contract Documents available, as indicated above. Bidders shall be solely responsible for examining the Project Site and the Contract Documents, including any Addenda issued during the bidding period, and for informing itself with respect to local labor availability, means of transportation, necessity for security, laws and codes, local permit requirements, wage scales, local tax structure, contractors' licensing requirements, availability of required insurance, and other factors that could affect the Work. Bidders are responsible for consulting the standards referenced in the Contract. Failure of Bidder to so examine and inform itself shall be at its sole risk, and no relief for error or omission will be given except as required under State law. 3. INTERPRETATION OF CONTRACT DOCUMENTS Discrepancies in, and/or omissions from the Plans, Specifications or other Contract Documents or questions as to their meaning shall be immediately brought to the attention of the City by submission of a written request for an interpretation or correction to the City. Such submission, if any, must be sent to the Recreation and Family Services Department by emailing to rchavez ,ci.azusa.ca.us. Any interpretation of the Contract Documents will be made only by written addenda duly issued and mailed or delivered to each person or firm who has purchased a set of Contract Documents. The City will not be responsible for any explanations or interpretations provided in any other manner. No person is authorized to make any oral interpretation of any provision in the Contract Documents to any bidder, and no bidder should rely on any such oral interpretation. Bids shall include complete compensation for all items that are noted in the Contract Documents as the responsibility of the Contractor. 4. INSPECTION OF SITE; PRE-BID CONFERENCE AND JOB WALK Each prospective bidder is responsible for fully acquainting itself with the conditions of the Project Site (which may include more than one site), as well as those relating to the construction and labor of the Project, to fully understand the facilities, difficulties and restrictions which may INSTRUCTIONS TO BIDDERS - 3 - impact the cost or effort required to complete the Project. To this end, a Pre-Bid Conference and Site Walk will be held on the date(s) and time(s) indicated in the Notice Inviting Bids. 5. ADDENDA The City reserves the right to revise the Contract Documents prior to the bid opening date. Revisions, if any, shall be made by written Addenda. All addenda issued by the City shall be included in the bid and made part of the Contract Documents. Pursuant to Public Contract Code Section 4104.5, if the City issues an Addendum which includes material changes to the Project less than 72 hours prior to the deadline for submission of bids, the City will extend the deadline for submission of bids. The City may determine, in its sole discretion, whether an Addendum warrants postponement of the bid submission date. Each prospective bidder shall provide City a name, address and facsimile number to which Addenda may be sent, as well as a telephone number by which the City can contact the bidder. Copies of Addenda will be furnished by facsimile, first class mail, express mail or other proper means of delivery without charge to all parties who have obtained a copy of the Contract Documents and provided such current information. Please Note: Bidders are responsible for ensuring that they have received any and all Addenda. To this end, each bidder should contact the Parks and Recreation Department to verify that he has received all Addenda issued, if any,prior to the bid opening. 6. ALTERNATE BIDS If alternate bid items are called for in the Contract Documents, the lowest bid'will be determined on the basis of the base bid only. However, the City may choose to award the contract on the basis of the base bid alone or the base bid and any alternate or combination of alternates. The time required for completion of the alternate bid items has been factored into the Contract duration and no additional Contract time will be awarded for any of the alternate bid items. The City may elect to include one or more of the alternate bid items, or to otherwise remove certain work from the Project scope of work, accordingly each Bidder must ensure that each bid item contains a proportionate share of profit, overhead and other costs or expenses which will be incurred by the Bidder. 7. COMPLETION OF BID FORMS Bids shall only be prepared using copies of the Bid Forms which are included in the Contract Documents. The use of substitute bid forms other than clear and correct.photocopies of those provided by the City will not be permitted. Bids shall be executed by an authorized signatory as described in these Instructions to Bidders. In addition, Bidders shall fill in all blank spaces (including inserting "N/A" where applicable) and initial all interlineations, alterations, or erasures to the Bid Forms. Bidders shall neither delete, modify, nor supplement the printed matter on the Bid Forms nor make substitutions thereon. USE OF BLACK OR BLUE INK, INDELIBLE PENCIL OR A TYPEWRITER IS REQUIRED. Deviations in the bid form may result in the bid being deemed non-responsive. 8. MODIFICATIONS OF BIDS Each Bidder shall submit its Bid in strict conformity with the requirements of the Contract Documents. Unauthorized additions, modifications, revisions, conditions, limitations, exclusions INSTRUCTIONS TO BIDDERS -4 - J or provisions attached to a Bid may render it non-responsive and may cause its rejection. Bidders shall neither delete, modify, nor supplement the printed matter on the Bid Forms, nor make substitutions thereon. Oral, telephonic and electronic modifications will not be considered, unless the Notice Inviting Bids authorizes the submission of electronic bids and modifications thereto and such modifications are made in accordance with the Notice Inviting Bids. 9. DESIGNATION OF SUBCONTRACTORS Pursuant to State law, the Bidders must designate the name and location of each subcontractor who will perform work or render services for the Bidder in an amount that exceeds one-half of one percent (1/2%) of the Bidder's Total Bid Price, as well as the portion of work each such subcontractor will perform on the form provided herein by the City. No additional time will be provided to bidders to submit any of the requested information in the Designation of Subcontractor form. 10. LICENSING REQUIREMENTS Pursuant to Section 7028.15 of the Business and Professions Code and Section 3300 of the Public Contract Code, all bidders must possess proper licenses for performance of this Contract. Subcontractors must possess the appropriate licenses for each specialty subcontracted. Pursuant to Section 7028.5 of the Business and Professions Code, the City shall consider any bid submitted by a contractor not currently licensed in accordance with state law and pursuant to the requirements found in the Contract Documents to be nonresponsive, and the City shall reject the Bid. The City shall have the right to request, and Bidders shall provide within five (5) calendar days, evidence satisfactory to the City of all valid license(s) currently held by that Bidder and each of the Bidder's subcontractors, before awarding the Contract. 11. SIGNING OF BIDS All Bids submitted shall be executed by the Bidder or its authorized representative. Bidders may be asked to provide evidence in the form of an authenticated resolution of its Board of Directors or a Power of Attorney evidencing the capacity of the person signing the Bid to bind the Bidder to each Bid and to any Contract arising therefrom. If a Bidder is a joint venture or partnership, it may be asked to submit an authenticated Power of Attorney executed by each joint venturer or partner appointing and designating one of the joint venturers or partners as a management sponsor to execute the Bid on behalf of Bidder. Only that joint venturer or partner shall execute the Bid. The Power of Attorney shall also: (1) authorize that particular joint venturer or partner to act for and bind Bidder in all matters relating to the Bid; and (2) provide that each venturer or partner shall be jointly and severally liable for any and all of the duties and obligations of Bidder assumed under the Bid and under any Contract arising therefrom. The Bid shall be executed by the designated joint venturer or partner on behalf of the joint venture or partnership in its legal name. 12. BID GUARANTEE (BOND) Each bid shall be accompanied by: (a) cash; (b) a certified check made payable to the City; (e) a cashier's check made payable to the City; or (d) a bid bond payable to the City executed by the INSTRUCTIONS TO BIDDERS - 5 - bidder as principal and surety as obligor in an amount not less than 10% of the maximum amount of the bid. Personal sureties and unregistered surety companies are unacceptable. The surety insurer shall be California admitted surety insurer, as defined in Code of Civil Procedure Section 995.120. The cash, check or bid bond shall be given as a guarantee that the bidder shall execute the Contract if it be awarded to the bidder, shall provide the payment and performance bonds and insurance certificates and endorsements as required herein within ten (10) calendar days after notification of the award of the Contract to the bidder: Failure to provide the required documents may result in forfeiture of the bidder's bid deposit or bond to the City and the City may award the Contract to the next lowest responsible bidder, or may call for new bids. 13. SUBMISSION OF SEALED BIDS Once the Bid and supporting documents have been completed and signed as set forth herein, they shall be placed, along with the Bid Guarantee and other required materials in an envelope, sealed, addressed and delivered or mailed, postage prepaid to the City at the place and to the attention of the person indicated in the Notice Inviting Bids. No oral or telephonic bids will be considered. No forms transmitted via the internet, e-mail, facsimile, or any other electronic means will be considered unless specifically authorized by City as provided herein. The envelope shall also contain the following in the lower left-hand comer thereof: Bid of (Bidder's Name) for the Slauson Park Picnic Shelter Improvements Project 14. DELIVERY AND OPENING OF BIDS Bids will be received by the City at the address shown in the Notice Inviting Bids up to the date and time shown therein. The City will leave unopened any Bid received after the specified date and time, and any such unopened Bid will be returned to the Bidder. It is the Bidder's sole responsibility to ensure that its Bid is received as specified. Bids may be submitted earlier than the dates(s) and time(s) indicated. Bids will be opened at the date and time stated in the Notice Inviting Bids, and the amount of each Bid will be read aloud and recorded. All Bidders may, if they desire, attend the opening of Bids. The City may in its sole discretion, elect to postpone the opening of the submitted Bids. City reserves the right to reject any or all Bids and to waive any informality or irregularity in any Bid. In the event of a discrepancy between the written amount of the Bid Price and the numerical amount of the Bid Price, the written amount shall govern. 15. WITHDRAWAL OF BID Prior to bid opening, a Bid may be withdrawn by the Bidder only by means of a written request signed by the Bidder or its properly authorized representative. 16. BASIS OF AWARD; BALANCED BIDS The City shall award the Contract to the lowest responsible Bidder submitting a responsive Bid. The City may reject any Bid which, in its opinion when compared to other bids received or to the City's internal estimates, does not accurately reflect the cost to perform the Work. The City may INSTRUCTIONS TO BIDDERS - 6 - reject as non-responsive any bid which unevenly weights or allocates costs, including but not limited to overhead and profit to one or more particular bid items. 17. DISQUALIFICATION OF BIDDERS; INTEREST IN MORE THAN ONE BID No bidder shall be allowed to make, submit or be interested in more than one bid. However, a person, firm, corporation or other entity that has submitted a subproposal to a bidder, or that has quoted prices of materials to a bidder, is not thereby disqualified from submitting a subproposal or quoting prices to other bidders submitting a bid to the City. No person, firm, corporation, or other entity may submit subproposal to a bidder, or quote prices of materials to a bidder, when also submitting a prime bid on the same Project. 18. INSURANCE REQUIREMENTS The successful bidder shall procure the insurance in the form and in the amount specified in the Contract Documents. 19. AWARD PROCESS Once all Bids are opened and reviewed to determine the lowest responsive and responsible Bidder, the City Council may award the contract. The apparent successful Bidder should begin to prepare the following documents: (1) the Performance Bond; (2) the Payment Bond; and (3) the required insurance certificates and endorsements. Once the City notifies the Bidder of the award, the Bidder will have ten (10) consecutive calendar days from the date of this notification to execute the Contract and supply the City with all of the required documents and certifications. Regardless whether the Bidder supplies the required documents and certifications in a timely manner, the Contract time will begin to run ten (10) calendar days from the date of the notification. Once the City receives all of the properly drafted and executed documents and certifications from the Bidder, the City shall issue a Notice to Proceed to that Bidder. 20. FILING OF BID PROTESTS Bidders may file a "protest" of a Bid with the City's City Clerk In order for a Bidder's protest to be considered valid, the protest must: A. Be filed in writing within five (5) calendar days after the bid opening date; B. Clearly identify the specific irregularity or accusation; C. Clearly identify the specific City staff determination or recommendation being protested; D. Specify, in detail, the grounds of the protest and the facts supporting the protest; and E. Include all relevant, supporting documentation with the protest at time of filing. If the protest does not comply with each of these requirements, it will be rejected as invalid. INSTRUCTIONS TO BIDDERS - 7 - If the protest is valid, the City's Parks Recreation and Family Services Director, or other designated City staff member, shall review the basis of the protest and all relevant information. The Parks and Recreation Director will provide a written decision to the protestor. The protestor may then appeal the decision of the Parks Recreation and Family Services Director to the City Manager. 21. WORKERS COMPENSATION Each bidder shall submit the Contractor's Certificate Regarding Workers' Compensation form. 22. SUBSTITUTION OF SECURITY The Contract Documents call for monthly progress payments based upon the percentage of the work completed. The City will retain ten percent (10%) of each progress payment as provided by the Contract Documents. At the request and expense of the successful Bidder, the City will substitute securities for the amount so retained in accordance with Public Contract Code Section 22300. 23. PREVAILING WAGES This is a federally-assisted construction contract. Federal Labor standards Provisions, including prevailing wage requirements of the Davis-Bacon and Related Acts will be enforced. In the event of a conflict between Federal and Sate wage rates, the higher of the two will prevail. The City has obtained from the Director of the Department of Industrial Relations the general prevailing rate of per diem wages in the locality in which this work is to be performed for each craft or type of worker needed to execute the Contract. These rates are on file and available at the Parks Recreation and Family Services Department or may be obtained online at http://www.dir.ca.gov/dlsr. Bidders are advised that a copy of these rates must be posted by the successful Bidder at the job site(s). 24. DEBARMENT OF CONTRACTORS AND SUBCONTRACTORS In accordance with the provisions of the Labor Code, contractors or subcontractors may not perform work on a public works project with a subcontractor who is ineligible to perform work on a public project pursuant to Section 1777.1 or Section 1777.7 of the Labor Code. Any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract. Any public money that is paid to a debarred subcontractor by the Contractor for the Project shall be returned to the City. The Contractor shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to work on the Project. 25. PERFORMANCE BOND AND PAYMENT BOND REQUIREMENTS Within the time specified in the Contract Documents, the Bidder to whom a Contract is awarded shall deliver to the City four identical counterparts of the Performance Bond and Payment Bond in the form supplied by the City and included in the Contract Documents. Failure to do so may, INSTRUCTIONS TO BIDDERS - 8 in the sole discretion of City, result in the forfeiture of the Bid Guarantee. The surety supplying the bond must be an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, authorized to do business as such in the State of California and satisfactory to the City. The Performance Bond and the Payment Bond shall be for one hundred percent (100%) of the Total Bid Price. 26. REQUEST FOR SUBSTITUTIONS - The successful bidder shall comply with the substitution request provisions set forth in the Special Conditions, including any deadlines for substitution requests which may occur prior to the bid opening date. 27. SALES AND OTHER APPLICABLE TAXES, PERMITS, LICENSES AND FEES Contractor and its subcontractors performing work under this Contract will be required to pay California sales tax and other applicable taxes, and to pay for permits, licenses and fees required by the agencies with authority in the jurisdiction in which the work will be located, unless otherwise expressly provided by the Contract Documents. 28. EXECUTION OF CONTRACT As required herein the Bidder to whom an award is made shall execute the Contract in the amount determined by the Contract Documents. The City may require appropriate evidence that the persons executing the Contract are duly empowered to do so. 29. CONFLICT OF INTEREST In the procurement of supplies, equipment, construction, and services by subrecipients, the conflict of interest provisions in 24 CFR 85.36, OMB Circular A-110, and CFR 570.611, respectively, shall apply. No employee, officer or agent of the subrecipient shall participate in selection, or in the award of administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved. These conflict of interest provision apply to any one person who is an employee, agent consultant, officer, or elected official or appointed official of the [Grantee], or of any designated public agencies or subrecipients which are receiving funds under the CDBG Entitlement program. END OF INSTRUCTIONS TO BIDDERS INSTRUCTIONS TO BIDDERS - 9 - BID FORM NAME OF BIDDER: The undersigned, hereby declare that we have carefully examined the location of the proposed Work, and have read and examined the Contract Documents, including all plans, specifications, and all addenda, if any, for the following Project: Slauson Park Picnic Shelter Improvements Project - We hereby propose to furnish all labor, materials, equipment, tools, transportation, and services, and to discharge all duties and obligations necessary and required to perform and complete the Project for the following TOTAL BID PRICE: Item Description Unit Cost Total 1. Shelter purchase and install area # 1 2. Concrete work area #2 3. Miscellaneous engineering, soils report,plans and load calculations Grand Total In case of discrepancy between the written price and the numerical price, the written price shall prevail. The undersigned agrees that this Bid Form constitutes a firm offer to the City which cannot be withdrawn for the number of calendar days indicated in the Notice Inviting Bids from and after the bid opening, or until a Contract for the Work is fully executed by the City and a third party, whichever is earlier. The Contract duration shall commence on the date stated in the City's Notice to Proceed, and shall be completed by the Contractor in the time specified in the Contract Documents. In no case shall the Contractor commence construction prior to the date stated in the City's Notice to Proceed. Bidder certifies that it is licensed in accordance with the law providing for the registration of Contractors, License No. , Expiration Date , class of license . If the bidder is a joint venture, each member of the joint venture must include the above information. BIDDER'S PROPOSAL - 10 - The undersigned acknowledges receipt, understanding and full consideration of the following addenda to the Contract Documents. Addenda No. Addenda No. Addenda No. 1. Attached is the required bid security in the amount of not less than 10% of the Total Bid Price. 2. Attached is the fully executed Non-Collusion Affidavit form. 3. Attached is the completed Designation of Subcontractors form. 4. Attached is the completed Bidder Information Form. 5. Attached is the completed Contractor's Certificate Regarding Workers' Compensation form. I hereby certify under penalty of perjury under the laws of the State of California, that all of the information submitted in connection with this Bid and all of the representations made herein are true and correct. Name of Bidder Signature Name and Title Dated BIDDER'S PROPOSAL - 11 - 'NONCOLLUSION AFFIDAVIT TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID" §7106. Any public works contract of a public entity shall include an affidavit,in the following form: State of California ) - County of ) ss. being first duly swom, deposes and says that, he or she is of ,the party making the foregoing bid, that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association,organization,or corporation;that the bid Is genuine and not collusive or sham;that the bidder has not directly or Indirectly induced or solicited any other bidder to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding;that the bidder has not in any manner,directly or indirectly,sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead,profit,or cost element of the bid price,or of that of any other binder,or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract;that all statements contained in the bid are true;and,further,that the bidder has not,directly or indirectly,submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay,any fee to any corporation, partnership,company association,organization,bid depository,or to any member or agent thereof to effectuate a collusive or sham bid." Project Name: Project Number: Company: Address: Signature: Title: Date: SWORN TO AND SUBSCRIBED TO BEFORE ME This_day of ,20_ !s!Notary Public: My Commission Expires: _ NON-SEGREGATED FACILITIES CERTIFICATION FEDERALLY-ASSISTED CONSTRUCTION PROJECTS The federally-assisted construction contractor certifies that he/she DOES NOT and WILL NOT: 1. Maintain or provide, far his/her employees, any segregated facilities at any of his/her establishments. 2. Permit his/her employees to perform their services at any location,under his/her control,where segregated facilities are maintained. The federally-assisted contractor agrees that a breach of this certification is a violation of the Equal Opportunity Clause in this contract: As used in this certification,the term segregated facilities means any waiting room,work areas,restrooms and washrooms, restaurants and other eating areas,time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas,transportation,and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race,creed,color,or national origin;because of habit,local custom,or otherwise. The federally-assisted contractor agrees that(except where he/she has obtained identical certifications from proposed subcontractors for speck time periods) he/she will obtain identical certifications from proposed subcontractors prior to the award of subcontracts exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity Clause, and that he/she will retain such certifications in his/her files. NOTE: The penalty for making false statements in offers is prescribed in 18 U.S.C.1001. Date: Project Number: Company: Address: By: Title: 13 CERTIFICATION WITH REGARD TO THE PERFORMANCE OF PREVIOUS CONTRACTS OR SUBCONTRACTS SUBJECT TO THE EQUAL OPPORTUNITY CLAUSE AND THE FILING OF REQUIRED REPORTS The Dbidder,Dproposed sub-contractor,hereby certifies that he/she Dhas,Dhas not,participated in a previous contract or subcontract subject to the Equal Opportunity Clause, as required by Executive Orders 10925, 11114, or 11246, and that he/she Dhas, Dhas not,filed with the Joint Reporting Committee, the Director of the Office of Federal Contract Compliance, a Federal Government contracting or administering agency, or the former President's Committee on Equal Employment Opportunity, all reports due under the applicable fling requirements. Date: Project Number: ContraclAward: $ Awarding Agency: Contractor Name: Total Number of Employees Affiliate Company: By: Title: NOTE:The above certification is required by the Equal Employment Opportunity Regulations of the Secretary of Labor (41 CFR 60-13(b)(1),and must be submitted by bidders and proposed subcontractors only in connection with contracts and subcontracts which are subject to the equal opportunity clause- Contracts and subcontracts which are exempt from the equal opportunity clause are set forth In 41 CFR 60-1.5(Generally only contracts or subcontracts of$10,000 or under are exempt) Proposed prime contractors and subcontractors who have participated in a previous contract or subcontract subject to the Executive Orders and have not filed the required reports should note that 41 CFR 60-1.7(b)(1)prevents the award of contracts and subcontracts unless such contractor submits a report covering the delinquent period or such other period specified by the U.S. Department of the Interior or by the Director, Office of Federal Contract Compliance, U.S Department of Labor. SF-100(EEO-11 must be filed by; (A)All private employers who are: (1) Subject to Title VII of the Civil Rights Act of 1964(as amended)with 100 or more employees. (2) Subject to Tale VII who has fewer than 100 employees, if the company is owned or affiliated with another company,or there Is centralized ownership,control or management so that the group legally constitutes a single enterprise,and the entire enterprise employs a total of 100 or more employees (B)All federal contractors(private employers),who: (1) Are not exempt as provided for by 41 CFR 60-1.5 (2) Have 50 or more employees,and a Are prime contractors or first-tier subcontractors,and have a contract,subcontract,or purchase order amounting to$50,000 or more;or b. Serve as a depository of Government funds in any amount,or c. Is a financial institution,which is an issuing,and paying agent for U.S.Savings Bonds and Notes. 14 I i a Community Development Commission County of Los Angeles s' COUNTY LOBBYIST CODE CHAPTER 2.160 COUNTY ORDINANCE NO.93-0031 CERTIFICATION Name of Frrn: Address: Stele: Zip Code: Telephone Number. ( ) Acting on behalf of the above named firm,as its Authorized Official,I make the following Certification to the County of Los Angeles and the Community Development Commission,County of Los Angeles. 1) It is understood that each personfentity/firrn who applies for a Community Development Commission contract,and as part of that process,shall certify that they are familiar with the requirements of the Los Angeles County Code,Chapter 2.160(Los Angeles County Ordinance 93-0031)and; 2) That all persons/entlfies/firms acting on behalf of the above named firm have and will comply with the County Code,and; 3) That any person/entity/firm who seeks a contract with the Community Development Commission shall be disqualified therefrom and denied the contract and,shall be liable in civil action,if any lobbyist,lobbying firm,lobbyist employer or any other person or entity acting on behalf of the named firm falls to comply with the provisions of the County Code. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into contract with the Los Angeles County and the Community Development Commission,County of Los Angeles. Authorized Official: By: 15 FEDERAL LOBBYIST CERTIFICATION Name of Firm: Address: State: Zip Code: Telephone Number: ( ) Acting on behalf of the above named firm,as its Authorized Official,I make the following Certification to the U.S. Department of Housing and Urban Development and the Community Development Commission,County of Los Angeles. 1) No Federal appropriated funds have been paid by or on behalf of the above named firm to any person for influencing or attempting to influence an officer or employee of any agency,a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract,the making of and Federal grant, loan or cooperative agreement, and any extension, continuation, renewal, amendment, or modification thereof, and; 2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempfing to influence an officer oremployee or any agency,a Member of Congress an officer or employee of Congress or an employee of a Member of Congress in connection with this Federal contract,grant loan,or cooperative agreement,the above named firm shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions,and; 3) The above name firm shall require that the language of this certification be included in the award documents for all sub-awards at all tiers(including subcontracts,sub-grants,and contracts under grants, loans, and cooperative agreement) and that all sub-recipients shall certify and disclose accordingly This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certificafion is a prerequisite for making or entering Into the transaction imposed by Section 1352 Title 31, U. S. Code. Any person who fails to file the required certificaflon shall be subject to a civil perialty of not less than$10,000 and not more than$100,000 for each such failure.. Authorized Official: By: (Ca,me[bN$uMommw) (Sigmucl (Owe) ITnk) 16 WORKER'S COMPENSATION CERTIFICATION I certify, by signature below, that I am 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 I will comply with such provisions before commencing the performance of the work of this contract. Date: Project Number. Project Name: Company Name: Address: Print Name: Title: Signature: 17 CONTRACTOR LIST OF PROPOSED SUBCONTRACTORS BidderII .ndt=of doe un or mabqe of bid. PROAM Nw E Aw.wrnvn Ac[rvcv Location: Pmled Numb, Emplovd Ce Ihzdnr Estimated Estlmated SUBCONniARORS: tdmnflmnon uxnae Contr slan ( Mpletfon Name,AMnam and Telephone Number Amount Date Date MARES TO BE LASED Numbv Number W Signature Name and Title Date Company Name t ) I U.S.DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT HUD FORM 4230A - REPORT OF ADDITIONAL CLASSIFICATION AND RATE oxaapF�nai.ro.rTsowmr leg, muma0er 1. FROM(name audad mss ofrequecfing agency) 2. PROJECTNAAIE AND NUMBER 3. LOCATION OF PROJECT(City,County arM Stale) 4. BRIEF DESCRIPTION OF PROJECT S. CHARACTER OF CONSTRUCTION ❑ Building ❑ Residential ❑ Heavy ❑ Other(specify) ❑ Highway S. WAGE DECISION NO.(ilmlude modNlcalian number,11 any) - g. WAGE DECISION EFFECTIVE DATE ❑ COPY ATTACHED 6. WORK CLASSIFICATION(S) HOURLY WAGE RATES BASIC WAGE FRINGE BENEFIT(S)(if any) 9. PRIME CONTRACTOR(name,address) - 1D. SUBCONTRACTORIEMPLOYER,IF APPLICABLE(name.address) _.y '.CFie'Cklall tT,f3�t%A"-'I-`: ❑ The work to be performed by the additional classification(s)is not performed by a classification in the applicable rage decision. ❑ The proposed classification Is utilized in the area by the construction Industry. ❑ The proposed wage fatale),Including any bona fide fringe benefits,bears a reasonable relationship to the wage rales contained in the _ wage decision ❑ The interested parties,Including the employees or their authorized representatives,agree on the clar"Ificatimi and wage mte(s) ❑ Supporting documentation attached,including applicable vmge decision. GtieEk?.One: ❑ Approved,meets all criteria. DOL confirmation requested. ❑ One or more classifications fall to meet all criteria as explained in agency referral. DOL decision requested. FOR HUD USE ONLY LR2000: Agency Representative care (Typed name and sfgnature) Log in: Log out: Phone Number rwo+emn Norl Pasvous eonronrsoasacre 19 EQUAL EMPLOYMENT OPPORTUNITY COMMITMENT TO: (Name Of tabor Unkn Workers Repreaenlalme.ek (bereu) Name of Business(Contractor): Project Name: Project Number: The Undersigned currently holds a contract with involving funds of the U.S.Government,or a subcontract with a prime contractor holding such contract. You are advised that under the provisions of the above contract or subcontract,and in accordance with Executive Order 11246,the undersigned is obligated notto discriminate against any employee or applicant for employment because of race,color,religion,sex or national origin. This obligation not to discriminate in employment includes, but is not limited to the follow: 1. Hiring, placement, upgrading, transfer or demotion; 2. Recruitment, advertising or solicitation for employment; 3. Treatment during employment; 4. Rates of pay or other forms of compensation; 5. Selection for training, including apprenticeship; and _ 6. Layoff or termination. This notice is furnished to you pursuant to the provisions of the above contract or subcontract and Executive Order 11246. Copies of this notice will be posted by the undersigned in conspicuous places available to employees or applicants for employment. By: I�mNome) I6i�o,mo7 (Dam) (Tnk) 20 BID BOND The makers of this bond are, , as Principal, and as Surety and are held and firmly bound unto the City of Azusa, hereinafter called the City, in the penal sum of TEN PERCENT (10%) OF THE TOTAL BID PRICE of the Principal submitted to CITY for the work described below, for the payment of which sum in lawful money of the United States, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that whereas the Principal has submitted the accompanying bid dated 20 for [**INSERT PROJECT If the Principal does not withdraw its bid within the time specified in the Contract Documents; and if the Principal is awarded the Contract and provides all documents to the City as required by the Contract Documents; then this obligation shall be null and void. Otherwise, this bond will remain in full force and effect. Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents shall in affect its obligation under this bond, and Surety does hereby waive notice of any such changes. In the event a lawsuit is brought upon this bond by the City and judgment is recovered, the Surety shall pay all litigation expenses incurred by the City in such suit, including reasonable attorneys' fees, court costs, expert witness fees and expenses. IN WITNESS WHEREOF, the above-bound parties have executed this instrument under their several seals this day of 20 the name and corporate seal of each corporation. (Corporate Seal) Principal By Title (Corporate Seal) Surety By Attorney-in-Fact (Attach Attorney-in-Fact Certificate) Title 21 STATE OF CALIFORNIA COUNTY OF On before me, (here insert name and title of the officer), personally appeared who 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. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 22 INFORMATION REQUIRED OF BIDDERS A. INFORMATION ABOUT BIDDER ["Indicate not applicable ("N/A") where appropriate."] NOTE:Where Bidder is a joint venture, pages shall be duplicated and information provided for all parties to the joint venture. 1.0 Name of Bidder: 2.0 Type, if Entity: 3.0 Bidder Address: Facsimile Number Telephone Number 4.0 How many years has Bidder's organization been in business as a Contractor? 5.0 How many years has Bidder's organization been in business under its present name? 5.1 Under what other or former names has Bidder's organization operated?: 6.0 If Bidder's organization is a corporation, answer the following: 6.1 Date of Incorporation: 6.2 State of Incorporation: 6.3 President's Name: 6.4 Vice-President's Name(s): 6.5 Secretary's Name: 6.6 Treasurer's Name: 23 7.0 If an individual or a partnership, answer the following: 7.1 Date of Organization: 7.2 Name and address of all partners (state whether general or limited partnership): 8.0 If other than a corporation or partnership, describe organization and name principals: 9.0 List other states in which Bidder's organization is legally qualified to do business. 10.0 What type of work does the Bidder normally perform with its own forces? 11.0 Has Bidder ever failed to complete any work awarded to it? if so, note when, where, and why: 12.0 Within the last five years, has any officer or partner of Bidder's organization ever been an officer or partner of another organization when it failed to complete a contract? If so, attach a separate sheet of explanation: 24 14.0 List Trade References: 15.0 List Bank References (Bank and Branch Address): 16.0 Name of Bonding Company and Name and Address of Agent: 25 B. LIST OF CURRENT PROJECTS (Backlog) ["Duplicate Page if needed for listing additional current projects."] Project Description of Completion Date Cost of Bidder's Bidder's Work Work 26 C. LIST OF COMPLETED PROJECTS - LAST THREE YEARS [**Duplicate Page if needed for listing additional completed projects.**] Please include only those projects which are similar enough to demonstrate Bidder's ability to perform the required Work. Project Client Description of Period of Performance Cost of Bidder's Bidder's Work Work 27 D. EXPERIENCE AND TECHNICAL QUALIFICATIONS QUESTIONNAIRE Personnel. The Bidder shall identify the key personnel to be assigned to this project in a management, construction supervision or engineering capacity. 1. List each person's job title, name and percent of time to be allocated to this project: 2. Summarize each person's specialized education: 3. List each person's years of construction experience relevant to the project: 4. Summarize such experience: Bidder agrees that personnel named in this Bid will remain on this Project until completion of all relevant Work, unless substituted by personnel of equivalent experience and qualifications approved in advance by the City. 28 Additional Bidder's Statements: If the Bidder feels that there is additional information which has not been included in the questionnaire above, and which would contribute to the qualification review, it may add that information in a statement here or on an attached sheet, appropriately marked: E. VERIFICATION AND EXECUTION These Bid Forms shall be executed only by a duly authorized official of the Bidder: I declare under penalty of perjury under the laws of the State of California that the foregoing information is true and correct: Name of Bidder Signature Name Title Dated 29 CONTRACT THIS CONTRACT is made this 1st day of November, 2010, in the County of Los Angeles, State of California, by and between the City of Azusa, hereinafter called City, and Creative Contractors Corporation, hereinafter called Contractor. The City and the Contractor for the considerations stated herein agree as follows: ARTICLE 1. SCOPE OF WORK. The Contractor shall perform all Work within the time stipulated in the Contract and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in Article 5 below for the following Project: SLAUSON PARK PICNIC SHELTER IMPROVEMENTS PROJECT NO:D61332 The Contractor and its surety shall be liable to the City for any damages arising as a result of the Contractor's failure to comply with this obligation. ARTICLE 2. TIME FOR COMPLETION. The Work shall be commenced on the date stated in the City's Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents within 30 calendar days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work. ARTICLE 3. CONTRACT PRICE. The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of Fifty One Thousand Seventy-Five Dollars ($51,075). Payment shall be made as set forth in the General Conditions. ARTICLE 4. LIQUIDATED DAMAGES. In accordance with Government Code section 53069.85, it is agreed that the Contractor will pay the City the sum of$100 for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event this is not paid, the Contractor agrees the City may deduct that amount from any money due or that may become due the Contractor under the Contract. This Article does not exclude recovery of other damages specified in the Contract Documents. ARTICLE 5. COMPONENT PARTS OF THE CONTRACT. The "Contract Documents" include the following: N Notice Inviting Bids Instructions to Bidders Bid Form Contractor's Certificate Regarding Workers' Compensation Bid Bond Designation of Subcontractors Information Required of Bidders 30 Non-Collusion Affidavit form Contract Performance Bond Payment Bond General Conditions Special Conditions Technical Specifications Addenda Plans and Drawings Approved and fully executed change orders Any other documents contained in or incorporated into the Contract The Contactor shall complete the Work in strict accordance with all of the Contract Documents. All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. This Contract shall supersede any prior agreement of the parties. ARTICLE 6. PROVISIONS REQUIRED BY LAW. Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of the California Labor Code applicable to this Project. ARTICLE 7. INDEMNIFICATION. Contractor shall provide indemnification as set forth in the General Conditions. ARTICLE 8. PREVAILING WAGES & LABOR CODE. By executing this Agreement, the Contractor certifies the following: "I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workmen's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work of this contract." "I am aware that this is a Federal assisted project and Davis Bacon requirement will be enforced; and if State and Federal wage rates are applicable, then the higher of the two will be used; and that the Federal Labor Standards Provision (Form HUD-4010) is part of this contract and compliance will be enforced." "I hereby certify that, as prime contractor of this contract, 1 am eligible for the award of contract receiving Federal assistance." (Reference: Handbook 1344.1 REV-1, Paragraph 2-9). "I hereby certify that I am in receipt of the following: Project Specification Page Federal Equal Employment Opportunity/Affirmative Action Requirements Federal Labor Standards Applicable Federal Wage Determination 31 Federal Provisions." In the event a legal action is filed by the City of Azusa to enforce its rights under this agreement, said City shall be entitled to recover its reasonable attorney's fees and costs of litigation in addition to any other relief granted by the court." ARTICLE 9. -DECLARATION OF POLITICAL CONTRIBUTIONS. Consultant shall, throughout the term of this Agreement, submit to City an annual statement in writing declaring any political contributions of money, in-kind services, or loan made to any member of the city council within the previous twelve-month period by the Consultant and all of Consultant's employees, including any employee(s) that Consultant intends to assign to perform the Services described in this Agreement. IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year above written. CITY OF AZUSA CREATIVE CONTRACTORS CORP. By. By: Name: Joseph R. Rocha Name: Eric Biddle Mayor CEO California Contractor License No.: 636734 By: Name: Francis M. Delach City Manager Attest: City Clerk Approved as to Form: Best Best & Krieger LLP City Attorney 32 PERFORMANCE BOND KNOW ALL PERSONS BY THESE PRESENTS: THAT WHEREAS, (hereinafter referred to as "City") has awarded to (hereinafter referred to as the "Contractor") an agreement for {hereinafter referred to as the"Project"). WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated , (hereinafter referred to as "Contract Documents"), the terms and conditions of which are expressly incorporated herein by reference; and WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents. NOW, THEREFORE, we, the undersigned Contractor and as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of DOLLARS, ($ ), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. As a part of the obligation secured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees including reasonable attorney's fees, incurred by City in enforcing such obligation. As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City's rights or the Contractor or Surety's obligations PERFORMANCE BOND - 33 - under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15. Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City's option: (1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or (2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term "balance of the contract price" as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents. (3) Permit the City to complete the Project in any manner consistent with California law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term "balance of the contract price" as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents. Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor. Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the CITY, when declaring the Contractor in default, notifies Surety of the City's objection to Contractor's further participation in the completion of the Project. The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project. [Remainder of Page Left Intentionally Blank.] PERFORMANCE BOND - 34 - IN WITNESS WHEREOF, we have hereunto set our hands and seals this day of 200 CONTRACTOR/PRINCIPAL Name By SURETY: By: Attorney-In-Fact The rate of premium on this bond is per thousand. The total amount of premium charges, $ (The above must be filled in by corporate attorney.) THIS IS A REQUIRED FORM Any claims under this bond may be addressed to: (Name and Address of Surety) (Name and Address of Agent or Representative for service of process in California, if different from above) (Telephone number of Surety and Agent or Representative for service of process in California PERFORMANCE BOND - 35 - STATE OF CALIFORNIA COUNTY OF On before me, (here insert name and title of the officer), personally appea;ed who 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. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) NOTE: A copy of the Power-of-Attorney to local representatives of the bonding company must be attached hereto. PERFORMANCE BOND - 36 - PAYMENT BOND KNOW ALL MEN BY THESE PRESENTS That WHEREAS, the City of Azusa (hereinafter designated as the "City"), by action taken or a resolution passed 20 has awarded to hereinafter designated as the "Principal," a contract for the work described as follows: (the"Project"); and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth. NOW THEREFORE, we, the Principal and as Surety, are held and firmly bound unto the City in the penal sum of Dollars ($ ) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns,jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 3181 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by the City in such suit, including reasonable attorneys' fees, court costs, expert witness fees and investigation expenses. This bond shall inure to the benefit of any of the persons named in Section 3181 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond. It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, PAYMENT BOND - 37 - nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 3110 or 3112 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned. IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which shall for all purposes be deemed unoriginal thereof, have been duly executed by the Principal and Surety above named, on the day of 20 the name and corporate seal of each corporate party being hereto affixed and these presents duly signed b its undersigned representative pursuant to authority of its governing body. (Corporate Seal of Principal, if corporation) Principal (Property Name of Contractor) By (Signature of Contractor) (Seal of Surety) Surety By Attorney in Fact (Attached Attorney-In-Fact Certificate and Required Acknowledgements) *Note: Appropriate Notarial Acknowledgments of Execution by Contractor and +surety and a power of Attorney MUST BE ATTACHED. PAYMENT BOND - 38 - GENERAL CONDITIONS ARTICLE 1. DEFINITIONS a. Acceptable, Acce tanc w e or words of similar import shall be understood to be the � P P acceptance of the Engineer and/or the City . b. Act of God an Act of God is an earthquake of magnitude 3.5 on the Richter scale and tidal waves. C. Approval means written authorization by Engineer and/or City . d. Contract Documents includes all documents as stated in the Contract. e. City and Contractor are those stated in the Contract. The terms City and Owner may be used interchangeably. f. Day shall mean calendar day unless otherwise specifically designated. g. Engineer shall mean the City Engineer, or his or her designee, of the City of Azusa, acting either directly or through properly authorized agents, such as agents acting within the scope of the particular duties entrusted to them. Also sometimes referred to as the "City's Representative" or"Representative" in the Contract Documents. h. Equal Equivalent SatisfactoryDirected Designated Selected As Required and similar words shall mean the written approval, selection, satisfaction, direction, or similar action of the Engineer and/or City. L Indicated, Shown, Detailed, Noted, Scheduled or words of similar meaning shall mean that reference is made to the drawings, unless otherwise noted. It shall be understood that the direction, designation, selection, or similar import- of the Engineer and/or City is intended, unless stated otherwise. j. Install means the complete installation of any item, equipment or material. k. Material shall include machinery, equipment, manufactured articles, or construction such as form work, fasteners, etc., and any other classes of material to be furnished in connection with the Contract. All materials shall be new unless specified otherwise. 1. Perform shall mean that the Contractor, at Contractor's expense, shall take all actions necessary to complete The Work, including furnishing of necessary labor, tools, and equipment, and providing and installing Materials that are indicated, specified, or required to complete such performance. In. Project is The Work planned by City as provided in the Contract Documents. GENERAL CONDITIONS 39 n. Provide shall include provide complete in place, that is furnish, install, test and make ready for use. o. Recyclable Waste Materials shall mean materials removed from the Project site which are required to be diverted to a recycling center rather than an area landfill. Recyclable Waste Materials include asphalt, concrete, brick, concrete block, and rock. p. Specifications means that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction systems, standards and workmanship for the work. Except for Sections 1-9 of the Standard Specifications for Public Works 'Construction ("Greenbook"), 2003 Edition, which are specifically excluded from incorporation into these Contract Documents, the Work shall be done in accordance with the Greenbook, including all current supplements, addenda, and revisions thereof. In the case of conflict between the Greenbook and the Contract Documents, the Contract Documents shall prevail. q. The Work means the entire improvement planned by the City pursuant to the Contract Documents. r. Work means labor, equipment and materials incorporated in, or to be incorporated in the construction covered by the Contract Documents. ARTICLE 2. CONTRACT DOCUMENTS a. Contract Documents. The Contract Documents are complementary, and what is called for by one shall be as binding as if called for by all. b. Interpretations. The Contract Documents are intended to be fully cooperative and to be complementary. If Contractor observes that any documents are in conflict, the Contractor shall promptly notify the Engineer in writing. In case of conflicts between the Contract Documents, the order of precedence shall be as follows: 1. Change Orders or Work Change Directives 2. Addenda 3. Special Provisions (or Special Conditions) 4. Technical Specifications 5. Plans (Contract Drawings) 6. Contract 7. General Conditions 8. Instructions to Bidders 9. Notice Inviting Bids 10. Contractor's Bid Forms 11. Greenbook 12. Standard Plans 13. Reference Documents With reference to the Drawings, the order of precedence shall be as follows: GENERAL CONDITIONS 40 I. Figures govern over scaled dimensions 2. Detail drawings govern over general drawings 3. Addenda or Change Order drawings govern over Contract Drawings 4. Contract Drawings govern over Standard Drawings 5. Contract Drawings govern over Shop Drawings C. Conflicts in Contract Documents. Notwithstanding thstanding the orders of precedence established above, in the event of conflicts, the higher or more restrictive standard shall always apply. d. Organization of Contract Documents. Organization of the Contract Documents into divisions, sections, and articles, and arrangement of drawings shall not control the Contractor in dividing The Work among subcontractors or in establishing the extent of Work to be performed by any trade. ARTICLE 3. CONTRACTS DOCUMENTS: COPIES & MAINTENANCE Contractor will be furnished, free of charge, one (1) copy of the Contract Documents. Additional copies may be obtained at cost of reproduction. Contractor shall maintain a clean, undamaged set of Contract Documents at the Project site. ARTICLE 4. DETAIL DRAWINGS AND INSTRUCTIONS a. Examination of Contract Documents. Before commencing any portion of The Work, Contractor shall again carefully examine all applicable Contract Documents, the Project site and other information given to Contractor as to materials and methods of construction and other Project requirements. Contractor shall immediately notify the Engineer of any potential error, inconsistency, ambiguity, conflict or lack of detail or explanation. If Contractor performs, permits, or causes the performance of any Work which is in error, inconsistent or ambiguous, or not sufficiently detailed or explained, Contractor shall bear any and all resulting costs, including, without limitation, the cost of correction. In no case shall the Contractor or any subcontractor proceed with Work if uncertain as to the applicable requirements. b. Additional Instructions. After notification of any error, inconsistency, ambiguity, conflict or lack of detail or explanation, the Engineer will provide any required additional instructions, by means of drawings or other written direction, necessary for proper execution of Work. C. Quality of Parts, Construction and Finish. All parts of The Work shall be of the best quality of their respective kinds and the Contractor must use all diligence to inform itself fully as to the required construction and finish. In no case shall Contractor proceed with The Work without obtaining first from the Engineer such Approval as may be necessary for the proper performance of Work. d. Contractor's Variation from Contract Document Requirements. If it is found that the Contractor has varied from the requirements of the Contract Documents including the GENERAL CONDITIONS 41 requirement to comply with all applicable laws, ordinances, rules and regulations, the Engineer may at any time, before or after completion of the Work, order the improper Work removed, remade or replaced by the Contractor at the Contractor's expense. ARTICLE 5. EXISTENCE OF UTILITIES AT THE WORK SITE a. The City has endeavored to determine the existence-of utilities at the Project site from the records of the owners of known utilities in the vicinity of the Project. The positions of these utilities as derived from such records are shown on the Plans. b. No excavations were made to verify the locations shown for underground utilities. The service connections to these utilities are not shown on the plans. It shall be the responsibility of the Contractor to determine the exact location of all service connections. The Contractor shall make its own investigations, including exploratory excavations, to determine the locations and type of service connections, prior to commencing Work which could result in damage to such utilities. The Contractor shall immediately notify the City in writing of any utility discovered in a different position than shown on the Plans or which is not shown on the Plans. C. All water meters, water valves, fire hydrants, electrical utility vaults, telephone vaults, gas utility valves, and other subsurface structures shall be relocated or adjusted to final grade by the Contractor. Locations of existing utilities shown on the Plans are approximate and may not be complete. The Contractor shall be responsible for coordinating its Work with all utility companies during the construction of The Work. d. Notwithstanding the above, pursuant to Section 4215 of the Government Code, the City has the responsibility to identify, with reasonable accuracy, main or trunkline facilities on the plans and specifications. In the event that main or trunkline utility facilities are not identified with reasonable accuracy in the plans and specifications made a part of the invitation for bids, City shall assume the responsibility for their timely removal, relocation, or protection. e. Contractor, except in an emergency, shall contact the appropriate regional notification center, Southern California Underground Service Alert at 1-800-227-2600 at least two working days prior to commencing any excavation if the excavation will be performed in an area which is known, or reasonably should be known, to contain subsurface installations other than the underground facilities owned or operated by the City, and obtain an inquiry identification number from that notification center. No excavation shall be commenced or carried out by the Contractor unless such an inquiry identification number has been assigned to the Contractor or any subcontractor of the Contractor and the City has been given the identification number by the Contractor. ARTICLE 6. SCHEDULE a. Estimated Schedule. Within fourteen (14) days after the issuance of the Notice to Proceed, Contractor shall prepare a Project schedule and shall submit this to the Engineer for Approval. The receipt or Approval of any schedules by the Engineer or the City shall not in any way relieve the Contractor of its obligations under the Contract Documents. GENERAL CONDITIONS 42 The Contractor is fully responsible to determine and provide for any and all staffing and resources at levels which allow for good quality and timely completion of the Project. Contractor's failure to incorporate all elements of Work required for the performance of the Contract or any inaccuracy in the schedule shall not excuse the Contractor from performing all Work required for a completed Project within the specified Contract time period. If the required schedule is not received by the time the first payment under the Contract is due, Contractor shall not be paid until the schedule is received, reviewed and accepted by the Engineer. b. Schedule Contents. The schedule shall allow enough time for inclement weather. The schedule shall indicate the beginning and completion dates of all phases of construction; critical path for all critical, sequential time related activities; and "float time" for all "slack" or "gaps" in the non-critical activities. The schedule shall clearly identify all staffing and other resources which in the Contractor's judgment are needed to complete the Project within the time specified for completion. Schedule duration shall match the Contract time. Schedules indicating early completion will be rejected. C. Schedule Updates. Contractor shall continuously update its construction schedule. Contractor shall submit an updated and accurate construction schedule to the Engineer whenever requested to do so by Engineer and with each progress payment request. The Engineer may withhold progress payments or other amounts due under the Contract Documents if Contractor fails to submit an updated and accurate construction schedule. ARTICLE 7. SUBSTITUTIONS a. Pursuant to Public Contract Code Section 3400(b) the City may make a finding that is described in the invitation for bids that designates certain products, things, or services by specific brand or trade name. b. Unless specifically designated in the Contract Documents, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such Specifications shall be deemed to be used for the purpose of facilitating the description of the material, process or article desired and shall be deemed to be followed by the words "or equal." Contractor may, unless otherwise stated, offer for substitution any material, process or article which shall be substantially equal or better in every respect to that so indicated or specified in the Contract Documents. However, the City may have adopted certain uniform standards for certain materials, processes and articles. C. Contractor shall submit requests, together with substantiating data, for substitution of any "or equal" material, process or article no later than thirty-five (35) days after award of the Contract. To facilitate the construction schedule and sequencing, some requests may need to be submitted before thirty-five (35) days after award of Contract. Provisions regarding submission of"or equal" requests shall not in any way authorize an extension of time for performance of this Contract. If a proposed "or equal" substitution request is rejected, Contractor shall be responsible for providing the specified material, process or article. The burden of proof as to the equality of any material, process or article shall rest GENERAL CONDITIONS 43 with the Contractor. The City has the complete and sole discretion to determine if a material, process or article is an "or equal" material, process or article that may be substituted. d. Data required to substantiate requests for substitutions of an `or equal" material, process or article data shall include a signed affidavit from the Contractor stating that, and describing how, the substituted `or equal" material, process or article is equivalent to that specified in every way except as listed on the affidavit. Substantiating data shall include any and all illustrations, specifications, and other relevant data including catalog information which describes the requested substituted "or equal" material, process or article, and substantiates that it is an "or equal" to the material, process or article. The substantiating data must also include information regarding the durability and lifecycle cost of the requested substituted "or equal" material, process or article. Failure to submit all the required substantiating data, including the signed affidavit, to the City in a timely fashion will result in the rejection of the proposed substitution. C. The Contractor shall bear all of the City's costs associated with the review of substitution requests. f. The Contractor shall be responsible for all costs related to a substituted "or equal" material, process or article. g. Contractor is directed to the Special Conditions (if any) to review any findings made pursuant to Public Contract Code section 3400. ARTICLE S. SHOP DRAWINGS a. Contractor shall check and verify all field measurements and shall submit with such promptness as to provide adequate time for review and cause no delay in his own Work or in that of any other contractor, subcontractor, or worker on the Project, six (6) copies of all shop or setting drawings, calculations, schedules, and materials list, and all other provisions required by the Contract. Contractor shall sign all submittals affirming that submittals have been reviewed and approved by Contractor prior to submission to Engineer. Each signed submittal shall affirm that the submittal meets all the requirements of the Contract Documents except as specifically and clearly noted and listed on the cover sheet of the submittal. b. Contractor shall make any corrections required by the Engineer, and file with the Engineer six (6) corrected copies each, and furnish such other copies as may be needed for completion of the Work. Engineer's approval of shop drawings shall not relieve Contractor from responsibility for deviations from the Contract Documents unless Contractor has, in writing, called Engineer's attention to such deviations at time of submission and has secured the Engineer's written Approval. Engineer's Approval of shop drawings shall not relieve Contractor from responsibility for errors in shop drawings. GENERAL CONDITIONS 44 ARTICLE 9. SUBMITTALS a. Contractor shall furnish to the Engineer for approval, prior to purchasing or commencing any Work, a log of all samples, material lists and certifications, mix designs, schedules, and other submittals, as required in the specifications. The log shall indicate whether samples will be provided in accordance with other provisions of this Contract. b. Contractor will provide samples and submittals, together with catalogs and supporting data required by the Engineer, to the Engineer within a reasonable time period to provide for adequate review and avoid delays in the Work. C. These requirements shall not authorize any extension of time for performance of this Contract. Engineer will check and approve such samples, but only for conformance with design concept of work and for compliance with information given in the Contract Documents. Work shall be in accordance with approved samples and submittals. ARTICLE 10. MATERIALS a. Except as otherwise specifically stated in the Contract Documents, Contractor shall provide and pay for all materials, labor, tools, equipment, water, lights, power, transportation, superintendence, temporary constructions of every nature, and all other services and facilities of every nature whatsoever necessary to execute and complete this Contract within specified time. b. Unless otherwise specified, all materials shall be new and the best of their respective kinds and grades as noted and/or specified, and workmanship shall be of good quality. C. Materials shall be furnished in ample quantities and at such times as to ensure uninterrupted progress of The Work and shall be stored properly and protected as required by the Contract Documents. Contractor shall be entirely responsible for damage or loss by weather or other causes to materials or Work. d. No materials, supplies, or equipment for Work under this Contract shall be purchased subject to any chattel mortgage or under a conditional sale or other agreement by which an interest therein or in any part thereof is retained by the seller or supplier. Contractor warrants good title to all material, supplies, and equipment installed or incorporated in the work and agrees upon completion of all work to deliver the Project, to the City free from any claims, liens, or charges. e. Materials shall be stored on the Project site in such manner so as not to interfere with any operations of the City or any independent contractor. ARTICLE 11. CONTRACTOR'S SUPERVISION Contractor shall continuously keep at the Project site a competent and experienced full-time Project superintendent approved by the City. Superintendent must be able to proficiently speak, read and write in English. Contractor shall continuously provide efficient supervision of the Project. GENERAL CONDITIONS 45 ARTICLE 12. WORKERS a. Contractor shall at all times enforce strict discipline and good order among its employees. Contractor shall not employ on the Project any unfit person or any one not skilled in the Work assigned to him or her. b. Any person in the employ of the Contractor whom the City may deem incompetent or unfit shall be dismissed from The Work and shall not be employed on this Project except with the written Approval of the City. ARTICLE 13. SUBCONTRACTORS a. Contractor agrees to bind every subcontractor to the terms of the Contract Documents as far as such terms are applicable to subcontractor's portion of The Work. Contractor shall be as fully responsible to the City for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by its subcontractors, as Contractor is for acts and omissions of persons directly employed by Contractor. Nothing contained in these Contract Documents shall create any contractual relationship between any subcontractor and the City. b. The City reserves the right to Approve all subcontractors. The City's Approval of any subcontractor under this Contract shall not in any way relieve Contractor of its obligations in the Contract Documents. C. Prior to substituting any subcontractor listed in the Bid Forms, Contractor must comply with the requirements of the Subletting and Subcontracting Fair Practices Act pursuant to California Public Contract Code section 4100 et seq. ARTICLE 14. PERMITS AND LICENSES Permits and licenses necessary for prosecution of The Work shall be secured and paid for by Contractor, unless otherwise specified in the Contract Documents. a. Contractor shall obtain and pay for all other permits and licenses required for The Work, including excavation permit and for plumbing, mechanical and electrical work and for operations in or over public streets or right of way under jurisdiction of public agencies other than the City. b. The Contractor shall arrange-and pay for all off-site inspection of the Work related to permits and licenses, including certification, required by the specifications, drawings, or by governing authorities, except for such off-site inspections delineated as the City's responsibility pursuant to the Contract Documents. C. Before Acceptance of the Project, the Contractor shall submit all licenses, permits, certificates of inspection and required approvals to the City. GENERAL CONDITIONS 46 ARTICLE 15. UTILITY USAGE a. All temporary utilities, including but not limited to electricity, water, gas, and telephone, used on the Work shall be furnished and paid for by Contractor. Contractor shall Provide necessary temporary distribution systems, including meters, if necessary, from distribution points to points on The Work where the utility is needed. Upon completion of The Work, Contractor shall remove all temporary distribution systems. b. Contractor shall provide necessary and adequate utilities and pay all costs for water, electricity, gas, oil, and sewer charges required for completion of the Project. C. All permanent meters Installed shall be listed in the Contractor's name until Project Acceptance. d. If the Contract is for construction in existing facilities, Contractor may, with prior written Approval of the City, use the City's existing utilities by compensating the City for utilities used by Contractor. ARTICLE 16. INSPECTION FEES FOR PERMANENT UTILITIES All inspection fees and other municipal charges for permanent utilities including, but not limited to, sewer, electrical, phone, gas, water, and irrigation shall be paid for by the City. Contractor shall be responsible for arranging the payment of such fees, but inspection fees and other municipal fees relating to permanent utilities shall be paid by the City. Contractor may either request reimbursement from the City for such fees, or shall be responsible for arranging and coordination with City for the payment of such fees. ARTICLE 17. TRENCHES a. Trenches Five Feet or More in Depth. The Contractor shall submit to the City, in advance of excavation, a detailed plan showing the design of shoring, bracing, sloping or other provisions to be made for worker protection from the hazard of caving ground during the excavation of any trench or trenches five feet or more in depth. If the plan varies from shoring system standards, the plan shall be prepared by a registered civil or structural engineer. The plan shall not be less effective than the shoring, bracing, sloping, or other provisions of the Construction Safety Orders, as defined in the California Code of Regulations. b. Excavations Deeper than Four Feet. If work under this Contract involves digging trenches or other excavation that extends deeper than four feet below the surface, Contractor shall promptly, and before the following conditions are disturbed, notify the City, in writing, of any: 1) Material that the Contractor believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law. GENERAL CONDITIONS 47 2) Subsurface or latent physical conditions at the site differing from those indicated. 3) Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract. The City shall promptly investigate the conditions, and if it finds that the conditions do so materially differ, or do involve hazardous waste, and cause a decrease or increase in Contractor's cost of, or the time required for, performance of any part of The Work, shall issue a change order under the procedures described in the Contract Documents. In the event that a dispute arises between the City and the Contractor as to whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the Contractor's cost of, or time required for, performance of any part of The Work, the Contractor shall not be excused from any scheduled completion date provided for by the Contract, but shall proceed with all Work to be performed under the Contract. Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the parties. ARTICLE 18. DIVERSION OF RECYCLABLE WASTE MATERIALS In compliance with the applicable City's waste reduction and recycling efforts, Contractor shall divert all Recyclable Waste Materials to appropriate recycling centers. Contractor will be required to submit weight tickets and written proof of diversion with its monthly progress payment requests. Contractor shall complete and execute any certification forms required by City or other .applicable agencies to document Contractor's compliance with these diversion requirements. All costs incurred for these waste diversion efforts shall be the responsibility of the Contractor. ARTICLE 19. REMOVAL OF HAZARDOUS MATERIALS Should Contractor encounter material reasonably believed to be polychlorinated biphenyl (PCB) or other toxic wastes and hazardous materials which have not been rendered harmless at the Project site, the Contractor shall immediately stop work at the affected Project site and shall report the condition to the City in writing. The City shall contract for any services required to directly remove and/or abate PCBs and other toxic wastes and hazardous materials, if required by the Project site(s), and shall not require the Contractor to subcontract for such services. The Work in the affected area shall not thereafter be resumed except by written agreement of the City and Contractor. ARTICLE 20. SANITARY FACILITIES Contractor shall provide sanitary temporary toilet buildings for the use of all workers. All toilets shall comply with local codes and ordinances. Toilets shall be kept supplied with toilet paper and shall have workable door fasteners. Toilets shall be serviced no less than once weekly and shall be present in a quantity of not less than 1 per 20 workers as required by CAL-OSHA regulation. The toilets shall be maintained in a sanitary condition at all times. Use of toilet GENERAL CONDITIONS 48 facilities in The Work under construction shall not be permitted. Any other Sanitary Facilities required by CAL-OSHA shall be the responsibility of the Contractor. ARTICLE 21. AIR POLLUTION CONTROL Contractor shall comply with all air pollution control rules, regulations, ordinances and statutes. All containers of paint, thinner, curing compound, solvent or liquid asphalt shall be labeled to indicate that the contents fully comply with the applicable material requirements. ARTICLE 22. COMPLIANCE WITH STATE STORM WATER PERMIT a. Contractor shall be required to comply with all conditions of the State Water Resources Control Board ("State Water Board") National Pollutant Discharge Elimination System General Permit for Waste Discharge Requirements for Discharges of Storm Water Runoff Associated with Construction Activity ("Permit") for all construction activity which results in the disturbance of in excess of one acre of total land area or which is part of a larger common area of development or sale. Contractor shall be responsible for filing the Notice of Intent and for obtaining the Permit. Contractor shall be solely responsible for preparing and implementing a Storm Water Pollution Prevention Plan ("SWPPP") prior to initiating Work. In bidding on this Contract, it shall be Contractor's responsibility to evaluate the cost of procuring the Permit and preparing the SWPPP as well as complying with the SWPPP and any necessary revision to the SWPPP. Contractor shall comply with all requirements of the State Water Resources Control Board. Contractor shall include all costs of compliance with specified requirements in the Contract amount. b. Contractor shall be responsible for procuring, implementing and complying with the provisions of the Permit and the SWPPP, including the standard provisions, monitoring and reporting requirements as required by the Permit. Contractor shall provide copies of all reports and monitoring information to the Engineer. C. Contractor shall comply with the lawful requirements of any applicable municipality, the City, drainage district, and other local agencies regarding discharges of storm water to separate storm drain system or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs. d. Storm, surface, nuisance, or other waters may be encountered at various times during construction of The Work. Therefore, the Contractor, by submitting a Bid, hereby acknowledges that it has investigated the risk arising from such waters, has prepared its Bid accordingly, and assumes any and all risks and liabilities arising therefrom. e. Failure to comply with the Permit is in violation of federal and state law. Contractor hereby agrees to indemnify and hold harmless City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the Permit arising out of or in connection with the Project, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its GENERAL CONDITIONS 49 officials, officers, agents, employees or authorized volunteers. City may seek damages from Contractor for delay in completing the Contract in accordance with the Contract Documents, caused by Contractor's failure to comply with the Permit. ARTICLE 23. CLEANING UP a. Contractor at all times shall keep premises f:ee from debris such as waste, rubbish, and excess materials and equipment. Contractor shall not store debris under, in, or about the premises. Upon completion of Work, Contractor shall clean the interior and exterior of the building or improvement including fixtures, equipment, walls, floors, ceilings, roofs, window sills and ledges, horizontal projections, and any areas where debris has collected so surfaces are free from foreign material or discoloration. Contractor shall clean and polish all glass, plumbing fixtures, and finish hardware and similar finish surfaces and equipment and contractor shall also remove temporary fencing, barricades, planking and construction toilet and similar temporary facilities from site. Contractor shall also clean all buildings, asphalt and concrete areas to the degree necessary to remove oil, grease, fuel, or other stains caused by Contractor operations or equipment. b. Contractor shall fully clean up the site at the completion of The Work. If the Contractor fails to immediately clean up at the completion of The Work, the City may do so and the cost of such clean up shall be charged back to the Contractor. ARTICLE 24. LAYOUT AND FIELD ENGINEERING All field engineering required for laying out The Work and establishing grades for earthwork operations shall be furnished by the Contractor at its expense. Layout shall be done by a registered civil engineer Approved by the Engineer. Any required "as-built" drawings of the Work shall be prepared by the registered civil engineer. ARTICLE 25. EXCESSIVE NOISE a. The Contractor shall use only such equipment on the work and in such state of repair so that the emission of sound therefrom is within the noise tolerance level of that equipment as established by CAL-OSHA. b. The Contractor shall comply with the most restrictive of the following: (1) local sound control and noise level rules, regulations and ordinances and (2) the requirements contained in these Contract Documents, including hours of operation requirements. No internal combustion engine shall be operated on the Project without a muffler of the type recommended by the manufacturer. Should.any muffler or other control device sustain damage or be determined to be ineffective or defective, the Contractor shall promptly remove the equipment and shall not return said equipment to the job until the device is repaired or replaced. Said noise and vibration level requirements shall apply to all equipment on the job or related to the job, including but not limited to, trucks, transit mixers or transit equipment that may or may not be owned by the Contractor. GENERAL CONDITIONS 50 ARTICLE 26. TESTS AND INSPECTIONS a. If the Contract Documents, the Engineer, or any instructions, laws, ordinances, or public authority require any part of The Work to be tested or Approved, Contractor shall provide the Engineer at least two (2) working days notice of its readiness for observation or inspection. If inspection is by a public authority other than the City, Contractor shall promptly inform the City of the date fixed for such inspection. Required certificates of inspection (or similar) shall be secured by Contractor. Costs for City testing and City inspection shall be paid by the City. Costs of tests for Work found not to be in compliance shall be paid by the Contractor. b. If any Work is done or covered up without the required testing or approval, the Contractor shall uncover or deconstruct the Work, and the Work shall be redone after completion of the testing at the Contractor's cost in compliance with the Contract Documents. C. Where inspection and testing are to be conducted by an independent laboratory or agency, materials or samples of materials to be inspected or tested shall be selected by such laboratory or agency, or by the City, and not by Contractor. All tests or inspections of materials shall be made in accordance with the commonly recognized standards of national organizations. d. In advance of manufacture of materials to be supplied by Contractor which must be tested or inspected, Contractor shall notify the City so that the City may arrange for testing at the source of supply. Any materials which have not satisfactorily passed such testing and inspection shall not be incorporated into The Work. e. If the manufacture of materials to be inspected or tested will occur in a plant or location outside the geographic limits of City, the Contractor shall pay for any excessive or unusual costs associated with such testing or inspection, including but not limited to excessive travel time, standby time and required lodging. f. Reexamination of Work may be ordered by the City. If so ordered, Work must be uncovered or deconstructed by Contractor. If Work is found to be in accordance with the Contract Documents, the City shall pay the costs of reexamination and reconstruction. If such work is found not to be in accordance with the Contract Documents, Contractor shall pay all costs. ARTICLE 27. PROTECTION OF WORK AND PROPERTY a. The Contractor shall be responsible for all damages to persons or property that occur as a result of The Work. Contractor shall be responsible for the proper care and protection of all materials delivered and Work performed until completion and final Acceptance by the City. All Work shall be solely at the Contractor's risk. Contractor shall adequately protect adjacent property from settlement or loss of lateral support as necessary. Contractor shall comply with all applicable safety laws and building codes to prevent accidents or injury to persons on, about, or adjacent to the Project site where Work is being performed. Contractor shall erect and properly maintain at all times, as required by field conditions GENERAL CONDITIONS 51 and progress of work, all necessary safeguards, signs, barriers, lights, and watchmen for protection of workers and the public, and shall post danger signs warning against hazards created in the course of construction. b. In an emergency affecting safety of life or of work or of adjoining property, Contractor, without special instruction or authorization from the Engineer, is hereby permitted to act to prevent such threatened loss or injury; and Contractor shall so act, without appeal, if so authorized or instructed by the Engineer or the City. Any compensation claimed by Contractor on account of emergency work shall be determined by and agreed upon by the City and the Contractor. C. Contractor shall provide such heat, covering, and enclosures as are necessary to protect all Work, materials, equipment, appliances, and tools against damage by weather conditions. d. Contractor shall take adequate precautions to protect existing sidewalks, curbs, pavements, utilities, and other adjoining property and structures, and to avoid damage thereto, and Contractor shall repair any damage thereto caused by The Work operations. Contractor shall: 1) Enclose the working area with a substantial barricade, and arrange work to cause minimum amount of inconvenience and danger to the public. 2) Provide substantial barricades around any shrubs or trees indicated to be preserved. 3) Deliver materials to the Project site over a route designated by the Engineer. 4) Provide any and all dust control required and follow the Applicable air quality regulations as appropriate. If the Contractor does not comply, the City shall have the immediate authority to provide dust control and deduct the cost from payments to the Contractor. 5) Confine Contractor's apparatus, the storage of materials, and the operations of its workers to limits required by law, ordinances, permits, or directions of the Engineer. Contractor shall not unreasonably encumber the Project site with its materials. 6) Take care to prevent disturbing or covering any survey markers, monuments, or other devices marking property boundaries or corners. If such markers are disturbed by accident, they shall be replaced by an approved civil engineer or land surveyor, at no cost to the City. 7) Ensure that existing facilities, fences and other structures are all adequately protected and that, upon completion of all Work, all facilities that may have been damaged are restored to a condition acceptable to the City. 8) Preserve and protect from injury all buildings, pole lines and all direction, GENERAL CONDITIONS 52 warning and mileage signs that have been placed within the right-of-way. 9) At the completion of work each day, leave the Project site in a clean, safe condition. 10) Comply with any stage construction and traffic handling plans. Access to residences and businesses shall be maintained at all times. These precautionary measures will apply continuously and not be limited to normal working hours. Full compensation for the Work involved in the preservation of life, safety and property as above specified shall be considered as included in the prices paid for the various contract items of Work, and no additional allowance will be made therefor. e. Should damage to persons or property occur as a result of The Work, Contractor shall be responsible for proper investigation, documentation, including video or photography, to adequately memorialize and make a record of what transpired. The City shall be entitled to inspect and copy any such documentation, video, or photographs. ARTICLE 28. CONTRACTORS MEANS AND METHODS Contractor is solely responsible for the means and methods utilized to Perform The Work. In no case shall the Contractor's means and methods deviate from commonly used industry standards. ARTICLE 29. INSPECTOR'S FIELD OFFICE a. The Contractor shall be responsible for providing the inspector's field office. The Office shall be a substantial waterproof construction with adequate natural light and ventilation by means of stock design windows. Door shall have a key type lock or padlock clasp. The office shall have heating and air conditioning and shall be equipped with a telephone, a telephone answering machine, and a fax machine at Contractor's expense. b. A table satisfactory for the study of plans and two chairs shall be Provided by Contractor. Contractor shall Provide and pay for adequate electric lights, local telephone service, and adequate heat and air conditioning for the field office until authorized removal. ARTICLE 30. AUTHORIZED REPRESENTATIVES The City shall designate representatives, who shall have the right to be present at the Project site at all times. The City may designate an inspector who shall have the right to observe all of the Contractor's Work. The inspector is not authorized to make changes in the Contract Documents. The inspector shall not be responsible for the Contractor's failure to carry out The Work in accordance with the Contract Documents. Contractor shall provide safe and proper facilities for such access. GENERAL CONDITIONS 53 ARTICLE 31. HOURS OF WORK a. Eight (8) hours of work shall constitute a legal day's work. The Contractor and each subcontractor shall forfeit, as penalty to the City, twenty-five dollars ($25) for each worker employed in the execution of Work by the Contractor or any subcontractor for each day during which such worker is required or permitted to work more than eight (8) hours-in any one day and forty (40) hours in any week in violation of the provisions of the Labor Code, and in particular, Section 1810 to Section 1815, except as provided in Labor Code Section 1815. b. Work shall be accomplished on a regularly scheduled eight (8) hour per day work shift basis, Monday through Friday, between the hours of 7:00 a.m. and 5:00 p.m. C. It shall be unlawful for any person to operate, permit, use, or cause to operate any of the following at the Project site, other than between the hours of 7:00 a.m. to 5:00 p.m., Monday through Friday, with no Work allowed on City-observed holidays, unless otherwise Approved by the Engineer: 1) Powered Vehicles 2) Construction Equipment 3) Loading and Unloading Vehicles 4) Domestic Power Tool. ARTICLE 32. PAYROLL RECORDS a. Pursuant to Labor Code Section 1776, the Contractor and each subcontractor shall maintain weekly certified payroll records showing the name, address, social security number, work classification, straight time and overtime hours paid each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed in connection with the work. Contractor shall certify under penalty of perjury that records maintained and submitted by Contractor are true and accurate. Contractor shall also require subcontractor(s) to certify weekly payroll records under penalty of perjury. b. The payroll records described herein shall be certified and submitted by the Contractor at a time designated by the City. The Contractor shall also provide the following: 1) A certified copy of the employee's payroll records shall be made available for inspection or furnished to such employee or his or her authorized representative on request. 2) A certified copy of all payroll records described herein shall be made available for inspection or furnished upon request of the Department of Industrial Relations ("DIR"). GENERAL CONDITIONS 54 C. The certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement ("DLSE") of the DIR or shall contain the same information as the forms provided by the DLSE. d. Any copy of records made available for inspection and furnished upon request to the public shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address, and social security number. The name and address of the Contractor or any subcontractor shall not be marked or obliterated e. In the event of noncompliance with the requirements of this Section, the Contractor shall have ten (10) days in which to comply subsequent to receipt of written notice specifying any item or actions necessary to ensure compliance with this section. Should noncompliance still be evident after such ten (10) day period, the Contractor shall, as a penalty to the City, forfeit Twenty-five Dollars ($25.00) for each day, or portion thereof, for each worker until strict compliance is effectuated. Upon the request of the DIR, such penalties shall be withheld from contract payments. ARTICLE 33. PREVAILING RATES OF WAGES a. The Contractor is aware of the requirements of Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. Since this Project involves an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to perform work on the Project available to interested parties upon request, and shall post copies at the Contractor's principal place of business and at the Project site. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or allege failure to comply with the Prevailing Wage Laws. b. The Contractor and each subcontractor shall forfeit as a penalty to the City not more than fifty dollars ($50) for each calendar day, or portion thereof, for each worker paid less than the stipulated prevailing wage rate for any work done by him, or by any subcontract under him, in violation of the provisions of the Labor Code. The difference between such stipulated prevailing wage rate and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the stipulated prevailing wage rate shall be paid to each worker by the Contractor. C. Contractor shall post, at appropriate conspicuous points on the Project site, a schedule showing all determined general prevailing wage rates and all authorized deductions, if any, from unpaid wages actually earned. GENERAL CONDITIONS 55 ARTICLE 34. EMPLOYMENT OF APPRENTICES The Contractor's attention is directed to the provisions of Sections 1777.5, 1777.6, and 1777.7 of the Labor Code concerning employment of apprentices by the Contractor or any subcontractor. The Contractor shall obtain a certificate of apprenticeship before employing any apprentice pursuant to Section 1777.5, 1777.6, and 1777.7 of the Labor Code. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of Industrial Relations, the Administrator of Apprenticeships, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices. ARTICLE 35. NONDISCRIMINATION/EQUAL EMPLOYMENT OPPORTUNITY Pursuant to Labor Code Section 1735 and other applicable provisions of law, the Contractor and its subcontractors shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, political affiliation, marital status, or handicap on this Project. The Contractor will take affirmative action to insure that employees are treated during employment or training without regard to their race, color, religion, sex, national origin, age, political affiliation, marital status, or handicap. ARTICLE 36. LABOR/EMPLOYMENT SAFETY The Contractor shall maintain emergency first aid treatment for his employees which complies with the Federal Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), and California Code of Regulations, Title 8; Industrial Relations Division 1, Department of Industrial Relations, Chapter 4. ARTICLE 37. WORKERS' COMPENSATION INSURANCE The Contractor shall Provide, during the life of this Contract, workers' compensation insurance for all of the employees engaged in Work under this Contract, on or at the Project site, and, in case any of sublet Work, the Contractor shall require the subcontractor similarly to provide workers' compensation insurance for all the latter's employees as prescribed by State law. Any class of employee or employees not covered by a subcontractor's insurance shall be covered by the Contractor's insurance. In case any class of employees engaged in work under this Contract, on or at the Project site, is not protected under the Workers' Compensation Statutes, the Contractor shall provide or shall cause a subcontractor to provide, adequate insurance coverage for the protection of such employees not otherwise protected. The Contractor is required to secure.payment of compensation to his employees in accordance with the provisions of Section 3700 of the Labor Code. The Contractor shall file with the City certificates of his insurance protecting workers. Company or companies providing insurance coverage shall be acceptable to the City, if in the form and coverage as set forth in the Contract Documents. ARTICLE 38. EMPLOYER'S LIABILITY INSURANCE Contractor shall provide during the life of this Contract, Employer's Liability Insurance, including Occupational Disease, in the amount of, at least, one million dollars ($1,000,000.00) per person per accident. Contractor shall provide City with a certificate of Employer's Liability Insurance. Such insurance shall comply with the provisions of the Contract Documents. The GENERAL CONDITIONS 56 policy shall be endorsed, if applicable, to provide a Borrowed Servant/Alternate Employer Endorsement and contain a Waiver of Subrogation in favor of the City. ARTICLE 39. COMMERCIAL GENERAL LIABILITY INSURANCE a. Contractor shall procure and maintain during the life of this Contract and for such other period as may be required herein, at its sole expense, Commercial General Liability insurance coverage, including but not limited to, premises liability, contractual liability, products/completed operations if applicable, personal and advertising injury—which may arise from or out of Contractor's operations, use, and management of the Project site, or the performance of its obligations hereunder. Policy limits shall not be less than $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. b. Such policy shall comply with all the requirements of this Article. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Contractor from liability in excess of such coverage, nor shall it limit Contractor's indemnification obligations to the City, and shall not preclude the City from taking such other actions available to the City under other provisions of the Contract Documents or law. C. Contractor shall make certain that any and all subcontractors hired by Contractor are insured in accordance with this Contract. If any subcontractor's coverage does not comply with the foregoing provisions, Contractor shall indemnify and hold the City harmless from any damage, loss, cost, or expense, including attorneys' fees, incurred by the City as a result thereof. d. All general liability policies provided pursuant to the provisions of this Article shall comply with the provisions of the Contract Documents. e. All general liability policies shall be written to apply to all bodily injury, including death, property damage, personal injury, owned and non-owned equipment, blanket contractual liability, completed operations liability, explosion, collapse, under-ground excavation, removal of lateral support, and other covered loss, however occasioned, occurring during the policy term, and shall specifically insure the performance by Contractor of that part of the indemnification contained in these General Conditions, relating to liability for injury to or death of persons and damage to property. If the coverage contains one or more aggregate limits, a minimum of 50% of any such aggregate limit must remain available at all times; if over 50% of any aggregate limit has been paid or reserved, the City may require additional coverage to be purchased by Contractor to restore the required limits. Contractor may combine primary, umbrella, and as broad as possible excess liability coverage to achieve the total limits indicated above. Any umbrella or excess liability policy shall include the additional insured endorsement described in the Contract Documents. GENERAL CONDITIONS 57 ARTICLE 40. AUTOMOBILE LIABILITY INSURANCE Contractor shall take out and maintain at all times during the term of this Contract Automobile Liability Insurance in the amount of, at least, one million dollars ($1,000,000). Such insurance shall provide coverage for bodily injury and property damage including coverage for non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. Such insurance shall comply with the provisions of Article 30 below. ARTICLE 41. BUILDER'S RISK ["ALL RISK"] a. It is the Contractor's responsibility to maintain or cause to be maintained Builder's Risk [ "All Risk"] extended coverage insurance on all work, material, equipment, appliances, tools, and structures which are a part of the Contract and subject to loss or damage by fire, and vandalism and malicious mischief, in an amount to cover 100% of the replacement cost. The City accepts no responsibility until the Contract is formally accepted by the Governing Board for the work. The Contractor-is required to file with the City a certificate evidencing fire insurance coverage. b. Provide insurance coverage on completed value form, all-risk or special causes of loss coverage. 1) Insurance policies shall be so conditioned as to cover the performance of any extra work performed under the Contract. 2) Coverage shall include all materials stored on site and in transit. 3) Coverage shall include Contractor's tools and equipment. 4) Insurance shall include boiler, machinery and material hoist coverage. C. Such insurance shall comply with the provisions of the Contract Documents. ARTICLE 42. FORM AND PROOF OF CARRIAGE OF INSURANCE a. Any insurance carrier providing insurance coverage required by the Contract Documents shall be admitted to and authorized to do business in the State of California unless waived, in writing, by the City Risk Manager. Carrier(s) shall have an A.M. Best rating of not less than an A:VIII. Insurance deductibles or self-insured retentions must be declared by the Contractor, and such deductibles and retentions shall have the prior written consent from the City. At the election of the City the Contractor shall either 1) reduce or eliminate such deductibles or self-insured retentions, or 2) procure a bond which guarantees payment of losses and related investigations, claims administration, and defense costs and expenses. b. Contractor shall cause its insurance carrier(s) to furnish the City with either 1) a properly executed original Certificates(s) of Insurance and certified original copies of Endorsements effecting coverage as required herein, or 2) if requested to do so in writing by the City Risk Manager, provide original Certified copies of policies including all GENERAL CONDITIONS 58 Endorsements and all attachments thereto, showing such insurance is in full force and effect. The City, its Director's and officers, employees, agents or representatives are named as Additional Insureds and Provide a Waiver of Subrogation in favor of those parties. Further, said Certificates(s) and policies of insurance shall contain the covenant of the insurance carrier(s) that shall provide no less than thirty (30) days written notice be given to the City prior to any material modification or cancellation of such insurance. In the event of a material modification or cancellation of coverage, the City may terminate or Stop Work pursuant to the Contract Documents, unless the City receives, prior to such effective date, another properly executed original Certificate of Insurance and original copies of endorsements or certified original policies, including all endorsements and attachments thereto evidencing coverages set forth herein and the insurance required herein is in full force and effect. Contractor shall not take possession, or use the Project site, or commence operations under this Agreement until the City has been furnished original Certificate(s) of Insurance and certified original copies of Endorsements or policies of insurance including all Endorsements and any. and all other attachments as required in this Section. The original Endorsements for each policy and the Certificate of Insurance shall be signed by an individual authorized by the insurance carrier to do so on its behalf. C. It is understood and agreed to by the parties hereto and the insurance company(s), that the Certificate(s) of Insurance and policies shall so covenant and shall be construed as primary, and the City's insurance and/or deductibles and/or self-insured retentions or self-insured programs shall not be construed as contributory. d. The City reserves the right to adjust the monetary limits of insurance coverage's during the term of this Contract including any extension thereof-if in the City's reasonable judgment, the amount or type of insurance carried by the Contractor becomes inadequate. e. Contractor shall pass down the insurance obligations,contained herein to all tiers of sub- contractors working under this Contract. ARTICLE 43. TIME FOR COMPLETION AND LIQUIDATED DAMAGES a. Time for Completion/Liquidated Damages. Work shall be commenced within ten (10) days of the date stated in the City's Notice to Proceed and shall be completed by Contractor in the time specified in the Contract Documents. The City is under no obligation to consider early completion of the Project; and the Contract completion date shall not be amended by the City's receipt or acceptance of the Contractor's proposed earlier completion date. Furthermore, Contractor shall not, under any circumstances, receive additional compensation from the City (including but not limited to indirect, general, administrative or other forms of overhead costs) for the period between the time of earlier completion proposed by the Contractor and the Contract completion date. If The Work is not completed as stated in the Contract Documents, it is understood that the City will suffer damage. In accordance with Government Code section 53069.85, being impractical and infeasible to determine the amount of actual damage, it is agreed that Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the GENERAL CONDITIONS 59 sum stipulated in the Contract for each day of delay until The Work is fully completed. Contractor and its surety shall be liable for any liquidated damages. Any money due or to become due the Contractor may be retained to cover liquidated damages. b. Inclement Weather. Contractor shall abide the Engineer's determination of what constitutes inclement weather. Time extensions for inclement weather shall only be granted when the Work stopped during inclement weather is on the critical path of the Project schedule. C. Extension of Time. Contractor shall not be charged liquidated damages because of any delays in completion of The Work due to unforeseeable causes beyond the control and without the fault or negligence of Contractor (or its subcontractors or suppliers). Contractor shall within five (5) Days of identifying any such delay notify the City in writing of causes of delay. The City shall ascertain the facts and extent of delay and grant extension of time for completing The Work when, in its judgment, the facts justify such an extension. Time extensions to the Project shall be requested by the Contractor as they occur and without delay. No delay claims shall be permitted unless the event or occurrence delays the completion of the Project beyond the Contract completion date. d. No Damages for Reasonable Delay. The City's liability to Contractor for delays for which the City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. In no case shall the City be liable for any costs which are borne by the Contractor in the regular course of business, including, but not limited to, home office overhead and other ongoing costs. Damages caused by unreasonable City delay, including delays caused by items that are the responsibility of the City pursuant to Government Code section 4215, shall be based on actual costs only, no proportions or formulas shall be used to calculate any delay damages. ARTICLE 44. COST BREAKDOWN AND PERIODIC ESTIMATES Contractor shall furnish on forms Approved by the City: a. Within ten (10) Days of award of the Contract a detailed estimate giving a complete breakdown of the Contract price; b. A monthly itemized estimate of Work done for the purpose of making progress payments. In order for the City to consider and evaluate each progress payment application, the Contractor shall submit a detailed measurement of Work performed and a progress estimate of the value thereof before the tenth (10th) Day of the following month. C. Contractor shall submit, with each of its payment requests, an adjusted list of actual quantities, verified by the Engineer, for unit price items listed, if any, in the Bid Form. d. Following the City's Acceptance of the Work, the Contractor shall submit to the City a written statement of the final quantities of unit price items for inclusion in the final payment request. GENERAL CONDITIONS 60 e. The City shall have the right to adjust any estimate of quantity and to subsequently correct any error made in any estimate for payment. Contractor shall certify under penalty of perjury, that all cost breakdowns and periodic estimates accurately reflect the Work on the Project. ARTICLE 45. MOBILIZATION a. When a bid item is included in the Bid Form for mobilization, the costs of Work in advance of construction operations and not directly attributable to any specific bid item will be included in the progress estimate ("Initial Mobilization"). When no bid item is provided for"Initial Mobilization," payment for such costs will be deemed to be included in the other items of The Work. b. Payment for Initial Mobilization based on the lump sum provided in the Bid Form, which shall constitute full compensation for all such Work. No payment for Initial Mobilization will be made until all of the listed items have been completed to the satisfaction of the Engineer. The scope of the Work included under Initial Mobilization shall include, but shall not be limited to, the following principal items: 1. Obtaining and paying for all bonds, insurance, and permits. 2. Moving on to the Project site of all Contractor's plant and equipment required for first month's operations. 3. Installing temporary construction power, wiring, and lighting facilities. 4. Establishing fire protection system. 5. Developing and installing a construction water supply. 6. Providing and maintaining the field office trailers for the Contractor and the Engineer, complete, with all specified furnishings and utility services including telephones, telephone appurtenances, computer and printer, and copying machine. 7. Providing on-site communication facilities for the Owner and the Engineer, including telephones, radio pagers, and fax machines. 8. Providing on-site sanitary facilities and potable water facilities as specified per Cal-OSHA and these Contract Documents. 9. Furnishing, installing, and maintaining all storage buildings or sheds required for . temporary storage of products, equipment, or materials that have not yet been installed in the Work. All such storage shall meet manufacturer's specified storage requirements, and the specific provisions of the specifications, including temperature and humidity control, if recommended by the manufacturer, and for all security. GENERAL CONDITIONS 61 10. Arranging for and erection of Contractor's work and storage yard. 11. Posting all OSHA required notices and establishment of safety programs per Cal- OSHA. 12. Full-time presence of Contractor's superintendent at the job site as required herein. 13. Submittal of Construction Schedule as required by the Contract Documents. ARTICLE 46. PAYMENTS a. The City shall make monthly progress payments following receipt of undisputed and properly submitted payment requests. Contractor shall be paid a sum equal to ninety percent (90%) of the value of Work performed up to the last day of the previous month, less the aggregate of previous payments. b. The Contractor shall, after the full completion of The Work, submit a final payment application. All prior progress estimates shall be subject to correction in the final estimate and payment. C. Unless otherwise required by law, the final payment of ten percent (10%) of the value of the Work, if unencumbered, shall be paid no later than sixty (60) Days after the date of recordation of the Notice of Completion. d. Acceptance by Contractor of the final payment shall constitute a waiver of all claims against the City arising from this Contract. C. Payments to the Contractor shall not be construed to be an acceptance of any defective work or improper materials, or to relieve the Contractor of its obligations under the Contract Documents. f. The Contractor shall submit with each payment request the Contractor's conditional waiver of lien for the entire amount covered by such payment request, as well as a valid unconditional waiver of lien from the Contractor and all subcontractors and materialmen for all work and materials included in any prior invoices. Waivers of lien shall be in the forms prescribed by California Civil Code Section 3262. Prior to final payment by the City, the Contractor shall submit a final waiver of lien for the Contractor's work, together with releases of lien from any subcontractor or materialmen. ARTICLE 47. PAYMENTS WITHHELD AND BACKCHARGES In addition to amounts which the City may retain under other provisions of the Contract Documents the City may withhold payments due to Contractor as may be necessary to cover: a. Stop Notice Claims. b. Defective work not remedied. GENERAL CONDITIONS 62 C. Failure of Contractor to make proper payments to its subcontractors or suppliers. d. Completion of the Contract if there exists a reasonable doubt that the work can be completed for balance then unpaid. e. Damage to another contractor or third party. f. Amounts which may be due the City for claims against Contractor. g. Failure of Contractor to keep the record ("as-built') drawings up to date. h. Failure to provide updates on the construction schedule. i. Site clean up. j. Failure of the Contractor to comply with requirements of the Contract Documents. k. Liquated damages. 1. Legally permitted penalties. Upon completion of the Contract, the City will reduce the final Contract amount to reflect costs charged to the Contractor, backcharges or payments withheld pursuant to the Contract Documents. GENERAL CONDITIONS 63 ARTICLE 48. CHANGES AND EXTRA WORK a. Change Order Work. 1) The City, without invalidating, the Contract, may order changes in the Work consisting of additions, deletions or other revisions, the Contract amount and Contract time being adjusted accordingly. All such changes in the Work shall be authorized by Change Order, and shall be performed under the applicable conditions of the Contract Documents. A Change Order signed by the Contractor indicates the Contractor's agreement therewith, including any adjustment in the Contract amount or the Contract time, and the full and final settlement of all costs (direct, indirect and overhead) related to the Work authorized by the Change Order. 2) All claims for additional compensation to the Contractor shall be presented in writing before the expense is incurred and will be adjusted as provided herein. No work shall be allowed to lag pending such adjustment, but shall be promptly executed as directed, even if a dispute arises. No claim will be considered after the work in question has been done unless a written contract change order has been issued or a timely written notice of claim has been made by Contractor. Contractor shall not be entitled to claim or bring suit for damages, whether for loss of profits or otherwise, on account of any decrease or omission of any item or portion of Work to be done. Whenever any change is made as provided for herein, such change shall be considered and treated as though originally included in the Contract, and shall be subject to all terms, conditions and provisions of the original Contract. 3) Owner Initiated Change. The Contractor must submit a complete cost proposal, including any change in the Contract time, within seven (7) Days after receipt of a scope of a proposed change order, unless the City requests that proposals be submitted in less than seven (7) Days. 4) Contractor Initiated Change The Contractor must give written notice of a proposed change order required for compliance with the Contract Documents within seven (7) Days of discovery of the facts giving rise to the proposed change order. 5) Whenever possible, any changes to the Contract amount shall be in a lump sum mutually agreed to by the Contractor and the City. 6) Price quotations from the Contractor shall be accompanied by sufficiently detailed supporting documentation to permit verification by the City. 7) If the Contractor fails to submit the cost proposal within the seven (7) Day period (or as requested), the City has the right to order the Contractor in writing to commence the work immediately on a force account basis and/or issue a lump GENERAL CONDITIONS 64 sum change to the contract price in accordance with the City's estimate of cost. If the change is issued based on the City estimate, the Contractor will waive its right to dispute the action unless within fifteen (15) Days following completion of the added/deleted work, the Contractor presents written proof that the City's estimate was in error. 8) Estimates for lump sum quotations and accounting for cost-plus-percentage work shall be limited to direct expenditures necessitated specifically by the subject extra work, and shall be segregated as follows: (a) Labor. The costs of labor will be the actual cost for wages prevailing locally for each craft or type of worker at the time the extra work is done, plus employer payments of payroll taxes and insurance, health and welfare, pension, vacation, apprenticeship funds, and other direct costs resulting from Federal, State or local laws, as well as assessment or benefits required by lawful collective bargaining agreements. The use of a labor classification which would increase the extra work cost will not be permitted unless the contractor establishes the necessity for such additional costs. Labor costs for equipment operators and helpers shall be reported only when such costs are not included in the invoice for equipment rental. (b) Materials. The cost of materials reported shall be at invoice or lowest current price at which such materials are locally available in the quantities involved, plus sales tax, freight and delivery. Materials cost shall be based upon supplier or manufacturer's invoice. If invoices or other satisfactory evidence of cost are not furnished within fifteen (15) Days of delivery, then the Engineer shall determine the materials cost, at its sole discretion. (c) Tool and Equipment Use. No payment will be made for the use of small tools, tools which have a replacement value of$1,000 or less. Regardless of ownership, the rates to be used in determining equipment use costs shall not exceed listed rates prevailing locally at equipment rental agencies, or distributors, at the time the work is performed. (d) Overhead. Profit and Other Charges. The mark-up for overhead (including supervision) and profit on work added to the Contract shall be according to the following: i. "Net Cost" is defined as consisting of costs of labor, materials and tools and equipment only excluding overhead and profit. The costs of applicable insurance and bond premium will be reimbursed to the Contractor and subcontractors at cost only, without mark-up. ii. For Work performed by the Contractor's forces the added cost for overhead and profit shall not exceed fifteen (15%) percent of the Net Cost of the Work. GENERAL CONDITIONS 65 iii. For Work performed by a subcontractor, the added cost for overhead and profit shall not exceed fifteen (15%) percent of the Net Cost of the Work to which the Contractor may add five (5%) percent of the subcontractor's Net Cost. iv. For Work performed by a sub-subcontractor the added cost for overhead and profit shall not exceed fifteen (15 %) percent of the Net Cost for Work to which the subcontractor and general contractor may each add an additional five (5 %) percent of the Net Cost of the lower tier subcontractor. iv. No additional mark up will be allowed for lower tier subcontractors, and in no case shall the added cost for overhead and profit payable by City exceed twenty-five (25%) percent of the Net Cost as defined herein. 9) For added or deducted Work by subcontractors, the Contractor shall furnish to the City the subcontractor's signed detailed estimate of the cost of labor, material and equipment, including the subcontractor markup for overhead and profit. The same requirement shall apply to sub-subcontractors. 10) For added or deducted work furnished by a vendor or supplier, the Contractor shall furnish to the City a detailed estimate or quotation of the cost to the Contractor, signed by such vendor or supplier. 11) Any change in The Work involving both additions and deletions shall indicate a net total cost, including subcontracts and materials. Allowance for overhead and profit, as specified herein, shall be applied if the net total cost is an extra; overhead and profit allowances shall not be applied if the net total cost is a credit. The estimated cost of deductions shall be based on labor and material prices on the date the Contract was executed. 12) Contractor shall not reserve a right to assert impact costs, extended job site costs, extended overhead, constructive acceleration and/or actual acceleration beyond what is stated in the change order for work. No claims shall be allowed for impact, extended overhead costs, constructive acceleration and/or actual acceleration due to a multiplicity of changes and/or clarifications. The Contractor may not change or modify the City's change order form in an attempt to reserve additional rights. 13) If the City disagrees with the proposal submitted by Contractor, it will notify the Contractor and the City will provide its opinion of the appropriate price and/or time extension. If the Contractor agrees with the City, a change order will be issued by the City. If no agreement can be reached, the City shall have the right to issue a unilateral change order setting forth its determination of the reasonable additions or savings in costs and time attributable to the extra or deleted work. Such determination shall become final and binding if the Contractor fails to GENERAL CONDITIONS 66 submit a claim in writing to the City within fifteen (15) Days of the issuance of the unilateral change order, disputing the terms of the unilateral change order. 14) No dispute, disagreement or failure of the parties to reach agreement on the terms of the change order shall relieve the Contractor from the obligation to proceed with performance of the work, including extra work, promptly and expeditiously. 15) Any alterations, extensions of time, extra work or any other changes may be made without securing consent of the Contractor's surety or sureties. ARTICLE 49. OCCUPANCY The City reserves the right to occupy or utilize any portion of The Work at any time before completion, and such occupancy or use shall not constitute Acceptance of any part of Work covered by this Contract. This use shall not relieve the Contractor of its responsibilities under the Contract. ARTICLE 50. INDEMNIFICATION Contractor shall defend (with counsel of City's choosing), indemnify and hold the City, its officials, officers, agents, employees, and representatives free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, to the extent arising out of or incident to any acts, omissions or willful misconduct of Contractor, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Work or this Contract, including claims made by subcontractors for nonpayment, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. Contractor shall defend, at Contractor's own cost, expense and risk, with counsel of City's choosing, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its officials, officers, agents, employees and representatives. To the extent of its liability, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City, its officials, officers, employees, agents, employees and representatives, in any such suit, action or other legal proceeding. Contractor shall reimburse City, its officials, officers, agents, employees and representatives for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. The only limitations on this provision shall be those imposed by Civil Code Section 2782. ARTICLE 51. RECORD ("AS BUILT") DRAWINGS a. Contractor shall prepare and maintain a complete set of record drawings (herein referred to as "as-builts") and shall require each trade to prepare its own as-builts. The as-builts must show the entire site for each major trade, including but not limited to water, sewer, electrical, data, telephone, cable, fire alarm, gas and plumbing. Contractor shall mark the as-builts to show the actual installation where the installation varies from the Work as originally shown. Contractor shall mark whichever drawings are most capable of showing conditions fully and where shop drawings are used, Contractor must record a GENERAL CONDITIONS 67 cross-reference at the corresponding location on the contract drawings. Contractor shall give particular attention to concealed elements that would be difficult to measure and record at a later date. Contractor shall use colors to distinguish variations in separate categories of The Work. b. Contractor shall note related change order numbers where applicable. Contractor shall organize as-builts into manageable sets, bound with durable paper cover sheets and shall print suitable title, dates and other identification on the cover of each set. Contractor to also provide an electronic version of the as-builts. The suitability of the as-builts will be determined by the Engineer. ARTICLE 52. RESOLUTION OF CONSTRUCTION CLAIMS a. In accordance with Public Contract Code Sections 20104 et seq. and other applicable law, public works claims of$375,000 or less which arise between the Contractor and the City shall be resolved under the following the statutory procedure unless the City has elected to resolve the dispute pursuant to Public Contract Code Section 10240 et seq. b. All Claims: All claims shall be submitted in writing and accompanied by substantiating documentation. Claims must be filed on or before the date of final payment unless other notice requirements are provided in the contract. "Claim" means a separate demand by the claimant for (1) a time extension, (2) payment of money or damages arising from work done by or on behalf of the claimant and payment of which is not otherwise expressly provided for or the claimant is not otherwise entitled, or (3) an amount the payment of which is disputed by the City. C. Claims Under $50,000. The City shall respond in writing to the claim within 45 days of receipt of the claim, or, the City may request, in writing, within 30 days of receipt of the claim, any additional documentation supporting the claim or relating to defenses or claims the City may have. If additional information is needed thereafter, it shall be provided upon mutual agreement of the City and the claimant. The City's written response shall be submitted 15 days after receiving the additional documentation, or within the same period of time taken by the claimant to produce the additional information, whichever is greater. d. Claims over $50,000 but less than or equal to $375,000. The City shall respond in writing within 60 days of receipt, or, may request in writing within 30 days of receipt of the claim, any additional documents supporting the claim or relating to defenses or claims the City may have against the claimant. If additional information is needed thereafter, it shall be provided pursuant to mutual agreement between the City and the claimant. The City's response shall be submitted within 30 days after receipt of the further documents, or within the same period of time taken by the claimant to produce the additional information or documents, whichever is greater. The Contractor shall make these records and documents available at all reasonable times, without any direct charge. e. The Contractor will submit the claim justification in the following format: GENERAL CONDITIONS 68 1) Summary of claim merit and price, and Contract clause pursuant to which the claim is made. 2) List of documents relating to claim (a) Specifications (b) Drawings (c) Clarifications (Requests for Information) (d) Schedules (e) Other 3) Chronology of events and correspondence 4) Analysis of claim merit 5) Analysis of claim cost 6) Analysis of time impact analysis in CPM format 7) Cover letter and certification of validity of the claim f. If the claimant disputes the City's response, or if the City fails to respond within the statutory time period(s), the claimant may so notify the City within 15 days of the receipt of the response or the failure to respond, and demand an informal conference to meet and confer for settlement. Upon such demand, the City shall schedule a meet and confer conference within 30 Days. g. If following the meet and confer conference, the claim or any portion thereof remains in dispute, the claimant may file a claim pursuant to Government Code 900 et seq. and Government Code 910 et seq. For purposes of those provisions, the time within which a claim must be filed shall be tolled from the time the claimant submits the written claim until the time the claim is denied, including any time utilized for the meet and confer conference. h. Submission of a claim, properly certified, with all required supporting documentation, and written rejection or denial of all or part of the claim by City, is a condition precedent to any action, proceeding, litigation, suit, general conditions claim, or demand for arbitration by Contractor. ARTICLE 53. CITY'S RIGHT TO TERMINATE CONTRACT a. Termination for Cause: The City may, without prejudice to any other right or remedy, serve written notice upon Contractor of its intention to terminate this Contract if the Contractor: (i) refuses or fails to prosecute The Work or any part thereof with such diligence as will ensure its completion within the time required; (ii) fails to complete The GENERAL CONDITIONS 69 Work within the required time; (iii) should file a bankruptcy petition or be adjudged a bankrupt; (iv) should make a general assignment for the benefit of its creditors; (v) should have a receiver appointed; (vi) should persistently or repeatedly refuse or fail to supply enough properly skilled workers or proper materials to complete the work; (vii) should fail to make prompt payment to subcontractors or for material or labor; (viii) persistently disregard laws, ordinances, other requirements or instructions of the City; or (ix) should violate any of the provisions of the Contract Documents. The notice of intent to terminate shall contain the reasons for such intention to terminate. Unless within ten (10) Days after the service of such notice, such condition shall cease or satisfactory arrangements (acceptable to the City) for the required correction are made, this Contract shall be terminated. In such case, Contractor shall not be entitled to receive any further payment until the Project has been finished. The City may take over and complete The Work by any method it may deem appropriate. Contractor and its surety shall be liable to the City for any excess costs or other damages incurred by the City to complete the Project. If the City takes over The Work, the City may, without liability for so doing, take possession of and utilize in completing The Work such materials, appliances, plant, and other property belonging to the Contractor as may be on the Project site. b. Termination For Convenience: The City may terminate performance of The Work in whole or, in part, if the City determines that a termination is in the City's interest. The Contractor shall terminate all or any part of The Work upon delivery to the Contractor of a Notice of Termination specifying that the termination is for the convenience of the City, the extent of termination, and the effective date of such termination. After receipt of Notice of Termination, and except as directed by the City, the Contractor shall, regardless of any delay in determining or adjusting any amounts due under this Termination for Convenience clause, immediately proceed with the following obligations: 1) Stop Work as specified in the Notice. 2) Complete any Work specified in the Notice of Termination in a least cost/shortest time manner while still maintaining the quality called for under the Contract Documents. 3) Leave the property upon which the Contractor was working and upon which the facility (or facilities) forming the basis of the Contract Documents is situated in a safe and sanitary manner such that it does not pose any threat to the public health or safety. 4) Terminate all subcontracts to the extent that they relate to the portions of The Work terminated. GENERAL CONDITIONS 70 5) Place no further subcontracts or orders, except as necessary to complete the remaining portion of The Work. 6) Submit to the City, within ten (10) Days from the effective date of the Notice of Termination, all of the documentation called for by the Contract Documents to substantiate all costs incurred by the Contractor for labor, materials and equipment through the Effective- Date of the Notice of Termination. Any documentation substantiating costs incurred by the Contractor solely as a result of the City's exercise of its right to terminate this Contract pursuant to this clause, which costs the Contractor is authorized under the Contract Documents to incur, shall: (i) be submitted to and received by the City no later than thirty (30) Days after the Effective Date of the Notice of Termination; (ii) describe the costs incurred with particularity; and (iii) be conspicuously identified as "Termination Costs Occasioned by the City's Termination for Convenience." 7) These provisions are in addition to and not in limitation of any other rights or remedies available to the City. C. Notwithstanding any other provision of this Article, when immediate action is necessary to protect life and safety or to reduce significant exposure or liability, the City may immediately order Contractor to cease Work on the Project until such safety or liability issues are addressed to the satisfaction of the City or the Contract is terminated. ARTICLE 54. WARRANTY AND GUARANTEE a. Contractor warrants that all materials and equipment furnished under this Contract shall be new unless otherwise specified in the Contract Documents; and that all Work conforms to the Contract Document requirements and is free of any defect whether performed by the Contractor or any subcontractor or supplier. b. Unless otherwise stated, all warranty periods shall begin upon the filing of the Notice of Completion. Unless otherwise stated, the warranty period shall be for one year. C. The Contractor shall remedy at its expense any damage to City-owned or controlled real or personal property. d. Contractor shall furnish the City with all warranty and guarantee documents prior to final Acceptance of the Project by the City. e. The City shall notify the Contractor, in writing, within a reasonable time after the discovery of any failure, defect, or damage. The Contractor shall within ten (10) Days after being notified commence and perform with due diligence all necessary Work. If the Contractor fails to promptly remedy any defect, or damage; the county shall have the right to replace, repair, or otherwise remedy the defect, or damage at the Contractor's expense. GENERAL CONDITIONS 71 f In the event of any emergency constituting an immediate hazard to health, safety, property, or licensees, when caused by Work of the Contractor not in accordance with the Contract requirements, the City may undertake at Contractor's expense, and without prior notice, all Work necessary to correct such condition. g. With respect to all warranties, express or implied, from subcontractors, manufacturers, or suppliers for Work performed and Materials furnished under this Contract, the Contractor shall: 1) Obtain for City all warranties that would be given-in normal commercial practice; 2) Require all warranties to be executed, in writing, for the benefit of the City; and 3) Enforce all warranties for the benefit of the City, unless otherwise directed in writing by the City. This Article shall not limit the City's rights under this Contract or with respect to latent defects, gross mistakes, or fraud. The City specifically reserves all rights related to defective work, including but not limited to the defect claims pursuant to California Code of Civil Procedure Section 337.15. ARTICLE 55. DOCUMENT RETENTION & EXAMINATION a. In accordance with Government Code Section 8546.7, records of both the City and the Contractor shall be subject to examination and audit by the State Auditor General for a period of three (3) years after final payment. b. Contractor shall make available to the City any of the Contractor's other documents related to the Project immediately upon request of the City. C. In addition to the State Auditor rights above, the City shall have the right to examine and audit all books, estimates, records, contracts, documents, bid documents, subcontracts, and other data of the Contractor (including computations and projections) related to negotiating, pricing, or performing the modification in order to evaluate the accuracy and completeness of the cost or pricing data at no additional cost to the City, for a period of four(4) years after final payment. ARTICLE 56. SOILS INVESTIGATIONS When a soils investigation report for the Project site is available, such report shall not be a part of the Contract Documents. Any information obtained from such report as to subsurface soil condition, or to elevations of existing grades or elevations of underlying rock, is approximate only and is not guaranteed. Contractor acknowledges that any soils investigation report (including any borings) was prepared for purposes of design only and Contractor is required to examine the site before submitting its bid and must make whatever tests it deems appropriate to determine the underground condition of the soil. GENERAL CONDITIONS 72 ARTICLE 57. SEPARATE CONTRACTS a. The City reserves the right to let other contracts in connection with this Work or on the Project site. Contractor shall permit other contractors reasonable access and storage of their materials and execution of their work and shall properly connect and coordinate its Work with theirs. b. To ensure proper execution of its subsequent Work, Contractor shall immediately inspect work already in place and shall at once report to the Engineer any problems with the work in place or discrepancies with the Contract Documents. C. Contractor shall ascertain to its own satisfaction the scope of the Project and nature of any other contracts that have been or may be awarded by the City in prosecution of the Project to the end that Contractor may perform this Contract in the light of such other contracts, if any. Nothing herein contained shall be interpreted as granting to Contractor exclusive occupancy at site of the Project. Contractor shall not cause any unnecessary hindrance or delay to any other contractor working on the Project. if simultaneous execution of any contract for the Project is likely to cause interference with performance of some other contract or contracts, the Engineer shall decide which Contractor shall cease Work temporarily and which contractor shall continue or whether work can be coordinated so that contractors may proceed simultaneously. The City shall not be responsible for any damages suffered or for extra costs incurred by Contractor resulting directly or indirectly from award, performance, or attempted performance of any other contract or contracts on the Project site. ARTICLE 58. NOTICE AND SERVICE THEREOF All notices shall be in writing and either served by personal delivery or mailed to the other party as designated in the Bid Forms. Written notice to the Contractor shall be addressed to Contractor's principal place of business unless Contractor designates another address in writing for service of notice. Notice to City shall be addressed to the City as designated in the Notice Inviting Bids unless City designates another address in writing for service of notice. Notice shall be effective upon receipt or five (5) Days after being sent by first class mail, whichever is earlier. Notice given by facsimile shall not be effective unless acknowledged in writing by the receiving Ply ARTICLE 59. NOTICE OF THIRD PARTY CLAIMS Pursuant to Public Contract Code Section 9201, the City shall provide Contractor with timely notification of the receipt of any third-party claim relating to the Contract. ARTICLE 60. STATE LICENSE BOARD NOTICE. Contractors are required by law to be licensed and regulated by the Contractors' State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a GENERAL CONDITIONS 73 contractor may be referred to the Registrar, Contractors' State License Board, P.O. Box 26000, Sacramento, California 95826. ARTICLE 61. INTEGRATION a. Oral Modifications Ineffective. No oral order, objection, direction, claim or notice by any party or person shall affect or modify any of the terms or obligations contained in the Contract Documents. b. Contract Documents Represent Entire Contract. The Contract Documents represent the entire agreement of the City and Contractor. ARTICLE 62. ASSIGNMENT Contractor shall not assign, transfer, convey, sublet, or otherwise dispose of this Contract or any part thereof including any claims, without prior written consent of the City. Any assignment without the written consent of the City shall be void. Any assignment of money due or to become due under this Contract shall be subject to a prior lien for services rendered or Material supplied for performance of Work called for under the Contract Documents in favor of all persons, firms, or corporations rendering such services or supplying such Materials to the extent that claims are filed pursuant to the Civil Code, the Code of Civil Procedure or the Government Code. ARTICLE 63. CHANGE IN NAME AND NATURE OF CONTRACTOR'S LEGAL ENTITY Should a change be contemplated in the name or nature of the Contractor's legal entity, the Contractor shall first notify the City in order that proper steps may be taken to have the change reflected on the Contract. ARTICLE 64. ASSIGNMENT OF ANTITRUST ACTIONS Pursuant to Section 7103.5 of the Public Contract Code, in entering into a public works contract or subcontract to supply goods, services, or materials pursuant to a public works contract, Contractor or subcontractor offers and agrees to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Section 15) or under the Cartwright Act (chapter 2 (commencing with Section 16700) of part 2 of division 7 of the Business and Professions Code), arising from the purchase of goods, services, or materials pursuant to this Contract or any subcontract. This assignment shall be made and become effective at the time the City makes final payment to the Contractor, without further acknowledgment by the parties. ARTICLE 65. PROHIBITED INTERESTS/CONFLICT OF INTEREST No City official or representative who is authorized in such capacity and on behalf of the City to negotiate, supervise, make, accept, or approve, or to take part in negotiating, supervising, making, accepting or approving any engineering, inspection, construction or material supply contract or any subcontract in connection with construction of the project, shall be or become GENERAL CONDITIONS 74 directly or indirectly interested financially in the Contract. In the procurement of supplies, equipment, construction, and services by subrecipients, the conflict of interest provisions in 24 CFR 85.36, OMB Circular A-110, and 24 CFR 570.611, respectively, shall apply. No employee, officer or agent of the subrecipient shall participate in selection, or in the award or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved. ARTICLE 66. LAWS AND REGULATIONS a. Contractor shall give all notices and comply with all laws, ordinances, rules and regulations bearing on conduct of work as indicated and specified. If Contractor observes that drawings and specifications are at variance therewith, he shall promptly notify the Engineer in writing and any necessary changes shall be adjusted as provided for in this Contract for changes in work. If Contractor performs any work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to the Engineer, he shall bear all costs arising therefrom. b. Contractor shall be responsible for familiarity with the Americans with Disabilities Act ("ADA") (42 U.S.C. § 12101 et seq.). The Work will be performed in compliance with ADA regulations. ARTICLE 67. PATENT FEES OR ROYALTIES. The Contractor shall include in its bid amount the patent fees or royalties on any patented article or process furnished or used in the Work. Contractor shall assume all liability and responsibility arising from the use of any patented, or allegedly patented, materials, equipment, devices or processes used in or incorporated with The Work, and shall defend, indemnify and hold harmless the City, its officials, officers, agents, employees and representatives from and against any and all liabilities, demands, claims, damages, losses, costs and expenses, of whatsoever kind or nature, arising from such use. ARTICLE 68. OWNERSHIP OF DRAWING All Contract Documents furnished by the City are City property. They are not to be used by Contractor or any subcontractor on other work nor shall Contractor claim any right to such documents. With exception of one complete set of Contract Documents, all documents shall be returned to the City on request at completion of The Work. ARTICLE 69. NOTICE OF TAXABLE POSSESSORY INTEREST In accordance with Revenue and Taxation Code Section 107.6, the Contract Documents may create a possessory interest subject to personal property taxation for which Contractor will be responsible. GENERAL CONDITIONS 75 SPECIAL CONDITIONS The City has not made findings pursuant to Public Contract Code Section 3400(b) regarding the use of specific materials, products, things, and/or services that must be utilized for the Project. SPECIAL CONDITIONS 76 TECHNICAL SPECIFICATIONS Proiect Scope: Area # 1 Project will consist of the complete installation of(1) 4 post picnic shelter 20' x 24' x 9' square tube style shelter with hip and ridge roof with eves and vertical ribbed sheet metal roof, manufactured by Americana or equivalent. Installation will include footings with reinforcement per manufactures stamped plans and concrete slab with 5' walkway to play area. Contractor will be responsible for demolition of existing turf area, grade, fill with crusher base and form for concrete slabs (26' x 22' x 4"), digging of footings, stub out for future electrical, pour and finish slab for shelter. Additional 10' x 22'x 4" slab will be required to accommodate BB-Q and serving table. Equivalent must be submitted (7) days prior to bid opening. Area#2 Additional concrete slab (31' x 55' x 4") will be poured under existing shelter with a poured in place concrete bench 18" x 19" x 54' and (6) concrete pilasters 24" x 24" x 12"high around existing shelter post. Shelter is located inside fenced pool area. Contractor will be responsible for demolition of existing turf, grading, stub out for future electrical, filling with crusher base and compaction to 90%, forming, pouring and finishing of slab. Contractor will also be responsible for all permits and any special inspection or inspector costs. Vendor and contractor must provide all necessary materials, labor and equipment to successfully complete shelter and concrete installation. Contractor must comply with all City of Azusa's Building codes and standard specification for public works construction. Requirements: • Shelter vendor must provide a written letter from manufacturer, stating that this picnic shelter is specifically for Slauson Park Shelter Improvements Project # D61332 located in the City of Azusa. This letter must show that this manufacturer is a LA Certified shop or equivalent and provide names and a copy for all welders working on this shelter. Welders must be L.A. certified or equivalent. • Shelter vendor/contractor must supply all certificates on all bolts, anchor bolts and reinforcement bars. • Vendor/contractor must provide (3) sets of drawing (8-1/2 x 17) on project and must include footing design and all necessary wind and load calculation. Drawing must be stamped and signed by a California Architect and Engineer. • Footings must have reinforcement cages within each footing. (Minimum # 4 reinforcement bar). • Contractor will be responsible for stubbing out (1) 114"rigid conduit at comers of both new and existing shelters. (location to be determined) • Concrete mix design must be minimum 2,500 P.S.I. and provide all load ticket from concrete company. • A soils report stamped by a soils engineer must be provided and all costs of report and inspection by soil engineer will be the responsibility of the contractor. • Contractor will be required to pull all permit and business licenses. Costs will be the responsibility of the contractor. TECHNICAL SPECIFICATIONS 77 Special Requirements • Contractor must work closely with City of Azusa's Parks Division, for installation of 4 concrete picnic tables and benches. Demolition: • Area# I and #2 Removal of approximately 2,500 square feet of turf and dispose of in a suitable dump site. Installation: Area # 1 • Dig footings and place reinforcement cages as per stamped plan. • Stub out '/"conduit for future electrical at corner of shelter. Conduit must be galvanized 12" above ground and 12"below ground. All conduit must be rapped were conduit is in contact with concrete. • Pour concrete slab (36' x 22') and walkway approximately 5' x 20' and finish with a medium broom. Expansion joints shall be no further than 8' apart. Joint to be 1/2" radius. • Install (1) new (4)post picnic shelter 20' x 24' x 9' square tube style shelter with hip and ridge roof with eves and vertical ribbed sheet metal roof. Color must match existing shelters on site. Contractor must submit color for approval. Area#2 • Stub out '/"conduit for future electrical at comer of shelter. Conduit must be galvanized 12" above ground and 12" below ground. All conduit must be rapped were conduit is in contact with concrete. • Pour concrete slab (55' x 3 P) and finish with a medium broom. Expansion joints shall be no further than 8' apart. Expansion Joints to be 1/2"radius. • Install a poured in place concrete bench 18" wide x 19" high, on west side of slab as per drawing and specification sheet. • Install (6) poured in place concrete pilaster 24" x 24"X 12"high around each post of existing shelter. TECHNICAL SPECIFICATIONS 78 PLANS AND DRAWINGS PLANS AND DRAWINGS 79 GENERAL CONDITIONS TABLE OF CONTENTS Page No ARTICLE1. DEFINITIONS.................................................................................................. 39 ARTICLE 2. CONTRACT DOCUMENTS....................................*. ................................... 40 ARTICLE 3. CONTRACTS DOCUMENTS: COPIES & MAINTENANCE ......................41 ARTICLE 4. DETAIL DRAWINGS AND INSTRUCTIONS..............................................41 ARTICLE 5. EXISTENCE OF UTILITIES AT THE WORK SITE..................................... 42 ARTICLE6. SCHEDULE...................................................................................................... 42 ARTICLE 7. SUBSTITUTIONS............................................................................................ 43 ARTICLE 8. SHOP DRAWINGS.......................................................................................... 44 ARTICLE9. SUBMITTALS ................................................................................................. 45 ARTICLE10. MATERIALS.................................................................................................... 45 ARTICLE 11. CONTRACTOR'S SUPERVISION................................................................. 45 ARTICLE12. WORKERS.......................................................................................................46 ARTICLE 13. SUBCONTRACTORS ..................................................................................... 46 ARTICLE 14. PERMITS AND LICENSES ............................................................................ 46 ARTICLE 15. UTILITY USAGE ............................................................................................ 47 ARTICLE 16. INSPECTION FEES FOR PERMANENT UTILITIES................................... 47 ARTICLE17. TRENCHES...................................................................................................... 47 ARTICLE 18. DIVERSION OF RECYCLABLE WASTE MATERIALS............................. 48 ARTICLE 19. REMOVAL OF HAZARDOUS MATERIALS............................................... 48 ARTICLE 20. SANITARY FACILITIES................................................................................ 48 ARTICLE 21. AIR POLLUTION CONTROL........................................................................ 49 ARTICLE 22. COMPLIANCE WITH STATE STORM WATER PERMIT.......................... 49 ARTICLE 23. CLEANING UP................................................................................................ 50 ARTICLE 24. LAYOUT AND FIELD ENGINEERING..................................................:..... 50 ARTICLE 25. EXCESSIVE NOISE........................................................................................ 50 ARTICLE 26. TESTS AND INSPECTIONS........................................................................... 51 ARTICLE 27. PROTECTION OF WORK AND PROPERTY............................................... 51 ARTICLE 28. CONTRACTORS MEANS AND METHODS ................................................ 53 ARTICLE 29. INSPECTOR'S FIELD OFFICE.......... ..... ... ...... **......................................... 53 ARTICLE 30. AUTHORIZED REPRESENTATIVES........................................................... 53 ARTICLE 31. HOURS OF WORK.............................................*"** .........................,............. 54 ARTICLE 32. PAYROLL RECORDS........................................................................*. **.... 54 ARTICLE 33. PREVAILING RATES OF WAGES.....................................*"*'*..................... 55 ARTICLE 34. EMPLOYMENT OF APPRENTICES ............................................................. 56 ARTICLE 35. NONDISCRIMINATION/EQUAL EMPLOYMENT OPPORTUNITY ........ 56 ARTICLE 36. LABOR/EMPLOYMENT SAFETY................................................................ 56 ARTICLE 37. WORKERS' COMPENSATION INSURANCE ............................................. 56 ARTICLE 38. EMPLOYER'S LIABILITY INSURANCE..................................................... 56 ARTICLE 39. COMMERCIAL GENERAL LIABILITY INSURANCE............................... 57 ARTICLE 40. AUTOMOBILE LIABILITY INSURANCE ................................................... 58 ARTICLE 41. BUILDER'S RISK ["ALL RISK"] ..........."..................................................... 58 ARTICLE 42. FORM AND PROOF OF CARRIAGE OF INSURANCE.............................. 58 ARTICLE 43. TIME FOR COMPLETION AND LIQUIDATED DAMAGES ..................... 59 ARTICLE 44. COST BREAKDOWN AND PERIODIC ESTIMATES................................. 60 ARTICLE 45. MOBILIZATION ............................................................................................. 61 GENERAL CONDITIONS -i- GENERAL CONDITIONS TABLE OF CONTENTS Pa2e No ARTICLE46. PAYMENTS..................................................................................................... 62 ARTICLE 47. PAYMENTS WITHHELD AND BACKCHARGES ...................................... 62 ARTICLE 48. CHANGES AND EXTRA WORK.................................................................. 64 ARTICLE49. OCCUPANCY.................................................................................................. 67 ARTICLE 50. INDEMNIFICATION......................................................................................4 67 ARTICLE 51. RECORD ("AS BUILT") DRAWINGS........................................4444............... 67 ARTICLE 52. RESOLUTION OF CONSTRUCTION CLAIMS .............444..............4............ 68 ARTICLE 53. CITY'S RIGHT TO TERMINATE CONTRACT ................4.......44...........4..... 69 ARTICLE 54. WARRANTY AND GUARANTEE................................................4............... 71 ARTICLE 55, DOCUMENT RETENTION & EXAMINATION.......................0444................ 72 ARTICLE 56. SOILS INVESTIGATIONS ...................................................................4....4.... 72 ARTICLE 57. SEPARATE CONTRACTS ....................................................4.......4................ 73 ARTICLE 58. NOTICE AND SERVICE THEREOF.............................................................. 73 ARTICLE 59. NOTICE OF THIRD PARTY CLAIMS ................4............44...........44.............. 73 ARTICLE 60. STATE LICENSE BOARD NOTICE....................4.4........44.............. ....— 73 ARTICLE 61. INTEGRATION ............................................................................................... 74 ARTICLE 62. ASSIGNMENT..................04............o...4.....4 ...4............ ........oo.......44.4.... 74 ARTICLE 63. CHANGE IN NAME AND NATURE OF CONTRACTOR'S LEGAL ENTITY..............................................................4................44.............4............4 74 ARTICLE 64. ASSIGNMENT OF ANTITRUST ACTIONS...4.4................4............44......4..... 74 ARTICLE 65. PROHIBITED INTERESTS.................................4..............................44........44. 74 ARTICLE 66. LAWS AND REGULATIONS...........4........4.................4........4......44............4.... 75 ARTICLE 67. PATENT FEES OR ROYALTIES. ......0.................4.........................4444............ 75 ARTICLE 68. OWNERSHIP OF DRAWING..............4-4.................o--44.............— .......o.. 75 ARTICLE 69. NOTICE OF TAXABLE POSSESSORY INTEREST.................................... 75 ORANGEICHERM OS ILLOkl4620.1 GENERAL CONDITIONS -ii- A A This page is part of your document - DO NOT DISCARD /1 E516469 IIIII11IIIIII1111IIIII11IIIIIInIIIIIIIIVIIIIIIIIIIVIIIIIIBIIIIIII11IIISIIIIIIIIIVII LEADSHEET 201012030810052 00003373348 iA�um�e��i�umu 003022279 01 iWuDAR Mail (Hard sCopy) ��u� imu�u��momM�uNnainuii�uu���� THIS FOR. IS NOT TO BE DUPLICATED � 20101781450 11111111111IIII 11111 IIIII Illll IIIIIIIIIIIIIIIIIIIIIIIIIIIIIII P009f 3 # Recorded/Filed in Official Records Recorder's Office, Los Angeles County, x _ x California o4 12/03/10 AT 03:27PM r cc � In FEES: 0.00 .tet TAXES: 0.00 U OTHER: 0.00 PAID: 0.00 .s �V E516469 IIIII11IIIIII1111IIIII11IIIIIInIIIIIIIIVIIIIIIIIIIVIIIIIIBIIIIIII11IIISIIIIIIIIIVII LEADSHEET 201012030810052 00003373348 iA�um�e��i�umu 003022279 01 iWuDAR Mail (Hard sCopy) ��u� imu�u��momM�uNnainuii�uu���� THIS FOR. IS NOT TO BE DUPLICATED � RECORDING REQUESTED BY: WHEN RECORDED RETURN TO: CITY OF AZUSA 213 E Foothill Blvd. Azusa, CA 91702 A ITN: City Clerk Exerript from recording fee Co Section 6103 CITY OF AZUSf , CALIFORNIA City Clerk 12/0312010 1111111111111111111111111*20101781450*! SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS TRACT NO. 054057-14 (HERITAGE OAKS) between CITY OF AZUSA a California municipal corporation and CITYVIEW ROSEDALE 98, LP a DELAWARE LIMITED PARTNERSHIP ORANGE\MMARTINEZ\33457. 11 I AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS TRACT MAP NO. 54057-14 AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS TRACT MAP NO. 54057-14 L PARTIES AND DATE. This Agreement for the Completion of Public Improvements ("Agreement") is entered into as of this 1 st day of November, 2010 by and between the City of Azusa, a California municipal corporation ("City") and CITYVIEW ROSEDALE 98, LP, a Delaware limited liability company with it's principal office located at 475 WASHINGTON BLVD. MARINA DEL REY ("Developer"). City and Developer are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the "Parties." 1I. RECITALS. A. Developer has heretofore submitted to City an application for approval of a tract snap for real property located within City, a legal description of which is attached hereto as Exhibit "A" ("Property"), and which is identified in City records Tract Map No. 54057-14. B. Developer's application for a tentative tract snap for Tentative Tract No. 54057 was conditionally approved by the City Council on February 3, 2003. C. Developer has not completed all of the work or made all of the public improvements required by Chapter 66, Article V of the Azusa Municipal Code, the Subdivision Map Act (Government Code sections 66410 et SeMc .), the conditions of approval for Tract No. 54057-14 or other ordinances, resolutions, or policies of City requiring construction of improvements in conjunction with the subdivision of land. D. Pursuant to Section 664650) and the applicable provisions of the Map Act, Developer and City enter into this Agreement for the timely construction and completion of the public improvements and the furnishing of the security therefor, acceptable to the City Engineer and City Attorney, for Tract No. 54057-14. E. Developer's execution of this Agreement and the provision of the security are made in consideration of City's approval of the final map for Tract No. 54057-14. III. TERMS. 1.0 Effectiveness. This Agreement shall not be effective unless and until all four of the following conditions are satisfied: (a) Developer provides City with security of the type and in the amounts required by this Agreement; (b) Developer executes and records this Agreement in the Recorder's Office of the County of Los Angeles; (c) the City Council of the City ("City Council") approves the final snap for Tract No. 54057-14 and (d) Developer records the final map for Tract No. 54057-14 in the Recorder's Office of the County of Los Angeles. If the above ORANG E\M MARTIN EZ\33457. 12 3 9 described conditions are not satisfied, this Agreement shall automatically terminate without need of further action by either City or Developer, and Developer may not thereafter record the final snap for Tract No. 54057-14. 2.0 Public Improvements. Developer shall construct or have constructed at its own cost, expense, and liability all improvements required by City as part of the approval of Tract No. 54057-14, including, but not limited to, all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities as shown in detail on the plans, profiles, and specifications which have been prepared by or on behalf of Developer for Tract Map No. 54057- 14 ("Public Improvements"). The Public Improvements are more specifically described in Exhibit "B," which is attached hereto and incorporated herein by this reference. Construction of the Public Improvements shall include any transitions and/or other incidental work deemed necessary for drainage or public safety. The Developer shall be responsible for the replacement, relocation, or removal of any component of any irrigation water system in conflict with the construction or installation of the Public Improvements. Such replacement, relocation, or removal shall be performed to the complete satisfaction of the City Engineer and the owner of such water system. Developer further promises and agrees to provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary or required by City to fully and adequately complete the Public hnprovements. 2.1 Prior Partial Construction of Public Improvements. Where construction of any Public Improvements has been partially completed prior to this Agreement, Developer agrees to complete such Public Improvements or assure their completion in accordance with this Agreement. 2.2 Pen -nits; Notices: Utiles Statements. Prior to commencing any work, Developer shall, at its sole cost, expense, and liability, obtain all necessary permits and licenses and give all necessary and incidental notices required for the lawful construction of the Public Improvements and perfonnance of Developer's obligations under this Agreement. Developer shall conduct the work in full compliance with the regulations, rules, and other requirements contained in any permit or license issued to Developer. Prior to commencing any work, Developer shall file a written statement with the City Clerk and the City Engineer, signed by Developer and each utility which will provide utility service to the Property, attesting that Developer has made all deposits legally required by the utility for the extension and provision of utility service to the Property. 2.3 Pre -approval of Plans and Specifications. Developer is prohibited from commencing work on any Public Improvement until all plans and specifications for such Public Improvement have been submitted to and approved by the City Engineer, or his or her designee. Approval by the City Engineer shall not relieve Developer from ensuring that all Public Improvements conforn with all other requirements and standards set forth in this Agreement. 2.4 Quality of Work; Com liance With Laws and Codes. The construction plans and specifications for the Public Improvements shall be prepared in accordance with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements. The Public Improvements shall be completed in accordance with all approved ORANG E\M MARTINEZ\33457. 0 5 maps, plans, specifications, standard drawings, and special amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements applicable at the time work is actually commenced. 2.5 Standard of Perfonnance. Developer and its contractors, if any, shall perfonn all work required to construct the Public Improvements under this Agreement in a skillful and .workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Developer represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perforin the work. Developer warrants that all of its employees and contractors shall have sufficient skill and experience to perforin the work assigned to them, and that they shall have all licenses, pennits, qualifications and approvals of whatever nature that are Iegally required to perfonn the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the tenn of this Agreement. 2.6 Alterations to Imporovements. The Public Improvements in Exhibit `B" are understood to be only a general designation of the work and improvements to be done, and not a binding description thereof. All work shall be done and improvements made and completed as shown on approved plans and specifications, and any subsequent alterations thereto. If during the course of construction and installation of the Public Improvements it is detennined that the public interest requires alterations in the Public Improvements, Developer shall undertake such design and construction changes as may be reasonably required by City. Any and all alterations in the plans and specifications and the Public Improvements to be completed may be accomplished without giving prior notice thereof to Developer's surety for this Agreement. 3.0 Maintenance of Public Improvements and Landscaping. City shall not be responsible or liable for the maintenance or care of the Public Improvements until City approves and accepts thein. City shall exercise no control over the Public hnprovements until accepted. Any use by any person of the Public Improvements, or any portion thereof, shall be at the sole and exclusive risk of the Developer at all times prior to City's acceptance of the Public Improvements. Developer shall maintain all the Public Improvements in a state of good repair until they are completed by Developer and approved and accepted by City, and until the security for the perfonnance of this Agreement is released. Maintenance shall include, but shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, and sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City; removal of debris from sewers and storin drains; and sweeping, repairing, and maintaining in good and safe condition all streets and street improvements. It shall be Developer's responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perforin such maintenance work when notified to do so by City. If Developer fails to properly prosecute its maintenance obligation under this section, City may do all work necessary for such maintenance and the cost thereof shall be the responsibility of Developer and its surety under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Public hnprovements or their condition prior to acceptance. 4.0 Construction Schedule. Unless extended pursuant to this Section 4.1 of this Agreement, Developer shall fully and adequately complete or have completed the Public ORANG EWMARTIN ED33457. 14 Improvements within twelve (12) months following approval of this agreement for Tract No. 54057-14. 4.1 Extensions. City may, in its sole and absolute discretion, provide Developer with additional time within which to complete the Public Improvements. It is understood that by providing the security required under Section 13.0 et sect. of this Agreement, Developer and its surety consent in advance to any extension of time as may be given by City to Developer, and waives any and all right to notice of such extension(s). Developer's acceptance of an extension of time granted by City shall constitute a waiver by'Developer and its surety of all defense of laches, estoppel, statutes of limitations, and other limitations of action in any action or proceeding filed by City following the date on which the Public Improvements were to have been completed hereunder. In addition, as consideration for granting such extension to Developer, City reserves the right to review the provisions of this Agreement, including, but not limited to, the construction standards, the cost estimates established by City, and the sufficiency of the improvement security provided by Developer, and to require adjustments thereto when warranted according to City's reasonable discretion. 4.2 Accrual of Limitations Period. Any limitations period provided by law related to breach of this Agreement or the terms thereof shall not accrue until Developer has provided the City Engineer with written notice of Developer's intent to abandon or otherwise not complete required or agreed upon Public Improvements. 5.0 Gr_ adinp. Developer agrees that any and all grading done or to be done in conjunction with construction of the Public Improvements or development of Tract No. 54057- 14 shall confonn to all federal, state, and local laws, ordinances, regulations, and other requirements, including City's grading regulations. In order to prevent damage to the Public Improvements by improper drainage or other hazards, the grading shall be completed in accordance with the time schedule for completion of the Public Improvements established by this Agreement, and prior to City's approval and acceptance of the Public Improvements and release of the Security as set forth in Section 13.0 et sem. of this Agreement. 6.0 Utilities. Developer shall provide utility services, including water, power, gas, and telephone service to serve each parcel, lot, or unit of land within Tract No. 54057-14 in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the regulations, schedules and fees of the utilities or agencies providing such services. Except for commercial or industrial properties, Developer shall also provide cable television facilities to serve each parcel, lot, or unit of land in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the requirements of the cable company possessing a valid franchise with City to provide such service within City's jurisdictional limits. All utilities shall be installed underground. 7.0 Fees and Charges. Developer shall, at its sole cost, expense, and liability, pay all fees, charges, and taxes arising out of construction of the Public Improvements, including, but not limited to, all plan check, design review, engineering, inspection, and other service fees, and any impact or connection fees established by City ordinance, resolution, regulation, or policy, or as established by City relative to Tract No. 54057-14. ORANGE\MMARTINEZ\33457. 15 7 8.0 City_ Inspection of Public Improvements. Developer shall, at its sole cost, expense, and liability, and at all times during construction of the Public Improvements, maintain reasonable and safe facilities and provide safe access for inspection by City of the Public Improvements and areas where construction of the Public Improvements is occurring or will occur. 9.0 Default Notice, Remedies. 9.1 Notice. If Developer neglects, refuses, or fails to fulfill or timely complete any obligation, teen, or condition of this Agreement, or if City determines there is a violation of any federal, state, or local law, ordinance, regulation, code, standard, or other requirement, City may at any time thereafter declare Developer to be in default or violation of this Agreement and make written demand upon Developer or its surety, or both, to immediately remedy the default or violation ("Notice"). Developer shall substantially commence the work required to remedy the default or violation within ten (10) days of the Notice. If the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the Notice verbally, and Developer shall substantially commence the required work within twenty-four (24) hours thereof. Immediately upon City's issuance of the Notice, Developer and its surety shall be liable to City for all costs of construction and installation of the Public Improvements and all other administrative costs expenses as provided for in Section 10.0 of this Agreement. 9.2 Failure to Remedy: City Action. If the work required to remedy the noticed default or violation is not diligently prosecuted to a completion acceptable to City within the time frame contained in the Notice, City may complete all remaining work, arrange for the completion of all remaining work, and/or conduct such remedial activity as in its sole and absolute discretion it believes is required to remedy the default or violation. All such work or remedial activity shall be at the sole and absolute cost, expense, and liability of Developer and its surety, without the necessity of giving any further notice to Developer or surety. City's right to take such actions shall in no way be limited by the fact that Developer or its surety may have constructed any, or none of the required or agreed upon Public Improvements at the time of City's demand for perforinance. In the event City elects to complete or arrange for completion of the remaining work and improvements, City may require all work by Developer or its surety to cease in order to allow adequate coordination by City. Notwithstanding the foregoing, if conditions precedent for reversion to acreage can be met and if the interests of City will not be prejudiced thereby, City may also process a reversion to acreage and thereafter recover from Developer or its surety the full cost and expense incurred. 9.3 Other Remedies. No action by City pursuant to Section 9.0 et sec. of this Agreement shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law. City may exercise it rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action for damages, injunctive relief, or specific performance. 10.0 Administrative Costs. If Developer fails to construct and install all or any part of the Public Improvements within the time required by this Agreement, or if Developer fails to comply with any other obligation contained herein, Developer and its surety shall be jointly and ORANGE\MMARTINEZ\33457. ] 6 severally liable to City for all administrative expenses, fees, and costs, including reasonable attorney's fees and costs, incurred in obtaining compliance with this Agreement or in processing any legal action or for any other remedies permitted by law. 11.0 Acceptance of Improvements: As -Built or Record Drawings. If the Public Improvements are properly completed by Developer and approved by the City Engineer, and if they comply with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements, the City Council shall be authorized to accept the Public Improvements. The City Council may, in its sole and absolute discretion, accept fully completed portions of the Public Improvements prior to such time as all of the Public Improvements are complete, which shall not release or modify Developer's obligation to complete the remainder of the Public Improvements within the time required by this Agreement. Upon the total or partial acceptance of the Public Improvements by City, Developer shall file with the Recorder's Office of the County of Los Angeles a notice of completion for the accepted Public Improvements in accordance with California Civil Code section 3093, at which time the accepted Public Improvements shall become the sole and exclusive property of City without payment therefore. If Tract No. 54057-14 was approved and recorded as a single phase map, City shall not accept any one or more of the improvements until all of the Public Improvements are completed by Developer and approved by City. Issuance by City of occupancy permits for any buildings or structures located on the Property shall not be construed in any manner to constitute City's acceptance or approval of any Public Improvements. Notwithstanding the foregoing, City may not accept any Public Improvements unless and until Developer provides one (1) set of "as -built" or record drawings or plans to the City Engineer for all such Public Improvements. The drawings shall be certified and shall reflect the condition of the Public Improvements as constructed, with all changes incorporated therein. 12.0 Warranty and Guarantee. Developer hereby warrants and guarantees all Public Improvements against any defective work or labor done, or defective materials furnished in the performance of this Agreement, including a warranty and guarantee that all trees, shrubs and irrigation within the Property shall survive, with reasonable maintenance, in a vigorous and thriving condition reasonably acceptable to City, for a period of one (1) year following completion of the work and acceptance by City ("Warranty"). During the Warranty period, Developer shall repair, replace, or reconstruct any defective or otherwise unsatisfactory portion of the Public Improvements, including irrigation, shrubs, trees and/or transplanted trees that have died despite reasonable maintenance, in accordance with the current ordinances, resolutions, regulations, codes, standards, tree preservation plans or other requirements of City, and to the approval of the City Engineer. All repairs, replacements, or reconstruction during the Warranty periods shall be at the sole cost, expense, and liability of Developer and its surety. As to any Public Improvements which have been repaired, replaced, or reconstructed during the Warranty period, Developer and its surety hereby agree to extend the Warranty for an additional one (1) year period following City's acceptance of the repaired, replaced, or reconstructed Public Improvements. Nothing herein shall relieve Developer from any other liability it may have under federal, state, or local law to repair, replace, or reconstruct any Public Improvement following expiration of the Warranty or any extension thereof. Developer's warranty obligation under this section shall survive the expiration or terinination of this Agreement. In addition, nothing contained herein shall impose upon Developer additional maintenance obligations for ORANG E\MMARTINEZ\33457. 17 I any Public Improvements that are repaired, replaced or reconstructed once these are accepted by City. 13.0 Security,Surety, Bonds. Prior to execution of this Agreement, Developer shall provide City with surety bonds in the amounts and under the terms set forth below ("Security"). The amount of the Security shall be based on the City Engineer's approximation of the actual cost to construct the Public Improvements, including the replacement cost for all landscaping ("Estimated Costs"). If City determines, in its sole and absolute discretion, that the Estimated Costs have changed, Developer shall adjust the Security in the amount requested by City. Developer's compliance with this provision (Section 13.0 et SeMc .) shall in no way limit or modify Developer's indemnification obligation provided in Section 16.0 of this Agreement. 13.1 Performance Band. To guarantee the faithful perfonnance of the Public Improvements and all the provisions of this Agreement, to protect City if Developer is in default as set forth in Section 8.0 et M. of this Agreement, and to secure Developer's one-year guarantee and warranty of the Public Improvements, including the maintenance of all landscaping in a vigorous and thriving condition, Developer shall provide City a faithful perfonnance bond in the amount of ONE MILLION TWO HUNDRED FIFTEEN THOUSAND SIX HUNDRED THIRTY SIX AND 90/100 DOLLARS ($1,215,636.90), which sum shall be not less than one hundred percent (100%) of the Estimated Costs. The City Council may, in its sole and absolute discretion and upon recommendation of the City Engineer, partially release a portion or portions of the security provided under this section as the Public Improvements are accepted by City, provided that Developer is not in default on any provision of this Agreement or condition of approval for Tract No. 54057-14, and the total remaining security is not less than twenty-five percent (25%) of the Estimated Costs. All security provided under this section shall be released at the end of the Warranty period, or any extension thereof as provided in Section 12 of this Agreement, provided that Developer is not in default on any provision of this Agreement or condition of approval for Tract No. 54057-14. 13.2 Labor & Material Bond. To secure payment to the contractors, subcontractors, laborers, material men, and other persons furnishing labor, materials, or equipment for perfonnance of the Public Improvements and this Agreement, Developer shall provide City a labor and materials bond in the amount of ONE MILLION TWO HUNDRED FIFTEEN THOUSAND SIX HUNDRED THIRTY SIX AND 90/100 DOLLARS ($1,215,636.90), which sum shall not be less than one hundred percent (100%) of the Estimated Costs. The security provided under this section may be released by written authorization of the City Engineer after six (6) months from the date City accepts the final Public Improvements. The amount of such security shall be reduced by the total of all stop notice or mechanic's lien claims of which City is aware, plus an amount equal to twenty percent (20%) of such claims for reimbursement of City's anticipated administrative and legal expenses arising out of such claims. 13.3 Additional Requirements. The surety for any surety bonds provided as Security shall have a current A.M. Best's rating of no less than A:VIII, shall be licensed to do business in California, and shall be satisfactory to City. As part of the obligation secured by the Security and in addition to the face amount of the Security, the Developer or its surety shall secure the costs and reasonable expenses and fees, including reasonable attorney's fees and costs, incurred by City in enforcing the obligations of this Agreement. The Developer and its ORANGE\MMARTINEZ\33457. ] 8 H surety stipulate and agree that no change, extension of time, alteration, or addition to the terms of this Agreement, the Public Improvements, or the plans and specifications for the Public hnprovements shall in any way affect its obligation on the Security. 13.4 Evidence and Incorporation of Securitx. Evidence of the Security shall be provided on the fonns set forth in Exhibit "C," unless other forms are deemed acceptable by the City Engineer and the City Attorney, and when such forms are completed to the satisfaction of City, the forms and evidence of the Security shall be attached hereto as Exhibit "C" and incorporated herein by this reference. 14.0 Monument Security. Prior to City's execution of this Agreement, to guarantee payment to the engineer or surveyor for the setting of all subdivision boundaries, lot corners, and street centerline monuments for Tract No. 54057-14 in compliance with the applicable provisions of City's Municipal and/or Development Code ("Subdivision Monuments"), Developer shall deposit cash with City in the amount of Ten Thousand Dollars ($10,000), which sum shall not be less than one hundred percent (100%) of the costs of setting the Subdivision Monuments as detennined by the City Engineer. Said cash deposit may be released by written authorization of the City Engineer after all required Subdivision Monuments are accepted by the City Engineer, City has received written acknowledgment of payment in full from the engineer or surveyor who set the Subdivision Monuments, and provided Developer is not in default of any provision of this Agreement or condition of approval for Tract No. 54057-14. 15.0 Lien. To secure the timely performance of Developer's obligations under this Agreement, including those obligations for which security has been provided pursuant to Sections 13 et seq. and 14 of this Agreement, Developer hereby creates in favor of City a lien against all portions of the Property not dedicated to City or some other governmental agency for a public purpose. As to Developer's default on those obligations for which security has been provided pursuant to Sections 13 et seg. and 14 of this Agreement, City shall first attempt to collect against such security prior to exercising its rights as a contract lienholder under this section. 16.0 Indemnification. Developer shall defend, indemnify, and hold harmless City, its elected officials, officers, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury, to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of Developer, its personnel, employees, agents, or contractors in connection with or arising out of construction or maintenance of the Public Improvements, or perfornance of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys fees, and related costs or expenses, and the reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused solely and exclusively by the negligence or willful misconduct of Agency as detennined by a court or administrative body of competent jurisdiction. Developer's obligation to indemnify shall survive the expiration or ORANGE\MMARTINEZ\33457. 19 terinination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, officers, employees, or agents. 17.0 Insurance. 17.1 hues; Amounts. Developer shall procure and maintain, and shall require its contractors to procure and maintain, during construction of any Public Improvement pursuant to this Agreement, insurance of the types and in the amounts described below ("Required Insurance"). If any of the Required Insurance contains a general aggregate limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurrence limit. 17.1.1 General Liability. Developer and its contractors shall procure and maintain occurrence version general liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage. 17.1.2 Business Automobile Liability. Developer and its contractors shall procure and maintain business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for the ownership, operation, maintenance, use, loading, or unloading of any vehicle owned, leased, hired, or borrowed by the insured or for which the insured is responsible. 17.1.3 Workers' Compensation. Developer and its contractors shall procure and maintain workers' compensation insurance with limits as required by the Labor Code of the State of California and employers' liability insurance with limits of not less than $1,000,000 per occurrence, at all times during which insured retains employees. 17.1.4 Professional Liabil�. For any consultant or other professional who will engineer or design the Public hnprovements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to include contractual liability. 17.2 Deductibles. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its elected officials, officers, employees, agents, and volunteers; or (b) Developer and its contractors shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses. 17.3 Additional Insured, Separation of Insureds. The Required Insurance shall naive City, its elected officials, officers, employees, agents, and volunteers as additional insureds with respect to work performed by or on behalf of Developer or its contractors, including materials, parts, or equipment furnished in connection therewith. The Required Insurance shall contain standard separation of insureds provisions, and shall contain no special limitations on the scope of its protection to City, its elected officials, officers, employees, agents, and volunteers. ORANG E\MMARTIN EZ\33457. 110 J2 17.4 Primgry Insurance; Waiver of Subrogatio. The Required Insurance shall be primary with respect to any insurance or self-insurance programs covering City, its elected officials, officers, employees, agents, and volunteers. All policies for the Required Insurance shall provide that the insurance company waives all right of recovery by way of subrogation against City in connection with any damage or harm covered by such policy. 17.5 Certificates; Verification. Developer and its contractors shall furnish City with original certificates of insurance and endorsements effecting coverage for the Required Insurance. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by City before work pursuant to this Agreement can begin. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 17.6 Tenn; Cancellation Notice. Developer and its contractors shall maintain the Required Insurance for the tenm of this Agreement and shall replace any certificate, policy, or endorsement which will expire prior to that date. All policies shall be endorsed to provide that the Required Insurance shall not be suspended, voided, reduced, canceled, or allowed to expire except on 3 0 days prior written notice to City. 17.7 Insurer Rating. Unless approved in writing by City, all Required Insurance shall placed with insurers licensed to do business in the State of California and with a current A.M. Best rating of at least A:VIII. 18.0 Signs and Advertising. Developer understands and agrees to City's ordinances, regulations, and requirements governing signs and advertising structures. Developer hereby agrees with and consents to the removal by City of all signs or other advertising structures erected, placed, or situated in violation of any City ordinance, regulation, or other requirement. Removal shall be at the expense of Developer and its surety. Developer and its surety shall indemnify and hold City free and harmless from any claim or demand arising out of or incident to signs, advertising structures, or their removal. 19.0 Relationship Between the Parties. The Parties hereby mutually agree that neither this Agreement, any map related to Tract No. 54057-14, nor any other related entitlement, pen -nit, or approval issued by City for the Property shall operate to create the relationship of partnership, joint venture, or agency between City and Developer. Developer's contractors and subcontractors are exclusively and solely under the control and dominion of Developer. Nothing herein shall be deemed to make Developer or its contractors an agent or contractor of City. 20.0 General Provisions. 20.1 Authority to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority make this Agreement and bind each respective Party. 20.2 Cooperation-, Further Acts. The Parties shall fiilly 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. ORANGE\MMARTIN EZ\33457. Ill 20.3 Construction, References; Captions. It being agreed the Parties or their agents have participated 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 teen referencing time, days, or period for perforinance shall be deemed calendar days and not work days. All references to Developer include all persomiel, employees, agents, and subcontractors of Developer, except as otherwise specified in this Agreement. All references to City 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. 20.4 Notices. All notices, demands, invoices, and written communications shall be in writing and delivered to the following addresses or such other addresses as the Parties may designate by written notice: CITY: City of Azusa P.O.Box 1395 213 E. Foothill Blvd. Azusa, Ca.91702 Attn:_City Manager_ DEVELOPER: CITYVIEW ROSEDALE 98, LP 475 WASHINGTON BLVD MARINA DELY REY, CA 90292 Attn: Jeffrey Lee Depending upon the method of transmittal, notice shall be deemed received as follows: by facsimile, as of the date and time sent; by messenger, as of the date delivered; and by U.S. Mail first class postage prepaid, as of 72 hours after deposit in the U.S. Mail. 20.5 Amendment, Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 20.6 Waiver. City's failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or City's waiver of any breach of this Agreement, shall not relieve Developer of any of its obligations under this Agreement, whether of the same or similar type. The foregoing shall be true whether City's actions are intentional or unintentional. Developer agrees to waive, as a defense, counterclaim or set off, any and all defects, irregularities or deficiencies in the authorization, execution or perfonnance of the Public hnprovements or this Agreement, as well as the laws, rules, regulations, ordinances or resolutions of City with regards to the authorization, execution or perforinance of the Public Improvements or this Agreement. 20.7 Assigrnnent or Transfer of Agxeetnent. Developer shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of City. Any attempt to do so shall be null and void, and any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer. Unless specifically stated to the contrary in City's written consent, any assignment, hypothecation, or transfer shall not release or discharge Developer from any duty or responsibility under this Agreement. ORANG EN MARTINEZ\33 457. 112 0 20.8 Binding Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This section shall not be construed as an authorization for any Party to assign any right or obligation. 20.9 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 20.10 Invalidity; Severgbility. 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. 20.11 Consent to Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of Los Angeles, California. Each Party waives the benefit of any provision of state or federal law providing for a change of venue to any other court or jurisdiction including, without limitation, a change of venue based on the fact that a governmental entity is a party to the action or proceeding, or that a federal right or question is involved or alleged to be involved in the action or proceeding. Without limiting the generality of the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to California Code of Civil Procedure Section 394. 20.12 Attorneys' Fees and Costs. If any arbitration, lawsuit, or other legal action or proceeding is brought by one Party against the other Party in connection with this Agreement or the Property, the prevailing party, whether by final judgment or arbitration award, shall be entitled to and recover from the other party all costs and expenses incurred by the prevailing party, including actual attorneys' fees ("Costs"). Any judgment, order, or award entered in such legal action or proceeding shall contain a specific provision providing for the recovery of Costs, which shall include, without limitation, attorneys' and experts' fees, costs and expenses incurred in the following: (a) post judgment motions and appeals, (b) contempt proceedings, (c) gamishment, levy, and debtor and third party examination, (d) discovery, and (e) bankruptcy litigation. This section shall survive the termination or expiration of this Agreement. 20.13 Counterparts. This Agreement may be executed in counterpart originals, which taken together, shall constitute one and the same instrument. ORANGE\M MARTINEZ\33457. 113 CITY OF AZUSA CITYVIEW RO DALE 98, LP By:JADJAI, I W� x�r By: �v (signature) (signature) Francis M. Delach JefrreX LeA (print name) Authorized Signatory (print name) City Manager City of Azusa ATTEST: A � By: By: (signature) (print name) City Clerk City of Azusa (title) (signature) (print name) (title) 15 NOTE: DEVELOPER'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER'S BUSINESS ENTITY. ORAN GEN MARTINEZ\33457. 114 ACKNOWLEDGMENT ... f a a a a a a a 1 ......... a a a a a a 0 a a a 0 a a a 1 k k a.. .. . a k k k.. k... .. .. a... a . . a k... k. k. .. N. State of California County of Los Angeles) ss. On October 27, 2010 before me, Laura A. Deyarmin. Notary Public, personally appeared Jeffrey Lee, who 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 signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature LAURA A. DEYAR (N Commission # 1869114 Z Notary Public - California z Los Angeles County a My Comm. Expires Nov 20, 2013.. ,seal) ■ a a a 1 a 1 a a a a a a a k. a k k.. k a a. a k a a. a a.. k.......... a a a a a a/ a a a a a a a a a . . . . a... .. ........ OPTIONAL INFORMATION Date of Document Type or Title of Document Number of Pages in Document Document in a Foreign Language Type of Satisfactory Evidence: Personally Known Paper Identification Credible Witness(es) Capacity of Signer: Trustee Power of Attorney _. CEO/CFO/COO President / Vice -President / Secretary / Treasurer Other: Other Information: ACKNOWLEDGMENT ORANGEWMARUNEZ03457. 115 Thumbprint of Signer Check here if no thumbprint or fingerprint is available. ACKNOWLEDGMENT ..... R w a R a a. a a w!. w a R a a Is R w a. a M a a a R a. a. a R k a w a a a/ a a a a a a y a a R. a a F a a a a a s a a a s a a a 0 a a a a State of California County of ,CV5 LA_146?leE ss. On &QVCMI)Q4? 6 A61 d before me, big ec Notary Public, personally appearedFZ_ -4 4J e i SIL G e-1 /f 1 L 1I /,- r' 14 6 -F -c" !) who proved to me dn the basis of satisfactory evid rice to be the person whose name 6i 6e subscribed Jo the within instrument and acknowledged tom that el he/they executed the same in is er/their authorized capacity(i�, and that by(his .herltheir signatures on the instrument the person(, or the entity upon behalf of which the person) acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) CANDACE TOSCWNO Commission 173888D Notory Public - Calltornlo Loa Angeles County Comm. B eaM 12, 201 T a a a a 0 a a a a a R a R a a w a a a a r a a a a a M K ....... ... R w a a a a w a .... .. . .. . a. a. w a w R. R .... a a. R a R t l OPTIONAL INFORMATION Date of Document Type or Title of Document Number of Pages in Document Document in a Foreign Language Type of Satisfactory Evidence: Personally Known Paper Identification Credible Witness(es) Capacity of Signer: Trustee Power of Attorney CEO/CFO/COO President / Vice -President / Secretary / Treasurer Other: Other Information: ORANG E\MMARTINEZ\33457. 115 Thumbprint of Signer ❑ Check here if no thumbprint or fingerprint is available. EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY TRACT NO. 54057-14 ORAN G E\MMARTINEZ\33457. 117 LEGAL DESCRIPTION EXHIBIT "A" THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL A: LOTS 1 THROUGH 15, INCLUSIVE AND 20 THROUGH 45, INCLUSIVE OFTRACT NO. 054057-14, IN THE CITY OF AZUSA, AS PER MAP RECORDED IN BOOK 1334, PAGE(S) 41 THROUGH 45, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF LOS ANGELES COUNTY, CALIFORNIA. EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN -OR UNDER THE LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING, AND OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH, OR ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS, AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN, AND OPERATE ANY SUCH WELLS OR MINES WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE; OR OPERATE THROUGH THE SURFACE ORTHE UPPER 500 FEET OF THE SUBSURFACE OF THE LAND, ALL AS RESERVED BY AZUSA LAND PARTNERS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, IN A DEED RECORDED DECEMBER 22, 2006, AS INSTRUMENT N0, 06-2849932, OF OFFICIAL RECORDS, ALSO EXCEPTING ANY AND ALL WATER, WATER RIGHTS OR INTEREST THEREIN APPURTENANT OR RELATING TO THE LAND OR OWNED OR USED IN CONNECTION WITH OR WITH RESPECT TO THE LAND, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE SAME FROM OR IN THE LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED OR LEASED BUT WITHOUT, HOWEVER ANY RIGHTTO ENTER UPON THE SURFACE OFTHE LAND IN THE EXERCISE OF SUCH RIGHTS, ALL AS RESERVED BY ,AZUSA LAND PARTNERS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, IN A DEED RECORDED DECEMBER 22, 2006, AS INSTRUMENT NO, 06- 2849932; OF OFFICIAL RECORDS. PARCEL B: A NOWEXCLUSIVE EASEMENT FOR PEDESTRIAN .AND VEHICULAR ACCESS, INGRESS AND EGRESS, UTILITIES, DRAINAGE AND CONSTRUCTION OF UTILITY LINES AND ROADWAY IMPROVEMENTS OVER A PORTION OF LOT 18 OF TRACT NO 062150 IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 1311, PAGES 25 THROUGH 50 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID.COUNT`(; SAID EASEMENT HAVING BEEN GRANTED IN THAT CERTAIN DOCUMENT RECORDED DECEMBER 22, 200��•AS.INSTRUMENT NO. 06-2849932OF OFFICIAL RECORDS. APN(S): 8625-021-010 THROUGH 033, INCLUSIVE; 038 THROUGH 073, INCLUSIVE ORANGENM ARTIN EZ03457. 118 EXHIBIT "B" LIST OF PUBLIC IMPROVEMENTS TRACT NO. 54057-14 1. Engineer's estimate 2. Landscape architect's estimate for park 1 3. Landscape Lot A Slopes 4. Landscape Lot B Slopes b. not u dopes 6. Lot E Slopes 7. Lot F Slopes Total bond for public improvements DETAIL LISTS ATTACHED O R AN G ESM M A RTIN E Z\3 3 4 5 7. 119 $228,406.20 472,787.10 53,462.64 79,714.80 178,044.24 54,365.52 $1,215,636.90 Lo Grand Total est Contingency Bond amount $ 207,642 00 $ 20,764.20 $ 228,406 20 Tract 54057-14 Rosedale Total Unit Units Bond Streets Quantites Price Estimate AC 493 $ 5500 Tons $ 27,115.00 Base 740 $ 40.00 Tons $ 29,600 00 C&G 1177 $ 25.00 LF $ 29,425.00 Street Lights 4 $ 1,500.00 EACH $ 6,00000 Concrete Pavement 1540 $ 500 SQ FT $ 7,70000 Curb Ramps 12 $ 1,500.00 each $ 18,000.00 Sidewalk 5296 $ 350 sq f1 $ 18,536 00 Misc items 5% total $ 136,376 00 Storm Drains If 18" RCP $ 58.00 If $ - 24" RCP $ 82.00 If $ 30' RCP $ 110.00 If `b 36' RCP $ 14000 If $ - 42" RCP $ 156.00 if 54" RCP $ 25000 If $ - 60" RCP $ 300.00 If $ - other RCP $ 320.00 If $ - Manholes $ 3,000.00 each $ - Junction Structures $ 1,000.00 each $ - Catch Basins $ 3,50000 each $ Catch Basinstgrates $ 4,00000 each $ Misc items 20% Sewers 8" VCP 240 $ 5700 If $ 13,680 00 10" VCP $ 61 00 If $ - House laterals 10 $ 3,000.00 each $ 30,000 00 12" VCP $ 70.00 If $ - Manholes 1 $ 3,00000 each $ 3,00000 Misc items 5% $ 46,680 00 Water 8" DIP 502 $ 43.00 If $ 21,58600 12" DIP $ 60.00 if $ - 16" DIP $ 7000 If $ 12" Valves $ 3,000.00 each $ 8" Valves $ 3,000.00 each $ Thrust Blocks 1 $ 1,000.00 each $ 1,000.00 Fire Hydrants 1 $ 2,000.00 each $ 2,00000 Misc items 5% $ 24,566 00 Grand Total est Contingency Bond amount $ 207,642 00 $ 20,764.20 $ 228,406 20 Landscape Architect's Opinion of Probable Cost Date: 5 -Aug -10 Project: Rosedale - Park #1 Hferitage Oaks Client: Lee Homes Prepared By: Michael Lombardi In providing opinions of probable construction cost, the Client understands that the Landscape Architect has no control over costs or the price of labor, equipment or materials, or over the contractor's method of pricing, and that the opinions of probable construction costs provided herein are to be made on the basis of the Landscape Architect's qualifications and experience. There are no warranties, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. ITEM DESC. Quantity Unit Cost Total 92 Extension Construction Concrete flatwork 7,884 sf $10.00 $78,840.00 Pavers 1,622 sf $15.00 $24,330.00 Monument pilaster 2 ea $850.00 $1,700.00 Low retaining wall 130 sf $35.00 $4,550.00 Picnic structure 2 ea $10,000.00 $20,000.00 Arbor structure 1 ea $3,200.00 $3,200.00 Restroom structure 1 ea $60,000.00 $60,000.00 per Roy Chavez Tot -lot wall 250 If $23.00 $5,750.00 Park Sign 1 ea $7,500.00 $7,500.00 Barbeque 4 ea $500.00 $2,000.00 Mow curb 342 If $12.00 $4,104.00 Bench 5 ea $1,200.00 $6,000.00 Picnic table 6 ea $1,800.00 $10,800.00 Litter receptacle 2 ea $500.00 $1,000.00 Play structure & equipment 1 ea $38,000.00 $38,000.00 Rubber mulch 186 cy $8.00 $1,488.00 Drinking fountain 1 ea $2,500.00 $2,500.00 Ramp 6 ea $250.00 $1,500.00 Drainage 1 allow $12,000.00 $12,000.00 Construction Subtotal $285,262.00 IRRIGATION Standard 35,614 sf $1.50 $53,421.00 Controls 1 ea $2,500.00 $2,500.00 Point of connection 1 ea $2,000.00 $2,000.00 Irrigation Subtotal $57,921.00 PLANTING Total Area 35,614 sf Fine Grading 35,614 sf $0.25 $8,903.50 Soil Amendment 35,614 sf $0.75 $26,710.50 Mulch (shrub/groundcover) 13,519 sf $0.30 $4,055.70 Turf 22,095 sf $0.45 $9,942.75 seed 1 gallon shrubs 1,267 ea $12.00 $15,204.00 5 gallon shrubs 870 ea $17.00 $14,790.00 15 gallon shrubs 31 ea $32.00 $992.00 24" box trees 2 ea $300.00 $600.00 36" box trees 9 ea $425.00 $3,825.00 48" box trees 2 ea $800.00 $1,600.00 Planting Subtotal $86,623.45 Subtotal $429,806.45 Contingency 10% $42,980.65 Grand Total $472,787.10 Landscape Architect's Opinion of Probable Cost Date: 5 -Aug -10 Project: Rosedale - Heritage Oaks Lot A Slopes Client: Lee Homes Prepared By: Michael Lombardi In providing opinions of probable construction cost, the Client understands that the Landscape Architect has no control over costs or the price of labor, equipment or materials, or over the contractor's method of pricing, and that the opinions of probable construction costs provided herein are to be made on the basis of the Landscape Architect's qualifications and experience. There are no warranties, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. ITEM DESC. Quantity Unit Cost Total Extension IRRIGATION Standard 9,813 sf $1.50 $14,719.50 Controls upgrade 1 ea $1,000.00 $1,000.00 Point of connection tie in 1 ea $500.00 $500.00 Irrigation Subtotal $16,219.50 PLANTING Total Area 9,813 sf Fine Grading 9,813 sf $0.25 $2,453.25 Soil Amendment 9,813 sf $0.75 $7,359.75 Mulch (shrub/groundcover) 9,813 sf $0.30 $2,943.90 Planting 9,813 sf $2.00 $19,626.00 Planting Subtotal $32,382.90 Subtotal $48,602.40 Contingency 10% $4,860.24 Grand Total $53,462.64 Landscape Architect's Opinion of Probable Cost Date: 5 -Aug -10 14,785 Project: Rosedale - Heritage Oaks Lot B Slopes 9F Client: Lee Homes Prepared By: Michael Lombardi 14,785 In providing opinions of probable construction cost, the Client understands that the Landscape Architect $0.25 has no control over costs or the price of labor, equipment or materials, or over the contractor's method of pricing, and that the opinions of probable construction costs provided herein are to be 14,785 made on the basis of the Landscape Architect's qualifications and experience. There are no $0.75 warranties, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. 14,785 ITEM DESC. Quantity Unit Cost Total Extension IRRIGATION Standard 14,785 sf $1.50 $22,177.50 14,785 Controls upgrade 1 ea $1,000.00 $1,000.00 $2.00 Point of connection tie in 1 ea $500.00 $500.00 Irrigation Subtotal $23,677.50 PLANTING Total Area 14,785 sf Fine Grading 14,785 sf $0.25 $3,696.25 Soil Amendment 14,785 sf $0.75 $11,088.75 Mulch (shrub/groundcover) 14,785 sf $0.30 $4,435.50 Planting 14,785 sf $2.00 $29,570.00 Planting Subtotal $48,790.50 Subtotal $72,468.00 Contingency 10% $7,246.80 Grand Total $79,714.80 Landscaae Architect's Opinion of Probable Cost Date: 5 -Aug -10 Project: Rosedale - Heritage Oaks Lot D Slopes Client: Lee Homes - Prepared By: Michael Lombardi In providing opinions of probable construction cost, the Client understands that the Landscape Architect has no control over costs or the price of labor, equipment or materials, or over the contractor's method of pricing, and that the opinions of probable construction costs provided herein are to be made on the basis of the Landscape Architect's qualifications and experience. There are no warranties, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. ITEM DESC. Quantity Unit Cost Total Extension IRRIGATION Standard 33,408 sf $1.50 $50,112.00 Controls upgrade 1 ea $1,000.00 $1,000.00 Point of connection tie in 1 ea $500.00 $500.00 Irrigation Subtotal $51,612.00 PLANTING Total Area 33,408 sf Fine Grading 33,408 sf $0.25 $8,352.00 Soil Amendment 33,408 sf $0.75 $25,056.00 Mulch (shrub/groundcover) 33,408 sf $0.30 $10,022.40 Planting 33,408 sf $2.00 $66,816.00 Planting Subtotal $110,246.40 Subtotal $161,858.40 Contingency 10% $16,185.84 Grand Total $178,044.24 Landscape Architect's Oainion of Probable Cost Date: 5 -Aug -10 Project: Rosedale - Heritage Oaks Lot E Slopes Client: Lee Homes Prepared By: Michael Lombardi In providing opinions of probable construction cost, the Client understands that the Landscape Architect has no control over costs or the price of labor, equipment or materials, or over the contractor's method of pricing, and that the opinions of probable construction costs provided herein are to be made on the basis of the Landscape Architect's qualifications and experience. There are no warranties, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. ITEM DESC. Quantity Unit Cost Total Extension IRRIGATION Standard 9,984 sf $1.50 $14,976.00 Controls upgrade 1 ea $1,000.00 $1,000.00 Point of connection tie in 1 ea $500.00 $500.00 Irrigation Subtotal $16,476.00 PLANTING Total Area 9,984 sf Fine Grading 9,984 sf $0.25 $2,496.00 Soil Amendment 9,984 sf $0.75 $7,488.00 Mulch (shrub/groundcover) 9,984 sf $0.30 $2,995.20 Planting 9,984 sf $2.00 $19,968.00 Planting Subtotal $32,947.20 Subtotal $49,423.20 Contingency 10% $4,942.32 Grand Total $54,365.52 Landscape Architect's Opinion of Probable Cost Date: 5 -Aug -10 Project: Rosedale - Heritage Oaks Lot F Slopes Client: Lee Homes Prepared By: Michael Lombardi In providing opinions of probable construction cost, the Client understands that the Landscape Architect has no control over costs or the price of labor, equipment or materials, or over the contractor's method of pricing, and that the opinions of probable construction costs provided herein are to be made on the basis of the Landscape Architect's qualifications and experience. There are no warranties, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. ITEM DESC. Quantity Unit Cost Total Extension IRRIGATION Standard 27,880 sf $1.50 $41,820.00 Controls upgrade 1 ea $1,000.00 $1,000.00 Point of connection tie in 1 ea $500.00 $500.00 Irrigation Subtotal $43,320.00 PLANTING Total Area 27,880 sf Fine Grading 27,880 sf $0.25 $6,970.00 Soil Amendment 27,880 sf $0.75 $20,910.00 Mulch (shrub/groundcover) 27,880 sf $0.30 $8,364.00 Planting 27,880 sf $2.00 $55,760.00 Planting Subtotal $92,004.00 Subtotal $135,324.00 Contingency 10% $13,532.40 Grand Total $148,856.40 29 EXHIBIT "C" SURETY BONDS AND OTHER SECURITY TRACT NO. 54057-14 As evidence of understanding the provisions contained in this Agreement, and of the Developer's intent to comply with same, the Developer has submitted the below described security in the amounts required by this Agreement, and has affixed the appropriate signatures thereto: PERFORMANCE BOND PRINCIPAL AMOUNT: $1,215,636.90 Surety: Attorney-in-fact: Address: MATERIAL AND LABOR BOND PRINCIPAL AMOUNT: $.1,215,636.90 Surety: Attorney-in-fact: Address: CASH MONUMENT SECURITY: $10,000 Amount deposited per Cash Receipt No. ORANGEWMARTINEZU 3457. 120 Date: El EXECUTED IN FIVE (5) COUNTER PARTS BOND NO.: SBO16000264 INITIAL PREMIUM: $24,313.00/2 Years SUBJECT TO RENEWAL CITY OF AZUSA TRACT MAP NO. 54057-14 IMPROVEMENTS (HERITAGE OAKS) PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: WHEREAS the City of Azusa, California ("City") and CITYVIEW ROSEDALE 98, LP ("Principal"), have executed an agreement for work consisting of, but not limited to, the furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. 54057-14 ("Public Improvements"); (HERITAGE OAKS) WHEREAS, the Public Improvements to be performed by Principal are more particularly set forth in that certain Agreement for Completion of Pubic Improvements dated November 1 , 2010 ("Improvement Agreement"); WHEREAS, the Improvement Agreement is hereby referred to and incorporated herein by reference; and WHEREAS, Principal is required by the Improvement Agreement to provide a good and sufficient bond for performance of the Improvement Agreement, and to guarantee and warranty the Public Improvements constructed thereunder. NOW, THEREFORE, Principal and ULLICO CASUALTY COMPANY ("Surety"), a corporation organized and existing under the laws of the State of DELAWARE __, and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto City in the sum of One Million Two Hundred Fifteen Thousand Sic Hundred Thirty Six Dollars and Ninety Cents ($1,215,636.90), said sum being not less than one hundred percent (100%) of the total cost of the Public Improvements as set forth in the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION is such, that if Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, agreements, guarantees, and warranties in the Improvement Agreement and any alteration thereof made as therein provided, to be kept and performed at the time and in the manner therein specified and in all respects according to their intent and meaning, and to indemnify and save hanailess City, its officers, ORANGEWMARTINrZ33457. 121 3 employees, and agents, as stipulated in the Improvement Agreement, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. As part of the obligation secured hereby, and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition. This bond is executed and filed to comply with Section 66499 et seMc . of the Government Code of California as security for performance of the Improvement Agreement and security for the one-year guarantee and warranty of the Public Improvements. IN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney -in -Fact at LOS ANGELES, CA this 26th day of OCTOBER 2010. CITYVIEW ROSEDALE 98, LP Principal M01 .� Surety UL CASUALTY COMPANY A�LE.eB -in-Fact PAOUCHER (print name) ' J (print naive) NOTE: APPROPRIATE NOTARIAL ACIMWLEDGMENTS OF EXECUTION BY PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF ATTORNEY TO LOCAL REPRESENTATIVES OF THE BONDING COMPANY MUST BE ATTACHED TO THIS BOND. ORANGENMARTINM33457. 122 32 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT - - - — - - - - .,<-.c. - . =t• � -.—,��.r��_r.��r,�.c�-,cc,�r.�c�.cny;�n.�.�c.��,t�.�cr�cr�r.�-ram State of California County of Los Angeles On 10/27/10 before me, Laura A. Deyarmin, a Notary Public Date }sere Insert Name and -TRIS o1 Iho 0eleat personally appeared Jeffrey Lee Names] of Sigmr(s) LAURA A. DEYARMIN Commission # 1869114 Z Notary Public - California Z Los Angeles County My Comm. Expires Nov 20, 2013 Place Notary Seal Above who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my ha d and official seal. Signat e' Signalure OF Notary Pubifc OPTiONAAl- Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner —❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: _ Signer Is Representing: R1GWTHt1MBPRINT• OE SIIG•li;nNER .p of thumb here Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHW BPRifdT OFJ Sa ER`-,;` i' 02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 - www.NalionalNotaryorg Item 95907 Reorder: Cali Toll -Free 1-600-676-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA County of LOS ANGELES On OCTOBER 26, 2010 Date mm— personally appeared before me, HEATHER WIN, NOTARY PUBLIC Here Insert Name and Title of the Officer PAUL E. BOUCHER HEATHER v1rIN Commission ay 1897997 Notary Public - California Z Los Angeles County s My Comm. Expires Jul 27. 2014 . Place Notary Seal Above Name(s) of S who proved to me on the basis of satisfactory evidence to be the person(X) whose name() is/�wsubscribed to the within instrument and acknowledged to me that he/ R4q executed the same in hisA&9XW- authorized capacity, and that by hislSooftlM signature(x) on the instrument the person(), or the entity upon behalf of which the person(X) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand andfficiai seal. Signature a4 W C. - OPTIONAL Signature of Notary Public HEATHER WIN Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: CITYVIEW ROSEDALE 98, LP - BOND #SB016000264 (HERITAGE OAKS) Document Date: TOCTOBER 26, 2010 Number of Pages:....._. Signer(s) Other Than Named Above: NONE Capacity(ies) Claimed by Signer(s) Signer's Name: PAUL E. BOUCHER ❑ Individual ❑ Corporate Officer — Title(s):— [I Partner — ❑ Limited ❑ General ® Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s)_ ❑ Partner ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: © 2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationaiNotary.org Item #5907 Reorder: Call Toll -Free 1-800-876-6827 BOND NO.: SBO16000264 INITIAL PREMIUM: INCLUDED IN PERF. BOND SUBJECT TO RENEWAL CITY OF AZUSA TRACT MAP IMPROVEMENTS LABOR AND MATERIAL BOND KNOW ALL MEN BY THESE PRESENTS: WHEREAS the City of Azusa, California ("City") and CITYVIEW ROSEDALE 98, LP ("Principal"), have executed an agreement for work consisting of, but not limited to, the furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. 054057-14 ("Public Improvements"); (HERITAGE OAKS) WHEREAS, the Public Improvements to be performed by Principal are more particularly set forth in that certain Agreement for Completion of Pubic Improvements dated November 1 __ , 2010 ("Improvement Agreement"); WHEREAS, the Improvement Agreement is hereby referred to and incorporated herein by reference; and WHEREAS, Principal is required to furnish a bond in connection with the Improvement Agreement providing that if Principal or any of its subcontractors shall fail to pay for any materials, provisions, or other supplies, or terms used in, upon, for, or about the performance of the Public Improvements, or for any work or labor done thereon of any kind, or for amounts due under the provisions of Title 15 (commencing with section 3082) of Part 4 of Division 3 of the California Civil Code, with respect to such work or labor, that the Surety on this bond will pay the same together with a reasonable attorney's fee in case suit is brought on the bond. NOW, THEREFORE, Principal and ULLICO CASUALTY COMPANY ("Surety"), a corporation organized and existing under the laws of the State of DELAWARE , and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto City and to any and all material men, persons, companies or corporations furnishing materials, provisions, and other supplies used in, upon, for or about the performance of the Public Improvements, and all persons, companies or corporations renting or hiring teams, or implements or machinery, for or contributing to the Public Improvements to be done, and all persons performing work or labor upon the same and all persons supplying both work and materials as aforesaid excepting the Principal, the sum of ONE MILLION TWO HUNDRED FIFTEEN ORANOMMMARTINEZ\3 3457. 124 5 THOUSAND SIX HUNDRED THIRTY SIX AND NINETY CENTS ($1,215,636.90) Said sum being not less than 100% of the total cost of the Public Improvements under the terms of the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if the Principal, his or its subcontractors, heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies or machinery used in, upon, for or about the performance of the Public Improvements, or for work or labor thereon of any kind, or fail to pay any of the persons named in California Civil Code Section 3181, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, and all other applicable laws of the State of California and rules and regulations of its agencies, then said Surety will pay the same in or to an amount not exceeding the sum specified herein. As part of the obligation secured hereby, and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. This bond is executed and filed to comply with Section 66499 et seq. of the California Government Code as security for payment to contractors, subcontractors, and persons furnishing labor, materials, or equipment for construction of the Public Improvements or performance of the Improvement Agreement. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the California Civil Code, so as to give a right of action to thein or their assigns in any suit brought upon this bond. Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition. ORANGEWMARTINEZ\3 3457. 125 IN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney -in -Fact at LOS ANGELES CA_ _ -, this 26th day of OCTOBER , 2010. CITYVIEW ROSEDALE 98, LP Principal By. F' (print name) ULLICO CASUALTY COMPANY By.>� Attorney -in -Fact PAUL E. BOUCHER (print name) NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION BY PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF ATTORNEY' TO LOCAL REPRESENTATIVES OF THE BONDING COMPANY MUST BE ATTACHED TO THIS BOND. ORANGEWIMARTIN EZ133457. 125 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On 10/27/10 Date personally appeared Los Angeles before me, Laura A. Deyarmin, a Notary Public Here Insert Name and Title of the officer ' Jeffrey Lee LAURA A. DEYARMIN Commission # 1869114 a a� Notary Public - California n a:r- �- Los Angeles County My Comm. Expires Nov 20, 2013 Place Notary Seal Above Name(s) of who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my ha d and official seal, Signatu e Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document_ Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer—Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact "ihumb ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact • ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 37 02007 National Notary Association- 9350 De Solo Ave„ P.D. Box 2402 - Chalsworlh, CA 91313-2402 • www.NalionalNotary.org Ilem W5907 Reorder: Call Toll -Free 1-800-878-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 3 STATE OF CALIFORNIA County of LOS ANGELES } On OCTOBER 26, 2010 _ before me, HEATHER WIN, NOTARY PUBLIC Date Here Insert Name and Title of the officer personally appeared PAUL E. BOUCHER �. HEATHER WIN w ' Commission ;V 1897397 Notary Public - California d Los Angeles County MY Comm. Exe fres Jul 27, 2014 Name(s) who proved to me on the basis of satisfactory evidence to be the person(%) whose name(x) is/o(m(subscribed to the within instrument and acknowledged to me that heftXX54xX executed the same in his/JW=) E authorized capacity(, and that by h1sN)0(hCl> XR signature(x) on the instrument the person(x), or the entity upon behalf of which the person(X) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Signature Wt, - Place Notary Seal Above Signalureof Nolary Public HEATHER WIN OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: CITYVIEW ROSEDALE Document Date: OCTOBER 26, 2010 Signer(s) Other Than Named Above: NONE Capacity(ies) Claimed by Signer(s) Signer's Name: PAUL E. BOUCHER ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ® Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: LP - BOND #SB016000264 (HERITAGE OAKS) Number of Pages: Signer's Name:. ❑ Individual ❑ Corporate Officer — Title(s) ❑ Partner ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: © 2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • wvvw.NationalNotary.org Item tt5907 Reorder: Call Toll -Free 1-800-876-6827 Ll' ULLICO Casualty Company I 1625 Eye Street, N.W. Washington D,C. 20006 co Power of Attorney KNOW ALL PERSONS BY THESE PRESENTS: That U.LLICO CASUALTY COMPANY (the Company), a corporation organized and existing under the laws of the State of Delaware, does hereby constitute and appoint: JANINA MONROE, PAUL E. BOUCHER, THOMAS G. MCCALL, TIMOTHY J. NOOiNAN, JEREMY YEUNG of LOCKTON COMPANIES, LLC Its true and lawful Attorney (s) in fact with full authority to execute on its bclralf bonds, undertakings, recognizances and other.eonirncis of indemnity and writings obligatory in the nature thereof, issued in the course of its business and to bind the Company thereby, in an amount not to enced $5,000,000.00, This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of ULLICO Casualty Company at a meeting duly called the 15th day of July, 2009. RESOLVED: That the Board of Directors hereby authorizes the President or any Vice President of the Company to: (1) Appoirit Attomey(s) in Fact and authorize the.Attomey(s) in Fact to CkeCule on behalf of the Company bonds and undertakings, Contracts of indemnity and other writings obligatory in the nature thereof and to attach the seal of the Company thereto; and (2) to remove, at any time, any such Attorney -in -Fact and revoke the authority given. And, be it FURTHER RESOLVED: That the signatures of such officers and the seal of the Company may be affixed to any such Power of Attorney or certificate relating thereto by facsimile, and any such Power of Attorney so executed and certified by facsimile signatures and facsimile scat shall be valid and biding upon the Company in the future with the respect to any bond or undertaking to which it is attached. IN TESTIMONY WHEREOF, ULLICO CASUALTY CQMPANV has caused this instrument to be signed and its corporate seal to be affixed by its authorized office this day oUCZALURUO �,.,II:itttr" SEAL`�'�=` 7979 io = C -1+r X3•.4 �.y.F� i+ 'a: •rfJ��z�r ...... ADaniel,, President ULLICO Casualty Company, a Delaware Corporation. On this 16'h day of July 2009, before me came the individual who executed the preceding instrument, to me personally known, and being by me duly sworn said that he is the therein described and authorized officer of the ULLICO CASUALTY COMPANY; that the seal affixed to said instrument is the Corporate seal of said Company; that the said Corporate Seal and his signature were duly affixed. Notary Public CATHERINE M. OBRIEN NOTARY PUBLIC STATE OF MARYLAND MONTGOMERY COUNTY MY COMMISSION EXPIRES JANUARY 21, 2012 CERTIFICATE 1, Teresa E_ Valentine, Senior Vice President, General Counsel and Secretary of ULLICO Casualty Company, do herby certify that the foregoing resolution of the Board of Directors and this Power of Attorney issued pursuant thereto on this l6th day of July 2009 are true raid correct and are still in full force and effect. I do fun her certify that that Daniel Aronowitz, who executed the Power of Attorney as President, was on the date of execution of the attached Power of Attorney the duly elected President of ULLICO Casualty Company, In Testimony Whereof I have subscribed my name and affixed the facsimile seal of each Company this 16'h day of July 2009. Teresa E. Valentine .Senior Vice President, General Counsel & Secretary ULLICO Casualty Company .,kyr This page is part of your document - DO NOT DISCARD �F ED5 20101781650 f � � } I III 11 IIIII11111 IIIII IIII IIIII IIIII Illl IIIII IIIII IIIII IIII IIII + ; + Recorded/Filed in Official Records Recorder's Office, Los Angeles County, California 12/03/10 AT 04:01PM FEES: TARES: OTHER: PAID: RII91111111111111RIIIIII11IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII1IIIIIIBIIIIV11II LEADSHEET 1111111111111111111111111111111111111111111111111111111111111111111 201012030090111 00003371723 m�b�isudiiumna 003021566 SEQ: 01 DAR uaim�nunMail i(Hard uiCopy) u�ii� 1111111111111111 IN 111111111111 THIS FORM IS NOT TO BE DUPLICATED C I? M23 A Pages: 034 0.00 0.00 0.00 0.00 0 RECORDING REQUESTED BY: WHEN RECORDED RETURN TO: CITY OF AZUSA 213 E Foothill Blvd. Azusa, CA 91702 ATTN: City Clerk Exempt frain recording Fee, per Govcminent Code Section 6103 CITY OF AZUSA, CALIFORNIA By: C� City Clerk SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS TRACT NO. 054057-08 (GREENBRIAR) between CITY OF AZUSA a California municipal corporation and CITYVIEW ROSEDALE 98, LP a DELAWARE LIMITED PARTNERSHIP ORANGE\M MARTINEZ\33457. 11 AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS TRACT MAP NO. 54057-08 AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS TRACT MAP NO. 54057-08 I. PARTIES AND DATE. This Agreement for the Completion of Public Improvements ("Agreement") is entered into as of thisl st day of November, 2010 by and between the City of Azusa, a California municipal corporation ("City") and CITYVIEW ROSEDALE 98, LP, a Delaware limited liability company with it's principal office located at 475 WASHINGTON BLVD. MARINA DEL REY ("Developer"). City and Developer are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the "Parties." II. RECITALS. A. Developer has heretofore submitted to City an application for approval of a tract map for real property located within City, a legal description of which is attached hereto as Exhibit "A" ("Property"), and which is identified in City records Tract Map No. 054057-08. B. Developer's application for a tentative tract map for Tentative Tract No. 54057-08 was conditionally approved by the City Council on February 3, 2003. C. Developer has not completed all of the work or made all of the public improvements required by Chapter 66, Article V of the Azusa Municipal Code, the Subdivision Map Act (Government Code sections 66410 et seg.), the conditions of approval for Tract No. 054057-08 or other ordinances, resolutions, or policies of City requiring construction of improvements in conjunction with the subdivision of land. D. Pursuant to Section 66-4650) and the applicable provisions of the Map Act, Developer and City enter into this Agreement for the timely construction and completion of the public improvements and the furnishing of the security therefor, acceptable to the City Engineer and City Attorney, for Tract No. 054057-08. E. Developer's execution of this Agreement and the provision of the security are made in consideration of City's approval of the final map for Tract No. 054057-08. III. TERMS. 1.0 Effectiveness. This Agreement shall not be effective unless and until all three of the following conditions are satisfied: (a) Developer provides City with security of the type and in the amounts required by this Agreement; (b) Developer executes and records this Agreement in the Recorder's Office of the County of Los Angeles; (c) the City Council of the City ("City Council") approves the final snap for Tract No. 054057-08 and (d) Developer records the final ORANGE\MMARTM EZ\33457. 12 FA map for Tract No. 054057-08 in the Recorder's Office of the County of Los Angeles. If the above described conditions are not satisfied, this Agreement shall automatically terminate without need. of further action by either City or Developer, and Developer may not thereafter record the final map for Tract No. 054057-08. 2.0 Public Improvements. Developer shall construct or have constructed at its own cost, expense, and liability all improvements required by City as part of the approval of Tract No. 054057-08, including, but not limited to, all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities as shown in detail on the plans, profiles, and specifications which have been prepared by or on behalf of Developer for Tract Map No. 054057-08 ("Public Improvements"). The Public Improvements are more specifically described in Exhibit "B," which is attached hereto and incorporated herein by this reference. Construction of the Public Improvements shall include any transitions and/or other incidental work deemed necessary for drainage or public safety. The Developer shall be responsible for the replacement, relocation, or removal of any component of any irrigation water system in conflict with the construction or installation of the Public Improvements. Such replacement, relocation, or removal shall be performed to the complete satisfaction of the City Engineer and the owner of such water system. Developer further promises and agrees to provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary or required by City to fully and adequately complete the Public Improvements. 2.1 Prior Partial Construction of Public Improvements. Where construction of any Public Improvements has been partially completed prior to this Agreement, Developer agrees to complete such Public Improvements or assure their completion in accordance with this Agreement. 2.2 Permits; Notices; Utility Statements. Prior to commencing any work, Developer shall, at its sole cost, expense, and liability, obtain all necessary permits and licenses and give all necessary and incidental notices required for the lawful construction of the Public Improvements and performance of Developer's obligations under this Agreement. Developer shall conduct the work in full compliance with the regulations, rules, and other requirements contained in any permit or license issued to Developer. Prior to commencing any work, Developer shall file a written statement with the City Clerk and the City Engineer, signed by Developer and each utility which will provide utility service to the Property, attesting that Developer has made all deposits legally required by the utility for the extension and provision of utility service to the Property. 2.3 Pre -approval of Plans and Specifications. Developer is prohibited from commencing work on any Public Improveiment until all plans and specifications for such Public Improvement have been submitted to and approved by the City Engineer, or his or her designee. Approval by the City Engineer shall not relieve Developer from ensuring that all Public Improvements conform with all other requirements and standards set forth in this Agreement. 2.4 Quality of Work-, Compliance With Laws and Codes. The construction plans and specifications for the Public Improvements shall be prepared in accordance with all ORAN G EW M A RTIN EZM 45 7. 13 applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements. The Public Improvements shall be completed in accordance with all approved maps, plans, specifications, standard drawings, and special amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements applicable at the time work is actually commenced. 2.5 Standard of Performance. Developer and its contractors, if any, shall perform all work required to construct the Public Improvements under this Agreement in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Developer represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perform the work. Developer warrants that all of its employees and contractors shall have sufficient skill and experience to perform the work assigned to thein, and that they shall have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement. 2.6 Alterations to Ip rovements. The Public Improvements in Exhibit `B" are understood to be only a general designation of the work and improvements to be done, and not a binding description thereof. All work shall be done and improvements made and completed as shown on approved plans and specifications, and any subsequent alterations thereto. If during the course of construction and installation of the Public Improvements it is determined that the public interest requires alterations in the Public Improvements, Developer shall undertake such design and construction changes as may be reasonably required by City. Any and all alterations in the plans and specifications and the Public Improvements to be completed may be accomplished without giving prior notice thereof to Developer's surety for this Agreement. 3.0 Maintenance of Public Improvements and Landsca in City shall not be responsible or liable for the maintenance or care of the Public Improvements until City approves and accepts them. City shall exercise no control over the Public Improvements until accepted. Any use by any person of the Public Improvements, or any portion thereof, shall be at the sole and exclusive risk of the Developer at all times prior to City's acceptance of the Public Improvements. Developer shall maintain all the Public Improvements in a state of good repair until they are completed by Developer and approved and accepted by City, and until the security for the performance of this Agreement is released. Maintenance shall include, but shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, and sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City; removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good and safe condition all streets and street improvements. It shall be Developer's responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perfonn such maintenance work when notified to do so by City. If Developer fails to properly prosecute its maintenance obligation under this section, City may do all work necessary for such maintenance and the cost thereof shall be the responsibility of Developer and its surety under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Public Improvements or their condition prior to acceptance. ORANGE\MMARUNEZ\33457. 14 4.0 Construction Schedule. Unless extended pursuant to this Section 4.1 of this Agreement, Developer shall fully and adequately complete or have completed the Public Improvements within twelve (12) months following approval of this agreement for Tract No. 054057-08. 4.1 Extensions. City may, in its sole and absolute discretion, provide Developer with additional time within which to complete the Public Improvements. It is understood that by providing the security required under Section 13.0 et seq. of this Agreement, Developer and its surety consent in advance to any extension of time as may be given by City to Developer, and waives any and all right to notice of such extension(s). Developer's acceptance of an extension of time granted by City shall constitute a waiver by Developer and its surety of all defense of laches, estoppel, statutes of limitations, and other limitations of action in any action or proceeding filed by City following the date on which the Public Improvements were to have been completed hereunder. In addition, as consideration for granting such extension to Developer, City reserves the right to review the provisions of this Agreement, including, but not limited to, the construction standards, the cost estimates established by City, and the sufficiency of the improvement security provided by Developer, and to require adjustments thereto when warranted according to City's reasonable discretion. 4.2 Accrual of Limitations Period. Any limitations period provided by law related to breach of this Agreement or the teens thereof shall not accrue until Developer has provided the City Engineer with written notice of Developer's intent to abandon or otherwise not complete required or agreed upon Public Improvements. 5.0 Grading. Developer agrees that any and all grading done or to be done in conjunction with construction of the Public Improvements or development of Tract No. 054057-08 shall conform to all federal, state, and local laws, ordinances, regulations, and other requirements, including City's grading regulations. In order to prevent damage to the Public hnprovements by improper drainage or other hazards, the grading shall be completed in accordance with the time schedule for completion of the Public Improvements established by this Agreement, and prior to City's approval and acceptance of the Public hnprovements and release of the Security as set forth in Section 13.0 et seq. of this Agreement. 6.0 Utilities. Developer shall provide utility services, including water, power, gas, and telephone service to serve each parcel, lot, or unit of land within Tract No. 054057-08 in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the regulations, schedules and fees of the utilities or agencies providing such services. Except for commercial or industrial properties, Developer shall also provide cable television facilities to serve each parcel, lot, or unit of land in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the requirements of the cable company possessing a valid franchise with City to provide such service within City's jurisdictional limits. All utilities shall be installed underground. 7.0 Fees and Char. Developer shall, at its sole cost, expense, and liability, pay all fees, charges, and taxes arising out of construction of the Public Improvements, including, but not limited to, all plan check, design review, engineering, inspection, and other service fees, and ORANGE\MMARTINEZ\33457. 15 any impact or connection fees established by City ordinance, resolution, regulation, or policy, or as established by City relative to Tract No. 054057-08. 8.0 City Inspection of Public Improvements. Developer shall, at its sole cost, expense, and liability, and at all times during construction of the Public Improvements, maintain reasonable and safe facilities and provide safe access for inspection by City of the Public Improvements and areas where construction of the Public Improvements is occurring or will occur. 9.0 Default Notice; Remedies. 9.1 Notice. If Developer neglects, refuses, or fails to fulfill or timely complete any obligation, term, or condition of this Agreement, or if City determines there is a violation of any federal, state, or local law, ordinance, regulation, code, standard, or other requirement, City may at any time thereafter declare Developer to be in default or violation of this Agreement and make written demand upon Developer or its surety, or both, to immediately remedy the default or violation ("Notice"). Developer shall substantially commence the work required to remedy the default or violation within ten (10) days of the Notice. If the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the Notice verbally, and Developer shall substantially commence the required work within twenty-four (24) hours thereof. Immediately upon City's issuance of the Notice, Developer and its surety shall be liable to City for all costs of construction and installation of the Public Improvements and all other administrative costs expenses as provided for in Section 10.0 of this Agreement. 9.2 Failure to Remedy; City Action. If the work required to remedy the noticed default or violation is not diligently prosecuted to a completion acceptable to City within the time frame contained in the Notice, City may complete all remaining work, arrange for the completion of all remaining work, and/or conduct such remedial activity as in its sole and absolute discretion it believes is required to remedy the default or violation. All such work or remedial activity shall be at the sole and absolute cost, expense, and liability of Developer and its surety, without the necessity of giving any further notice to Developer or surety. City's right to take such actions shall in no way be limited by the fact that Developer or its surety may have constructed any, or none of the required or agreed upon Public Improvements at the time of City's demand for perfonnance. In the event City elects to complete or arrange for completion of the remaining work and improvements, City may require all work by Developer or its surety to cease in order to allow adequate coordination by City. Notwithstanding the foregoing, if conditions precedent for reversion to acreage can be met and if the interests of City will not be prejudiced thereby, City may also process a reversion to acreage and thereafter recover from Developer or its surety the full cost and expense incurred. 9.3 Other Remedies. No action by City pursuant to Section 9.0 et SeMc . of this Agreement shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law. City may exercise it rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action for damages, injunctive relief, or specific perfonnance. O RAN G E\M M A RT [N E Z\3 3 4 5 7. 16 10.0 Administrative Costs. If Developer fails to construct and install all or any part of the Public Improvements within the time required by this Agreement, or if Developer fails to comply with any other obligation contained herein, Developer and its surety shall be jointly and severally liable to City for all administrative expenses, fees, and costs, including reasonable attorney's fees and costs, incurred in obtaining compliance with this Agreement or in processing any legal action or for any other remedies permitted by law. 11.0 Acceptance of Improvements; As -Built or Record Drawings. If the Public hnprovements are properly completed by Developer and approved by the City Engineer, and if they comply with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements, the City Council shall be authorized to accept the Public Improvements. The City Council may, in its sole and absolute discretion, accept fully completed portions of the Public Improvements prior to such time as all of the Public Improvements are complete, which shall not release or modify Developer's obligation to complete the remainder of the Public Improvements within the time required by this Agreement. Upon the total or partial acceptance of the Public Improvements by City, Developer shall file with the Recorder's Office of the County of Los Angeles a notice of completion for the accepted Public Improvements in accordance with California Civil Code section 3093, at which time the accepted Public Improvements shall become the sole and exclusive property of City without payment therefore. If Tract No. 054057-08 was approved and recorded as a single phase map, City shall not accept any one or more of the improvements until all of the Public Improvements are completed by Developer and approved by City. Issuance by City of occupancy pen -nits for any buildings or structures located on the Property shall not be construed in any manner to constitute City's acceptance or approval of any Public hnprovements. Notwithstanding the foregoing, City may not accept any Public Improvements unless and until Developer provides one (1) set of "as -built" or record drawings or plans to the City Engineer for all such Public Improvements. The drawings shall be certified and shall reflect the condition of the Public Improvements as constructed, with all changes incorporated therein. 12.0 Warranty and Guarantee. Developer hereby warrants and guarantees all Public Improvements against any defective work or labor done, or defective materials furnished in the perforinance of this Agreement, including a warranty and guarantee that all trees, shrubs and irrigation within the Property shall survive, with reasonable maintenance, in a vigorous and thriving condition reasonably acceptable to City, for a period of one (1) year following completion of the work and acceptance by City ("Warranty"). During the Warranty period, Developer shall repair, replace, or reconstruct any defective or otherwise unsatisfactory portion of the Public Improvements, including irrigation, shrubs, trees and/or transplanted trees that have died despite reasonable maintenance, in accordance with the current ordinances, resolutions, regulations, codes, standards, tree preservation plans or other requirements of City, and to the approval of the City Engineer. All repairs, replacements, or reconstruction during the Warranty periods shall be at the sole cost, expense, and liability of Developer and its surety. As to any Public Improvements which have been repaired, replaced, or reconstructed during the Warranty period, Developer and its surety hereby agree to extend the Warranty for an additional one (1) year period following City's acceptance of the repaired, replaced, or reconstructed Public Improvements. Nothing herein shall relieve Developer from any other liability it may have under federal, state, or local law to repair, replace, or reconstruct any Public Improvement following expiration of the Warranty or any extension thereof. Developer's warranty obligation ORANGE\MMARTINEZ\33457. 17 under this section shall survive the expiration or termination of this Agreement. In addition, nothing contained herein shall impose upon Developer additional maintenance obligations for any Public Improvements that are repaired, replaced or reconstructed once these are accepted by City. 13.0 SecurityLSurety Bonds. Prior to execution of this Agreement, Developer shall provide City with surety bonds in the amounts and under the terms set forth below ("Security"). The amount of the Security shall be based on the City Engineer's approximation of the actual cost to construct the Public Improvements, including the replacement cost for all landscaping ("Estimated Costs"). If City determines, in its sole and absolute discretion, that the Estimated Costs have changed, Developer shall adjust the Security in the amount requested by City. Developer's compliance with this provision (Section 13.0 et seq.) shall in no way limit or modify Developer's indemnification obligation provided in Section 16.0 of this Agreement. 13.1 Performance Bond. To guarantee the faithful performance of the Public Improvements and all the provisions of this Agreement, to protect City if Developer is in default as set forth in Section 8.0 et seq. of this Agreement, and to secure Developer's one-year guarantee and warranty of the Public Improvements, including the maintenance of all landscaping in a vigorous and thriving condition, Developer shall provide City a faithful performance bond in the amount of SEVEN HUNDRED TEN THOUSAND NINE HUNDRED SIXTY FOUR AND 24/100 DOLLARS ($710,964.24) which sump shall be not less than one hundred percent (100%) of the Estimated Costs. The City Council may, in its sole and absolute discretion and upon recommendation of the City Engineer, partially release a portion or portions of the security provided under this section as the Public Improvements are accepted by City, provided that Developer is not in default on any provision of this Agreement or condition of approval for Tract No. 054057-08, and the total remaining security is not less than twenty-five percent (25%) of the Estimated Costs. All security provided under this section shall be released at the end of the Warranty period, or any extension thereof as provided in Section 12 of this Agreement, provided that Developer is not in default on any provision of this Agreement or condition of approval for Tract No. 054057-08. 13.2 Labor & Material Bond. To secure payment to the contractors, subcontractors, laborers, material men, and other persons furnishing labor, materials, or equipment for performance of the Public hnprovements and this Agreement, Developer shall provide City a labor and materials bond in the amount of SEVEN HUNDRED TEN THOUSAND NINE HUNDRED SIXTY FOUR AND 24/100 DOLLARS ($710,964.24) which sum shall not be less than one hundred percent (100%) of the Estimated Costs. The security provided under this section may be released by written authorization of the City Engineer after six (6) months from the date City accepts the final Public Improvements. The amount of such security shall be reduced by the total of all stop notice or mechanic's lien claims of which City is aware, plus an amount equal to twenty percent (20%) of such claims for reimbursement of City's anticipated administrative and legal expenses arising out of such claims. 13.3 Additional Requirements. The surety for any surety bonds provided as Security shall have a current A.M. Best's rating of no less than A:VIII, shall be licensed to do business in California, and shall be satisfactory to City. As part of the obligation secured by the Security and in addition to the face amount of the Security, the Developer or its surety shall ORAN GE\MMART1NEZ\33457. 18 secure the costs and reasonable expenses and fees, including reasonable attorney's fees and costs, incurred by City in enforcing the obligations of this Agreement. The Developer and its surety stipulate and agree that no change, extension of time, alteration, or addition to the terms of this Agreement, the Public Improvements, or the plans and specifications for the Public Improvements shall in any way affect its obligation on the Security. 13.4 Evidence and Incorporation of Security. Evidence of the Security shall be provided on the forins set forth in Exhibit "C," unless other fonns are deemed acceptable by the City Engineer and the City Attorney, and when such forms are completed to the satisfaction of City, the forms and evidence of the Security shall be attached hereto as Exhibit "C" and incorporated herein by this reference. 14.0 Monument Security. Prior to City's execution of this Agreement, to guarantee payment to the engineer or surveyor for the setting of all subdivision boundaries, lot corners, and street centerline monuments for Tract No. 054057-08 in compliance with the applicable provisions of City's Municipal and/or Development Code ("Subdivision Monuments"), Developer shall deposit cash with City in the amount of Ten Thousand Dollars ($10,000), which sum shall not be less than one hundred percent (100%) of the costs of setting the Subdivision Monuments as determined by the City Engineer. Said cash deposit may be released by written authorization of the City Engineer after all required Subdivision Monuments are accepted by the City Engineer, City has received written acknowledgment of payment in full from the engineer or surveyor who set the Subdivision Monuments, and provided Developer is not in default of any provision of this Agreement or condition of approval for Parcel/Tract No. 054057-08. 15.0 Lien. To secure the timely performance of Developer's obligations under this Agreement, including those obligations for which security has been provided pursuant to Sections 13 et seq. and 14 of this Agreement, Developer hereby creates in favor of City a lien against all portions of the Property not dedicated to City or some other governmental agency for a public purpose. As to Developer's default on those obligations for which security has been provided pursuant to Sections 13 et seq. and 14 of this Agreement, City shall first attempt to collect against such security prior to exercising its rights as a contract lienholder under this section. 16.0 Indemnification. Developer shall defend, indernnify, and hold harmless City, its elected officials, officers, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury, to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of Developer, its personnel, employees, agents, or contractors in comlection with or arising out of construction or maintenance of the Public Improvements, or performance of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys fees, and related costs or expenses, and the reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused solely and exclusively by the negligence or willful misconduct of Agency as determined by a court or administrative body of ORANGEWMARTINED33457. 19 competent jurisdiction. Developer's obligation to indemnify shall survive the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, officers, employees, or agents. 17.0 Insurance. 17.1 Types, Amounts. Developer shall procure and maintain, and shall require its contractors to procure and maintain, during construction of any Public Improvement pursuant to this Agreement, insurance of the types and in the amounts described below ("Required Insurance"). If any of the Required Insurance contains a general aggregate limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurrence limit. 17.1.1 General Liability. Developer and its contractors shall procure and maintain occurrence version general liability insurance, or equivalent forin, with a combined single limit of not less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage. 17.1.2 Business Automobile Liability. Developer and its contractors shall procure and maintain business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for the ownership, operation, maintenance, use, loading, or unloading of any vehicle owned, leased, hired, or borrowed by the insured or for which the insured is responsible. 17.1.3 Workers' Compensation. Developer and its contractors shall procure and maintain workers' compensation insurance with limits as required by the Labor Code of the State of California and employers' liability insurance with limits of not less than $1,000,000 per occurrence, at all times during which insured retains employees. 17.1.4 Professional Liabil�. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to include contractual liability. 17.2 Deductibles. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its elected officials, officers, employees, agents, and volunteers; or (b) Developer and its contractors shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses. 17.3 Additional Insured, Separation of Insureds. The Required Insurance shall name City, its elected officials, officers, employees, agents, and volunteers as additional insureds with respect to work performed by or on behalf of Developer or its contractors, including materials, parts, or equipment furnished in connection therewith. The Required Insurance shall ORANGE\M M ARTIN EZ\33457. 110 contain standard separation of insureds provisions, and shall contain no special limitations on the scope of its protection to City, its elected officials, officers, employees, agents, and volunteers. 17.4 Primary Insurance-, Waiver of Subro ation. The Required Insurance shall be primary with respect to any insurance or self-insurance programs covering City, its elected officials, officers, employees, agents, and volunteers. All policies for the Required Insurance shall provide that the insurance company waives all right of recovery by way of subrogation against City in connection with any damage or harm covered by such policy. 17.5 Certificates; Verification. Developer and its contractors shall furnish City with original certificates of insurance and endorsements effecting coverage for the Required Insurance. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by City before work pursuant to this Agreement can begin. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 17.6 Term, Cancellation Notice. Developer and its contractors shall maintain the Required Insurance for the term of this Agreement and shall replace any certificate, policy, or endorsement which will expire prior to that date. All policies shall be endorsed to provide that the Required Insurance shall not be suspended, voided, reduced, canceled, or allowed to expire except on 30 days prior written notice to City. 17.7 Insurer Ratin>;. Unless approved in writing by City, all Required Insurance shall placed with insurers licensed to do business in the State of California and with a current A.M. Best rating of at least A:VIII. 18.0 Signs and Advertising. Developer understands and agrees to City's ordinances, regulations, and requirements governing signs and advertising structures. Developer hereby agrees with and consents to the removal by City of all signs or other advertising structures erected, placed, or situated in violation of any City ordinance, regulation, or other requirement. Removal shall be at the expense of Developer and its surety. Developer and its surety shall indemnify and hold City free and harmless from any claim or demand arising out of or incident to signs, advertising structures, or their removal. 19.0 Relationship Between the Parties. The Parties hereby mutually agree that neither this Agreement, any map related to Tract No. 054057-08, nor any other related entitlement, pennit, or approval issued by City for the Property shall operate to create the relationship of partnership, joint venture, or agency between City and Developer. Developer's contractors and subcontractors are exclusively and solely under the control and dominion of Developer. Nothing herein shall be deemed to make Developer or its contractors an agent or contractor of City. 20.0 General Provisions. 20.1 Authority to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority make this Agreement and bind each respective Party. ORANGE\M MARTINEZ\33457. 111 20.2 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. 20.3 Construction; References, Captions. It being agreed the Parties or their agents have participated 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 Developer include all personnel, employees, agents, and subcontractors of Developer, except as otherwise specified in this Agreement. All references to City 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. 20.4 Notices. All notices, demands, invoices, and written communications shall be in writing and delivered to the following addresses or such other addresses as the Parties may designate by written notice: CITY: City of Azusa P.O.Box 1395 213 E. Foothill Blvd. Azusa, Ca.91702` Attn:�City Manager DEVELOPER: CITYVIEW ROSEDALE_98, LP 475 WASHINGTON BLVD MARINA DELY REY CA 90292 Attn: Jeffrey Lee Depending upon the method of transmittal, notice shall be deemed received as follows: by facsimile, as of the date and time sent; by messenger, as of the date delivered; and by U.S. Mail first class postage prepaid, as of 72 hours after deposit in the U.S. Mail. 20.5 Amendment, Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 20.6 Waiver. City's failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or City's waiver of any breach of this Agreement, shall not relieve Developer of any of its obligations under this Agreement, whether of the same or similar type. The foregoing shall be true whether City's actions are intentional or unintentional. Developer agrees to waive, as a defense, counterclaim or set off, any and all defects, irregularities or deficiencies in the authorization, execution or performance of the Public Improvements. or this Agreement, as well as the laws, rules, regulations, ordinances or resolutions of City with regards to the authorization, execution or perfonnance of the Public Improvements or this Agreement. 20.7 Assignment or Transfer of A •eement. Developer shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of City. Any attempt to do so shall be null and void, and any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such attempted assigiunent, hypothecation, or transfer. Unless specifically stated to the contrary in ORANGE\M MARTIN EZ\33457. 112 City's written consent, any assignment, hypothecation, or transfer shall not release or discharge Developer from any duty or responsibility under this Agreement. 20.8 Binding Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This section shall not be construed as an authorization for any Party to assign any right or obligation. 20.9 No Third _Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 20.10 InyaliditySeverability. invalid, illegal, or otherwise unenforceable by provisions shall continue in full force and effect. If any portion of this Agreement is declared court of competent jurisdiction, the remaining 20.11 Consent to Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of Los Angeles, California. Each Party waives the benefit of any provision of state or federal law providing for a change of venue to any other court or jurisdiction including, without limitation, a change of venue based on the fact that a governmental entity is a party to the action or proceeding, or that a federal right or question is involved or alleged to be involved in the action or proceeding. Without limiting the generality of the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to California Code of Civil Procedure Section 394. 20.12 Attorneys' Fees and Costs. If any arbitration, lawsuit, or other legal action or proceeding is brought by one Party against the other Party in connection with this Agreement or the Property, the prevailing party, whether by final judgment or arbitration award, shall be entitled to and recover from the other party all costs and expenses incurred by the prevailing party, including actual attorneys' fees ("Costs"). Any judgment, order, or award entered in such legal action or proceeding shall contain a specific provision providing for the recovery of Costs, which shall include, without limitation, attorneys' and experts' fees, costs and expenses incurred in the following: (a) post judgment motions and appeals, (b) contempt proceedings, (c) garnishment, levy, and debtor and third party examination, (d) discovery, and (e) bankruptcy litigation. This section shall survive the tennination or expiration of this Agreement. 20.13 Counterparts. This Agreement may be executed in counterpart originals, which taken together, shall constitute one and the same instrument. ORANGE\MMARTINEZ\33457. 113 CITY OF AZUSA CITYVIEWROS ALE 98, LP r By: By: (signature)I/ (signature) Francis M. Delach Jeffrey Le (print name) Authorized Signatory (print name) City Manager City of Azusa ATTEST: By: +� " By: (signature (print naive) City Clerk City of Azusa (title) (signature) (print name) (title) NOTE: DEVELOPER'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER'S BUSINESS ENTITY. ORAN GEN MARTIN EZ03457. 114 ACKNOWLEDGMENT r. a a a a a. a r... r r N a a a a a a a a a M a a a a a a a a a a a al a M a a 0 a f a a a. a. r. r. r r r. a r. r .. .. r ... a .. a l State of California County of Los Angeles) ss. On October 27, 2010 before me, Laura A. De armin Nota Public, personally appeared Jeffrey Lee, who 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 signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. _Signature - � LAURA A. DEYARMIN Commission # 1869114 Notary Public - California Z Los Angeles County a My Comm. Expires Nov 20, 2013 t (seal) a a a a a R a a a ... M a a a 1 a a a a a a a■■ a. a. a r■■ N V a a a a a a a a a a a a a. a a a a a t a a a a a a. a a a a a a a a a a a r, OPTIONAL INFORMATION Date of Document Type or Title of Document Number of Pages in Document Document in a Foreign Language Type of Satisfactory Evidence: Personally Known Paper Identification Credible Witness(es) Capacity of Signer: Trustee Power of Attorney CEO/CFO/COO President / Vice -President / Secretary / Treasurer Other: Other Information: ACKNOWLEDGMENT ORANG E\MMARTINEZ\33457. 115 Thumbprint of Signer Check here if no thumbprint or fingerprint is available. ACKNOWLEDGMENT a a a a a a a a a a a a a a a a a 2 a a a X a M. a a a a a is a a a a a a a a a a l a a a a a a a R a a a a a a a f a a a a a. a a ►411 a a s a a a a a l State of California County of ss. On V0(l&M hCe o?®/D before me, () GC F` 61ZLe e- f05CZ, 0D , Notary Public, personally appeared Pe /LIC S D� CHC proved to mb on the basis of satisfactory kevidence to be the personK_ whose name 4 r subscribeaer/their the within instrument and ack owledged to hat e/ e/they executed the same in authorized capacity(i 9), and that by �er/their signatures on the instrument the person( , or the entity upoh behalf of which the personK acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 71) Signature CANDACE TOSCANO Commission # 1738880 4� Notary Public - Californfo Loa Ange193 County Coirnn F, May 12, �4T 1 �, (seal) 0 a a a a a a a a a a a a a a 0 a a .. .. .. . a a a a a a a 0 a a. a a a. a a a a a f a a a a a a a 11 a a a f a a a f a a a a a a a a a a a a a l OPTIONAL INFORMATION Date of Document Type or Title of Document Number of Pages in Document Document in a Foreign Language Type of Satisfactory Evidence: Personally Known Paper Identification Credible Witness(es) Capacity of Signer: Trustee Power of Attorney CEO/CFO/COO President / Vice -President / Secretary / Treasurer Other: Other Information: ORANGEWMARTINEZ03457- 115 Thumbprint of Signer Check here if no thumbprint or fingerprint is available. EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY TRACT NO. 054057-08 ORANGEWMARTIN EZU 3457. 117 LEGAL DESCRIPTION EXHIBIT "A" THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:. PARCEL A: LOTS 1 THROUGH 7, INCLUSIVE, 15 THROUGH 30, INCLUSIVE, 35, 36, 43 THROUGH 47, INCLUSIVE, AND LETTERED LOTS "B", "C- ANP "D" OF TRACT NO, 054057-8, IN THE CITY OF AZUSA, AS PER MAP RECORDED IN BOOK 1326, PAGE(S) 67 THROUGH 71, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF LOS ANGELES COUNTY, CALIFORNIA. RESERVING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY. BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING, AND OPERATING THEREFORE AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE- SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS, AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN, AND OPERATE ANY.SUCH WELLS OR MINES WITHOUT, HOWEVER, THE RIGHTTO DRILL, MINE, STORE, EXPLORE OR OPERATE THROUGH THE SURFACE ORTHE UPPER 500 FEET OFTHE SUBSURFACE OF THE LAND, ALL AS RESERVED BY AZUSA LAND PARTNERS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, IN A DEED RECORDED JULY 201 2006,. AS INSTRUMENT NO. 06-1600762, OF OFFICIAL RECORDS. ALSO EXCEPTING ANY AND ALL WATER, WATER RIGHTS OR INTERESTS THEREIN APPURTENANT OR RELATING TO THE LAND OR OWNED OR USED IN CONNECTION WITH OR WITH RESPECT TO THE LAND, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL, TOGETHER WITH THE RIGHT AND POWERTO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE SAME FROM OR IN THE LAND TO DIVERT OR OTHERWISE UTILIZE SUCH WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED OR LEASED BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SUBSURFACE OF THE LAND IN THE EXERCISE OF SUCH RIGHTS ALL AS RESERVED BY AZUSA LAND PARTNERS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, IN A DEED RECORDED JULY 20, 2006, AS INSTRUMENT NO. 06-1600762, OF OFFICIAL RECORDS, PARCEL B: NON-EXCLUSIVE EASEMENTS FOR ACCESS, DRAINAGE, ENCROACHMENT, SOPPORT, MAINTENANCE, REPAIR AND/OR OTHER PURPOSES, ALL AS MAY BE SHOWN ON THE,MAP AND/OR SET FORTH IN THE COMMUNITY DECLARATION RECORDED AS INSTRUMENT NO, 20062651354, OF OFFICIAL RECORDS. APN(S): 8625-031-001.,THROUGH 007, INCLUSIVE;. 016 THROUGH. 021, INCLUSIVE; 026; 027; .037 THROUGH 041, INCLUSIVE; ,044; 049; AND 050; 8625-032-001 THROUGH 010, INCLUSIVE ORANGE\MMARTINEZ\33457. 118 EXHIBIT "B" LIST OF PUBLIC IMPROVEMENTS TRACT NO. 054057-08 1. Engineer's Estimate $239,729.74 2. Landscape Architect's Estimate for Park #2 353,244.98 3. Landscape Architect's Estimate for Lot B Slopes 117,989.52 Total Bond Amount for Greenbriar Public Improvements $710,964.24 Detailed lists attached. O RAN G E\M M ART IN EZ\3 345 7. 119 Tract 54057-08 Rosedale Greenbriar Total Unit Units Bond Streets Quantltes Price Estimate AC 4026 $ 55,00 Tons $ 27,067 50 Base 0 $ 40.00 Tons $ - C&G 0 $ 25-00 LF $ - Street Lights 14 $ 1,500.00 EACH $ 21,000.00 Concrete Pavement ����`-Qr`� 50"761,x'$ 5.00 SQ FT $ 2.95,9a6 — Curb Ramps 10 $ 1,500.0D each $ 15,000.00 Sidewalk 228888 $ 3.50 sq ft $ 80,110.80 Misc Items 10% $ .195 E> 9Q 1 4,, total $ 159,109.22 storm Drains if 18" RCP 0 $ 5800 If $ - 24" RCP 0 $ 82.00 If $ - 30' RCP 0 $ 110.00 If $ 36' RCP 0 $ 140.00 If $ 42" RCP $ 156,00 If $ 54" RCP $ 25000 If $ 60" RCP $ 300,00 If $ Other RCP $ 320,00 If $ Manholes 0 $ 3,000.00 each $ Junction Structures 0 $ 1,00000 each $ Catch Basins 0 $ 3,500,00 each $ Catch Baslnslgrates $ 4,OOD 00 each $ Misc items $ 15,000.00 $ 15,000.00 Sewers House laterals 0 £ 30.00 If $ - 8" VCP 0 $ 5700 If $ 10" VCP S 6100 If $ 12" VCP 70,00 If $ - Manholes 0 $ 3,000.00 each $ - Misc Items 5% $ 7,500.00 $ 7,500.00 Water 8" DIP 0 $ 43.00 If $ 12" DIP $ 60.00 If $ 16" DIP $ 70.00 If $ 12" Valves $ 3,000 00 each $ 8" Valves 0 $ 3,00000 Gaol) $ Thrust Blocks $ 1,000,00 each $ - Fire Hydrants 0 $ 2,000.00 each $ Misc items 5% $ 10,000 00 $ '10,000.00 Grand Total est $ `13f80a�2r7'��� 13 Contingency 10% $ 1gr�68-02 Bond amount $ Landscape Architect's ODinlon of Probable Cost Date: 5 -Aug -10 Project: Rosedale - Park #2 (Greenbriar) Client: Lee Homes Prepared By: Michael Lombardi In providing opinions of probable construction cost, the Client understands that the Landscape Architect has no control over costs or the price of labor, equipment or materials, or over the contractor's method of pricing, and that the opinions of probable construction costs provided herein are to be made on the basis of the Landscape Architect's qualifications and experience. There are no warranties, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. ITEM DESC. Quantity Unit Cost Total Extension Construction Concrete flatwork 6,325 sf $10.00 $63,250.00 Ramp 3 ea $250.00 $750.00 Park Sign 1 ea $7,500.00 $7,500.00 Monument pilaster 10 ea $850.00 $8,500,00 Tubular sti. barrier rail 175 If $35.00 $6,125.00 Low retaining wall 290 sf $35.00 $10,150.00 Mow curb 445 If $12.00 $5,340.00 Tot -lot wall 265 If $23.00 $6,095.00 Play structure & equipment 1 ea $45,000.00 $45,000.00 Rubber mulch 4,050 cy $8.00 $32,400.00 Bench 4 ea $1,200.00 $4,800.00 Litter receptacle 1 ea $500.00 $500.00 Drinking fountain 1 ea $2,500.00 $2,500.00 Bulletin board 1 ea $500.00 $500.00 Ramp 1 ea $300.00 $300.00 Drainage 1 allow $12,000.00 $12,000.00 Citrus artwork 6 ea $1,000.00 $6,000.00 Construction Subtotal $211,710.00 IRRIGATION Standard 25,276 sf $1.50 $37,914.00 Controls 1 ea $2,500.00 $2,500.00 Point of connection 1 ea $2,000.00 $2,000.00 Irrigation Subtotal $42,414.00 PLANTING Total Area 25,276 sf Fine Grading 25,276 sf $0.25 $6,319.00 Soil Amendment 25,276 sf $0.75 $18,957,00 Mulch (shrub/groundcover) 6,096 sf $0.30 $1,828.80 Turf 19,180 sf $0.45 $8,631.00 seed 1 gallon shrubs 1,998 ea $12.00 $23,976.00 5 gallon shrubs 63 ea $17.00 $1,071.00 24" box trees 6 ea $300.00 $1,800.00 36" box trees 9 ea $425.00 $3,825.00 48" box trees 1 ea $600.00 $600.00 Planting Subtotal $67,007.80 Subtotal $321,131.80 Contingency 10% $32,113.18 Grand Total $353,244.98 Landscape Architect's Ooinlon of Probable Cost Date: 5 -Aug -10 Project: Rosedale - Greenbriar Lot B Slopes Client: Lee Homes Prepared By: Michael Lombardi In providing opinions of probable construction cost, the Client understands that the Landscape Architect has no control over costs or the price of labor, equipment or materials, or over the contractor's method of pricing, and that the opinions of probable construction costs provided herein are to be made on the basis of the Landscape Architect's qualifications and experience. There are no warranties, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. ITEM DISC, Quantity Unit Cost Total Extension IRRIGATION Standard 22,034 sf $1.50 $33,051.00 Controls upgrade 1 ea $1,000.00 $1,000.00 Point of connection tie in 1 ea $500.00 $500.00 Irrigation Subtotal $34,551.00 PLANTING Total Area 22,034 sf Fine Grading 22,034 sf $0.25 $5,50850 Soil Amendment 22,034 sf $0.75 $16,525.50 Mulch (shrub/groundcover) 22,034 sf $0.30 $6,610.20 Planting 22,034 sf $2.00 $44,068.00 Planting Subtotal $72,712.20 Subtotal $107,263.20 Contingency 10% $10,726.32 Grand Total $117,989.52 EXHIBIT "C" SURETY BONDS AND OTHER SECURITY TRACT NO. 054057-08 As evidence of understanding the provisions contained in this Agreement, and of the Developer's intent to comply with same, the Developer has submitted the below described security in the amounts required by this Agreement, and has affixed the appropriate signatures thereto: PERFORMANCE BOND PRINCIPAL AMOUNT: $710,964.24 Surety: Attorney-in-fact: Address: MATERIAL AND LABOR BOND PRINCIPAL AMOUNT: $71064.24 Surety: Attorney-in-fact: Address: CASH MONUMENT SECURITY: $10,000 Amount deposited per Cash Receipt No. O RAN G E\M M ARUM EZ\3 3457. 120 Date: EXECUTED IN FIVE (5) COUNTER PARTS BOND NO.: SBO16000265 INITIAL PREMIUM: $14,219.00/2 Years SUBJECT TO RENEWAL CITY OF AZUSA TRACT MAP N0,54057-08 IMPROVEMENTS (GREENBRIAR) PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: WHEREAS the City of Azusa, California ("City") and CITYVIEW ROSEDALE 98, LP ("Principal"), have executed an agreement for work consisting of, but not limited to, the furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, stone drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. 054057-08 ("Public Improvements,,); (GREENBRIAR) WHEREAS, the Public Improvements to be performed by Principal are more particularly set forth in that certain Agreement for Completion of Pubic Improvements dated November 1 2010 ("Improvement Agreement"); r_ WHEREAS, the Improvement Agreement is hereby referred to and incorporated herein by reference; and WHEREAS, Principal is required by the Improvement Agreement to provide a good and sufficient bond for performance of the Improvement Agreement, and to guarantee and warranty the Public Improvements constructed thereunder. NOW, THEREFORE, Principal and ULLICO CASUALTY COMPANY ("Surety"), a corporation organized and existing under the laws of the State of DELAWARE , and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto City in the sum of SEVEN HUNDRED TEN THOUSAND NINE HUNDRED SIXTY FOUR DOLLARS AND TWENTY FOUR CENTS ($710,964,24) said sum being not less than one hundred percent (100%) of the total cost of the Public Improvements as set forth in the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, finely by these presents. THE CONDITION OF THIS OBLIGATION is such, that if Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perforin the covenants, conditions, agreements, guarantees, and warranties in the Improvement Agreement and any alteration thereof made as therein provided, to be kept and performed at the time and in the manner therein specified and in all respects according to their intent and meaning, and to indemnify and save harinless City, its officers, GRAN GE\MMARTINEZ\3 3457. 121 employees, and agents, as stipulated in the Improvement Agreement, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. As part of the obligation secured hereby, and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition. This bond is executed and filed to comply with Section 66499 et seq. of the Government Code of California as security for performance of the Improvement Agreement and security for the one-year guarantee and warranty of the Public Improvements, IN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney -in -Fact at LOS ANGELES, CA this 26th day of OCTOBER ,2010, CITYVIEW ROSEDALE 98, LP Principal Surety ULLICO CASUALTY COMPANY Attorney -in -Fact r;~ y PAUL E. BOUCHER ` (print name) (print name) y, - •avOdPB �` NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION BY PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF ATTORNEY TO LOCAL REPRESENTATIVES OF THE BONDING COMPANY MUST BE ATTACHED TO THIS BOND. ORA N GENM ARTINEM33457. 122 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Los Angeles On 10/27/10 Date before me, Laura A. Deyarmin, a Notary Public Here Insert Name and Title of the Officer ' personally appeared Jeffrey Lee Nan*(s) of slgner(s) LAURA A. pEYAHMIN Commission # 1869114 a Notary Public - California v Z Los Angeles County ' Z . M Comm. EX fres Nov 20, 2013 Place Notary Seal Above who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my h nd and official seal. Signatur Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ■ ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHULgSPRINT OP SIGNEiiZ ;'-'. thumblop of mhere 02007 National Notary Association- 9350 De Solo Ave-, P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationaiNotary.org Ilem 45907 Reorder: Call Toll -Free 1-800-878-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA County of LOS ANGELES } On OCTOBER 26, 2010 before me, HEATHER WIN, NOTARY PUBLIC D'Ito Here Insert Name and Title of the Officer personally appeared PAUL E. BOUCHER Name(s) of Signer(s) Capacity(les) Claimed by Signer(s) Signer's Name: PAUL E. BOUCHER ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner ❑ Limited ❑ General ® Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing. Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: �`�-�.�. -�'� .._ -._.. _ _'.qtr - ._ _. _ _ • '�4`�C^.�C:�--�;°�4'�:.-�{.': - _ �L 02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll -Free 1-800-876-6827 who proved to me on the basis of satisfactory evidence to be the person(X) whose name(x) is/msubscribed to the within instrument and acknowled ed to me that he/AmAky executed the same in his&W~ • authorized capacity, and that by hisMM" signature(%) on the instrument the person(g), or the entity upon behalf of which the person(X) HEATHER WIN acted, executed the instrument. Commission # 1897397 p Notary Public - California I certif under PENALTY OF PERJURY under the laws of Y Los Angeles County r the State of California that the foregoing paragraph is true My Comm. Expires Jul 27, 2014 and correct. Witness my hand and offi ial seal. Signature�� Place Notary Seal Above Signature of Notary Public HEATHER WIN OPTIONAL Though the information belay is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: CITYVIEW ROSEDALE 98, LP - BOND #SB016000265 (GREENBRIAR) Document Date: _OCTOBER 26, 2010 Number of Pages: Signer(s) Other Than Named Above: - NONE Capacity(les) Claimed by Signer(s) Signer's Name: PAUL E. BOUCHER ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner ❑ Limited ❑ General ® Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing. Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: �`�-�.�. -�'� .._ -._.. _ _'.qtr - ._ _. _ _ • '�4`�C^.�C:�--�;°�4'�:.-�{.': - _ �L 02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll -Free 1-800-876-6827 BOND NO.: SBO16000265 INITIAL PREMIUM: INCLUDED IN PERF. BOND SUBJECT TO RENEWAL CITY OF AZUSA TRACT MAP IMPROVEMENTS LABOR AND MATERIAL BOND KNOW ALL MEN BY THESE PRESENTS: WHEREAS the City of Azusa, California ("City") and CITYVIEW ROSEDALE 98, LP ("Principal"), have executed an agreement for work consisting of, but not limited to, the furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. 054057-08 ("Public Improvements"); (GREENBRIAR) WHEREAS, the Public Improvements to be performed by Principal are more particularly set forth in that certain Agreement for Completion of Pubic Improvements dated November 1 , 2010 ("Improvement Agreement"); WHEREAS, the Improvement Agreement is hereby referred to and incorporated herein by reference; and WHEREAS, Principal is required to furnish a bond in connection with the Improvement Agreement providing that if Principal or any of its subcontractors shall fail to pay for any materials, provisions, or other supplies, or terms used in, upon, for, or about the performance of the Public Improvements, or for any work or labor done thereon of any kind, or for amounts due under the provisions of Title 15 (commencing with section 3082) of Part 4 of Division 3 of the California Civil Code, with respect to such work or labor, that the Surety on this bond will pay the same together with a reasonable attorney's fee in case suit is brought on the bond. NOW, THEREFORE, Principal and ULLICO CASUALTY COMPANY ("Surety"), a corporation organized and existing under the laws of the State of DELAWARE _j and duly authorized to transact business under the laws of the State of California, are held and finely bound unto City and to any and all material men, persons, companies or corporations furnishing materials, provisions, and other supplies used in, upon, for or about the performance of the Public Improvements, and all persons, companies or corporations renting or hiring teams, or implements or machinery, for or contributing to the Public Improvements to be done, and all persons performing work or labor upon the salve and all persons supplying both work and materials as aforesaid excepting the Principal, the sum of SEVEN HUNDRED TEN THOUSAND NINE HUNDRED SIXTY FOUR DOLLARS AND TWENTY FOUR CENTS ORANG&MMARTINED33457, 124 ($710,964.24), said sum being not less than 100% of the total cost of the Public Improvements under the terms of the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if the Principal, his or its subcontractors, heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies or machinery used in, upon, for or about the performance of the Public hnprovements, or for work or labor thereon of any kind, or fail to pay any of the persons named in California Civil Code Section 3181, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, and all other applicable laws of the State of California and rules and regulations of its agencies, then said Surety will pay the same in or to an amount not exceeding the sum specified herein. As part of the obligation secured hereby, and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. This bond is executed and filed to comply with Section 66499 et seed. of the California Government Code as security for payment to contractors, subcontractors, and persons furnishing labor, materials, or equipment for construction of the Public Improvements or performance of the Improvement Agreement. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the California Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond. Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition. ORANGEWMARTIN EZ\33457. 125 IN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its 'duly authorized Attorney -in -Fact at _L_25ANGELES, CA this 26th day of OCTOBER , 2010. CITYVIEW ROSEDALE 98, WIND raT.7v W ■G\i KTLMTAI',T, WARKTI Principal S By: By: Tc t' -f' f- Attorney -in -Fact PAUL E. BOUCHER (paint name) (print name) NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION BY PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF ATTORNEY TO LOCAL REPRESENTATIVES OF THE BONDING COMPANY MUST BE ATTACHED TO THIS BOND, ORAN GEWMARTINEZ133457. 126 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Los Angeles On 10/27/10 before me, Laura A. Deyarmin, a Notary Public Date Were Insets Name and Title of Il le Opines ' personally appeared Jeffrey Lee Name(s) a1 Signet(s) who 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 LAURA io # 18691 ca aci ies and that b hissignature(s) ' Commission # 1869114 p ty( ), y /her/their on the Notary Public - California z instrument the person(s), or the entity upon behalf of • Z `+ Los Angeles County which the person(s) acted, executed the instrument. My Comm. Expires Nov 20, 2013 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my € a d and official seal, Place Notary Seal Above Signatu e Signalu[e of Notary %'UWic OPTIONA. Though the oformalion below is not required by law, it may prove valuabfe to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: _ Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): _ ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing:. RIGHTTHUMPHINT. .. of lhumb here 02007 Nalional Notary Association • 9350 De Solo Ave., P.O, Box 2402 • Chalsworlh, CA 91313-2402 - www.NationaiNolary.org Item 45907 Reorder: Call Toll -Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA O 1 County of LOS ANGELES Jj On OCTOBER 26, 2010 before me, HEATHER WIN, NOTARY PUBLIC Date Here Insert Name and Title of the Officer personally appeared PAUL E. BOUCHER Name{s} of Signer{sy HEATHER WIN .s" Y Commission # 1897397 «oe.1 Notary Public California Z Los Angeles County My Comm. Expires Jul 27, 2014 who proved to me on the basis of satisfactory evidence to be the person(X) whose name(*) is/(subscribed to the within instrument and acknowledged to me that heUxZmy executed the same in hisXWX)9X- authorized capacityl, and that by his/iQ (Xk signature(x) on the instrument the person(}), or the entity upon behalf of which the person(X) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Signature ' Place Notary Seal Above Signalure of Notary Public HEATHER WIN OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: CITYVIEW ROSEDALE 98 LP - BOND #SB016000265 GREENBRIAR) Document Date: OCTOBER 26, 2010 Signer(s) Other Than Named Above Capacity(lies) Claimed by Signer(s) Signer's Name: PAUL E. BOUCHER ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ® Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: NONE Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s)--- El itle(s)—❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ;;�c<:�i:`�c:"�-�'�^�`�is�t.= • _ _ .� � Wit:": _ � - _-.._ -� _ _ _ �: ._ .� � �'" 0 2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationaiNotary.org Item #5907 Reorder: Call Toll -Free 1-800-876-6827 ULLICO Casualty Company VU I ico 1625 Eye Street, N.W. Washington D.C. 20006 Power of Attorney KNOW ALL PERSONS BY THESE PRESENTS: That ULLICO CASUALTY COMPANY (the Company), a corporation organized and existing under the laws of theAtate of Delaware, does hereby constitute and appoint: JANINA MONROE, PAUL E. BOUCHER, THOMAS G. MCCALL, TIMOTHY J. NOONAN, JEREMY YEUNG of LOCKTON COMPANIES, LLC Its true and lawful Attorney (s) in fact with full authority to execute on its behalf bonds, undertakings, recognizances and other contracts of indemnity and writings obligatory in the nature thereof, issued in the course of its business and to bind the Company thereby, in an amount not to exceed $5,000,000.00. This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of ULLICO Casualty Company at a meeting duly called the 15th day of July, 2009. RESOLVED: That the Board of Directors hereby authorizes the President or any Vice President of the Company to: (1) Appoint Attorney(s) in Fact and authorize the Attorney(s) in Fact to execute on behalf of the Company bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof and to attach the seal of the Company thereto; and (2) to remove, at any time, any such Attorney -in -Fact and revoke the authority given. And, be it FURTHER RESOLVED: That the signatures of such officers and the seal of the Company may be affixed to any such Power of Attorney or certificate relating thereto by facsimile, and any such Power of Attorney so executed and certified by facsimile signatures and facsimile seal shall be valid and biding upon the Company in the future with the respect to any bond or undertaking to which it is attached. IN TESTIMONY WHEREOF, UL 5tSjWA,I,.6Tf.OMPANY has caused this instrument to be signed and its corporate seal to be affixed by its authorized office [his da jj LL ff uU 20 ',,,<tjIIIoil `tike �bll8liy rirr �•pPbq pri SEAL 1979 .m rte: .4AWK 1��' Daniel Aronowitz rJ"101 ti I I lttSv, President ULLICO Casualty Company, a Delaware Corporation. On this 160' day of July 2009, before me came the individual who executed the preceding instrument, to me personally known, and being by me duly sworn said that he is the therein described and authorized officer of the ULLICO CASUALTY COMPANY; that the seal affixed to said instrument is the Corporate seal of said Company; that the said Corporate Seal and his signature were duly affixed. Notary Public CATHERINE M. OBRIEN NOTARY PUBLIC STATE OF MARYLAND MONTGOMERY COUNTY MY COMMISSION EXPIRES JANUARY 21, 2012 CERTIFICATE I, Teresa E. Valentine, Senior Vice President, General Counsel and Secretary of ULLICO Casualty Company, do herby certify that the foregoing resolution of the Board of Directors and this Power of Attorney issued pursuant thereto on this 16th day of July 2009 are true and correct and are still in full force and effect I do further certify that that Daniel Aronowitz, who executed the Power of Attorney as President, was on the date of execution of the attached Power of Attorney the duly elected President of ULLICO Casualty Company, In Testimony Whereof I have subscribed my name and affixed the facsimile seal of each Company this 16°i day of July 2009, Teresa E. Valentine Senior Vice President, General Counsel & Secretary ULLICO Casualty Company P • �rOFu+A�. N 9treoix��r". CONSENT CALENDAR TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: VERA MENDOZA, CITY CLER A /� DATE: NOVEMBER 1, 2010 SUBJECT: RESOLUTIONS RELATING TO THE MARCH 8, 2011 GENERAL MUNICIPAL ELECTION RECOMMENDATION: It is recommended that the City Council waive further reading and adopt Resolution Calling for a General Municipal Election to be held on March 8, 2011 and Resolution Requesting County of Los Angeles Registrar-Recorder Services. BACKGROUND: A General Municipal Election will be held in the City of Azusa on March 8, 2011 for the election of one Mayor, and two City Council Members. State Law requires that General Law Cities adopt resolution calling for election and also adopt a resolution requesting certain services from Los Angeles County. FISCAL IMPACT: All costs associated with the election are budgeted. Prepared by C. Toscano, Assistant City Clerk Attachments: Two proposed Resolutions relating to 3/8/11 General Municipal Election. RESOLUTION NO. 10-C A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, CALLING FOR THE HOLDING OF A GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY,MARCH 8,2011,FOR THE ELECTION OF CERTAIN OFFICERS. WHEREAS,under the provisions of the laws relating to general law cities in the State of California, a General Municipal Election shall be held on March 8, 2011, for the election of Municipal Officers; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. That pursuant to the requirements of the laws of the State of California relating to General Law Cities,there is called and ordered to be held in the City of Azusa,California, on Tuesday,March 8,2011,a General Municipal Election for the purpose of electing a Mayor for the full term of two years and two Members of the City Council for the full term of four years. SECTION 2. That the ballots to be used at the election shall be in form and content as required by law. SECTION 3. That the City Clerk is authorized,instructed and directed to procure and furnish any and all official ballots, notices, printed matter and all supplies, equipment and, paraphernalia that may be necessary in order to properly and lawfully conduct the election. • SECTION 4. That the polls for the election shall be open at seven o'clock a.m.of the day of the election and shall remain open continuously from that time until seven o'clock p.m.of the same day when the polls shall be closed, pursuant to Election Code § 10242, except as provided in §14401 of the Elections Code of the State of California. SECTION 5. That pursuant to Elections Code §12310,a stipend for services for the persons named as precinct board members is fixed at the sum of$100.00 for each Inspector and $80.00 for each Clerk for the election. The rental for each polling place, where a charge is made, shall be the sum of$40.00 for the election. When required, the compensation of the Custodian of a building shall be $55.00 for the election. SECTION 6. That in all particulars not recited in this resolution,the election shall be held and conducted as provided by law for holding municipal elections. SECTION 7. That notice of the time and place of holding the election is given and the City Clerk is authorized, instructed and directed to give further or additional notice of the election, in time, form and manner as required by law. SECTION 9. That the City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original Resolutions. SECTION 10.The city Council authorizes the City Clerk to administer said election and all reasonable and actual election expenses shall be paid by the City upon presentation of a properly submitted bill. PASSED, APPROVED AND ADOPTED on November 1, 2010. MAYOR I HEREBY CERTIFY that the foregoing resolution was duly adopted by the City Council of the City of Azusa at a regular meeting held on the November 1, 2010,by the following vote of the Council: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ATTEST: CITY CLERK RESOLUTION NO. 10-C A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, REQUESTING THE BOARD OF SUPERVISORS OF LOS ANGELES COUNTY TO RENDER SPECIFIED SERVICES TO THE CITY RELATING TO THE CONDUCT OF A GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, MARCH 8, 2011. WHEREAS, a General Municipal election is to be held in the City of Azusa, California, on March 8, 2011, and WHEREAS, in the course of conduct of the election it is necessary for the City to request services of the County, and WHEREAS,all necessary expenses in performing these services shall be paid by the City of Azusa; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. That pursuant to the provisions of§10002 of the Elections Code of the State of California,this City Council requests the Board of Supervisors of the County to permit the County Election Department to prepare and furnish the following for use in conducting the election: 1. A listing of county precincts with number of registered voters in each, so city may consolidate election precincts into city voting precincts, and maps of the voting precincts; 2. A list of polling places and poll workers the county uses for their elections; 3. The computer record of the names and address of all eligible registered voters in the City in order that the City's consultant may: a. Produce labels for vote-by-mail voters; b. Produce labels for sample ballot pamphlets; c. Print Rosters of Voters and Street Indexes; 4. Voter signature verification services as needed; 5.Make available to the City election equipment and assistance as needed according to state law. SECTION 2. That the City shall reimburse the County for services performed when the work is completed and upon presentation to the City of a properly approved bill. SECTION 3. That the City Clerk is directed to forward without delay to the Board of Supervisors and to the County Election Department, each, a certified copy of this resolution. SECTION 4. That the City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original resolutions. PASSED, APPROVED AND ADOPTED on November 1, 2010. MAYOR I HEREBY CERTIFY that the foregoing resolution was duly adopted by the City Council of the City of Azusa at a regular meeting on November 1,2010,by the following vote of the Council: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ATTEST: CITY CLERK 2 1 F'q? U CONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: TITO HAES, PUBLIC WORKS DIRECTORIASSISTANT CITY MANAGER VIA: F.M. DELACH, CITY MANAGERl, 1/J DATE: NOVEMBER 1, 2010 SUBJECT: NOTICE OF COMPLETION FOR SIERRA MADRE AVENUE CONCRETE IMPROVEMENTS RECOMMENDATION It is recommended that City Council approve a Notice of Completion for the following project and authorize staff to file the Notice of Completion with the Los Angeles County Clerk: • Sierra Madre Avenue Concrete Improvements Project — $24,991.00 — Grigolla & Sons, Azusa, CA 91702 BACKGROUND The Rosedale development plans call for pedestrian connectivity from the Rosedale development to existing City improvements. A portion of the connection was not completed when the developer, Azusa Land Partners, stopped all construction work and filed for bankruptcy. This connection was on the south side of Sierra Madre Avenue between the western end of the recreation trail and Pioneer Park. On August 4, 2010, Public Works followed the informal bid process and issued a Notice Inviting Bids to local contractors to complete this missing portion of sidewalk and curb ramps. The Bid Opening was held on August 18, 2010 at the Public Works Yard. Grigolla & Sons was the only bidder with a bid of$23,980.00. On September 8, 2010, a contract between the City and Grigolla & Sons was executed to perform the concrete improvements. The project constructed new sidewalk and curb ramps along the south side of Sierra Madre Avenue between Pioneer Park and the western end of the recreation trail at Rosedale. Work on this project began on September 27, 2010 and all work was completed on October 6, 2010. FISCAL IMPACT The project was completed with a total construction cost of$24,991.00. The project was funded by the Rosedale Community Facilities District. Attachment: Notice of Completion .� RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: NAME CITY OF AZUSA STREET ADDRESS 213 E. FOOTHILL BLVD CITY,STATE ZIP AZUSA,CA 91702 SPACE ABOVE THIS LINE FOR RECORDER'S USE NOTICE OF COMPLETION Notice pursuant to Civil Code Section 3039, must be filed within 10 days after completion.Notice is hereby given that: I. The undersigned is owner or corporate officer of the owner of the interest or estate stated below in the property hereinafter described: 2. The full name of the owner is The Citv of Azusa 3. The full address of the owner is 213 E.Foothill Boulevard.Azusa CA 91702 4. The nature of the interest or estate of the owner is: In fee. or OTHER THAN FEE,STRIKE M FEE AND mSERt,FOA E%AMPLE,"PURCHASER UNDER CONTRACT OF PURCHASE",OR"LESSEE" 5. The full names and full addresses of all persons,if any,who hold title with the undersigned as joint tenants or as tenants in common, are: NAMES ADDRESSES NONE 6. The full names and full addresses of the predecessors in interest of the undersigned,if the property was transferred subsequent to the commencement of the work or improvements herein referred to: NAMES ADDRESSES NONE 7. A work of improvement on the property hereinafter described was completed on October 6.2010 The work done was: Sierra Madre Avenue Concrete Improvements 8. The name of the contractor, if any,for such work of improvement was: Grigolla&Sons 947 W Gladstone Ave CA 91702 September 8 2010 (IF NO CONTRACTOR FOR WORK OF IMPROVEMENT AS A WHOLE,INSERT"NONE") (DATE of CONTRACT) 9. The property on which said work of improvement was completed is in the City of Azusa,County of Los Angeles,California and as described as follows: South side of Sierra Madre Avenue between Pioneer Park and Vosbur Drive 10. The street address of said property,is None (IF NO STREET ADDRESS HAS HEEN OFFICIALLY ASSIGVED,fNSERT"NONE') Dated: Joseph R Rocha Mayor (SIGNATURE OF OWNER OR CORPORATE OFF'ICE0.OF OWNER NAMED to PARAGRAPH 2 OR HIS AGENT) I,the undersigned,say:I alp the person who signed the foregoing notice of completion. I have read said notice of completion and know its contents,and the facts stated therein are true of my own knowledge. I declare under penalty of perjury that the foregoing is true and correct. Executed on at (DATE) (CITY,COUNTY,&STATE) (SIGNATURE) lv i •1" '� � ^tom ,� }' �." V}I ski w. 4 CONSENTITEM TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: KERMIT FRANCIS, INTERIM HUMAN RESOURCES DIRECTOR VIA: F.M. DELACH, CITY MANAGER, DATE: NOVEMBER 1, 2010 SUBJECT: CLASS SPECIFICATION REVISION / SALARY RANGE ADJUSTMENT RECOMMENDATION: The Personnel Board recommends, pursuant to the City of Azusa Civil Service Rules Sections 3.5 and 4.3, that the City Council adopt the class specification revisions and salary range adjustment for Police Communications Supervisor. BACKGROUND: The Police Communications Supervisor's job duties have evolved over time and have reached a point to where the job specification needs to be revised to more accurately reflect the role. Initially, the duties and responsibilities did not include conducting internal affairs investigations and administering state grant funds; now they do. Moreover, the number of full and part time personnel the position supervises has increased since the inception of the position. The revised class specification provides clarity for the added responsibilities, as well as the traditional duties and responsibilities within the position. Mrs. Gurbada supervises nine full-time dispatchers (soon to be ten), officers assigned to the communications center when working in a light duty capacity and part-time employees on an as-needed basis; prepares the annual budget for that unit; completes annual evaluations; performs internal affairs investigations; and administers the state 9-1-1 funds. In 2009, she was responsible for a state reimbursement to the City of approximately $95,000 for the dispatch remodel, voice logger unit and work station climate controls after the 9-1-1 system was upgraded. Page 1 of 5 In many law enforcement agencies, sworn supervisors (i.e. sergeants or lieutenants) are responsible for supervising the communications center. In fact, until the communications supervisor position was created approximately 13 years ago, the Azusa Police Department used sergeants to supervise the unit. However, it was realized a civilian with police dispatch experience, supervisory and managerial skills, would not only be more cost effective, but also be more competent at the job. This position requires that the employee pass a full law enforcement background screening and investigation. FISCAL IMPACT: Based upon the compensation in other Southern California cities provided to persons with similar duties and responsibilities in the Police Communications supervisory field; and consistent with the internal salary relationships of the City of Azusa pay plan; this modification of the job specification for the current incumbent qualifies for a salary pay rate adjustment step increase of a minimum of five (5) % which would place the incumbent at step 4 of the new salary range for this expanded position which would be: Step 1 $5,732.03 Step 2 $6,018.60 Step 3 $6,319.51 Step 4 $6,635.49 Step 5 $6,967.27 Effective January 1, 2011, the incumbent would move from a monthly rate of$6,126.84 to a monthly rate of $6,635.49. This financial change was approved in the 2010-2011 budget. There are sufficient funds in the Department budget to cover this cost for the balance of the fiscal year. Page 2 of 5 f CITY OF AZUSA POLICE COMMUNICATIONS SUPERVISOR DEFINITION Under limited supervision, supervises assigned personnel and participates in the preparation, processing, scheduling and management of the police communications center; performs related duties as required. CLASS CHARACTERISTICS The Police Communications Supervisor reports to the Administrative Services Manager and is a non-sworn position/class responsible for the supervision of police dispatchers and other services. ESSENTIAL FUNCTIONS Supervises the work of dispatchers responsible for receiving requests for police or other emergency services over the phone; answers 9-1-1 calls; screens incoming calls to determine necessity, priority, and type of response required; monitors other radio P q o frequencies to be aware of incidents elsewhere that may affect City police operations; monitors cameras throughout the building. Compiles statistical data, or directs such activity, and prepares routine reports; conducts records, 9-1-1, phone and radio traffic audits; produces compact disc recordings and or other electronic medium from dispatch recording system(s) for criminal and administrative investigations; prepares work schedules for assigned staff and approves time off; dispatches as necessary; performs other routine and administrative tasks as assigned. Develops, administers, and conducts training programs in police dispatching and office procedures; revises and updates communications and emergency response manuals and standard operating procedures. Responds to inquiries and resolves complaints; provides information to the public in accordance with established laws, codes, regulations, and policies. Participates in the development of dispatching related goals, objectives, policies, and procedures; ensures adequate inventory of supplies and equipment; requests equipment maintenance/repair as necessary. Advises, and otherwise provides assistance to other department personnel regarding dispatching; provides liaison to other law enforcement agencies regarding dispatching and related irlquiries. Page 1 of 5 Class Specification Police Communications Supervisor Supervises assigned staff, writes performance evaluations; assists with the selection of staff; conducts internal affairs investigations and submits findings to the Chief of Police via chain of command; takes necessary disciplinary action. Assists in budget preparation for the communications center and monitors said budget; administers/manages state 9-1-1 funds; procures equipment and ensures Department compliance with rules, regulations and laws pertaining to public safety dispatch centers and related systems. MARGINAL FUNCTIONS These are position functions which may be changed, deleted or reassigned to accommodate an individual with a disability. QUALIFICATIONS GUIDELINES Education and/or Experience Any combination of education and/or experience that has provided the knowledge, skills, and abilities necessary for satisfactory job performance. Example combinations include completion of a two-year college curriculum, or equivalent in public administration; administration of justice or a related field, including or supplemented by specialized training in communications systems; and three years of experience in police dispatching, one of which shall be at a supervisory level. Knowledee, Skills and Abilities Considerable knowledge of the principles and practices of law enforcement communications procedures; computerized systems used in municipal law enforcement agencies; laws, codes, regulations, and policies relating to the basic principles and operating characteristics of law enforcement and communications systems; general office procedures; methods and techniques of supervision and training. Ability to communicate clearly and concisely, both orally and in writing; research and prepare reports; effectively . manage police records and dispatching systems; meet the public in situations requiring diplomacy and tact; select, train, supervise and evaluate employees; deal constructively with conflict and develop effective resolutions; make decisions regarding operational and personnel functions; operate programs within allocated amounts; respond to emergency and problem situations in an effective manner; understand, explain and apply policies and procedures; analyze unusual situations and resolve them through application of management principles and practices; develop and implement record management inventory control and communication systems; operate a computer at an acceptable rate; work various shifts. Page 4 of 5 4. a Class Specification Police Communications Supervisor License or Special Conditions Must posses a valid California Class C driver's License. Must have a certificate of completion from the P.O.S.T. 120 hour Certified Basic Complain UDispatcher course. Must be willing to wear a department uniform and work shirts. t Page 5 of 5 i CONSENTITEM TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: KERMIT FRANCIS, INTERIM HUMAN RESOURCES DIRECTOR VIA: F.M. DELACH, CITY MANAGER DATE: NOVEMBER 1, 2010 SUBJECT: CLASS SPECIFICATION REVISION RECOMMENDATION The Personnel Board recommends, pursuant to the City of Azusa Civil Service Rules Section 3.5, that the City Council adopts the revised class specifications for Assistant City Librarian. BACKGROUND The position of City Librarian was changed to Library Director some years ago. However, the position of Assistant City Librarian was never changed to Assistant Library Director. "Assistant Library Director" is consistent with class titles throughout the City of Azusa. Since it has been some years since the job specification for Assistant City Librarian (Assistant Library Director) has been reviewed, it is recommended that the following changes be made to reflect changes in library operations and appropriately describe the work of the Assistant Library Director: Essential Functions • Substitute the word "withdrawals" for "deletions" in the fourth function so the phrase reads "Plans, organizes, and coordinates the adult collection development including acquisitions and withdrawals." • Writes and administers grants • Oversees department technology acquisition, maintenance, and up-dates Qualifications Guidelines • Knowledge, Skills and Abilities: Page 1 of 5 add "and sound personnel management" • License and Certificates: add "Must possess a valid Class "C" driver's license or the equivalent at time of appointment." All references to "City Librarian" to be changed to "Library Director". FISCAL IMPACT There is no fiscal impact. The salary schedule will be the same for Assistant Library Director as it was for Assistant City Librarian. Page 2of5 CITY OF AZUSA ASSISTANT LIBRARY DIRECTOR DEFINITION Under administrative direction, assists the Library Director in planning, coordinating, and organizing the activities of the City library-system; performs professional library work in serving library patrons and administering assigned programs: performs related duties as required. CLASS CHARACTERISTICS The incumbent performs the more difficult and complex library assignments, assists the Library Director in planning, organizing, and coordinating overall library activities, and supervises a division or divisions of the Library. ESSENTIAL FUNCTIONS These functions may not be present in all positions in this class. When a position is to be filled, the essential functions will be noted in the announcement of position availability. Letters in parenthesis at the end of each function statement represent the abilities required to perform that function. Assists the Library Director in planning, organizing, and coordinating library services; determines work assignments and instructs staff in the performance of daily assignments. Develops and implements goals, objectives, policies and priorities of assigned divisions; interprets library policy to staff and members of the public. - Plans, organizes, and coordinates the adult collection development including acquisitions and withdrawals; makes selections of materials from special gifts and other sources. Directs the development of reference resources, procedures, and services; develops and plans adult programs. Writes and administers grants. Plans, directs, or conducts special projects involving library promotion and outreach activity such as adult programs and exhibits or displays; writes informational pamphlets and materials related to library activities. Oversees departmental technology acquisitions, maintenance, and up-dates. As a designated representative of the Library, or in the absence of the Library Director, attends meetings, conferences, or other functions; provides information or participates in discussions regarding Library activities; makes presentations on library services. Page 3 of 5 Assistant Library Director Class Specification Assists with the development of the budget and expenditure controls; performs research and recommends programs to meet current and future needs of the community; evaluates the effectiveness of current programs and recommends changes. Assists in the selection of department employees; plans, organizes, and assigns work; develops and establishes work methods and standards; directs or conducts staff training and development; reviews and evaluates employee performance; recommends disciplinary action. Handles and resolves complaints from citizens. MARGINAL FUNCTIONS These are position functions which may be changed, deleted or reassigned to accommodate an individual with a disability. QUALIFICATIONS GUIDELINES Education and/or Experience Any combination of education and/or experience that has provided the knowledge, skills, and abilities necessary for satisfactory job performance. Example combinations include graduation from an accredited college in library science or a related field and three years of increasingly responsible professional library experience including one year in a supervisory capacity. A graduate degree in library science may be substituted for one year of experience. Knowledee. Skills and Abilities Thorough knowledge of the theories, principles, practices, methods, materials, and organizational arrangements common to the field of library science. Considerable knowledge of the principles of public administration; informational needs and approaches to be taken in analyzing administrative and work processing issues; principles of supervision. and sound personnel management; automation and computers relevant to operations of a library. Ability to communicate clearly and concisely, both orally and in writing; research and prepare complex reports on library related subjects; establish and maintain effective relationships with the community at large, the City Council, and other public officials; plan, direct, and coordinate library programs and services; select, train, supervise and evaluate employees; represent the City in a variety of meetings; make decisions regarding operational and personnel functions; operate programs within allocated amounts; respond to emergency and problem situations in an effective manner; understand, explain and apply policies and procedures; analyze unusual situations and resolve them through application of management principles and practices; performs Page 4 of 5 Assistant Library Director Class Specification professional librarian level work; deal constructively with conflict and develop effective resolutions; plan and enforce a balanced budget; develop new policies impacting department operations/procedures; interpret financial statements and cost accounting reports. License and Certificates Must possess a valid California Class "C" driver's license or the equivalent at time Page 5 of 5 js�Fdq�,�cr. - --- 1111, !11111 4PF 5111 H! .,p lIYiP�' CONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: JAMES MAKSHANOFF, ASSISTANT ;CITY MANAGER VIA: F.M. DELACH, CITY MANAGER kQ DATE: NOVEMBER 1, 2010 C ' SUBJECT: APPROVAL OF RESOLUTION - AUTHORIZING THE CALIFORNIA RESOURCE CONNECTION (CRC) TO ACCEPT A $279,000 GRANT ON BEHALF OF THE CITY FROM THE RIVERS AND MOUNTAINS CONSERVANCY (RMC) AND AUTHORIZATION FOR STAFF TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH CRC. RECOMMENDATION It is recommended that the City Council approve a resolution and professional services agreement authorizing the California Resource Connection (CRC) to accept a grant in the amount of$279,000 on behalf of the City of Azusa from the Rivers and Mountains Conservancy (RMC). The grant is to be used for the design and construction of a geology interpretive park. BACKGROUND In 2008 the City of Azusa applied for a grant which entailed the development of a City owned .5 acre parcel that sits between a neightborhood San Gabriel River trailhead and the San Gabriel River regional bike trail, into a geology interpretive park. This site is also the southern entrance to the San Gabriel Canyon Spreading Grounds, allowing for future connectivity opportunitites to river amenities north and south. In 2010, the City received notification funding for the project has been approved in the amount of$279,000. The Rivers and Mountains Conservancy (RMC) is requiring a detailed development plan for the project in order to continue with the procurement of the grant funds. The California Resource Connection (CRC) originally partnered with the City on the grant application and is intimiately involved with the project. Furthermore, the CRC has significant resources and expertise that will allow them to undertake and complete the project effecitvely and efficiently. As a result, staff recommends the City Countil approves a resolution authroizing the CRC to i receive the grant on behalf of the City and undertake the responsibilities of the project. The City will provide input on the design elements of the project; CRC will also require City approval at the conclusion of the design phase and construction. The project will consist of native plants and thematic interpretive signage to focus on societal benefits of rock, sand, and gravel. Once the CRC completes all the commitments to the City and RMC for the implementation of the grant, the City is the responsible holder of the park and will be responsible for park maintenance in perpetuity. Due to the nature of the improvements, maintenance cost will be minimal. Furthermore, other agencies have committed to donate assistance to maintain the geology park. FISCAL IMPACT The $279,000 Rivers and Mountains Conservancy (RMC) grant is funded through various "clean water acts" (Propositions 40, 50 and 84). There is no monetary match required for the grant. Attachments: Resolution Professional Services Agreement 2 RESOLUTION NO. APPROVING THE AUTHORIZATION OF CALIFORNIA RESOURCE CONNECTIONS, INC., A 501C3 NONPROFIT ORGANIZATION BASED IN AZUSA, TO ACCEPT GRANT FUNDS ON BEHALF OF THE CITY OF AZUSA FROM THE CALIFORNIA CLEAN WATER, CLEAN AIR, SAFE NEIGHBORHOODS, AND COASTAL PROTECTION BOND ACT OF 2002, THE WATER, SECURITY, CLEAN DRINKING WATER, COASTAL AND BEACH PROTECTION ACT OF 2002, AND THE SAFE DRINKING WATER, WATER QUALITY AND SUPPLY, FLOOD CONTROL, RIVER AND COASTAL PROTECTION BOND ACT OF 2006 (PROP 84) FOR DEVELOPMENT OF THE AZUSA GEOLOGY PARK PROJECT. WHEREAS, the people of the State of California have enacted the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002 (Proposition 40) in 2002, and the Water, Security, Clean Drinking Water, Coastal and Beach Protection Act of 2002 (Proposition 50), and the Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal Protection Bond Act of 2006 (Proposition 84) which provides funds for the RMC Grant Program; and WHEREAS, the San Gabriel and Lower Los Angeles Rivers and Mountains Conservancy (RMC) has been delegated the responsibility for the administration of the grant program in its jurisdiction, setting up necessary procedures; and WHEREAS, the RMC has awarded grant funds to the City of Azusa to develop a city- owned .5 acre parcel that sits between a neighborhood San Gabriel River trailhead and the San Gabriel River Regional Bike Trail into a geology interpretive park; and WHEREAS, the grant awardee will enter into a Contract with the State of California for the project; NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF AZUSA HEREBY: 1. Authorizes California Resource Connections, Inc. (CRC) to accept local assistance funds on behalf of the City of Azusa from the RMC Grant Program under the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002 (Proposition 40) in 2002, or the Water, Security, Clean Drinking Water, Coastal and Beach Protection Act of 2002 (Proposition 50), or the Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal Protection Bond Act of 2006 (Proposition 84) to develop the Azusa Geology Park Project; and 2. Requires the CRC to solicit and consider input from the City of Azusa on the design of the Geology Interpretive Park; CRC will also require City of Azusa approval at the conclusion of the design phase and construction; and 3. Certifies that upon completion of CRC commitments to the City of Azusa for implementation of the grant to develop and construct the Azusa Geology Park, the City of Azusa will take full responsibility of the park and the long-term commitments of the RMC grant. 4. Certifies that the City of Azusa is the res onsibl holder d caretaker of the park in perpetuity. PASSED, APPROVED AND ADOPTED this I" day of November, 2010. Joseph R. Rocha, Mayor I HEREBY CERTIFY that the foregoing resolution was duly adopted by the City of Azusa at a regular meeting thereof held on the I" day of November, 2010. AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: Candace Toscano, Assistant City Clerk CITY OF AZUSA PROFESSIONAL SERVICES AGREEMENT 1. PARTIES AND DATE. This Agreement is made and entered into this 1 st day of November,2010 by and between the City of Azusa,a municipal organization organized under the laws of the State of California with its principal place of business at 213 East Foothill Boulevard, Azusa, California 91702-1295 ("City") and California Resource Connections Inc,a non-profit 501 c3 organization with its principal place of business at 1201 N.Azusa Avenue("Consultant'). City and Consultant are sometimes individually referred to as "Party" and collectively as "Parties." 2. RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing services to public clients that include:grant administration,project development,facilitation, coordination and execution, and is licensed in the State of California, and is familiar with the plans of City. 2.2 Project. City desires to engage Consultant to render such services for the development of the grant funded Geology Interpretive Park ("Project') 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 furnish to the City all labor,materials,tools,equipment, services, and incidental and customary work necessary to fully and adequately execute the requirements of the Rivers and Mountains Conservancy Grant ("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 November 1, 2010 to October 31, 2011 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. 1 RVPUB\NSTUBBS\664961.2 z 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. City 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 City and shall at all times be under Consultant's exclusive direction 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, City shall respond to Consultant's submittals in a timely manner. Upon request of City, 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 City. 3.2.4 Substitution of Key Personnel. Consultant has represented to City 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 City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City 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 City, or who are determined by the City 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 City. The key personnel for performance of this Agreement are as follows: Rick Thomas, President. 3.2.5 City's Representative. The City hereby designates James Makshanoff, Assistant City Manager,or his or her designee,to act as its representative for the performance of this Agreement("City's Representative"). City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the City's Representative or his or her designee. 3.2.6 Consultant's Representative. Consultant hereby designates Rick Thomas,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 2 RVPUB\NSTUBBS\684961.2 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 City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 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 a City Business License, and that such licenses and approvals shall be maintained throughout the term of 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 City, 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 City 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 City, 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 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 City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, 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 or alleged 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 City 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 City that the subcontractor has secured all insurance required under this section. 3 RVPU8\NSTUBBS\684961.2 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 Scone 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. 3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies: (A) General Liability. The general liability policy shall be endorsed to state that: (1)the City, 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 famished in connection with such work;and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, 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 City, 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. The automobile liability policy shall be endorsed to state that: (1)the City,its directors,officials, officers,employees,agents and volunteers shall be covered as additional insureds with respect to the ownership, operation,maintenance,use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and(2)the insurance coverage shall be primary insurance as respects the City,its directors,officials,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 City,its directors,officials,officers,employees,agents 4 RVPUB\NSTUBBS\684961.2 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 City, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy. which arise from work performed by the Consultant. (D) All Coverages. Each insurance policy 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 City; 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 City, its directors, officials, officers, employees, agents and volunteers. 3.2.10.5 Separation of Insureds:No Special Limitations. All insurance required by this Section 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 City,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 City. Consultant shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.2.10.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the City. 3.2.10.8 Verification of Coverage. Consultant shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. 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 City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete,certified copies of all required insurance policies, at any time. 3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services,the Consultant shall at all times 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, 5 RVPUB\NSTUBBS\684961.2 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 from the California Rivers and Mountains Conservancy as a grant recipient; grant is in the amount of $279,000. Consultant is responsible to provide the City and the California Rivers and Mountains Conservancy appropriate documentation to attain applicable grant funded reimbursements. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City. 3.3.4 Extra Work. At any time during the term of this Agreement,City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City 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 City's Representative. 3.3.5 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720,et seq.,and 1770, et sem.,as well as California Code of Regulations,Title 8, Section 1600, et seq., ("Prevailing Wage Laws"),which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable"public works"or"maintenance"project,as defined by the Prevailing Wage Laws, and if the total compensation is $1;000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City 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. 6 RVPUB\NSTUBBS\684961.2 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 Grounds for Termination. City 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 City, 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, City 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. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein,City may procure,upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 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: California Resource Connections Inc. 1201 N. Azusa Avenue Azusa, CA 91702 ATTN: Rick Thomas, President City: City of Azusa 213 East Foothill Blvd. Azusa, CA 91702-1295 ATTN: James Makshanoff, Assistant City Manager 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. 7 RVPUB\NSTU13BS\684961.2 3.5.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City 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 City 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 City. City 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 City's sole risk. 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 City, 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 connected 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 City'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 the prior written consent of City. 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 Attorney's 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 party in such litigation shall be entitled to have and recover from the losing party reason- able attorney's fees and all other costs of such action. 3.5.6 Indemnification. Consultant shall defend,indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions or willful misconduct of Consultant,its officials,officers, employees,agents,consultants and contractors arising out of or in connection with the performance of the Services,the Project or this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. Consultant shall defend,at Consultant's own cost,expense s RVPUB\NSTUBBS\684961.2 and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors,officials,officers,employees, agents or volunteers,in any such suit,action or other legal proceeding. Consultant shall reimburse City and its directors,officials, officers, employees,agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, agents or volunteers 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 each and every provision of this Agreement. 3.5.10 City's Right to Employ Other Consultants. City reserves right to 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 City. 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 City 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. 9 RVPUB\NSTUBBS\689961.2 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, City shall have the right to rescind this Agreement without liability. For the term of this Agreement,no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement,or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall 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 City'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. 3.5.21 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and 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. 3.5.22 Counterparts. This Agreement may be signed in counterparts,each of which shall constitute an original. 10 RVPUB\NSTUBBS\684961.2 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 City. Subcontracts,if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. [SIGNATURES ON FOLLOWING PAGE] 11 RVPUB\NSTUBBS\684961.2 CITY OF AZUSA California Resource Connections Inc. By: By: City Manager Rick Thomas President Attest: Vera, Mendoza City Clerk Approved as to Form: Best Best & Krieger LLP City Attorney 12 RVPUB\NSTUBBS\689961.2 Fto U � CITY OF AZUSA MINUTES OF THE REDEVELOPMENT AGENCY REGULAR MEETING MONDAY,OCTOBER 18,2010—10:27 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,213 E.Foothill Blvd.,Azusa CA. Chairman Rocha called the meeting to order. Call to Order ROLL CALL Roll Call PRESENT: DIRECTORS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA ABSENT: DIRECTORS: NONE ALSO PRESENT: Also Present General Counsel Carvalho, Executive Director Delach, Assistant Executive Director Makshanoff, Department Heads,Secretary Mendoza,Deputy Secretary Toscano. THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY CONVENED JOINTLY AT Cncl/CRA Convene 10:27 P.M.TO ADDRESS THE FOLLOWING ITEM: Jntly CONTINUED JOINT PUBLIC HEARING-CONSIDERATION OF THE FIRST AMENDMENT TO Joint Pub Hrg THE STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION First Amendment AGREEMENT FOR THE CITRUS CROSSING PROJECT LOCATED AT THE SOUTHWEST OPA Citrus CORNER OF ALOSTA AVENUE AND CITRUS AVENUE. Crossing Economic and Community Development Director Christiansen presented the item.The Mayor/Chairman K.Christiansen declared the Joint Public Hearing open. The City Clerk/Secretary read the affidavitofproof ofpublication Hrg Open of notice of said Hearing published in the San Gabriel Valley Tribune on August 8,2010. Mr.Andy Trachman addressed the Hearing requesting to partner with him to bring Applebee's to Azusa A.Trachman and finish the project,and congratulated staff and Council for bringing Target to Azusa. Comments Testimony was received from Mr.Mike Lee in favor of the project. Moved by Mayor Pro-Temmirector Testimony Gonzales,seconded by Councilmember/Director Hanks and unanimously carried to close the Joint Public Hrg Clsd Hearing. Director Carrillo offered a Resolution entitled: - A RESOLUTION OF THE GOVERNING BOARD OF THE REDEVELOPMENT AGENCY OF THE Res. 10-R31 CITY OF AZUSA, CALIFORNIA, APPROVING AN AMENDMENT TO THE STATUTORY Approving DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT BY AND Amendment BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA,THE CITY OF AZUSA OPA Citrus AND JAR-UNIVERSITY COMMONS,LLC.GOVERNING CERTAIN REAL PROPERTY LOCATED Crossings AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE, AZUSA, CALIFORNIA,RELATING TO THE CITRUS CROSSING SHOPPING CENTER. Moved by Director Carrillo, seconded by Director Gonzales to waive further reading and adopt. Resolution passed and adopted by the following vote of the Agency. AYES: DIRECTORS: GONZALES.CARRILLO.MACIAS.HANKS,ROCHA NOES: DIRECTORS: NONE ABSENT: DIRECTORS: NONE Mayor Pro-Tem Gonzales offered an Ordinance entitled: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA,CALIFORNIA ADOPTING I"Rdg Ord AND APPROVING AN AMENDMENT TO THE STATUTORY DEVELOPMENT AGREEMENT Adopting and AND OWNER PARTICIPATION AGREEMENT BETWEEN THE CITY OF AZUSA,THE AZUSA Approving .REDEVELOPMENT AGENCY AN JAR UNIVERSITY COMMONS,LLC,GOVERNING CERTAIN Amendment REAL PROPERTY LOCATED AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND OPA Citrus CITRUS AVENUE IN AZUSA CALIFORNIA RELATING TO THE CITRUS CROSSING SHOPPING Crossings CENTER. Moved by Mayor Pro-Tem Gonzales,seconded by Councilmember Hanks and unanimously carried to Ord introduced introduce the proposed ordinance. AGENCY SCHEDULED ITEM REDEVELOPMENT AGENCY OPERATING COVENANT FOR THE ESTABLISHMENT OF AN APPLEBEES RESTAURANT IN THE CITRUS CROSSING SHOPPING CENTER. Director Carrillo offered a Resolution entitled: A RESOLUTION OF THE GOVERNING BOARD OF THE REDEVELOPMENT AGENCY OF THE Res. 10-R32 CITY OF AZUSA,CALIFORNIA,APPROVING AN OPERATING COVENANT AGREEMENT BY Appvg Operating AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA AND APPLE Covenant Agmt SOCAL,LLC FOR THE LONG TERM OPERATION OF A FAMILY STYLE RESTAURANT. Apple SocaLLLC Moved by Director Carrillo,seconded by Director Macias to waive further reading and adopt. Resolution passed and adopted by the following vote of the Agency Board Members: AYES: DIRECTORS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA NOES: DIRECTORS: NONE ABSENT: DIRECTORS: NONE The CONSENT CALENDAR consisting of items G-1 through G-3 was approved by motion of Director Consent Cal. Gonzales,seconded by Director Hanks and unanimously carried. Approved I. Minutes of the regular meeting of October 4,2010,were approved as written. Min appvd 2. A RESOLUTION OF THE AGENCY BOARD MEMBERS OF THE CITY OF AZUSA Res. 10-R33 ADOPTING THE INVESTMENT POLICY. Invest Pol 3. Resolution authorizing payment of warrants by the Agency was adopted and entitled: A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA Res. 10-R34 ALLOWING CERTAIN CLAIMS AND DEMANDS TO BE PAID OUTOF REDEVELOPMENT Warrants AGENCY FUNDS. SPECIAL CALL ITEMS Spec Call Items None. None It was consensus of the Redevelopment Agency Board Members to adjourn. Adjourn TIME OF ADJOURNMENT: 10:38 P.M. SECRETARY NEXT RESOLUTION NO. 10-R35. ]0/18/]0 PAGE TWO • by OF q2G U - Cq<ffOQr'�P I AGENCY CONSENT ITEM TO: HONORABLE CHAIRPERSON AND AGENCY MEMBERS FROM: MARCENE HAMILTON, REDEVELOPMENT AGENCY TREASURER DATE: November 1, 2010 , SUBJECT: REDEVELOPMENT AGENCY OF THE CITY OF AZUSA TREASURER'S STATEMENT OF CASH BALANCES FOR THE MONTH OF SEPTEMBER 2010 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 September 2010. BACKGROUND 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 September 2010. Agency investments are made in accordance with the Redevelopment Agency Investment Policy approved and adopted with Resolution No. 09-R53 dated October 5, 2009, 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. Agency cash and investment balances increased by$86,266.86. Cash received totaled$86,266.93, and disbursements of$0.07 were made. The Agency is the issuer of several Merged Project Tax Allocation Bonds. Of the total cash and investments of$8,484,093.13, Wells Fargo Bank,the fiscal agent, held $4,112,116.10 on behalf of the Agency. These funds are restricted for payment of debt service on the bonds and special bond- funded projects. The remaining $4,371,977.03 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. MH:EG CITY OF AZUSA REDEVELOPMENT AGENCY TREASURY BOOK BALANCES-CASH AND INVESTMENTS SEPTEMBER 2010 Maximum Deposits Cost Interest Mkt Bank Accounts Allowed Amount Pledged Securities Maturity Rate -Value' CASH AND INVESTMENTS HELD BY AGENCY TREASURER Wells Fargo Bank Government Checking No limit $1.279,952,22 FDIC up W$100,000.00 Ongoing 0 DOD% $1,279,952.22 >$100,00D collater¢ed by 110%in govn't securities Local Ageni investment Fund("IF) $20,000,000.00 3.092.024.81 Backed by faith 8 credit of Ne State of Cali -Ongoing 0.500% 3,091.945.57 SUBTOTAL CASH AND INVESTMENTS HELD BY AGENCY TREASURER: $4,371,977.03 $4,377,897.79 Interest Collections: 50.00 CASH AND INVESTMENTS HELD BY FISCAL AGENT 20D3 Merced Pro'ect Tax Allocation Bonds 2003A Special Fund AIM GOV t Poi No Ilmit 0.35 Investments in direct obligations of the U.S.Treasury Ongoing O.D00% 0.35 2003A Interest Account AIM Gov't Portfolio No limit 0.30 Investments in direct oblgations of the U.S.Treasury Ongoing 0.000% 0.30 2D03A Principal Account AIM Govt PoMolio No limit 0.76 Investments in direct obligations of the U.S.Treasury Ongoing 0.000% 0.76 2003A Reserve Account Reliance Certificate of Deposit No limh 1,085,192.59>$10D.000 collaterized by 110%in govn•I securities 12104114 0.010% 1,085,192.59 Reliance Trust Co.Cash Equivalent Mmkt No Iimd 11,385.61 N/A Ongong 0.000% 11.385.61 AIM Gov't Portfolio No limit 1,149.86 Investments m direct obligations of the U.S.Treasury Ongoing 0.0w% 1,149.86 2003 Merged Project Tax Allocation Bonds Subtotal: $1.097.729A7 $1.097,729.47 Interest Collections: $0.37 2005 Merged Project Tax Allocation Bonds 2005 Special Fund Wells Fargo Advantage GDO Mmkt No limo $9,141.96 WA _ Ongoing 0.010% $9.141.96 2005 Interest Account Wells Fargo Advantage Gov't Mimi No limit 0.15 1 Ongoing 0.000% 0.15 2005 Redevelopment Fund AIM Inslitub.nal Primei MgmVMMk No limb 0.00 WA Ongoing 0.000% 0.00 2005 Reserve Account Reliance Certificate of Deposit No Ilmh M9.259.17>$10D,000 collater¢ed by 110%in govn'1 securities 12104114 0.010% 869,259.17 Reliance Trust Co.Cash Equivalent Mmkt No limit 0.00 NlA Ongoing 0.000% 0.00 2005 Merged Project Tax Allocation Bonds Subtotal: $878,401,28 $878,401.28 Interest Collections: 50.10 2001A Merchant Protect Tax Allocation Bonds 200TA Bond Fund Wells Fargo Advantage 100%Treasury Mini No limit $0.92 NIA Ongoing 0.000% $0.92 2DD7A Interest Amount Wells Fargo Advantage 100%Treasury Mmkt No limit $0.37 NIA Ongoing D.000% $0.37 21X17A Principal Account Wells Fargo Advantage 100%Treasury Mmkt No limit $0.32 WA Ongoing 0.000% 50.32 2147A Merged Project Tax Allocation Bonds Subtotal: $1.61 $1.61 Interest Collections: $0.23 200TB Merged Pmiect To.Ali."..Refunding Bonds 2007B Bond Fund Welts Fargo Advantage 100%Treasury Mmkt Nglimit $3,078A2 N/A Ongoing 0.000% $3.078.02 20078 Interest Account CITY OF AZUSA REDEVELOPMENT AGENCY TREASURY BOOK BALANCES-CASH AND INVESTMENTS SEPTEMBER 2010 Maximum Deposits Cost Interest Mkt Bank Accounts Allowed Amount Pledged Securities Maturity Rate Value' Wells Fargo Advantage 100%Treasury Mmkt No limit $0.09 NIA Ongoing 0.000% $0.09 20078 Principal Account Wells Fargo Advantage 100%Treasury Mmki No limit $O.07 NIA Ongoing 0.000% SO.07 20078 Reserve Fund Refance Certificate of Deposit No limit 325.042.50>$100,000 collaterbed by 110%m govn't securities 12J04114 0.010% 325.042.50 Reliance Trust Co.Cash Equivalent Mmkt No limit DOD N/A Ongoing 0.000% 0.00 200TS Merged Protect Tax Allocation Bonds Suborder $328.120.68 $328.120.68 Interest Collections: $0.07 2008A Merged Protect Tax Allocation Bonds 2008A Bond Fund Walls Fargo Advantage 100%Treasury Mmkt No limit $8,667.97 NlA Ongoing 0.010% $6.667.97 2D08A Interest Account Wers Fargo Advantage 100%Treasury Mmkt No limit $0.21 NIA Ongoing 0.000% $0.21 2008A Reserve Fund Reliance Trust Co.Savings and Cart.of Deposit No limit $655,240.76 >$100.000 collaterated by 110%m govn't securities 12/19/13 2.650% 655.240.76 Reliance Trust Co.Cash Equivalent MmM No limit $0.00 NIA Ongoing 0.000% 0.00 2DOSA Redevelopment Fund - Wells Fargo Advantage 100%Treasury Mmkt No limit $0.06 WA Ongoing 0.000% $0.06 200M Merged Project Tax Allocation Bonds Subtotal: $663.909.00 $663.909.00 Interest Collections: $0.16 20086 Merged Proiect Tax Allocation Housing Bonds 20088 Bond Fund Wells Fargo Advantage Govemment MmM No limit $20,471.15 NIA Ongoing 0.010% S20,471.15 2008B Interest Account Wells Fargo Advantage Government MmM No limit $0.31 WA Ongoing 0.000% $0.31 2008B Reserve Fund Reliance Trust Co.Savings and Ced,of Deposit No limit $1.123,482.50 410D,000 collaterized by 110%in govnl securhies 11121113 4.000% 1,123A82.5D Radiative Trust Co.Cash Equivalent Mmkt No limit 80.01) NIA Ongoing 0.000% 0.00 20086 Low&Moderate Income Housing Fund Reliance Trust Co.Cash Equivalent Mmkt No limit 0.00>5100.001)ddlaterized by 110%in govnT securities Ongoing 0.000% 0.00 Wells Fargo Advantage Govemment Mmkt No limit $0.10 NIA Ongoing 0.000% 0.10 2008B Merged Project Tax Allocation Bonds Subtotal: $1.143.954.06 $1,143.954.06 Interest Collections: $0.29 SUBTOTAL CASH AND INVESTMENTS HEIR BY FISCAL AGENT: $4.112,116.10 {4,112,116.10 Total-Azusa Redevelopment Agency Cash and Investments: 56,4a4.093.13 $6,490.013.69 Total Interest Collectors: 81.22 Source of Market Value Infolne llon: Wells Fargo Corporate Trust Trustee Local Agency Investment Fund(l-AIF) Wells Fargo Institutional Securities Tax Allocation Bond Data is based on Trustee-generated Statements;bond funds listed harem era restricted for payment of debt service and eligible projects and povemed by strict regulations described in the Trust Indentures, 'Market Value m the current price at vAich a security can be traded or sod. r�irfoF�'�r AGENCY CONSENT ITEM TO: THE HONORABLE CHAIRPERSON AND AGENCY BOARD FROM: KURT E. CHRISTIANSEN ECONOMIC AND COMMUNITY DEVELOPMENT DIRECTOR VIA: F.M. DELACH, EXECUTIVE DIRECTOR DATE: NOVEMBER 1, 2010 SUBJECT: LICENSE AGREEMENT WITH THE TARGET CORPORATION FOR USE OF AGENCY-OWNED PROPERTY LOCATED AT 812 N. AZUSA/801 N. ALAMEDA (FORMERLY JOHNNY'S TOWING) RECOMMENDATION It is recommended that the Agency Board approve the License Agreement with Target Corporation and authorize the Executive Director to execute the License Agreement to permit the temporary use of the Agency-owned property. BACKGROUND The construction of the new Target store located on Azusa Avenue and 9`s Street is now complete. A Temporary Occupancy Permit was issued by the City's Building Department on October 4, 2010, and Target opened for business on October 10, 2010. It is anticipated that Target in preparation for the holidays and as a "Condition of Approval," Target is required to provide temporary employee parking off-site during the month of December. Therefore, Target has requested the Agency's permission to use the Agency-owned property located at 812 N. Azusa and 801 N. Alameda Avenues from November 1, 2010 to December 31, 2010 for temporary parking of Target employees during the holiday season. The use of the Agency-owned property will provide for off-site temporary parking of Target employees and secure a temporary parking area during the holiday season to satisfy the "Condition of Approval," requirement. The lot would be open for use by Target employees during the same hours as the store. The access gates located on the property would be properly secured and have the appropriate signage to prevent entry to through traffic so that employees can safely park their vehicles. a , After all the employees have gone home, the lot would be closed for the evening. Prior to allowing Target employee parking on site, Target would be responsible for providing the required Certificate of Insurance naming the City and Agency as additional insured. The Agency would be agreeing to grant Target a License Agreement for the purposes stipulated in the terms/conditions set forth in the attached agreement. The lease agreement will terminate on December 31, 2010 Property Description The property is located across the street from the new Target Store at 812 N. Azusa/801 N. Alameda Avenues. The property is fenced, secure, and has a small building with available on- site parking. The building will not be used by Target employees. The property site is detailed in the License Agreement(Exhibit B) Licensee Fee and Term Staff has review rental rates for vacant land, and the proposed temporary use of this site, and concluded that a fee of$500/month is a fair usage fee. The term of the License Agreement will begin immediately pending Agency Board approval, and will end December 31, 2010. FISCAL IMPACT The Agency will earn a minimum of$500 for its current operating expenses. Attachments: 1. License Agreement f LICENSE AGREEMENT This License Agreement("Agreement") is entered into this 2nd day of November, 2010 by and between the REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, a public body, corporate and politic ("Licensor'') and Target Corporation, a Minnesota Corporation("Licensee"). RECITALS A. Licensor is the owner of real property more particularly described in Exhibit "A", Legal Description (the "Property"), attached hereto and incorporated herein by reference. B. Licensee desires to obtain permission to gain access to the Property to use it for temporary employee parking. The Licensee and its agents may access the Property,as illustrated in Exhibit `B" Site Map ("Property"), no earlier than the date of this Agreement, and subject to this Agreement having been fully executed by all parties and all insurance submittals completed and received by Licensor. NOW, THEREFORE,IT IS AGREED AS FOLLOWS: 1. License and Use of Property. Licensor hereby grants Licensee,its employees,agents, contractors,representatives and nominees a revocable license and the right to enter onto the Property in order to use it for a temporary employee parking during the holiday season in conjunction with the Target Store located at 809 N. Azusa Avenue,Azusa,CA. The License Agreement shall terminate on January 31, 2010. While this Agreement is in effect,Licensee is responsible for the following: a. Licensee shall pay Licensor a license fee of Five Hundred Dollars and No/100 (5500.00)monthly on or before the 1"day of each month. Late fees of$25.00 will be due and payable for each late monthly payment received after the 10`h day of each month. b. Licensee will use the property only for those uses described in this Section 1. C. The Licensee will be responsible for any security, utilities, trash collection, maintenance, or any other services necessary to maintain the site for the Licensee's use of the property. 2. Term and Condition of Property. This Agreement shall be effective on no earlier than the date of this Agreement, and subject to this Agreement having been fully executed by all parties and all insurance submittals completed and received by Licensor;and shall expire,if not terminated sooner,in accordance with this section, on January 31,2010. Licensee has the option to extend this Agreement,upon written request from the Licensee and agreement by the Licensor. Licensor shall 45636.00000\5707959.1 have the right to immediately terminate this Agreement if Licensee continues to violate any provision of this Agreement after notice to Licensee of such violation. Licensor's termination of this Agreement shall be effective upon giving Licensee written notice of termination. 3. Development Rights. The approval of this License Agreement shall not independently confer development rights or create any long term rights to use, occupy or buy the Property. 4. Licenses.Permits,and Approvals. Prior to entering onto the Property,Licensee shall have obtained all licenses, permits, and approvals which are required by the City of Azusa, the County of Los Angeles, or any other entity having jurisdiction, in order for Licensee to use the Property for the purposes described herein. 5. Indemnification. With respect to Licensee's entry as provided for herein, Licensee shall defend, indemnify and hold Licensor and the City of Azusa, and their officers, officials, employees and agents harmless from and against any and all claims for actual or alleged losses,costs (including reasonable attorneys' fees and actual litigation costs), damages, actions or expenses arising out of the Licensee's use of the Property. Notwithstanding anything to the contrary herein, this indemnification shall not be applicable with respect to matters resulting from the negligence or willful acts of Licensor, its agents or employees. This Section 5 shall survive the expiration or termination of this Agreement. 6. Hazardous Materials Indemnity. Licensee agrees to indemnify, defend and hold Licensor and its elected and appointed officials, employees and agents harmless from and against all claims, demands, causes of action, damages,judgments, costs, expenses and fees for injury to or death of persons or loss or damage to property arising by reason of the use, generation, storage or disposal of hazardous materials by Licensee on the Property resulting from the activities contemplated by this Agreement and the cost of any required or necessary repair, cleanup or detoxification to the full extent that such liability is attributable,directly or indirectly,to the presence or use, generation, storage, release, threatened release, or disposal of hazardous materials by Licensee on the Property. Licensee shall have no responsibility to Licensor, and Licensor hereby releases Licensee from liability for any injury to or death of persons or loss or damage to property arising out of hazardous materials existing on the Property prior to the term of this Agreement. For the purpose of this provision, "hazardous materials" shall include, without limitation, substances defined as "Hazardous Substances," "Hazardous Materials," "Toxic Substances," "Hazardous Waste,""Extremely Hazardous Waste,"or"Restricted Hazardous Waste,"or stated to be known to cause cancer or reproductive toxicity, under the Comprehensive Environment Response, Compensation and Liability Act of 1980, amended, 42 U.P.S.C. Sections 9601, et seq.; the Hazardous Materials Transportation Act , 49 U.P.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act,41 U.S.C. Section 6901, et seq.; Federal Water Pollution Control Act, 33 U.S.C., Sections 1317, et seq.; Section 25115, 25117, 25112.7, 25140, 25249.5, 25249.8, 25281, 25316, or 25501 of the California Health and Safety Code; or any substances so defined or stated in any of the regulations adopted and publications promulgated pursuant to said laws and they may be amended from time to time. 45636.00000\5707959.1 r. 7. Insurance. 7.1 Licensee shall obtain, at Licensee's sole cost and expense, and keep in full force and effect, during the term of this Agreement, a policy of comprehensive general liability insurance or commercial general liability insurance under which Licensee is named as the insured and Licensor is named by endorsement as an additional insured but only as respect to claims against them arising out of the acts or omissions of Licensee or Licensee's use of the Property. Such policy shall contain (a) a contractual liability endorsement, (b) a provision that, for all claims, accidents, injuries and damages occurring in or about the Property, provides primary coverage without contribution from any other insurance carried by or for the benefit of Licensor,(c)the policy shall be non-cancelable with respect to Licensor and(d)the amount thereof shall not be reduced unless thirty (30)days' written notice shall have been given to Licensor by certified mail,return receipt requested, which notice shall contain the policy number and the names of the insured and additional insureds. The minimum limits of liability shall be a combined single limit with respect to each occurrence in an amount of not less than $2,000,000 for injury(or death) or damage to property arising from any one occurrence (which $2,000,000 limit shall apply separately at the Property) and $2,000,000 for the aggregate of all occurrences at all locations within each policy year. All insurance required to be carried by Licensee pursuant to the terms of this Agreement shall be effected under valid and enforceable policies issued by reputable and independent insurers permitted to do business in the State of California,and rated in Best's Insurance Guide,or any successor thereto(or if there be none, an organization having a national reputation) as having a "Best's Rating" of"A"and a"Financial Size Category ' of at lease"X"or if such ratings are not then in effect, the equivalent thereof. The Licensee shall cause the policy(ies) to be endorsed to name the Redevelopment Agency of the City of Azusa, and the City of Azusa as insureds. 7.2 Licensee shall procure an appropriate clause in, or endorsement on, any insurance policy(ies) covering the Property pursuant to which the insurance companies waive subrogation or consent to a waiver of right of recovery consistent with the release, discharge, exoneration and covenants not to sue contained herein. 7.3 On or prior to Licensee's entry onto the Property, Licensee shall deliver to Licensor appropriate endorsements to the policies of insurance required to be carried pursuant to Section 7, including evidence of waivers of subrogation as required pursuant to Section 7.2. Evidence of each renewal or replacement of a policy shall be delivered by Licensee to Licensor not less than twenty(20) days before the expiration of the insurance policy then in effect. Licensee may maintain the insurance required under this Section 7 under blanket or umbrella policies, as applicable,issued to Licensee covering other properties owned or]eased by Licensee;provided that the policies otherwise comply with this Section 7 and allocate to the Property the coverage specified by this Section 7, without possibility of reduction or coinsurance by reason of, or damage to, any other properties named therein, and if the insurance required by this Section 7 shall be effected by any such blanket or umbrella policies,Licensee shall furnish to Licensor certified copies or duplicate originals of such policies in place of the originals, with schedules thereto attached showing the amount of insurance afforded by such policies applicable to the Property. Licensee may provide the insurance required under this Section 7 through a plan of self insurance. 45636.00000\5707959.1 7.4 From time to time upon request of Licensor,Licensee shall deliver to Licensor evidence that Licensee is carrying insurance required to be carried pursuant to this Section 7, including evidence of waivers of subrogation as required pursuant to Section 7.2. 7.5 Notwithstanding anything herein to the contrary,(i) Licensee waives all rights of recovery, claims, actions or causes of action, against Licensor, and its officers, officials, employees and agents, for any loss or damage to persons or property, (including, without implied limitation, wrongful death) during the term of this Agreement; and (ii) Licensor hereby releases Licensee from liability for any loss or damage which is covered or covetable by Licensor's property insurance as further described in Exhibit "C", attached hereto and incorporated herein by this reference,this release being effective to the extent such insurance was or was not actually in effect at the time of such loss or damage. (a) Licensee and Licensor each hereby acknowledge that it has read and is familiar with the provisions of California Civil Code Section 1542("Section 1542"), which is set forth below: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." (b) By initialing below, Licensee and Licensor hereby waive the provisions of Section 1542 solely in connection with the matters which are the subject of the foregoing waivers and releases: Licensee's Initials Licensor's Initials 8. 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: Licensor: Redevelopment Agency of the City of Azusa 213 East Foothill Boulevard Azusa, CA 91702 Attention: F.M. Delach, Executive Director Licensee: Target Corporation Property Development 1000 Nicollet Mall, TPN-12H Minneapolis, MN 55403 Attention: Real Estate Existing Stores/Azusa, CA 45636.0000015707959.1 9. Attornevs' Fees. In any action between Licensee and Licensor seeking enforcement of any of the terms and provisions of this Agreement or a declaration as to the meaning hereof,or in connection with the Property, the prevailing party in such action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses, not limited to taxable costs, reasonable attorneys' fees and reasonable fees of expert witnesses. 10. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. 11. Entire Agreement: Amendments. This Agreement contains all of the agreements of the parties hereto with respect to the matters contained herein and all prior or contemporaneous agreements or understandings,oral or written,pertaining to any such matters are merged herein and shall not be effective for any purpose. No provision of this Agreement maybe amended or added to except by an Agreement in writing signed by the parties hereto or their respective successors in interest and expressly stating that it is an amendment of this Agreement. 12. Further Assurances. Each of the parties hereto shall execute and deliver any and all additional papers, documents and other assurances, and shall do any and all acts and things reasonably necessary in connection with the performance of their obligations hereunder and to carry out the intent and agreements of the parties hereto. 13. Third Partv Beneficiaries. The City of Azusa shall be deemed an intended third party beneficiary of this Agreement. There are no other third parties intended to be beneficiaries of any obligation or right assumed by the Parties under this Agreement. 14. Counterparts. This Agreement may be executed in counterparts and when so executed by both parties, each such counterpart will constitute an original document and both such counterparts will constitute one and the same agreement. IN WITNESS WHEREOF,the parties have executed this Agreement as of the date and year first written above. (SIGNATURES ON FOLLOWING PAGE) 45636.00000\5707959.1 SIGNATURE PAGE TO LICENSE AGREEMENT BY AND BETWEEN REDEVELOPMENT AGENCY OF THE CITY OF AZUSA AND TARGET CORPORATION REDEVELOPMENT AGENCY OF THE TARGET CORPORATION, CITY OF AZUSA A MINNESOTA CORPORATION By. By: F. M. Delach Na Executive Director Title. St Vice Pt Sident Target Corporation Attest: Vera, Mendoza Agency Secretary Approved as to Form.- Best orm:Best Best &Krieger LLP City Attorney 45636.0000015707959.1 Y EXHIBIT "A" LEGAL DESCRIPTION am`!`r.`a k Y"4'�Q aEa�k�Rt d`d"io'g'n£s$PE�����$Rar$e°R arRlala� �Yrt Rka9°v°rt®s'�"xka�t'R"maz�Rac3! fi xtos`xr . 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D G8 8 E vffi EA#`'! $ RY A Ri $ f PFCh � ]ie al j3 P F$ E $,. .f.F3"1„rw$aP�x`i[,P`aa,xva,F.w_n°s•,�wmi a..�,.P... .. i..'R..�.A_ _#_s'P ems...1<v,�':_s..a t3"e�.,$KR.'r� EXHIBIT "B" SITE MAP 812 NORTH AZUSA AVE, AZUSA, CA 91702 & 801 NORTH ALAMEDA AVENUE, AZUSA, CA 91702 ASSESSORS MAP PARCEL FOR APNS: 8608-025-004, 8608-025-004, 8608-025-006, 8608-025-019 V AIAMEDA R $ 3 4 5 6 7 8 9 10 ❑ 12 i3 <•� \ l ?e,{20 7282930 31 32 33 34 35 367 3B39 40 4 G .+ \ t 1 AZUSA AVE. za AZUSA RANCHO AZUSA M.R.15-93-96 FINALLY CONnFtM{D TO HENRY DALTON _ R 2-106-107 e+n is i9Si 45636.00000\5707959.1 EXHIBIT "B" SITE MAP 812 NORTH AZUSA AVE, AZUSA, CA 91702 & 801 NORTH ALAMEDA AVENUE, AZUSA, CA 91702 BUILDING LAY-OUT v 5 r§ w CP'4C2=TE ! r 'j G Q ASF.'MtF �( I li[ i i VP..T U j � �.z 4 :dICTvRE I I60L' oen;F. P,'.7YLtiN{+ jj c Ep .s N.T i np D G9KL �tl A � �y I xovc!arFe i . r I R5MULl 4 N N C r. r Lh T IUIF ir. ts 45636.00000\5707959.1 EXHIBIT "C" LICENSOR'S PROPERTY INSURANCE WARRANT REGISTER NO.2 A/ WARRANTS DATED 09/16/10 THROUGH 09/30/10 FICAL YEAR 2010-11 FOR REDEVELOPMENT AGENCY MEETING OF 11-01-10 RESOLUTION 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 AZUSA 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-REDEVELOPRMENTADMINISTRATION FUND $ 2,354.53 80-125-CBD CAPITAL PROJECTS FUND 18,591,88 80-135-WED CAPITAL PROJECTS FUND 80-185-RANCH CAPITAL PROJECTS FUND 80-165-624-2008A TAX ALLOCATION BONDS 81-155-TAX INCREMENT SET-ASIDE FUND 81-165-LM MRG TAB08B HS 82-125-CBD DEBT SERVICE FUND 22 459.46 82-135-WED DEBT SERVICE FUND 231,112.52 82-165-MERGED PROJECT TAX ALLOCATION BONDS 82-185-RANCH CENTER DEBT SERVICE FUND 3.255.57 TOTAL ALL FUNDS: $ 277.77396 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 2010. Chairman I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Redevelopment Agency of the City of Azusa at a regular meeting there of; held on the day of 2010. AYES: AGENCY MEMBERS: NOES: AGENCY MEMBERS: ABSTAIN: AGENCY MEMBERS: ABSENT: AGENCY MEMBERS: Secretary City of Azusa HP 9000 10/27/10 O P E N H O L D D B L I S T I N Gt Enti Narre 1 MD, OCT 27, 2010, 10:58 PM ---req: RUBY-------leg: M JL---loc: BI-'ID I---job: 778836 #J13888-P3n: CVAOO <1..34> rpt id: CHFLTR02 S= FUSD mss: 80-82 ; Check Issue Dates: 091610-093010 PE ID PE Nave ACIS,YNP NUEER./ JC$ MvIER Lwoioe Mirber DE!s=pticn St Disc. Part. Dist. Pirt. V11440 A VPND)M CECfJP, 8000000000-2724 63337 FLEX ALPIIN PFOC PD 0.00 2.47 PEID Lhuaid: 0.00 Paid: 2.47 Total: 2.47 V01305 AZLEA CITY EMPLO 8000000000-3035 2610/1001019 PY#19/10 PD 0.00 285.00 PEID 0 d 285: Total: 285.00 V00286 AZLGA LNIFTID SC 8210125000-2810 091510 09/10CED PME"5 PD 0.00 17,834.11 V00286 AZUSAILNVIFIID SC 8210125000-2810 091510 09/10RPNCH CTR P FD 0.00 4,625.35 PEM d: 0.00 d: 22,459.46 tal: 22,459.46 V11975 CASMU11PA, ER E'S 8010125000-7099 090710 REINS/FEES PAID PD 0.00 191.90 PEID T hma. : 0.00 Paid: 191.90 'Ibtal: 191.90 V06783 CITISIREEP 8000000000-3010 2315/1001019 PY#19/10 PD 0.00 125.08 PEm fid: 1255.08 Total: 125.08 V02687 CTIRITS OJA4 VITY 8220185000-2810 092010 09/1ORMU4 CIR P PD 0.00 3,255.57 PEID 1kir .d: 0.00 Paid: 3,255.57 Total: 3,255.57 V11556 EEUM DENIAL 8000000000-3052 091010 PFO PREM SEM01 PD 0.00 360.58 PEID Lid: 0.00 Paid: 360.58 Total: 360.58 City of Azusa HP 9000 10/27/10 O P E N H O L D D B LISTING By z/Ehtity Nam Pampa 2 WID, OCT 27, 2010, 10:58 PM ---rsl: RUBY-------leg: GL JL---loc: BI-TECH---jcb: 778836 W13888--pgn: 14400 <1.34> rpt id: CHFLTEZ02 SSP FUO CbJes: 80-82 ; Check Issue Dates: 091610-093010 PE ID PE Nme ACCP NUvEER / JCB NCNBFi2 Invoice Niner Descripticn St Disc. Ant. Dist. Ant. V11555 DELTACPM tFA 8000000000-3052 3706876 HVD PREM SEM01 PD 0.00 31.70 PEID Umd: 0.00 d: 31.70 Tbtal: 31.70 V00331 FEDURAL EXPRESS 8010110000-6521 722770556 117052788/J.LALR PD 0.00 22.96 PEID ihuid: 0.00 Paid: 22.96 'Ibtal: 22.96 V05574 IRCN MaVIAIN RE 8010110000-6493 CM180CJM187 CJF)0180-CJF'0187 FD 0.00 134.14 PEID1paid: 0.00 d: 134.14 Total: 134.14 V03126 LIN= NATTCDZL 8000000000-3010 2325/1001019 PY#19/10 PD 0.00 50.00 FEID 11V: 0.00 Paid: 50.00 Tbtal: 50.00 V10322 M & T BANK 8000000000-3010 092810 IQvA 457 DEKMZE PD 0.00 369.17 PEID t1TV: 0.00 Paid: 369.17 Total: 369.17 V03132 PJM2RS & ASS M 8010110000-6572 1153 672LQ FSI FEE L PD 0.00 379.30 PEID Urgeid: 0.00 7 . Tbtal: 379.30 V92617 PRICE FPMLLY 8210135000-7001 092810 PRICE CLUB N7IE PD 0.00 231,112.52 PEID d: 0.00 d: 231,112.52 Total: 231,112.52 City of Azusa HP 9000 10/27/10 O P E N H O L D D B LISTING ty By Pe: CH400 i Nar[e Pare 3 WID, OCT 27, 2010, 10:58 PM ---�: RUBY-------1e3: C3, JL,--loc: BI-Tfl;I3---jdx 778836 #J13888--pgn: 00 <1.34> zpt id: C13EL 2 SELECT FLND 0. .s: 80-82 ; Check Issue Dates: 091610-093010 PE ID PE Narre ACC= NUvEER / JOB NLMEI2FR Invoice MKber D--=ptice St Disc. ATt. Dist. Pmt. V02371 SPRINT' 8010110000-6915 864888819033 INV# 864888819-0 PD 0.00 10.00 PEID Uuaid: 0.00 Paid: 10.00 Total: 10.00 V08056 SPIMRD LCURPN 8000000000-3044 082110D DISAB PREM SEPI2 PD 0.00 290.14 V08056 SDU\IARD IIELRM 8000000000-2725 082110 LIFE PREM SEPP20 PD 0.00 94.58 PEIDd: 0.00 U'Md: 384.72 'Ibtal: 384.72 V12175 TESIO AS90CIATES 8010125000-6399 1720 VALUkTTCN FEE IL PD 0.00 2,400.00 PEIDd: 0.00 d: 2,400.00 Tbtal: 2,400.00 V00388 VERDIN 8010110000-6915 6261975078082810 626-1975078 PD 0.00 20.56 PEID d: 0.00 d: 20.56 Tbtal: 20.56 V04678 VE JZCN WIRELESS 8010110000-6915 0900225221 0900225221/ PD 0.00 86.88 V04678 VE Z N WIRELESS 8010110000-6915 0891276079 0891276079 PD 0.00 87.41 PEID Cyd: 0.00 Paid: 174.29 Tbtal: 174.29 V05661 VULCAN MkTFRTATS 8010125000-7120 153087 BLCCM6 PARKIN PD 0.00 5,499.58 V05661 VU10IN MUERIALS 8010125000-7120 153086 BLQ^K36 PARKIN PD 0.00 10,500.40 PEIDd0.00 Paid:: 15,999.98 Tbtal: 15,999.98 V00876 Mcli DUIL"N MJILA 8000000000-3010 2335/1001019 PY#19/10 PD 0.00 4.56 City of Azusa HP 9000 10/27/10 0 P E NH 0 L D D B LISTING �/ ty Pie NM, OCT 27, 2010, 10:58 PM ---xeq: RUBY-------leg: GL JL---loc: BI-=---Job: 778836 #J13888�-pgU: CFf4 0t<1.34 zpt id: CHFLTR02 SE= FUSD Ctdes: 80-82 ; Check Issue Dates: 091610-093010 PE ID PE N-�rre ACCLLNS NUvEER / JOB N1vEER Invoice Number Des=pticn St Disc. Art. Dist. Ant. PEID Lh�id: 0.00 Paid: 4.56 Tbtal: 4.56 GRAND TOTALd: 0.00 Paid: 277,773.96 Tbtal: 277,773.96 OF+ql U , CITY OF AZUSA MINUTES OF THE AZUSA PUBLIC FINANCING AUTHORITY MONDAY,OCTOBER 18,2010— 10:39 P.M. The Board Members of the Azusa Public Financing Authority of the City of Azusa met in regular session at the above date and time in the Azusa Auditorium located at 213 East Foothill Boulevard,Azusa. Chairman Rocha called the meeting to order. Call to Order ROLL CALL Roll Call PRESENT: BOARDMEMBERS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA ABSENT: BOARDMEMBERS: NONE ALSO PRESENT: Also Present General Counsel Carvalho,Executive Director Detach,Assistant Executive Director Makshanoff,City Department Heads,Secretary Mendoza,Deputy Secretary Toscano. The CONSENT CALENDAR consisting of item H-1 and H-2 was approved by motion of Board Consent Cal Member Carrillo,seconded by Board Member Gonzales and unanimously carried. Approved 1. Minutes of the regular meeting September 7,2010,were approved as written. Min Appvd 2. A RESOLUTION OF THE BOARD OF DIRECTORS OF THE AZUSA PUBLIC FINANCING Res. 10-P2 AUTHORITY ADOPTING THE INVESTMENT POLICY. It was consensus of the Board Members to adjourn. Adjourn TIME ADJOURNMENT: 10:39 P.M. SECRETARY NEXT RESOLUTION NO. 10-P3. l F r , - 000, tiJ OFA?G U � ._ WWI -�'raroar`P AZUSA PUBLIC FINANCING AUTHORITY CONSENT ITEM TO: THE HONORABLE CHAIRPERSON AND MEMBERS OF THE BOARD FROM: MARCENE HAMILTON,AZUSA PUBLIC FINANCING AUTHORITY TREASURER DATE: NOVEMBER 1, 2010 SUBJECT: AZUSA PUBLIC FINANCING AUTHORITY TREASURER'S STATEMENT OF CASH BALANCES FOR THE QUARTER ENDED SEPTEMBER 30, 2010 RECOMMENDATION It is recommended that the Board Members receive and file the Azusa Public Financing Authority Treasurer's Statement of Cash Balances for the quarter ended September 30, 2010 BACKGROUND Transmitted herewith is the Treasurer's Report for the Azusa Public Financing Authority for quarter ending September 30, 2010. Authority investments are made in accordance with the Authority Investment Policy adopted and approved with Resolution No. 09-P2 dated October 5, 2009, and Government Code Section 53600 et. seq. The Azusa Public Financing Authority is the issuer of three bond issues-the 1994 Sewer System Project Refinancing Certificates of Participation,the 2003 Capital Improvement Project Refinancing Certificates of Participation, and the 2006 Water System CIP Parity Revenue Bonds. The funds for these issues are restricted for payment of eligible capital improvement expenses and debt service on the bonds, and are held and invested by fiscal agents who are trustees for the bonds. For quarter ending September 30,2010,fiscal agents held total investments of$5,771,298.21. Total cash received for the quarter was$2,545,962.19,and disbursements of$3,439,621.83,were made,resulting in a total overall net decrease of$893,659.64. Disbursements were primarily for Water System Project costs, and cash receipts were primarily interest income and debt service payment funds from the City. FISCAL IMPACT The balance of cash and investments and projected revenues for the next six months are expected to be sufficient to meet cash disbursement requirements for at least the next six months. MH:EG CITY OF AZUSA AZUSA PUBLIC FINANCING AUTHORITY " TREASURY BOOK BALANCES-CASH AND INVESTMENTS _ QUARTER ENDING SEPTEMBER 30,2010 Maximum Deposits Cost Interest Mkt Bank Accounts Allowed Amount Pledged Securities Maturity Rate Value' CASH AND INVESTMENTS HELD BY FISCAL AGENT Wells Fargo Bank,Trustee 1994 Sewer Refunding Certificates of Participation Installment Payment Fund Wells Fargo Treasury Plus MMkt No Limit $8,593.79 WA Ongoing 0.010% $8,593.79 Reserve Fund Berkshire Hathaway Int Agrmt N/A $284,526.66 Guaranteed Imestment Agreement 6!12023 6.040% $284,526.66 1994 Sewer Refunding COP's Subtotal: $293,12045 - $293,120.45 Interest Collections: $1.15 2003 CIP Refundina Certificates of Participation Lease Payment Fund AIM Gov't Portfolio No Limit $17.27 Investments in direct obligations of the U.S.Treasury Ongoing 0.000% $17.27 Reserve Fund AIM Gov't Portfolio No Limit 5482,500.00 Investments in direct obligations of the U.S.Treasury Ongoing 0.020% 482,500.00 2003 CIP Refunding COP'S Subtotal: $482.517.27 $482.517'27 Interest Collections: $8.51 2006 Water System CIP Parity Revenue Bonds Revenue Fund Wells Fargo 100%Treasury MMkt No Limit $741-.848.14 NIA Ongoing 0.010% $741.848.14 Interest Account Wells Fargo 100%Treasury MMkt No Limit $0.02 N/A Ongoing 0.00D% $0.02 Principal Acrwum Welts Fargo 10D%Treasury MMM No Limit $0.00 N/A Ongoing 0.000% $0.00 Reserve Fund - Wells Fargo 100%Treasury MMM No Limit $3,644,952.62 N/A Ongoing 0.010% $3.644,952.62 Federal Home Loan Mtg.Corp. No Limit $0.00 Investments in direct obligations of the U.S.Treasury 6/282010 0.000% $0.00 Water System Acquisition Fund Wells Fargo 100%Treasury MMM No Limit $608,859.71 WA Ongoing 0.010%. 5608.8%71 2006 Water System CIP Revenue Bond Subtotal: $4,995.660.49 $4.995.660.49 Interest Collections: $101.35 Total-Azusa Public Financing Authority Cash and Investments: $5,771,298.21 $5.771,28821 Total Interest Collections: $111 01 Source of Market Value Information: Wells Fargo Bank,Trustee Bond Data is based on Trustee-generated Statements;bond funds listed herein are restricted for payment of debt service and eligible projects and governed by strict regulations described in the Trust Indentures. 'Market Value is the current price at which a security can be traded or sold. ORDINANCE NO. , AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA ADOPTING AND APPROVING AN AMENDMENT TO THE STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT BETWEEN THE CITY OF AZUSA, THE AZUSA REDEVELOPMENT AGENCY AND JAR UNIVERSITY COMMONS, LLC, GOVERNING CERTAIN REAL PROPERTY LOCATED AT THE SOUTHWEST CORNER OF ALOSTA AVENUE AND CITRUS AVENUE IN AZUSA CALIFORNIA RELATING TO THE CITRUS CROSSING SHOPPING CENTER WHEREAS, the City of Azusa ("City") and City Redevelopment Agency ("Agency") entered into that certain Statutory Development Agreement and Owner Participation Agreement, dated December 4, 2006 for reference purposes and recorded as Document No. 20070410405 on February 26, 2007 in the Official Records of Los Angeles County, ("Agreement') with JAR- University Commons LLC, a California limited liability company ("JAR") to construct a mixed- use commercial and residential development ("Project') on that certain real property located at Southwest Corner of Alosta Avenue and Citrus Avenue ("Property"); and WHEREAS, Citrus Crossing Properties Fee LLC, a Delaware limited liability company ("Developer") acquired fee title to the Property from JAR on July 26, 2007 by recordation of that certain Grant Deed recorded as Document No. 20071767518 on the Official Records of Los Angeles County and became successor-in-interest to JAR; and WHEREAS, under the Agreement, Developer agreed to pay an Annual Developer Payment associated with Local Sales Tax Revenues in advance of each Sales Tax Year with subsequent annual developer payments to be paid within ninety (90) days after commencement of each Sales Tax Year; and WHEREAS, the parties desire to amend the Agreement to defer the required Annual Developer Payment for a period of three (3) years, by extending the Sales Tax Term of the Agreement, to provide the Developer an opportunity to recruit, and further incentivize, a high quality, national chain restaurant to the Property's remaining undeveloped building pad; and WHEREAS, the parties now desire to amend the Agreement, as more particularly set forth herein, ("Amendment") in accordance with Government Code Sections 65868 and 65867.5 and Azusa Municipal Code Chapter 88.5 1, which provide that a development agreement may be amended and must be approved by an ordinance. The Amendment is attached hereto and incorporated herein as Exhibit A; and WHEREAS,the development of the Property in accordance with the Agreement and this Amendment 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 1 Y G T_ WHEREAS, the Amendment is consistent with the objectives, policies, general land uses and programs specified in the General Plan and Azusa Municipal Code Chapter 88.53; and WHEREAS, on July 14, 2010, the City Planning Commission of the City of Azusa conducted a duly noticed public hearing, recommended approval of the Amendment to the City Council and found the Amendment consistent with Azusa Municipal Code Chapter 88.53 and the Cily General Plan; and WHEREAS, on September 7, 2010, the City Council of the City of Azusa conducted a duly noticed public bearing concerning the Amendment, at which time all persons wishing to testify in connection with the Amendment were heard and the Amendment was comprehensively reviewed; and WHEREAS, all other legal prerequisites to the adoption of this Ordinance have occurred. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: Section 1. The recitals are true and correct and incorporated herein. Based on the findings contained in this Ordinance, the City Council hereby adopts and approves the Amendment attached hereto and incorporated herein. Section 2. The City Council hereby finds and determines, that it can be seen with certainty that adoption of this Ordinance and Amendment will not have a significant adverse effect on the environment. Thus, the adoption of this Ordinance is exempt from the requirements of the California Environmental Quality Act ("CEQA") pursuant to Sections 15061(b)(3) of the CEQA Guidelines. Staff is directed to file a Notice of Exemption with the Los Angeles County Recorder's Office within five (5) working days of adoption of this Ordinance. 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. 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. 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. 2 Y ADOPTED, SIGNED, AND APPROVED this day of 2010, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: Joseph R. Rocha, Mayor ATTEST: Vera Mendoza, City Clerk APPROVED AS TO FORM: BEST BEST& KRIEGER LLP City Attorney 3 V EXHIBIT"A" AMENDMENT 4 ` 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 FIRST AMENDMENT TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT By and between THE CITY OF AZUSA, A California municipal corporation And THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, A public body, corporate and politic And CITRUS CROSSING PROPERTIES FEE LLC, A Delaware limited liability company, successor-in-interest to JAR—UNIVERSITY COMMONS, LLC A California limited liability company r _ This First Amendment to Statutory Development Agreement and Owner Participation Agreement ("Amendment") is entered into as of 2010, with respect to that certain Statutory Development Agreement and Owner Participation Agreement dated December 4, 2006 for reference purposes and recorded as Document No. 20070410405 on February 26, 2007 in the Official Records of Los Angeles County ("Agreement"), between the City of Azusa, a California municipal corporation ("City"), the Redevelopment Agency of the City of Azusa, a public body, corporate and politic ("Agency"), and Citrus Crossing Properties Fee LLC, a Delaware limited liability company ("Developer"), successor-in-interest to JAR- University Commons LLC, a California limited liability company ("JAR"). The Agreement concerns the real property described in Exhibit"A" attached hereto ("Shopping Center Property"). City, Agency and Developer may be referred to herein individually as "Party" and collectively as "Parties." RECITALS A. The Parties entered into the Agreement to: (i) establish specific development standards to govern the development of the Project on the Property by the Developer in accordance with California Government Code Section 65864 et seq.; (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 reimbursement to 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; and (iv) provide for the generation of Local Sales Tax Revenues from the Shopping Center Property. B. CityView Citrus Crossing 102, LP, a Delaware limited partnership ("CityView") acquired fee title to all of the Vacant Property on August 14, 2007 by recordation of that certain Grant Deed recorded as Document No. 20071901831 in the Official Records of Los Angeles County, which transfer constituted a Permitted Transfer pursuant to the Agreement. C. Pursuant to the Agreement, Developer agreed to pay the Annual Developer Payment associated with Local Sales Tax Revenues in advance of each Sales Tax Year with subsequent annual developer payments to be paid within ninety (90) days after commencement of each Sales Tax Year. D. The Parties have been working together to recruit a national restaurant anchor to the Property. The Parties desire to amend the Agreement to defer the required Annual Developer Payment for a period of three (3) years, by extending the Sales Tax Term, to provide the Developer an opportunity to recruit, and further incentivize, a high quality, national chain restaurant to the Property's remaining undeveloped building pad. E. The Parties now desire to amend the Agreement, as more particularly set forth herein, in accordance with Government Code Section 65868. F. The City's Planning Commission held a duly noticed public hearing on to consider this Amendment. G. The City Council held a duly noticed public hearing on to consider this Amendment at which time the City Council found that the provisions of this Amendment are consistent with the general plan and any applicable specific plan. H. The development of the Project on the Property in accordance with the Agreement and this Amendment will provide substantial benefits to the City and Agency and will further important policies and goals of the City and 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. THEREFORE, pursuant to the authority contained in the Agreement, in consideration of the mutual promises and covenants contained in this Amendment, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, City, Agency and Developer agree as follows: 1. Assignment and Assumption. JAR- University Commons LLC, a California limited liability company (for purposes of this paragraph, "Assignor") does hereby acknowledge and agrees and reaffirms that effective July 25, 2007 ("Assignment and Assumption Date") it did sell, transfer, assign, convey and deliver to Citrus Crossing Properties Fee LLC, a Delaware limited liability company (for purposes of this paragraph, "Assignee") all of Assignor's rights, title and interests, to, in and under the Agreement with respect to the Shopping Center Property. Assignee does hereby acknowledge and agrees and reaffirms that, effective as of the Assignment and Assumption Date, it did assume all of Assignor's rights, title and interests to, in and under the Agreement with respect to the Shopping Center Property as well as all responsibilities, liabilities and obligations under the Agreement with respect to the Shopping Center Property. From and following the Assignment and Assumption Date, the term "Developer" as used in the Agreement with respect to the Shopping Center Property, shall mean Citrus Crossing Properties Fee LLC, a Delaware limited liability company. JAR- University Commons LLC, a California limited liability company, is, and from and after the Assignment and Assumption Date, released from all obligations under the Agreement with respect to the Shopping Center Property (the "Developer Release"). Assignor has, since the Assignment and Assumption Date and shall continue to cooperate with Assignee as reasonably necessary for Assignee to perform its obligations under the Agreement. By its execution of this Amendment, the City and Agency hereby agree that this paragraph satisfies the requirement for an express assumption of the duties and obligations of the Developer, under the Agreement in order for Developer to obtain the Developer Release. By its execution of this Amendment, the City and Agency hereby agree that this constitutes a Permitted Transfer and express assumption of the duties and obligations of the Developer with respect to the Shopping Center Property, under the Agreement. 2. Section 1.1.3 of the Agreement shall be and is hereby amended to read as follows: ""Annual Developer Payment" shall mean the sum of Forty Thousand Dollars ($40,000) to be paid in advance of each Sales Tax Year, except as otherwise specifically set forth herein and subject to reduction by credit on a Sales Tax Year-to-Sales Tax 4 Year basis as provided in Section 5.1." 3. Section 1.1.39 of the Agreement shall be deleted in its entirety and of no further force or effect, it being understood and acknowledged that Section 1.1.34 shall be the definition of"Sales Tax Year" for all purposes. 4. Section 1.1.41 of the Agreement shall be and is hereby amended to read as follows: ""Sales Tax Term" shall mean the twenty three (23) Sales Tax Year period commencing on the first day of the First Sales Tax Year and ending on the last day of the twenty third (23rd) Sales Tax Year thereafter." 5. Section 5.1 of the Agreement shall be and is hereby amended to read as follows: "Annual Developer Payment. On behalf of itself, its successors and assigns to all or any part of the Shopping Center Property, the Developer covenants and agrees to pay the Annual Developer Payment in advance of each Sales Tax Year within the Sales Tax Term as provided in this Section 5.1, except for the first, second and third Sales Tax Year, and except as otherwise specifically set forth herein." 6. Section 5.1.1 of the Agreement shall be and is hereby amended to read as follows: "First Annual Developer Payment. The Developer shall tender the first Annual Developer Payment in the amount of Forty Thousand Dollars ($40,000) to the City within ninety (90) says of commencement of the fourth Sales Tax Year. Subsequent Annual Developer Payments shall be paid as provided in Section 5.1.2." 7. Section 5.1.2 of the Agreement shall be and is hereby amended to read as follows: "Subsequent Sales Tax Years. The Annual Developer Payments for subsequent Sales Tax Years shall be determined and paid as provided in this Section 5.1.2. The Annual Developer Payments shall not be paid to the City during the first, second and third Sales Tax Year. Within ninety (90) days after commencement of each Sales Tax Year, the City shall provide the Developer in writing the City's determination of the 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 commencing with the third 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. The City 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. 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 to the 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." 8. All defined terms used in this Amendment shall have the same meanings set forth in the Agreement. Except as specifically modified by this Amendment, the Agreement shall remain in full force and effect. To the extent of any inconsistency between the terms and conditions of this Amendment and the Agreement, the terms and conditions of this Amendment shall control. 9. This Amendment may be executed in any number of identical counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument when each party has signed one such counterpart. 10. The Parties hereby consent to the recordation of the Amendment in the Official Records of Los Angeles County, California, by the City Clerk within ten (10) days of the effective date of the Amendment. [Signature pages follow] CITY OF AZUSA By: Joseph R. Rocha Dated Mayor By: Francis M. Delach Dated City Manager ATTEST: By: City Clerk Dated APPROVED AS TO FORM: Sonia Carvalho City Attorney REDEVELOPMENT AGENCY OF CITY OF AZUSA By: Joseph R. Rocha Dated Chair By: Francis M. Delach Dated Executive Director ATTEST: By: Agency Secretary Dated APPROVED AS TO FORM: Sonia Carvalho Agency Counsel JAR—UNIVERSITY COMMONS, LLC, California limited liability company By: Dated Its: APPROVED AS TO FORM: General Counsel CITRUS CROSSING PROPERTIES FEE LLC, a Delaware limited liability company By: Dated Name: Andrew Trachman Its: Manager APPROVED AS TO FORM: General Counsel EXHIBIT "A" Shopping Center Property That certain real property situated in the City of Azusa,County of Los Angeles,State of California, described as follows: Lots 1 through 11,inclusive,of Tract No.68355,in the City of Azusa,County of Los Angeles,State of California, as per map recorded in Book 1354, Pages 37 through 41, inclusive,of Maps, in the Office of the County Recorder of said County. ORANGES KLEMBERG169331 3 02/26/07 - . ININI I�III�II N VIII I IIINIIIIINII II IIII IN II RECORDING REQUESTED BY V 20070410405 OFA of Document Recorded WHEN RECORDED MAIL TO ..u..a........ I............... Has not been compared with original. NAME Vera Mendoza Original Will be returned when City Clerk processing has been completed. City of Azusa LOS ANGELES COIOM REGISTP,AR-RECORDER ADDRESS 213 E. Foothill Blvd. CITY,STATE Azusa, CA ZIP CODE 91702 SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE TITLES) STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT: among the City of Azusa and The Redevelopment Agency.of the City of Azusa and Jar-University Commons, LLC, dated December 4, 2006. 4 . too � 4 . 'Wlieh`r?, fdbdtb>itntee• 213 East oot .$ l n:now lamol, Ams%:9 ADM an, Space Above for Use by Recorder Only Exempt from Recording Fees Per Gov't Code§27383 STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT by and among THE CITY OF AZUSA a California municipal corporation 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 RVPUBiKVARNER1716287.11 STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT This Statutory Development Agreement and Owner Participation Agreement("Agreement')is entered into as of this 4t° day of December, 2006 by and among (i) the City.of Azusa, a California municipal corporation("Cit} ,(ii)the Redevelopment Agency of the City of Azusa,a public body,corporate and politic ("Agency"),and(iii)JAR-University Commons,LLC,a California 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")for the redevelopment project area known as the"Merged Central Business District Redevelopment Project Area"("Project Area"). B. The governing board ofthe 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 sen.) ("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 Iocated 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 ("Sbopping Center ProjecfD consistent with the development plan("Development Plan")attached to this Agreement as Exhibit"C-1"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 other related street improvements(collectively,"Sheet 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. RVPURVti'ARNER1716257.11 1 21 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 of the:(i)the 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)the fair market value of the property interests underiying the Street Improvements, (i)and(ii)not to exceed One Million Five Hundred Thousand Dollars($1,500,000)in the aggregate. L 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 accordancewith California Government Code Section 65864,et M.;(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 reimbursement to 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,subject to the terms,conditions,covenants and restrictions set forth in thisAgr eement 1. 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 ofthe 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 I DEFINITIONS 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,and 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. R VP UB L EVAR NEM 716.787.11 - 2 1.1.3 "Annual Developer Payment" shall mean the sum of Forty Thousand Dollars (540,000)to be paid iu advance of each 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. I.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 JAR - 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 inconnectionwithor 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 otherpubbe 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-I". 1.1.14 "Dispute Notice"shall have the meaning set forth in Section 9.19. 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 legallyrequired 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 Residential Project Covenants Conditions and Restrictions are recorded against the Vacant Property in a RVPL&WVARNERU16287.11 3 priorityposition senior to all other non-statutoryliens and encumbrances against the Vacant Property and the Developer has provided documentation evidencing that fact reasonably acceptable to the City. I.1.16 `Enforced Delays"shall have the meaning set forth in Section 9.10. 1.1.17 "Event of Default"shall have the meaning set forth in Section 6.1. 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 Vaunt Property. Exhibit"A-2" Legal Description of the Shopping Center Property. Exhibit`S-1" Map of the Vacant Property. Exhibit`B-2" Map of the Shopping Center Property. Exhibit"C-1" Development Plan for Project Exhibit"C-2" Master Phasing Plan Exhibit"D-1" Description of Street Improvements Exhibit"D-2" Map Depicting the Location of Street Improvements Exhibit`T" Covenants,Conditions and Restrictions Related to the Residential Project Exhibit"F-1" Prohibited Land Uses Exhibit"F-2" Restricted Land Uses 1.1.19 "First Sales Tax Year" shall mean the Sales Tax Year commencing immediately following the earlier of(1)the second(2nd)anniversaryof 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 Tae 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 Term. 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 ofbusinesses,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. 1.1.24 "Local Sales Tar.Revenues"means that portion of the Sales Tax,if any,originating RPPUBWVARNBR1716287.11 4 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 Coumty 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 subject to 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 Term,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 Yew. 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%)ofthe amount ofthe 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 andrefers to any ofthe following types of Transfers:(i) any Transfer to a person or entity reasonably approved by the City whicb 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. 1.129 "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. 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 RPPr181UARNERt716287.11 - 5 3.3 of this Agreement. 1.132 "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 9.19 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 1,or October 1,as applicable) and ending on the last day of the immediately following fourth(4`)calendar quarter(i.e.March 31,June 30, . September 30,or December 31,as applicable). 1.1.35 "Shopping Center Project Commencement Date"shall have the meaning set forth in Section 4.1.1. 1.1.36 "Shopping Center Project"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 Exbibit`B-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 (19) Sales Tax Years. There shall be a torah 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 M., and any successor haw 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. 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 (20"') Sales Tax Year thereafter. 1.1.42 "SBE"means the California State Board of Equalization and any successor agency. 1.1.43 "Street Improvements" shall mean the public road, utilities and related public improvements that bisect the Shopping Center Property and are imposed bythe 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 plans forpubhoworks construction concerning the same,as more particularly described in Exhibit"D-1"and shown on Exhibit "D-2" attached to this Agreement The Street Improvements shall comply with City RVPUBIKVARATRIV 6297.11 6 Standard R-1,except as maybe modified and approved by the City Engineer in his or bar reasonable discretion to ensure acceptable access. 1.1.44 "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. I.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 42.3. 1.1.47 "Cakable Sales" shall mean all sales and leases of Goods by a Generator at the Shopping Center Property that are: (i)subject to thepayment of Sales Tax pursuant to the Sales Tax Law and (ii)for which the"point of sale"reported to the S13E is the City.. 1.1.48 "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 of more than a forty-nine percent(49%)interest)in this Agreement,the Shopping CenterProperty, 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 of such 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 of the 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 orpartial sale,assignment,conveyance,trust,power, or transfer in any other mode or form,by the Developer of the Vacant Property,the Residential Project or any part thereof 1.1.50 "Vacant Property"shall mean the real property described in Exhibit"A-1"and shown on Exhibit`93-1"attached to this Agreement. RVPUB"ARNFR1716287.11 7 ARTICLE Il REPRESENTATIONS AND WARRANTIES;RESTRICTION ON TRANSFER;NOTICES 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 of this Agreement.The City berebymakes 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 a California municipal corporation. The City has the legal power, :-fight and authority to ester 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 respell to this Agreement are limited to those obligations set forth in Article IV of this Agreement pertaining to the Street Improvements Reimbursement- All eimbursementAll representations and warranties made by the City hereunder shall be limited to the actual current knowledge of F.M.Delacb(City Manager)as of the Effective Date,without independent investigation and without any duty to do so. 2.1.2 Aeencv Representations 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 2.1.2.2 The Agency acknowledges and agrees that the Agency's obligations with respect to this Agreement are limited to those obligations set forth in Article N ofthis Agreement pertaining to 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 of the Effective Date and the Developer's liability formisrepresentation or breach of warranty,representation or covenant,wherever contained in this Agreement, RrPUR KYARNERV716387.11 8 shall survive the execution and delivery of this Agreement. The Developer bereby 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 wan-ant 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.I.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,Wile,governmental regulation or any writ,injunction,order or decree of any court or governmental body applicable to the Developer. 2.134 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 of John R.Francis as of the Effective Date,without independent investigation and without any duty to do so. 2.2 Restrictions on Change in Management or Control of the Developer and Assignment or Transfer. 2.2.1 The Developer acknowledges that the qualifications and identityofthe Developer am ofparticular 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. R;Pr1Bl%VAkNER1716287.11 9 2.23 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 bythe death or incapacity of any individual)that has not been approved in writing by the City and the Agency prior to the time of such 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. 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 forth 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. 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(Le.,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 91702 Attention: City Manager Telephone:(626)812-5239 Facsimile: (626)334-6358 R PTUB I r.'i ARNER 171628 7.11 10 y� Copy to: Best Best&Krieger,LLP 5 Park Plaza, Suite I500 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 R1,WW RiAMLR1716287.11 11 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 2.3.3 Any ,party may,by notice given at anytime,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 III 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 o> 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. 3.2 Effect ofAereement 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 of the 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, includin,but not limited to,the Reservation of Rights. The City shall accept forprocessing,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. 3.3.1 Limitations,Reservationcand Exceptions.Notwithstanding any other provision ofthis Agreement,the following regulations shall apply to the development of the Project on the Property. 3.3.1.1 Processing fees and charges of every kind and nature imposed bythe Cityto 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,provided however that the such monitoring fees are limited to One Thousand Dollars($1,000)per yew. 3.3.1.2 Procedural regulations relating to hearing bodies, petitions, applications, notices,findings,records,bearings,reports,recommendations,appeals and any other matter of procedure. RYPURI7,'PARJMW16267.11 - 12 �r,y 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 Cityand any local amendments to those codes adopted bythe 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 3.3.1.7 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 Date 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 orpreclude compliance with one or more of the provisions of this Agreement,such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such 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 provisi ons impractical to enforce. RVPUBXVARAM1716287.11 13 �1l 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,contrary to its stated terms if necessary,to reserve to the City all such power and authority that cannot be or is not by this Agreement's express terms 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 ofResidential 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 ofReal Estate(the"DRE")or in the alterative,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 public art component within the Shopping Center Project. The form and substance of the public art component shall be as approved bythe City Manager in his or her absolute discretion,and may include such items as public murals,items of extraordinary landscaping,public fountains and other gathering places,sculpture,and similar items. 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 first building 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. If 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 CityManager fails to act on the proposed public art component by 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 Proi ect 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 exclusivelyto City of Azusa public employees,police officers,firefighters,and teachers in a credentialed school located within the geographical boundaries of 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. AVPDBVKYAA V16187.11 14 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,eoncurrentlywith 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 Proiect 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 0 Store","CVS","Shop I","Shop 2",and the"Ross"buildings(all ofthe 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 entiretywitheut cost or liability to either the City or the Agency. 42 Agency Oblieations Regarding Street Imprpyemeats Reimbursement Agency agrees to payto the Developer the Street Improvements Reimbursement pursuant to this Section 42. 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. 4.22 Four Disbursements of Street Improvements Reimbursement Subiect to Conditions Precedent. The Street Improvements Reimbursement shall be disbursed to the Developer in four (4) disbursements as described in this Section 4.22 for purposes of reimbmsing the Developer(i)the third party costs and expenses actually incurred and paid by the Developer in connection with the design and construction RVFUBMVrrRNU1716287.11 15 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. 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(1")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; 42.2.1.2 all representations and wammtiesoftheDeveloper containin 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 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 Developer has 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 anytime 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(2m)twenty five percent(25%)of the Street Improvements Reimbursement: 42.2.2.1 there shall exist no condition, event or act which would constitute a material breach or default under this Agreement or which,upon the giving ofnotice or the passage of time,or both,would constitute such a material breach or default 4.2.2.2.2 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 4.2.2.2.3 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 RVPVNtKVARNRR1716287.11 16 42.2.2.4 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 Daze,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(P)twenty five percent(25%)of the Street Improvements Reimbursement: 41.2.3.1 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 or the passage of time,or both,would constitute such a material breach or default; 4.2.2.3.2 all representations and warranties cfthe 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 (4') 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 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; 4.2.2.4.3 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 Comp]etedthe Shopping Center Project. 4.2.3 Street Improvements Reimbursement Request. At any time following the Shopping Center Project Commencement Date, and upon the satisfaction of the conditions precedent described in Section 4.21,the Developer may submit to the Agency a written request for any disbursement of the Street Improvements Reimbursement("Street Improvements Reimbursement Request"). The Street Improvements Reimbursement Requests shall be.approved and paid by the Agency as follows: RVPUBWVARNF.RW6287.11 17 cii / 4.2.3.1 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 requiredby Section 4.2.3.3 below and that such Street Improvements Reimbursement Request is materially consistent with the Approved Street Improvements Cost Estimate. 4.2.3.2 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 4-21.3 below) shall constitute the Agency's approval thereof. 4.2.3.3 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. 4.2.3.3.1 The Street Improvements Reimbursement Request,which shall include a description of the work performed,material supplied and cost incurred or due; 42.3.3.2 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; 4.2.3.3.3 Waivers and releases of methanes'liens,stop notice claims or other lien claim rights;and 4.2.3.3.4 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 4.2.3.4 The Developer shall submit accurate and complete Street Improvements Reimbursement Requests.Incomplete and/or inaccurate submittals will be returned to the Developer. The City shall have the same amount of time to review each revised Street Improvements Reimbursement Requests as allowed by this Agreement for the original submittal. For the second and succeeding re- submittals,the Developer shall reimburse the City its actual costs for processing and responding to such revised submittal. 4.3 Agency's Obligations Under Agreement. The Developer admowledges and agrees that the Agency's obligations under this Agreement are limited to those obligations set forth in this Article IV paining to the Street Improvements Reimbursement RiPUMEARNER1716287.11 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 Shopping Center Property,the Developer covenants and agrees to pay the Annual Developer Payment in advance of each Sales Tax Year within the Sales Tax Term as provided in this Section 5.1. 5.1.1 First Sales Tax Year. The Developer shall tenderthefast Annual DeveloperPayment 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 the 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 Sates 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 Yearby 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. The City 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 to the 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 Tae Year by an amount greater than the Annual Developer Paymeat;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 Yew. Within ninety(90)days following the 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 fust sentence of this Section 5.1.3. RVPUBIL'VARNERV16187.71 19 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 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 of the parties and satisfaction of the conditions precedent to such obligations shall be determined and made independently of any other Sales Tax Year. 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 Tenn. 5.1.6 Covenants Rim 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. 52.. Completion Covenant On behalf of itself its successors and assigns to all or any portion of the Shopping Cerner Property,Developercovenants and agrees to commence the development ofthe Shopping Center Project within ninety(90)days of the 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(1)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 1"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 to any tenant improvements to be constructed within the Shopping Center Project. 5.2.1 Term. The covenants of this Section 52 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(15`°)anniversary of the Effective Date of this Agreement 52.3 Covenants Run With the Land. The covenants set forth in Section 52 touch and concern the Shopping Center Property, and every part tbereaf and constitute covenants running with the Shopping Center Property and every part thereof for the full tern 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 of the 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 of an adverse condition on any area of the 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 ofthe Maintenance Deficiency and give 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,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: RVPVRIKVARNER;716187.1 J 20 (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 areasonable condition free of weeds and debris. In the event the responsible party fails to core or commence to cure the Maintenance Deficiency within the time allowed, the Agency may thereafter conduct a public bearing following transmittal of written notice thereofto the Developer,or the then-current owner oftbe 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(10)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. K upon the conclusion of a public bearing,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 right to enter the Shopping Center Property and perform all acts necessary to clue the Maintenance Defici ency,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 53 sbaU 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 power to 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 alien,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. 5.3.2 Term. The covenants of this Section 5.3 shall become effective upon the Effective Date of this Agreement and shall continue in full force and effect thereafter until the twentieth (206) anniversary of the Effective Date. RVPUBlKYARMER1716287.11 21 5.3.3 Covenants Rim With the Land. The covenants set forth in this Section 5.3 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. 5.4 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:R)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 the uses set forth on the attached Exhibit "F-2" (each such use, a 'Restricted Use "). The foregoing 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 tmoccupied 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 Developer to 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 tern unless such extension maybe unilaterally exercised by the lessee without Developer's approval or consent. 5.4.4 Term. 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. I"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 fors thousand(4,000)square feet of gross leasable area. As an example,but not in limitation,of the types of prohibited uses,in connection with the development of the Shopping Center Project,Citrus Pad No. 1 shall not be developed as a fast food restaurant(e.g.,McDonalds, R[Pr7B1t'`AR VER 171628Z1I 22 V Burger King)or a"quick serve/fast serve"restaurant(e.g.,Farmer 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 (20") anniversary of the Effective Date. 5.5.2 Covenants Run With the Land The covenants set forth in this Section 5.5 touch and concern the Shopping Center Property, and every part tbereof, 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 parry with respect to a default that cannot be cured within thirty(3 0)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 Developer.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 under this Agreement, or with respect to this Agreement or the application thereof. In general, the City and the Developer may pursue anyremedy 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 6.2.3 Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. RrPVTrXVARNERV16267.]I 23 ' J 6.3 Remedies as Between Agency and Developer.The Agency and the Developer maypursue any remedy at law or equity available for the breach of anyprovision ofthis Agreement,excluding consequential damages. 6.4 SMcific 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 maybe foreclosed from other choices it may have bad 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 of this Agreement,and it is 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 No Cross-Defatilts. 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 LMOATION 7.1 Third Party Litigation Concerning Apeement. 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 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,orproceeding and the City and the Agency RYPUBM'ARNEM716287.11 24 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 inderrinify and hold the City,its officers, agents,and employees free and bamrless 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 of any 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 attorneys'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 Attomey. With respect to Sections 7.1 and 7.2 herein,the City and the Agency reserve,the right to either.(i)approve the attorney(s)that the Developer selects,hires or otherwise engages to defend the indemnified the Agency and/or City bercnmder,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 urneasomblywithhold 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 f ntber 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: 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. R{PUB II FARNER1716287.11 25 8.1.2 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 8.13 If the City or the Agency timelyreceives 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 maybe,shall provide a copy of that notice to the mortgagee within tea(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,shalt take the Shopping Center Property,or part thereof; subject to the terms of this Agreement 82 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 partthereof. ARTICLE IX MISCELLANEOUS PROVISIONS 9.1 Recordation of Agreement.This Agreement and any-amendment or cancellation thereof shall be recorded with the Los Angeles CountyRecorder by the Clerk of the City Council within ten(10)days after 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 9.3 Severabiliri. 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 therebyto the extent such remaining provisions are not rendered impractical to perform taking into consideration the RVPUB kVARNER1716287.11 26 purposes of this Agreement Notwithstanding the foregoing,the terms of this Agreement concerning of the Street Improvements and the Local Sales Tai: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 Intemretation and Governing Law. This Agreement and anydispute 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 theprovisions ofthis 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 and entered into for the 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 essencein the performance of the obligations of the City,the Agency and the Developer under this Agreement Inadditionto 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;foes;acts of God or ofthird 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 its entering into this Agreement and undertaking the obligations under this Agreement described,or 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. R{PUBWEARNERl7161R7.11 27 enactments, could impose an inconvenience or hardship on Developer's continued performance under this Agreement,but that such inconvenience orbardship is not an Enforced Delay and does not excuse Developer's performance under this Agreement THE DEVELOPER EXPRESSLY AGREES THAT ADVERSE CHANGES INECONOMIC CONDITIONS, EITHER OF THE DEVELOPER SPECIFICALLY OR THE ECONOMY GENERALLY,CHANGES IN MARKET CONDITIONS OR DEMANDS,OR ADVERSE LEGISLATIVE 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 TTMELYPERFORMANCE 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 Cov ants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party. 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)nuns 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 of the Developer warrants and represents that he or she each have the authority to execute this Agreement on behalf of his or her 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(1)and the same instrument 9.14 Obligations of the Citv and the Agency are Seoamate and Distinct T'he City's obligations and the Agency's obligations under this Agreement are separate and distinct 9.15 Shopping Center Project as a Private Undertaking. It is specificallyunderstood 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 contained in this Agreement No partnership,joint venture or other association of any Lind is formed by this Agreement The oulyrelationship between the City and the Developer is that of a government entity regulating the development of private property and the owner of such property. RVP(BIr.?'ARAER1716287.11 28 Vf f 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 ofeitherparty at any time,the other party shall promptly execute,with acknowledgment or affidavit if reasonably required, and file orreeord 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 Doman No provision of this Agreement shall be construed to limit or restrict the exercise by the City or the Agency of their respective powers of eminent domain with respect to the Shopping Center Property or Shopping Center Project or any other property owned by Developer. 9.18 Attornevs'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 represeatations 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 of suit or 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 9.18,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) garnislunent, levy and debtor and third party examination; (iv) discovery,and(v)banLzuptcy 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 bynegotiations between senior officials of the parties who have authority to settle the difference or controversy. The disputing parry may give the other Party written notice that a dispute exists between them so that the provision of Sections 9.19.1 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 Parry'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 of the 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 so that the dispute may immediately be subject to arbitration in accordance with Section 9.19.2. 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 emended bymutual agreement), or if anyparty 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 RJPUBI Kt'ARAER1716287.11 29 appoint an arbitrator, and such arbitrators shall appoint an additional arbitrator. If,within thirty(30) days following the expiration of the Resolution Period,anyparty has not appointed an arbitrator,the AAA shaft,at the request of the other party,appoint an arbitrator on that party's behalf. IN WPINESS WBEREOF,the parties hereto have executed this Agreement on the last date set forth below. [Signatures on Following Pages] RVFUBV,VARNER1716267.11 30 SIGNATURE PAGE TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT "Landlord" JAR-University Commons LLC a California limited liability company By: Francis-University Commons LLC, Date. 01 c i- 07 a California limited liability company, Manager By: Richard B. Francis LLC, A California limited liability company, Date: Mana*anaager BY: Namcis Its: RVPVBI ARNER1716287.11 31 NOTARY ACKNOWLEDGMENT (California All-Purpose Acknowledgment) STATE OF (a ss. . COUNTY OF S ) On fp 20 3 {-khb-I 1 tp(tet Wl Snnr 200efore me, B�( 71 /!Tt v,notarypublic, personally appeared personally known to me(or preyed on o be the person(s)whose name(g) is4we subscribed to the within instrument and acknowledged to me that he/slie/fhey executed the same in his/hsp4hoi>_ authorized capacity(ies),and that by hislheF/their signature(s}on the instrument the pesson(s),or the entity upon behalf of which the person(s j the instrument. WTENESS my hand an ' fficial 1 Signature of Notaryu lic ATTACHED TO: armor rRoatwi _ Commlmion� 1641851 Notary Pt •Caftaft Us NV9*C40* OW hp 2X 04 RiTUBLRYARNER06287.11 1 SIGNATURE PAGE TO STATUTORY DEVELOPMENT AGREEMENT AND OR'NER PARTICIPATION AGREEMENT CITY: THE CITY OF AZUSA, a California municipal corporation Date: 7 B . F.M.Delach City Manager ATTEST: / By. City Clerk APPROVED AS TO LEGAL FORM: BEST BEST&KRIEGER LLP By. T/ NWIJ Ry� til//E,s City Attorney R6PUBIEYARWER1716287.11 32 NOTARY ACKNOWLEDGMENT (California All-Purpose Acknowledgment) STATEOF ss. COUNTY OF OS I°5 ) On WIU Zl( " ,2 before m l��yl(�t�P C� O Z.t r) O ,notarypublic, personallyappeared t D, _Lao Odd MAN�ersonallyknown tome(or proved to me on the basis of satisfactory evidence)to be the personwhose name are Zcibed to the within instrument and acknowledged to me that�she/they executed the same iner/their authorized capacity( and that byhis/her/their signature on the instrument the perso�,),or the entity upon behalf of which the person(a� acted, executed the instrument. WTINESS my hand and official seal. Signature of Notary Public ATTACHED TO: Jdl2 -lli�<</erC.sllL� ( '0/�'ifY)6nJS, L��- CANDACETOSCANO Comm1won#1417166 .m Notary Public-Caritomla Los Angeles County My Comm.hPhes May12,2007 RVPr7BV.V RNER17I6287.11 l SIGNATURE PAGE TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PAR-TICIPATION AGREEMENT AGENCY: THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, a public body, corporate and politic Date: G —%y v7 By-. LLL-A fF.M. Delaeb Executive Director ATTEST: By. Agency Secretary APPROVED AS TO LEGAL FORM: BEST BEST &�KRIEGER LLP By. r�N 6�i f G✓ �' yP uLI �'f 6' Agency Counsel R!'PVBIFT'AR?M 716287.11 33 NOTARY ACKNOWLEDGWNT (California All-Purpose Achmowledgment) . STATE OF Oat ss. COUNTY OF Los AtJL�PI�S ) Onr bP-UAE��91 b9120OXbeforemeo2nGjTtfie- p CrhC notarypublic, personally appeared '&-I,LeC(F4 personally known to me(orproved to me on the basis of satisfactory evidence)to be the person whose nairnp—A sure subscribed to the within instrument and acknowledged to me tha&sheAhey executed the same#O�her/their authorized capacity(,and thatb3(per/tbeir signaturoon the instrument the persoorthe entity upon behalf of which the person(X acted,executed the instrument rr WITNESS my hand and official seal- 6u eal- ( 1u Signature of Notary Public ATTACHED TO: 7 U 7 C��2c j '/°I0�/11 PitTj�PP/vl�ti� r� u ve ies (1�O rn wl CANDACETOSCAN COMMIB5lon*1417166 -� ry Notary Public-California Los Angeles County - - My Comm.Expres May 12,2007 PVPUBLCFA VEP,1716287.11 t \T TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Legal Description of the Vacant Property) EXHIBIT"A-1" R{PUB EYARNER1716287.11 n PARCEL 2 COMMENCING AT THE NORTHWESTERLY CORNER OF SAID PARCEL 1; THENCE ALONG THE WESTERLY LINE OF SAID PARCEL I SOUTH 46"10'53" EAST A DISTANCE OF 173.26 FEET; THENCE SOUTH 0000'56" EAST A DISTANCE OF 257.99 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 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 436A0 FOOT RADIUS CURVE, CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 76035122", AN ARC LENGTH OF 103.24 FEET, A RADIAL TO SAID POINT BEARS SOUTH 76030'40" EAST; THENCE NORTH 89°58'40" EAST A DISTANCE OF 55.26 FEET; THENCE SOUTH 7I°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 060 39'32"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 LME OF SAID PARCEL 1 OF PARCEL. MAP 14545; THENCE ALONG SAID SOUTHERLY LINE NORTH 89058'36" WEST A DISTANCE OF 151.63 FEET TO THE SOUTI-EASTERLY 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 00000'56" NEST 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', WEST A DISTANCE OF 287.86 FEET TO THE TRUE POINT OF BEGINNING.; CONTAINING 5.7773 ACRES GROSS. EXHMIT"A-2" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Legal Description ofthe Shopping Center Property) EXFIIBrr"A-2" RVPUB"ARNER716187.11 - EXBIBIT A - LEGAL DESCRIPTION PAGE 1 OF 1 PORTIONS OF PARCELS 1 AND 2OF 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: PARCELI 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 00000'56" EAST A DISTANCE OF 287.99 FEET; 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 !IRC 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 AIANG 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"EAST 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 SOUTI-17RLY 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 THE WESTERLY RIGHT-OF-WAY OF CITRUS AVENUE; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY NORTH 00°01'24" EAST A DISTANCE OF 779.16 FEET TO TIM 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 2300.00 FOOT RADIUS REVERSE CURVE, CONCAVE NORTHEASTERLY. A RADIAL TO SAID POINT BEARS SOUTH 08°46'3T' WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24°21'56", AN ARC LENGTH OF 978.10 FEET TO THE BEGINNING OF A 15.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY, KBIT A - LEGAL DESCRIMQN PAGE 2 OF 2 A RADIAL TO SAID POINT SEARS SOUTH 33008'33"WEST; THENCE LEAVING SAID SOUTHERLY RIGHT-OF-WAY OF ALOSTA AVENUE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 33009'29", 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. EMMIT A eMM CURB£ TABLE _ NO. OR TA RAD/US LENGTN LINE TABLE C1 095357" 420.00' 72.56' NO. _ BEARING LENGIN 02 763522" 436.00' 10924' Lf NB936'40c 55.26' C3 242156" 2300.00' 97810' L2 #355540"JY 69.85' C4 330929" 15.00' 6.66' 0 NORTH 1383' C5 817447" 15.00' 21.17' Z4 #46705U'H' 773.26' C6 153134 2250.00 1002 40' L5 #715532019 176.87' T.PO.B. - Pa t LEGAL OLSOPMON 1.6 NOOV44?2 Pl 100.10' RQG - Pa 2 PARCELS 1 AND 2 AS-WOW# ON PARM LEGEND 5330833"44�PRC GEAR IN BOOK 153 PAGES 1-5 RECORDED P.O.C, POINT OF CO3f4,GfEYCETdENT N995904 c J �`��' /N 7Hf COUNTY OF LOS ANGc2ES. T.P.D.B. TRUE PO/NT OF BEG/N/✓/NG 229.10 i h EXISTING PAAUR LINE 76.46' L4 6� O PROPOSED P4t?M LIN_ l� �A 61.68' O �� Ic heel 0. Lwin 3461' hpQ C� \aij Exp. 6-30-07 147960' 1 � 77.31' PAR ' �� p No. 6896 737,3787147=5INL7522 TI ' rFOT CAl\F� T.P.O.B. 16.9279 6W=1N&7AQ?ES pa ` l s N60i 45" 8624�21-01.g 01$ 021 23.54' C5 i 2 SEE SNLET 2 O FOR GENERAL fR 9 NOTES, 185.37' � _ � ( � EAS£h1ENT VA d4�gz 184.25' a �GlESOANO 6 ' o 1-69 PA t Z •1d—j tii 9 a a `TCs�O���C2 Li aw 234.22 :� Bal o f17S11#C ?sf 65.95' ZF c9 ? _ BGY/NWr 9.53' ij �W 1.3 �o Q PARCEL .Z moo #463932%4 10200' — 251,699.97 Gwawl f p NET.R? TT. o .V773 Q?0SS1*fT AQ?ESI = -� 40.00' 862�02t-o1s NOOZ7010 E 284.58' 40280' 51.67 127.14' 476.49' U ZONING N895836lY 1030.91 o ZONING PEW FMF CITY Of AZUSA S PLAIdVrAG O..7'AR EW.. a ZONING FOR THIS SITc ISM 7hF'L/NIIERSI7Y OISIRICT (DU). 0 200 400 E3IBIT"B-1" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Map of the Vacant Property) EXHIBIT "B-1" RVPUBV.MAER1716287.11 .. e I i l_ . O EXISTINGI. ROSS �' F?r.......... ..'_. .i • ..tee .— _ _ _.. .. -'- - EXISTING = �, =«..a. CVS » `( EXISTING THEATRE . . . . _. i Ii 1 .V� PROPOSED BUILDING - Q i EXISTING =I;_^_J�..._i..-. — SIJ f. Zv um iz' VACANT PROPERTY EXHIBIT aSENGINEERING B-1 sna o.a•.,.�-sw�ma rwnm u5w,n�.rnm•rmf aa-a�x EDIT`B-2" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Map of the Shopping Center Property) F=IT'B-2" RPPVBI YARAER1716287.11 ?t(. �01:11 p0l, -- - --------- ------------- .......... SHOPPING CENTERS amsENGINEERING '� M M-alm did EXH BIT"C-I" TO STATUTORY DEVELOPM[ENI'AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Development Plan for Shopping Center Project) Tentative Parcel Map No.68355 Code Amendment ZCA-222 and Z-2006-01 Design Review No. DR 2006-02 and 2006-103 Minor Use No.(s) MUP 2006-27(offsite sale of liquor-Building"C") EXMIT"C-1" RPPVBII.YAP VBR1716287.11 . r EXISTING - 11 ROSS .,...., EXISTING — I CVS _ .m ;! _ G — - _ EXISTING .. �. THEATRE _.. — u PROPOSED _ �i 1 _ R7 BUILDING _ Lj 1uj EXISTING - cf 11 ' 7 I SCALE.- NIS ® DEVELOPMENT PLAN EXHIBIT 1� ENGINEERING C i wn mm�.yrc-ua�.ere.unne,uwnd.she•nml uo-c�re EDIT"C-2" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Master Phasing Plan) EXI rr"G2" RTPUBI UARNER1716257.11 � xjt Thr., i. T £�HFt EXHIBIT"D-1" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Description of Sheet Improvements) EXHIBIT"D-t" RVPVBWYARXM7J6287.11 - EXH-MIT D-1 DESCRIPTION OF STREET IMPROVEMENTS Roadway improvement shall consist of the Engineering,Construction Management and Construction of a dedicated roadway'extension of Fenimore Ave. on the south,northerly to and including a jnin with Alosta Ave Engineering and construction shall be performed and completed to the approval of the City Engineer. Work shall include but not be limited to the construction of the following: Curb,gutter,sidewalk,asphalt concrete pavement,base material,grading and excavation of the roadway,street lights,signage,pavement markings and signage, Sanitary Sewer,Water Distribution,Gas,Electrical,Cable TN,street trees, landscaping and other appurtenances for proper development of the Project. Ennineerinv and Construction Criteria: I. Engineering and Construction shall be performed in accordance with the Standard Specifications for Public Works Construction,latest edition. 2. Standard Plans of the City of Azusa,including R-1,Street Sections, 3. The Standard Plans for Public Worla Construction. 4. Roadway width shall be approved by the Las Angeles County Fire Department S. Engineering shall include a smooth transition from existing Fenimore Ave. (48 feet wide curb to curb)on the south to an approved width (36 feet wide curb to curb or a width as approved by L.A.Co.Fire Department). 6. Roadway alignment shall provide for maneuverability and turning radii for trucks serviciag the Foothill Curter. 7. Signage and tramc striping shall be in accordance with the Manual on Uniform Traffic Control Devices. See attached Drawing D-IA. I=1T"D-1n RPPUBWVARNER1716287.11 y/ r y F, IT"D-2" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Map Depicting Location of Street Improvements) E3a-IIBIT"D-2" RVPVBWVARATR 1716287.11 � s K � n tL a 4, > z � gvW, J Q Q F- R Z U W U v w l7 t i Q > W 6 d Z c m Q a W S I Ld F- t� - - Z d z � 4 0 L z _ w a Z w Q a U v, F w o J �.> X Q o J o Q N ('� _ w ,- W a J I Z w W Z a q w O _m a LLJ F— ❑ Z X r ti O Z u � p W z Q 01 W >O U L.t_ W a = Q a F � w z q W f f � p w ~ � Z 0D > aF: r c E)MMIT"D-2" RVPUBIBVARNER1716287.11 u x� v � D i' 0 I,rf n N � = r m I - / I g7 'I VV SCALE Nr. damsEXHIBIT ENGINEERING D-z mm rnn:e.. -sw ao-c.nmd.aia.w eos�•rm1_vf-c,w EDIT"E" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMENT (Covenants,Conditions&Restrictions) F=IT"E° R PP UBW PARAER 1716187.11 +rry 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 OF OR'NER OCCUPANCY COVENANTS,CONDITIONS AND RESTRICTIONS THIS DECLARATION OF OWNER OCCUPANCY COVENANTS, CONDITIONS, AND RESTRICTIONS(this"Declaration")is dated as of'Detemb" 4,ZOO h,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)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 goveming board of the Agency("Governing Board")has adopted an implementation plan ("Implementation Plan's for the Redevelopment Plan and is engaged in activities necessary to execute and implement the Redevelopment Plan pursuant to California CommunityRedevelopment Law(Health and Safety Code Section 33000 ease .) 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-1"and shown on Exhibit "B-1" 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 Project"). EXHIBIT"E" RVPUBW11ARNFRV1628711 D. The Developer,the City and the Agency agree that the Vacant Property sball 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, CONDLTIONS AND RESTRICTIONS SET FORTH IN THIS DECLARATION, THE DEVELOPER, THE CITY AND THE AGENCY AGREE,AS FOLLOWS: COVENANTS 1.1 Covenants to Run with the Land. The Developer, the City and the Agency declare their mutual, specific intent that this Declaration furthers 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 of this Declaration touch and concern the Vacant Property and shall be covenants running with the land of the 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 writing to 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 Requirements re: Leasine of Units:Parking Restrictions. An owner of a residential unit("Unit")in the Residential Project who desires to lease his/hedits Unit shall be permitted to do so only upon compliance with all of the following:: 1.2.1 No Unit maybe leased for transient,hotel,or dormitorypmposes(ie.for periods less than twelve(12)calendar months). 1.2.2 An owner may only lease its 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, between Haltem Street and Alosta Avenue,shall be restricted to guest parking and subject to time limitations imposed by the City of Azusa from time to time. NoparkingonFemmoreAvenue,between HaltemStreet and Alosta Avenue,shall be allowed between the hours of 2 a.m.and 6 am. Temporary ovemightparkmg shall be allowed on Fenimore Avenue between Haltem Street and Alosta Avenue with a permit from the Cityof Azusa Police Department Parking for long-term visitors and guests shall be subject to the same restrictions and requirements as owners'henants'parking. 13 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 contact,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 of the County ofLos Angeles,California,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 EXHIBIT"E" RVPIBIKVARNER171628711 1.4 Incorporation ofRecitals. The Recitals of fact preceding this Declaration are true and correct and are incorporated into this Declaration in their entirety by this reference. 1.5 Notices.Demands and Communications Between the Parties. 15.1- 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 receiptrequested,to the address ofthe 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. 15.2 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 Tracbman,President To City. The City of Azusa 213 East Foothill Boulevard 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 1.6 No Intended Third Party Beneficiaries. The Parties do not intended to create anyrights for,in favor of or on behalf of anyperson or entityby 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 PavmentofConsideration for Declaration. The Developer warrants that it has not paid or given,and will not pay or give,any third parry 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. EXMIT"E" RYPUM7ARNER1716287.11 i ` J 1.9 Governing Law..This Declaration shall be governed by the lams of the State of California applicable to contracts made by residents of the State of California and to be performed in the State of 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. and Assigns. This Declaration sball be bin n and shall immre to - 1.10 Binding on Successorsgns dmg upo 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 anyportion of any term orprovision of this Declaration to anyperson or circumstance shall, to any extent, be invalid or lmenforceable, the remainder of this Declaration, or the application of all or any portion of such term 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 terms, 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: L ' i -U 7 BY / Date: By. CITY: Date: Z ZI'O-7 B Diane Chagnon, Mayo AGENCY: EXMIT"E" RVPURIRP,4RAMI716287.11 V Date: G ' /ci. D"! By. � (� [ALL SIGNATURES MUST B NE OTARY ACKNOWLEDGED] E-XMI t'"E" RiPUBIR7.4RNER1716287.11 V i•�: NOTARY ACKNOWLEDGMENT (California All-Purpose Acknowledgment) ' STATE OF ) S5. COUNTY OFd�s� �� ) On pL t l { 200pt^eeforeme, T1Akrl ( 1lCdJ //4YJnotarypublic, personally appeared t�Wn3 ale 191J C l S personallyknown to me{oppFev€d to be the person4whose namets}islare subscribed to the within instrument and acknowledged tome that helsh�executed the same in hist authorized capacityorz� ,-and that byhis(hen't heir signator*( on the instrument the persoa(r),orthe entity upon behalf of which the perso the instrument. WITNESS my hand an fficial seal Signature of No ubiic ATTACHED TO: 4NAI OMtAN ::.... ._, ron8NrN861 MWtl0.® 1 Notary is.C5MOM Com 81M1�1 LOS"e"s Count/ - , .C� MpComm Expoes FeC 26.E F�d9i i RfPUB1RYAR M1716197.11 1 All NOTARY ACKNOWLEDGMENT (California All-Purpose Aclmowledgramt) STATE OF pf/)elj(Z ) .s )ss. COUNTY OF LDn.1 les ) on UA 200ibeforemeeo f)dg c4 /j() ,notarypublic, personallyappeared 111anto PA00"luu), t 0+� personallyknowntome(orproved to me on the basis of satisfactory evidence)to be the person whose namare subscribed to the within instrument and acknowledged to me that h sh ey executed the same in hi46eir authorized capacity(i ,and that byeir signature(4on the instrument the person(vor the entity upon behalf of which the perso ) acted, executed the iastnmzent. T WITNESS my hand and of5cial seal- Signature ealSignature of Notary Public ATTAC= TO: l/6()Nele, -�1hrversiT`� CANDACETO5CANO _ Commlulon#14171 Bb - ,.a Notary Pu6Bc.Lalifomia .. - Los Angeles County - .. My Comm.Expires May 12,2007 _ RVPVBEYARTER 1716287,11 1 NOTARY ACKNOWLEDGMENT (California All-Purpose Acknowledgment) STATE OF ` tjl rOe0cZ( ) ss. COUNTY OF L£S ' I-es ) --C'o— on 20�d'� foreme,&/,ho-C- (QsCcC K D ,notarypubbe, . personally appeared �A, -bp!6-V_ personally knomi to me(or proved to me on the basis of satisfactory evidence)to be the personsl4 whose name re subscribed to the within instrument and acknowledged to me"Shw/bey executed the samelml er/their authorized capacity(ie ,and that by(aer/their signahure(,�on the instrument the person or the entity upon behalf of which the person acted, executed the inslnmment. W=SS my hand and official seal. Signature of Notary Public ATTACHED TO: e«PZi�-7l� CANDAce Tosawo Commisslon A 161]186 �`QMY Notary Public-CanfomloLos Angeles County Comm.Ezphes May 12,20D7 R SP UBW PARAER 17!6287.11 1 ' r EXHIBIT A-I TO DECLARATION OF COVENANTS,CONDITIONTS AND RESTRICTIONS (Legal Description of Vacant Property) Exhibit A to Declaration of Covenants RPPURXVARNERI716187.J I EXMIT A - LEGAL DESCRTTION PARCEL 2 COMMENCING AT THE NORTHWESTERLY CORNER OF SAID PARCEL l; THENCE ALONG THE WESTERLY LINE OF SAID PARCEL i SOUTH 46010'53" EAST A DISTANCE OF 17326 FEET; THENCE SOUTH 00°00'56" EAST A DISTANCE OF 257.99 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 420A0 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 09053'57",AN ARC LENGTH OF 7256 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 1 OF PARCEL MAP 14845; THENCE ALONG SAID SOUTHERLY LINE NORTH 89058136" 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 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 CONTAINING 5.7773 ACRES GROSS. EXHIBTr B-1 TO DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS (Map of Vacant Property) Exhibit B to Declaration of Covenants RiPUB"ARAER1716167.11 Y EXISTING ROSS EXISTING CVS u3 / EXISTING - - THEATRE /j PROPOSED BUILDING U /IW/ ' ��/ ,. / %z/ / / / / EXISTING ........ srALE: NM VACANT PROPERTY EXHIBIT AdamsENGINFLERING B-1 bWC.Wl.m OW110 I � � EIMII"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 S. Tattoo Parlors 9. Churches and other non-profit organizations wholly or partially exempt from the payment of -property taxes E EIBIT "F-I" RVPU "ARNM716187.11 �f t; i EXEaBIT"F-2" TO STATUTORY DEVELOPMENT AGREEMENT AND OWNER PARTICIPATION AGREEMXNT_ (Restricted Land Uses) 1. Dental and Medical Doctors'Offices 2. All office uses except accessory office use 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) EXHIBIT"F-2" RT'PUBWVAPN_wRI716287.11