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HomeMy WebLinkAboutAgenda Packet - May 16, 2011 - CCPage 1 of f AGENDA CITY OF AZUSA REGULAR MEETING OF THE CITY COUNCIL, THE SUCCESSOR AGENCY TO THE FORMER REDEVELOPMENT AGENCY, AND THE PUBLIC FINANCING AUTHORITY AZUSA AUDITORIUM MONDAY, MAY 16, 2011 213 EAST FOOTHILL BOULEVARD 06:30 P.M. Regular Meeting AZUSA, CA 91702 AZUSA CITY COUNCIL JOSEPH ROMERO ROCHA MAYOR ANGEL CARRILLO URIEL E. MACIAS COUNCILMEMBER COUNCILMEMBER ROBERT GONZALES KEITH HANKS COUNCILMEMBER MAYOR PRO -TEM NOTICE TO THE PUBLIC FOR REGULAR MEETING Copies of staff 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 of the Agenda, shall fill out a card requesting to speak and shall submit it to the City Clerk prior to the start of the City Council meeting. When called, each person may address any item on or off the agenda during the public participation. 06:30 P.M. - REGULAR MEETING OF THE CITY COUNCIL REGULAR MEETING OF THE CITY COUNCIL THE REDEVELOPMENT AGENCY AZUSA AUDITORIUM MONDAY, MAY 16, 2011 213 EAST ittD:Hazusa.jzranicus.com/Generate(iAgendaViewer.php?view_id=5&clip_id=188 4/29/201( Page 2 of f HANKS ANGEL CARRILLO MAYOR PRO -TEM COUNCILMEMBER URIEL E. MACIAS ROBERT GONZALES COUNCILMEMBER COUNCILMEMBER NOTICE TO THE PUBLIC Copies of staff, 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 of the Agenda, shall fill out a card requesting to speak and shall submit it to the City Clerk prior to the start of the City Council meeting. When called, each peison may address any item on or off the agenda during the public participation. 6:30 P.M. CLOSED SESSION CONFERENCE WITH LABOR NEGOTIATOR (Gov. Code Sec. 54957.6) Agency Negotiators: Administrative Services Director -Chief Financial Officer Kreimeier and City Manager Delach Organizations APMA (Azusa Police Management Association) 2. CONFERENCE WITH LABOR NEGOTIATOR (Gov. Code Sec. 54957.6) Agency Negotiators: City Manager Delach Organization: Executive - Negotiation of Executive Benefits 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 Call to Order 2. Pledge to the Flag 3. Invocation - Pastor Woody Calvary of Praise Chapel of Azusa A. PUBLIC PARTICIPATION (PersonlGroup 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 Mayor Rocha - a. Request for sponsorship in the amount of $200, to Azusa High School Wrestling Team to go towards the purchase of mat(s). b. Request for certificate of recognition to Nancy Elizabeth Volanos of Troop #8394, for receiving the Girl Scout Gold Award, the highest achievement in Girl Scouting. C. Request for certificate of recognition for Mrs. Evelyn V. Maynard in celebration of her 100th Birthday. Page 3 of ( a. Request for certificates of appreciation for this years Gladstone High School Swim Team, to be presented at the June 6, 2011 City Council Meeting. b. Request for proclamation for Mr. James Grosser for his fifty years of service to the Azusa Eagles Club FOE 2810. 3. Consideration of setting a time and date for interviews with Planning Commission applicants. C. SCHEDULED ITEM ORDINANCE AMENDING CHAPTER 30 AZUSA MUNICIPAL CODE AND ADOPTION OF 2011 LOS ANGELES COUNTY FIRE CODE. RECOMMENDED ACTION: Introduce the proposed ordinance, read its complete title, and set the public hearing for .June 6, 2011. C-1 Prop Ord LA Co Fire Code set Pub Hrg 2. PUBLIC HEARING - AN AMENDMENT OF THE AZUSA PACIFIC UNIVERSITY ("APU") SPECIFIC PLAN, SP7-APU, INCORPORATING THE CRESTVIEW APARTMENTS AND CHANGES TO THE LANDSCAPE DESIGN GUIDELINES; AND AN AMENDMENT TO THE SP7-APU DEVELOPMENT AGREEMENT BETWEEN APU AND THE CITY OF AZUSA TO INCORPORATE THE CRESTVIEW APARTMENTS; APPLICANT: APU. RECOMMENDED ACTION: Open the Public Hearing; receive testimony, close the Hearing. Waive further reading and introduce the proposed Ordinances amending the Azusa Pacific Specific Plan SP7- Am and the SP7 - APU Development Agreement. C-2 Pub Hrg APU Specific Plan Amend 3. REPORT ON MEASURES TAKEN TO ALLEVIATE THE CONDITIONS WHICH LED TO THE ADOPTION OF URGENCY ORDINANCE 2011-05 ESTABLISHING A MORATORIUM ON THE ESTABLISHMENT OF TATTOO ESTABLISHMENTS. RECOMMENDED ACTION: Receive and file this report. C-3 Report on Measure Tattoo Parlors 4. PUBLIC HEARING - CONSIDERATION OF AN URGENCY ORDINANCE EXTENDING THE MORATORIUM ON TATTOO ESTABLISHMENTS IN THE CITY RECOMMENDED ACTION: Open the Public Hearing; receive testimony, close the Hearing. If the City Council desires to continue the moratorium on tattoo establishments, waive further reading and introduce; the proposed Ordinance extending the moratorium on the establishment of Tattoo Parlors. AN INTERIM URGENCY ORDINANCE OF THE CITY OF AZUSA EXTENDING THE MORATORIUM ON THE ESTABLISHMENT'OF TATTOO PARLORS PURSUANT TO GOVERNMENT CODE SECTION 65858. ittn-//azusa.granicus.com/GeneratedAgendaViewer.php?view_id=5&clip_id=188 4/29/201( Page 4 of f C-4 Urg Ord Moratorium Tattoo Parlors 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 SPECIAL CALL ITEMS. 1. APPROVAL OF THE MINUTES OF THE REGULAR MEETING OF MAY 2, 2011. RECOMMENDED ACTION: Approve Minutes as written. D-1 City Minutes 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). D-2 HR Action Items 3. NOTICE OF COMPLETION OF PICNIC SHELTER INSTALLATION AT SLAUSON PARK (CIP PROJECT #601332-10 or D61332). RECOMMENDED ACTION: Approve the Notice of Completion of the picnic shelter installation at Slauson. Park in the amount of $57,273.00, and authorize staff to file the Notice of Completion with the Los Angeles County Clerk. D-3 NOC Picnic Shelters Slauson Pk 4. CIP PROJECT 966111D -PAVEMENT MANAGEMENT PROGRAM -AUTHORIZATION TO AWARD CONTRACT TO ALL AMERICAN ASPHALT INC. RECOMMENDED ACTION: Authorize staff to award CIP 96111 D, Pavement Management Program to All American Asphalt, Inc. D-4 Pavement Mngmt All American Asphalt 5. APPROVAL OF COOPERATION AND REIMBURSEMENT AGREEMENT WITH CITY OF GLENDORA FOR RECONSTRUCTION OF BARRANCA AVENUE FROM THE NORTHERLY CITY LIMIT TO HOLLYVALE STREET. RECOMMENDED ACTION: Authorize staff to enter into a Cooperation and Reimbursement Agreement with the City of Glendora for the reconstruction of Barranca Avenue from the northerly city limit of Azusa to Hollyvale Street. D-5 Agmts Glendora Recontruct Barranca 6. CIP PROJECT #66111I - FOOTHILL CROSSWALKS PROJECT - AUTHORIZATION TO A arneinViewer nhn?view id=5&clip id=188 4/29/201( Page 5 of ( FROM PROP C. RECOMMENDED ACTION: Authorize staff to award CIP 466111I, Foothill Boulevard Crosswalks Project to Anchor construction and Engineering, Incorporated and to approve a budget amendment in the amount of $49,265.72 to be funded from Prop C. D-6 Foothill Crosswalks - Anchor Constr 7. APPROVAL OF COOPERATION AND REIMBURSEMENT AGREEMENT WITH AZUSA PACIFIC UNIVERSITY (APU) FOR THE INSTALLATION OF ELECTRICAL CONDUITS UNDER NEW CROSSWALKS AT THE INTERSECTIONS FOOTHILL BOULEVARD AND SAN GABRIEL AVENUE, AZUSA AVENUE AND DALTON AVENUE. RECOMMENDED ACTION: Authorize staff to enter into a Cooperation and Reimbursement Agreement with Azusa Pacific University for the installation of new electrical duct banks under the proposed reconstructed crosswalks at the intersections of Foothill Boulevard and San Gabriel Avenue, Azusa Avenue and Dalton Avenue. D-7 Agmt APU Electrical Conduits Crosswalks 8, WARRANTS. RESOLUTION AUTHORIZING PAYMENT OF WARRANTS BY THE CITY. RECOMMENDED ACTION: Adopt Resolution No. 11-C35. CONVENE AS THE REDEVELOPMENT AGENCY D-8 Warrants E. AGENCY SCHEDULED ITEMS None. F. 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 Cafendar individually, it will be considered under SPECL4L CALL ITEMS. 1. APPROVAL OF THE; MINUTES OF THE REGULAR MEETING OF MAY 2, 2011. RECOMMENDED ACTION: Approve Minutes as written. F-1 Agency Min 2. EXCLUSIVE NEGOTIATION AGREEMENT (229 S. AZUSA AVENUE) BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA AND KAL PACIFIC & ASSOCIATES, INC. FOR THE DEVELOPMENT OF A HOTEL ON AGENCY PROPERTY AT 229 SOUTH AZUSA AVENUE (THE FORMER ENTERPRISE CAR RENTAL SITE). RECOMMENDED ACTION: Authorize the Executive Director to enter into an Exclusive Negotiation Agreement (229 S. Azusa Avenue) ("ENA") with Kal Pacific & Associates, Inc. for the development of a hotel on the former Enterprise Car Rental site (Assessor Parcel Numbers uFia_nia_ns� ns� �.,,� ncu� ittn://azusa.aranicus.com/Generate(lAgendaViewer.php?view_id=5&clip_id=188 4/29/201( Page 6 of f F-2 ENA Kal Pacific 3. WARRANTS. RESOLUTION AUTHORIZING PAYMENT OF WARRANTS BY THE AGENCY. RECOMMENDED ACTION: Adopt Resolution No. ll -R23. ADJOURN AS THE REDEVELOPMENT AGENCY AND RECONVENE AS THE CITY COUNCIL F-3 Agency Warrants G. ADJOURNMENT Adjourn. UPCOMING MEETINGS: May 23, 2011, Utility Board Meeting - 6:30 p.m. Azusa Light and Water Conference Room June 6, 2011, City Council Meeting - 6:30 p.m. Azusa Auditorium June 20, 2011, City Council Meeting - 6:30 p.m. Azusa Auditorium June 27, 2011, Utility Board Meeting - 6:30 Azusa Light and Water Conference Room UPCOMING MEETINGS: 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 the Americans with Disabilities Act, if you 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. vranicu.,.corn/GeneratedAeendaViewer.nhv?view id=5&clip id=188 4/29/201( AGENDA ITEM. TO: THE HONORABLE MAYORANDMEMBERS OF THE CITY COUNCIL FROM: KURT CHRISTIANSEN, DIRECTOR OF ECONOMIC AND COMMUNITY DEVELOPMENT VIA: F. M. DELACH, CITY MANAGER/AV DATE: MAY, 16, 20 11 SUBJECT: ORDINANCE AMENDING CHAPTER 30 AZUSA MUNICIPAL CODE AND ADOPTION OF 2011 LOS ANGELES COUNTY FIRE CODE RECOMMENDATION Introduce the proposed ordinance, read its complete title, and set the public hearing for June 6, 2011. BACKGROUND The proposed ordinance will amend Section 30-36 of the Azusa Municipal Code by adopting by reference the 2011 Edition of the Los Angeles County Fire Code which incorporates the new 2010 Edition of the California Fire Code. As with previous editions of the Los Angeles County Fire Code, the 2011 edition contains amendments that require more restrictive building standards than those found in the current edition of the California Fire Code. Noted amendments to the 2011 Los Angeles County Fire Code include: • Amendments were codified to reorganize brush clearance and fuel modification requirements to be better organized with the new State Fire Code regulation. • The Fire Code now states that State -regulated Mobilehome Parks and Special Occupancy Parks as subject to certain requirements of the Fire Code as allowed by state law. • The Ordinance added permitting and other requirements for private firefighter resources to operate in emergency areas during fires and other emergencies. • The Ordinance added film permit fee increase to recoup the fire department's cost of providing a dedicated fire prevention unit and staff to oversee fire and life safety matters at locations outside of an approved film studio. • A County amendment requires increased fire -flow and hydrant requirement to ensure adequate water supply for firefighting. Outdoor pallet yard regulation was added. • An amendment requiring fire code official approval for traffic calming device was also added. (Used ICC itiodel code language that wit] be in the 2012 edition of the International Fire Code). • Requirements were added to prevent roof obstruction from photovoltaic systems, roof gardens, and landscaped roofs in order to provide of firefighting roof ventilation and access based on published SFM installation guidelines. • Smoke and heat removal requirements were added for basement level parking garages that extend over 12,000 square feet in area. • A smoke and heat venting requirement was added to apply to all buildings, not just one story buildings. • The restriction was deleted for open flame cooking devices on combustible balconies or within 10 feet of combustible construction at multi -residential buildings due to problematic enforcement of this requirement. • The Fire Code Board of Appeals was replaced by Fire Code Appeals Review Panel (Combined Fire and Building Department Management review). Other administrative and editorial changes were made; many sections of the existing code were renumbered and/or deleted and re -added to correspond to the International Fire Code/California Fire Code section numbering scheme. In summary, the attached ordinance revises Chapter 30 of the Azusa Municipal Code as follows: • Revises Section 30-36 replacing the 2008 Los Angeles County Fire Code with the 2011 Los Angeles County Fire Code. • Amends Section 30-37 which is applicable to the entire 2011 Los Angeles County Fire Code and states that any reference to the Los Angeles County Building Code referred to therein, shall mean the 2010 California Building Code • Adopts penalty provisions as provided in the 2011 County of Los Angeles Fire Code. FISCAL IMPACT There is no additional fiscal impact to the City. Attachments: Proposed Ordinance ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA., CALIFORNIA AMENDING AZUSA MUNICIPAL CODE SECTIONS 30-36 AND 30-37 AND ADOPTING BY REFERENCE THE 2011 LOS ANGELES COUNTY FIRE CODE. WHEREAS, California Government Code Section 50022.9 authorizes the City of Azusa ("City") to adopt by reference county ordinances and codes; and WHEREAS, the Los Angeles County Board of Supervisors has adopted Ordinance No. 2010-0060 amending Title 32 of the Los Angeles County Code to adopt and incorporate by reference the 2010 Edition of the California Fire Code published by the California Building Standards Commission, with certain amendments as set forth in Ordinance No. 2010- 0060, to be known as the Los Angeles County Fire Code; and WHEREAS, at least one copy of the Los Angeles County Fire Code adopted by reference by this Ordinance shall be filed in the office of the City Clerk of the City of Azusa, and is certified as a full, true and complete copy thereof by the City Clerk, in accordance with the requirements of California Government Code Section 50022.6; and WHEREAS, a duly noticed public hearing, as required by California Government Code section 50022.3 was conducted prior to the adoption of this Ordinance; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. Section 30-36 of Chapter 30, Article 2 of the Azusa Municipal Code is hereby amended, in its entirety, to read as follows: 30-36. Adoption. Subject to the changes and amendments as may be set forth in this article, that cen.ain code entitled "2011 Los Angeles County Fire Code," which has been filed in the office of the city clerk, which is referred to and by this reference expressly incorporated in this article, is adopted and by reference made a part of this article as fully and for all intents and purposes as though set forth in this article at length. If there is any inconsistency between any provisions of such Fire Code and other provisions of this Municipal Code, such other provisions of this Municipal Code shalt prevail." SECTION 2. In accordance with California Government Code Section 50022.4 the City of Azusa specifically adopts the following penalty provisions provided in the "2011 Fire Code of the Los Angeles County Code": 327 Administrative Fines. 327.1 Administrative fine - imposition. Improved parcels found to be in violation of Sections 325.2.1, 325.2.2, 325.1.0, 503.2.1, 2404.21, or 3807.3 of this code relating to clearance of brush and combustible growth, roadway clearance, and vertical clearance on fire access roads, shall be subject to an administrative fine, noncompliance fee, and or possible liens as allowed by the provisions of Title 1, Chapter 1.25 of the County Code. 327.2 Administrative fine - enforcement. An administrative penalty will be imposed and enforced upon failure of the responsible party to comply with written abatement instructions and timeframes contained on the Official Inspection Report Form (County of Los Angeles Fire Department FOILM 4108) issued by the fire department. 327.3 Declared parcel. A declared parcel is a parcel which contains noxious weeds and other flammable vegetation that are a fire hazard and which constitutes a public nuisance which must be abated as declared in an annual resolution of the board of supervisors. An owner of a declared parcel will be mailed a declaration card specifying the abatement actions required of the owner. The declaration card constitutes the first official notice to the owner. 327.3.1 Declared parcel inspection — notice of violations. A physical inspection of the declared parcel is conducted by the fire department to determine compliance with the declaration card. After the physical inspection, if the fire department determines that the owner has not complied with the declaration card, then such noncompliance constitutes the first violation of the fire code. The owner will be given notice of such first violation of the fire code. This notice constitutes the second official notice to the owner. The second official notice shall also inform the owner that an administrative penalty may be imposed on the declared parcel if not properly cleared. An owner's failure to comply with the second official notice constitutes the second violation of the fire code. 327.4 Undeclared parcel. An undeclared parcel is a parcel not contained in the annual resolution of the board of supervisors described in Section 319.3. 327.4.1 Undeclared parcel inspection - notice of violations. After a physical inspection, if the fire department determines that an undeclared parcel is not in compliance with the fire code, the owner will be given notice of such violation of the fire code. This notice of violation constitutes the first official notice. An owner's failure to comply with the first official notice constitutes the first violation of the fire code. After a first violation, a physical inspection of an undeclared parcel will be conducted by the fire department to determine compliance with the fire code. After the physical inspection, if the fire department determines that an undeclared parcel is not in compliance with the fire code, the owner will be given notice of the second violation of the fire code. This notice constitutes the second official notice to the owner. This second official notice shall also inform the owner that an administrative penalty may be imposed on an undeclared parcel if not cleared. An owner's failure to comply with the second notice constitutes the second violation of the fire code. 327.5 Administrative fine - amount. The administrative fine for a first violation as described in Section 327.3.1 or 327.4.1 is $0. The administrative fine for a second violation as described in Section 327.3.1 or 327.4.1 is $500. 327.6 Administrative fine - collection. The administrative fine will be collected by the fire department through direct invoice. The fire department shall notify the owner of the imposition and amount of the administrative penalty. 327.7 Administrative fine - administrative review and appeal. The imposition of the administrative fine may be appealed in writing utilizing the Request for Administrative Hearing form provided with the administrative fine invoice. The Request for Administrative Hearing form must be filed with the brush clearance section manager of the fire department within 10 calendar days following the service of the notice of administrative fine. Upon conclusion of the administrative hearing, the hearing officer shall issue a written decision within 10 calendar days. The hearing officer's written decision shall constitute the final administrative decision of the County. Any person contesting the final administrative order or decision of the fire department may seek further review pursuant to section 53069.4 of the California Government Code. Any administrative penalty imposed shall be cancelled or refunded as provided in sections 14920 - 14921 of the State Health and Safety Code, or any successor statute of similar import. 327.8 Creation of lien for unpaid administrative fines. Pursuant to Title 1, Chapter 1.25 of the County code, the amount of the unpaid administrative fines shall become a lien on the real property that is in violation of this chapter. SECTION 3. Section 30-37 of Chapter 30, Article 2 of the Azusa Municipal Code is herby amended in its entirety to read as follows: 30-37. Reference to California Building Code. Any reference in the Los Angeles County Fire Code to the Los Angeles County Building Code shall mean the "2010 California Building Code." SECTION 4. 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 5. 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 6. 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 Section 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. SECTIIDN 7. Effective Date. This Ordinance shall be in full force and effect thirty (30) days after its passage. PASSED, APPROVED AND ADOPTED this _ day of 2011. Joseph R. Rocha Mayor Attest: Vera Mendoza City Clerk Approved as to Form: Best Best & Krieger LLP City Attorney PUBLIC HEARING TO: HONORABLE MAYOR MEMBERS OF THE CITY COUNCIL FROM: KURT CHRISTIANSEN, DIRECTOR OF ECONOMIC AND COMMUNITY DEVELOPMENT VIA: F.M. DELACH, CITY MANAGER, DATE: MAY 16. 2011 SUBJECT: AN AMENDMENT OF THE AZUSA PACIFIC UNIVERSITY ("APU") SPECIFIC PLAN, SP7-APU, INCORPORATING THE CRESTVIEW APARTMENTS AND CHANGES TO THE LANDSCAPE DESIGN GUIDELINES; AND AN AMENDMENT TO THE SP7-APU DEVELOPMENT AGREEMENT BETWEEN APU AND THE CITY OF AZUSA TO INCORPORATE THE CRESTVIEW APARTMENTS; APPLICANT: APU RECOMMENDATION Staff recommends that the City Council conduct the Public Hearing, receive testimony, close the Hearing, waive further reading, introduce the proposed Ordinances. BACKGROUND On September 16, 2005, the City Council adopted the APU Specific Plan SP7-APU, see attached Exhibit A, and the SP7-APU Development Agreement, see attached Exhibit B. The APU Specific Plan established allowable land uses, development standards, design guidelines, and an implementation program for the future development of APU campus facilities. The Development Agreement secured development rights for the University and certain public benefits for the City. In 2007, APU purchased the Crestview Apartments, located at 801 E. Alosta Avenue in order to provide additional student housing for the University. APU submitted a Specific Plan Amendment, SP7-APU Amendment No. 1, see attached Exhibit C, to incorporate the Crestview Apartments into the APU Specific Plan as student housing, compliant with Section 7.8 of the APU Specific Plan which recognizes that certain modifications to the Specific Plan text and exhibits may be necessary or desired during the life of the project. In addition, APU has submitted a draft amendment to the APU Specific Plan Development Agreement, DA Amendment No.l exhibit D, as required by Section 1.8 of the Development Agreement. This section states that the development agreement may be amended bymutual consent, provided that a major amendment which relates to the term, permitted uses, density, intensity of use, height and size of proposed buildings, or provisions for reservations and dedication of land shall require a public hearing before an amendment may be executed. On March 16, 2011, the Planning Commission reviewed the application to amend the APU Specific Plan, SP7-APU Amendment No. 1 and the SP7-APU Development Agreement Amendment, DA Amendment No. 1 and recommended that the City Council approve the amendments. DISCUSSION Specific Plan Amendment The Specific Plan Amendment is being requested to primarily incorporate the Crestview Apartments into the APU Specific Plan. However, in addition, APU is requesting that certain modifications be made to the Landscape Design Guidelines section of the Specific Plan. The attached SP7-APU amendment shows the proposed changes which are, for the most part, revisions of some of the tables and exhibits to include the Crestview Apartments. Pursuant to the requirements of Section 7.8.2 of the Specific Plan, the proposed Specific Plan Amendment (SP7-APU Amendment No. 1) is required to: 1. Demonstrate that the proposed amendment meets the goals and objectives of the Specific Plan and General Plan. The goal of the APU Specific Plan is to provide for aesthetic, cohesive, and quality campus development through a comprehensive development plan, development standards and design guidelines. The proposed Specific Plan Amendment revises the development plan to reflect the inclusion of the Crestview Apartments and revises Section 6.3 Landscape Design Guidelines, making the development plan as comprehensive as possible at this time. The proposed amendment is also consistent with the General Plan in that the addition of the residential property at 801 E. Alosta Avenue to the APU Specific Plan will not change the underlying residential use of the property, which meets General Plan Land Use Goal #1 - providing for an integrated mix.of residential and other uses in the City. In addition, the proposed amendment is also consistent with Specific Plan SP7-APU as the Specific Plan sets forth a vision for the campus which calls for 70% of the undergraduate population to be accommodated in University -sponsored housing. The additional housing in the Crestview Apartments will help meet this goal. 2. Ensure that any impacts from the amendment can be satisfactorily mitigated. The proposed amendment could negatively impact the City by removing a tax -generating property from the tax roles. This negative effect is mitigated through an existing Tax Equity and Financial Responsibility Act (TEFRA) agreement which requires APU to pay the City an impact fee equal to the property taxes and fees the City would receive if a non -tax exempt taxpayer owned the Crestview Apartments. In addition, the Redevelopment Division identified 64 low/moderate income housing units at the Crestview Apartments that would have been lost when APU changed the apartment building to student housing. To mitigate this loss, the TEFRA Agreement requires APU to provide 64 low/moderate income housing units owned or master -leased by APU within the City of Azusa until July 15, 2015. I Provide a strikeout/underline copy of the Specific Plan text when changes are proposed and update any Specific Plan exhibits affected by the proposed amendment. The applicant has provided a copy of the proposed Specific Plan text and exhibit changes. A complete, revised Specific Plan document will be produced if the amendment is approved. Update any Specific Plan technical studies and/or provide additional environmental studies deemed necessary by the Economic and Community Development Director and/or Planning Commission. When the original APU Specific Plan EIR was approved, the 480 unit Crestview Apartment was included in the required traffic study as an existing use. At that time, there was a mix of private renters and student renters in the apartment complex. The applicant provided a traffic impact assessment of the inclusion of the apartment complex into the APU Specific Plan. Any additional traffic impact is assessed based on the increased amount of students to be housed in the Crestview Apartments and how they previously impacted traffic patterns. Any new student occupants of the apartments, who previously resided either on -campus or near campus, will not generate any additional traffic or parking demands. Any new student occupants, who previously commuted to the University, will reduce or eliminate their trips, which will therefore reduce traffic and parking demand. The traffic and parking impact of existing and new students was included in the Environmental Impact Report (EIR) for the APU Specific Plan project and is therefore not included in the Crestview Apartments traffic impact assessment. The assessment concludes, and the City Engineer agrees, that the inclusion of the Crestview Apartments in the APU Specific Plan would not increase traffic or parking impacts on the surrounding street system. Development Agreement Amendment A Development Agreement Amendment (SP7-APU DA Amendment No. 1) is required due to the incorporation of the Crestview Apartments into the APU Specific Plan, which is an expansion of the area covered by the Development Agreement. Prior to acquisition by APU, the Crestview Apartments were included on the general secured tax role. As a result of the change in ownership, the parcel is now tax-exempt. Development Agreement Section 2.15 - Owner Obligations lists those items which APU committed to install, implement or undertake as their requirements. The proposed Development Agreement Amendment would be added as Section 2.15.5 as follows: "Owner's Obligation Regarding Use of Property: Owner covenants to cause all of the Property that is as of the date of this Amendment on the County of Los Angeles, California secured real property tax rolls to remain on said tax rolls for the term of this Agreement. Owner covenants that any property located within the City acquired by Owner subsequent to entering in to this Amendment which, at the time of acquisition is on the County of Los Angeles secured tax rolls, shall remain on said tax rolls for the term of this Agreement. Prior to converting the use of any property covered by this Agreement to an entity or use that would result in the property being removed from the tax rolls. APU shall apply to City for an amendment to the Specific Plan to allow for such a change in use." Pursuant to California Government Code Section 65 867.5, the City Council shall make the following finding: 1. That the amendment to the Development Agreement is consistent with the City's General Plan and the Specific Plan as set forth in the Development Agreement. The proposed amendment to the Development Agreement is consistent with the General Plan in that the addition of the residential property at 801 E. Alosta Avenue to the APU Specific Plan will not change the underlying residential use of the property, which meets General Plan Land Use Goal # i - providing for an integrated mix of residential and other uses in the City. In addition, the proposed amendment is also consistent with the Specific Plan SP7-APU as the Specific Plan sets forth a vision for the campus which calls for 70% of the undergraduate population to be accommodated in University -sponsored housing. The additional housing in the Crestview Apartments will help meet this goal. FISCAL IMPACT The proposed amendment could negatively impact the City by removing a tax -generating property from the tax roles. However, this negative effect is mitigated through the existing Tax Equity and Financial Responsibility Act (TEFRA) agreement, previously cited. Attachments Exhibit A APU Specific Plan SP7-APU Exhibit B SP7-APU Development Agreement Exhibit C APU Specific Plan SP7-APU Amendment No. 1 Exhibit D SP7-APU Development Agreement Amendment No. 1 Exhibit E SP7-APU Specific Plan Amendment Ordinance Exhibit F SP7-APU Specific Plan Development Agreement Ordinance RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO: City of Azusa 213 East Foothill Boulevard Azusa, CA 91702 Attn: City Clerk (Space above for Recorder's use) ORANGDSM20657. Exempt from filing fees pursuant to Govemment Code § 61-031 DEVELOPMENT AGREEMENT by and between THE CITY OF AZUSA, a California municipal corporation and AZUSA PACIFIC UNIVERSITY, a California nonprofit corporation Exhibit "B" Pan 1. 1.23 Processing Fees and Charges....................................................................5 1.1.24 Proj ect.......................................................................................................5 1.1.25 Property ............................................................. ..........6 1.1.26 Specific Plan .............................................................................................6 1.1.27 Subsequent Development Approvals........................................................6 1.1.28 Term..........................................................................................................6 Section 1.2 Incorporation of Recitals...........................................................................6 Section 1.3 Project is a Private Undertakin�...............................................................6 Section 1.4 Term of Agreement................................................................................... 6 Section 1.5 Consistency With General Plan ................................................................ 7 Section 1.6 Assignment and Assumption....................................................................7 Section 1.7 Covenants Running with the Land............................................................ 7 Section 1.8 Amendment to Agreement (Owner and the City).....................................7 Section 1.9 Amendment to Agreement (Owner Transferee and the City)...................8 Section1.10 Notices......................................................................................................8 Section 1.11 Recordation of Agreement........................................................................8 Section 1.12 Applicable Law and Attorneys' Fees........................................................8 Section 1.13 Invalidity of Agreement/Severability.......................................................9 Section 1.14 Third Party Legal Challenge.....................................................................9 Section1.15 Annual Review..........................................................................................9 Section1.16 Covenants..................................................................................................9 Section 1.17 Constructive Notice And Acceptance............................:..........................9 Section 1.18 Estoppel Certificates...............................................................................10 Section 1.19 Time Of The Essence..............................................................................10 Section1.20 Waiver.........................................................................:...........................10 ORANGEISR020657. lal ORANGEDSRC20657. OV) Page 2.1 6.3 City Cooperation in Providing Notices to Comunity ..............................18 ARTICLE 3 Entitlement and Permit Processing, Inspections.................................................18 Section 3.1 City Approvals........................................................................................18 Section 3.2 Duty to Grant and Implement.................................................................18 Section 3.3 Processing Obligations............................................................................18 Section 3.4 No Revocation; Disapprovals.................................................................19 Section 3.5 State, Federal or Case Law..........................................:..........................20 Section 3.6 Processing Cooperation..............................:...........................................20 ARTICLE4 Default .................................................................................................................20 Section 4.1 General Provisions ............................... 20 Section 4.2 Default by Developer/Withholding of Building Permit ..........................21 Section 4.3 Developer Default Limited to Property/Entity'; Several Obligations of Owners............................................................................21 Section4.4 Default by City ........................................................................................21 Section 4.5 Cumulative Remedies of Parties.............................................................21 Section 4.6 Enforced Delay, Extension of Times of Performance ............................21 ARTICLE 5 Arbitration of Disputes.......................................................................................22 ARTICLE6 Termination.......................................................................................................23 Section 6.1 Termination Upon Completion of Development....................................23 Section 6.2 Effects Upon Termination on Developer Obligations ............................23 Section 6.3 Effects Upon Termination on City .........................................................24 ORANGEDSRC20657. OV) Development Agreement by and between the City of Azusa and Azusa Pacific University Relative to the Development Known as the Azusa Pacific University Specific Plan This Development Agreement ("Agreement") is made and entered into this 19th day of September. 2005, by and between the CITY OF AZUSA, a political subdivision of the State of California ("City"), and AZUSA PACIFIC UNIVERSITY, a California nonprofit corporation ("Owner"), pursuant to the authority of Article 2.5, Chapter 4, Division 1, Title 7 (Section 65864, et seq. of the Government Code) relating to Development Agreements. The. City and Owner are hereinafter sometimes referred to individually as a "Party" and jointly as the "Parties." RECITALS 1. In order to strengthen the public.land use planning process, to encourage private participation in the process, to reduce the economic risk of development and to reduce the waste of resources, the Legislature has adopted the Development Agreement Law (Section 65864, et seg. of the Government Code). 2. Pursuant to the Development Agreement Law, the City is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property. 3. The City has adopted rules and regulations for consideration of development agreements pursuant to the Development Agreement Law. 4. Owner is the present Owner of the real property described in Exhibit "A" hereto (the "Property") that is the subject of this Agreement. 5. Development of the Property in accordance with this Agreement will provide substantial benefits to the City, including without limitation certain fees, public dedications and public improvements which the City could not legally impose on the development of the Property, and will further. important policies and goals of the City. 6. This Agreement will eliminate uncertainty in the planning process and provide for the orderly development of the Property, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the Property and generally serve the purposes for which developments agreements are authorized pursuant to the Development Agreement Law. 7. The City has, or by the Effective.Date of this Agreement will have, approved the Azusa Pacific University Specific Plan ("Specific Plan") for the Property pursuant to applicable City ordinances and regulations. 8. All of the requirements of the California Environmental Quality Act (Public Resources Code §§ 21000 et seg.) ("CEQA") have been met with respect to the Specific Plan and this Agreement, and the City has previously reviewed, considered, and certified the Azusa Pacific University Specific Plan ORANGESRC\20657. 1.1.4 Applicable Rules means the rules, regulations, ordinances and officially adopted policies of the City in force a; of the Effective Date of this Agreement, including but not limited to the City's General Plan, the Specific Plan, and the Azusa Municipal Code. Notwithstanding the language of this Section or any other language in this Agreement, Applicable Rules shall mean and include this Agreement and all Impact Fees applicable to the Project in effect as of the Effective Date of this Agreement. Applicable Rules shall not include Processing Fees and Charges. 1.1.5 Assumption Agreement means an agreement substantially in the form attached as Exhibit `B" hereto, or other agreement in a form approved by the City Attorney, executed by an Owner Transferee, expressly assuming various obligations relating to the development of the Project, or portion thereof. 1.1.6 Certificate of Occupancy means a certificate issued after inspections by City authorizing a person or persons in possession of property to dwell or otherwise use a specified building or dwelling unit. 1.1.7 CEQA means the California Environmental Quality Act, Sections 21000,.et seq., of the Public Resources Code of the State of California. 1.1.8 City Attorney means the City Attorney of the City of Azusa. 1.1.9 City Council means the duly elected legislative body governine the City. 1.1.10 Design. Guidelines means the Design Guidelines set forth in Section 6 of the Specific Plan. 1.1.11 Development or Develop means the improvement of the Property for purposes of constructing and completing the structures, improvements and facilities comprising the Project, including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures, and the installation of landscaping. Development or Develop includes the operation, use and occupancy or, and the right to maintain, repair, or reconstruct, any private building, structure, improvement or facility after the construction and completion. thereof; provided, however, that such repair, or reconstruction takes place within the Term of this Agreement on parcels subject to it. 1.1.12 Development Approvals means all actions which require the exercise of judgment or a discretionary decision by the City in connection with Development of the Property including: (i) Genend Plan amendments; (ii) Specific plans and specific plan amendments; (iii) Zoning; (iv) Tentative and final subdivision and parcel maps; (v) Conditional use permits, but only as to those conditions and requirements pertaining to the Development of the Property; ORANGE\SRC\20657. University, a private, nonprofit, university located on approximately 100 acres in the northeast portion of the City. As described in the Specific Plan, the Project includes the following elements: (1) approximately 1,272,000 gross square feet of academic facilities, including administrative offices and classroom space, (2) approximately 950,000 square feet of student housing, containing approximately 3,560 beds, (3) approximately 6,500 square feet of commercial development, (4) athletic facilities, (5) parking for 3,088 cars, and (6) open space, recreational, and student dining facilities. 1.1.25 Property means the area of approximately 100 acres owned by Owner within the area encompassed by the Specific Plan which is more specifically described in Exhibit "A" attached hereto. 1.1.26 Specific Plan means the Azusa Pacific University Specific Plan as it may be amended from time to time by the City at the written request of Owner. The Specific Plan also sets forth detailed development standards, design and an implementation plan for the Development of the Project. 1.1.27 Subsequent Development Approvals means all Development Approvals required subsequent to the Effective Date, in connection with Development of the Project on the Property, including, without limitation, subsequent tentative tract maps, design review approvals and subdivision improvement agreements which require the provision of bonds or other security. Subsequent Development Approvals include, without limitation, all excavation, grading, building, construction, demolition, encroachment or street improvement permits, conditional use permits, tree removal permits, landscaping permits, occupancy certificates, community facilities districts or similar financing mechanisms, utility connection authorizations, engineering design and master plan design drawings, utility plans, permits, authorizations and approvals. Development Approvals required under the conditions of approval of the Existing Development Approvals, or other permits or approvals necessary, convenient or appropriate for the grading, construction marketing, use and occupancy of the Project at such times and in such sequences as Owner may choose consistent with the Development Approvals shall become part of the Applicable Rules for the Property, and the Owner shall have a "vested right," as that term is defined under California law, in and to such Subsequent Development Approvals by virtue of this Agreement. 1.1.28 Term means the period of time during which this Agreement shall be in effect and shall bind the City and Owner as described in Section 1.4 below. Section 1.2 Incorporation of Recitals. Recitals 1 through 13 ale incorporated herein, including all Exhibits referred to in said Recitals. In the event of inconsistency between the Recitals and the provisions of Articles 1 through 5, the provisions of Articles I through 5 shall prevail. Section 1.3 Project is a Private Undertaking. It is agreed among the Parties that the Project is a private development and that the City has no interest therein except as authorized in the exercise of its governmental functions. Section 1.4 Term of Agreement This Agreement shall commence upon the Effective Date and shall continue in force for a period of twenty (20) years, unless extended or terminated as provided herein. At the Owner's written request, the City Council may consider an extension of the term of this Agreement. Following the expiration of the Term or extension thereof, or if sooner terminated, this Agreement shall have no force and effect, subject, however, to post -termination obligations of Owner or the City as described herein, including, but not limited to payment of the Fiscal Impact Fee set forth below. 0RANGRSRC\20657. Section 1.9 Amendment to Agreement (Owner Transferee and the City). This Agreement may also be amended, subject to the provisions of Government Code Section 65868 and Section 1.8 above, between an Owner Transferee who has acquired a portion of the Property from Owner and the City as to the Transferred Property. Section 1.10 Notices. Any notice or communication required hereunder between the City and Owner must be in writing, and may be given either personally, by registered or certified mail, return receipt requested, by overnight delivery, or by facsimile transmission. If given by registered or certified mail, the same shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (ii) five days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If delivered by facsimile transmission, a notice shall be deemed to have been given on the date of delivery by facsimile transmission. Any Party hereto may at any time, by giving ten days' written notice to the other Party hereto, designate any other address in substitution of the address, or any additional address, to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below: If to the City: with copies to: City Manager Azusa City Attorney City of Azusa c/o City Clerk 213 East Foothill Boulevard City of Azusa Azusa, CA 91702 213 East Foothill Boulevard Facsimile: (626) 334-6358 Azusa, California 91702 . Facsimile: (626) 334-6358 If to Owner: with copies to: Azusa Pacific University Allen Matkins Lack Gamble & Mallory LLP 901 Alosta Avenue 1900 Main Street, 50i Floor Azusa, California 91702 Irvine, California Attn: Mark Dickerson Attn: William R. Devine, Esq. Facsimile: (626) 815-2046 Facsimile: (949) 553-8354 Section 1.11 Recordation of Agreement. The City Clerk of the City shall, within ten days after the Effective Date, record a copy of this Agreement with the County Recorder of the County of Los Angeles. Section 1.12 Applicable Law and Attorneys' Fees. This Agreement shall be construed and enforced in accordance with the laws of the State of California, and the venue for any legal actions brought by any Party with respect to this Agreement shall be the County of Los Angeles, State of California for state actions and the Central District of California for any federal actions. If any legal action is commenced by either Parry for breach of this Agreement to test the validity hereof, or to enforce any provision, the ORANGElSRC120657. to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Property. Section 1.18 Estoppel Certificates. Either Party may, at any time, deliver written notice to the other Party requesting such Parry to certify in writing that, to the best Imowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Parties, (ii) this Agreement has not been amended or modified either orally or in writing, and if so amended, identifying the amendments, and (iii) the requesting Party is not in default in the performance of its obligation set forth in this Agreement or, if in default, to describe therein the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and return such certificate within thirty days following the receipt thereof. Any third Party including a Mortgagee shall be entitled to rely on the certificate. Any attorney's fees and costs associated with the preparation, review and execution of such certificate shall be paid by the Parry requesting the certificate. Section 1.19 Time Of The Essence. Time is of the essence for each provision of this Agreement of which time is an element. Section 1.20 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought and refers expressly to this Section. No waiver of any right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or remedy in respect of any other occurrence or event. Section 1.21 No Third Party Beneficiaries. The only Parties to this Agreement are the City and Owner and their successors -in -interest. There are no third party beneficiaries, and this Agreement is not intended, and shall not be construed to be for the benefit of, or be enforceable by, any other person whatsoever. Section 1.22 Entire Agreement. This Agreement sets forth and contains the entire understandings and agreements of the Parties and there are no oral or written representations, understandings or ancillary covenants, undertalzings or agreements which are not contained or expressly referred to herein and no testimony or evidence of -any such representations, understandings, or covenants shall be admissible in any proceedings of any kind or nature to interpret or determine the provisions or conditions of this Agreement. Section 1.23 Legal Advice; Neutral Interpretation; Headings, and Table Of Contents. Each Party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any Party based upon any attribution to such Party as the source of the language in question. The headings and table of contents, used in this Agreement are for the convenience of reference only and shall not be used in construing this Agreement. Section 1.24 Counterparts. This Agreement may be executed in duplicate originals, each of which will be deemed to be original. ORANGE\SRC120657. Notwithstandnig any provision of this Agreement to the contrary, the City shall have the right, to the extent mandated by law, to enact ordinances necessary to protect the citizens of the City from an immediate adverse health or safety risk. Except as necessary to protect the citizens of the City from an immediate adverse risk to health or safety, if an ordinance, resolution or other measure is enacted, whether by action of the City, by initiative, by referendum, or otherwise, that relates to any aspect of the development of the Property, including, without limitation, the type, building standards, rate, timing or sequencing of such development, the City agrees that such ordinance, resolution or other measure shall not apply to the Property or the Development of the improvements related thereto. Without limiting the foregoing, except as otherwise provided in the Specific Plan and the Applicable Rules, the City agrees that no moratorium (whether relating directly to the building of improvements, the ability to connect to water, sewer or other services or indirectly impairing the vested right to develop under this Agreement) or other limitation (whether relating to the rate, timing or sequencing of development) affecting subdivision maps, building permits or other entitlements that are approved or are to be approved, issued or granted within the City, or portions of the City, shall apply to the Property or the Development of the Project. To the maximum extent permitted by law, the City agrees to use its best efforts to prevent any such ordinance, measure, moratorium, or other limitation from invalidating or prevailing over all or any part of this Agreement, and the City agrees to cooperate with Owner in a reasonable manner in order to keep this Agreement in full force and effect. The City shall not support or adopt any initiative, referendum, moratorium, ordinance, or policy, or take any other action, if such support, adoption, or other action would violate the intent of this Agreement. Owner reserves the right to challenge any such ordinance or other measure in a court of law should -it become necessary to protect the development rights vested in the Property pursuant to this Agreement. Section 2.6 State and Federal Laws. As provided in California Government Code Section 65569.5, and notwithstanding any other provisions of this Agreement, this Agreement shall not preclude the application to the Property of changes in the City laws, regulations, plans or policies, to the extent that such changes in the City laws, reeulations, plans or policies are specifically mandated and required to be applied to the Property by changes in state or federal laws or regulations. Section 2.7 Processing or Implementing Subsequent Development Approvals. The City shall retain its discretionary powers in conducting hearings, and reviewing and acting on applications for Subsequent Development Approvals (other than ministerial determinations, including approval of the substantial conformance maps for tentative tract maps) for the Project not yet granted on the Effective Date, and imposing reasonable conditions in connection with such Subsequent Development Approvals, provided that the reviews shall be applied in a manner that is consistent with this Agreement, the Specific Plan and the Applicable Rules and provided that any such Subsequent Development Approvals and the conditions thereto do not materially delay, impede, interfere with, or place burdensome or restrictive measures in connection with, the Development of the Project or any portion thereof or the land uses, densities or intensities of use, the timing of any requirements to dedicate land, or other matters covered by this Agreement, and provided further that such conditions shall not impose additional obligations to dedicate land or infrastructure and public improvement requirements, fees or other Project development exactions in excess of those identified in this. Agreement. The City shall promptly consider and adopt or grant the necessary Subsequent Development Approvals for the Project which are a logical evolution of and which will accomplish the goals, objectives, policies and plans of the Project, including, without limitation, grading plans, engineering plans, utility plans, and architectural and design plans. The City shall not impose any conditions, items, restrictions or requirements upon the Subsequent Development Approvals which are inconsistent with this ORANGEISRC120657. discovery that probabilities of adverse (or beneficial) results considered in the approval of this Agreement, the Existing Development Approvals or the EIR may prove incorrect, or that such probabilities are or are not becoming, or have or have not become, realities; but instead, "new information" requires that the actual quantitative or qualitative extent of the underlying issues were not considered and could not have been considered in the environmental analysis associated with the approval of the Existing Development Approvals, this Agreement and the EIR. Section 2.13 Timing of Deveiopment The Parties acknowledge that the most efficient and economic development of the. Property depends upon numerous factors, such as market orientation and demand, interest rates, competition, and similar factors, and that generally it will be most economically beneficial to have the rate of development determined by Owner. Because the California. Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Ca1.3d 465, that the failure of the parties therein to provide for the timing of development permitted a later adopted initiative to restrict the timing of development to control the parties' agreement, it is the intent of Owner and the City to hereby acknowledge and provide for the right of Owner to develop the Project in such order and at such rate and times as Owner deems appropriate within the exercise of its sole and subjective business judgment. The City acknowledges that such a right is consistent with the intent, purpose and understanding of the Parties to this Agreement. Accordingly, the timing, sequencing, and phasing of the Development is solely the responsibility of Owner, and the City shall not impose, by ordinance, resolution, initiative or otherwise, any restrictions on such timing, sequencing or phasing of Development within the Property. Section 2.14 Public Works. Owner is required by this Agreement to construct certain public work facilities which will be dedicated to the City or other public agencies upon completion. Unless required by law to do so, Owner shall not be required to perform work in the same manner and subject to the same requirements as would be applicable to the City or such other public agency should it have undertaken such construction, including, without limitation, the payment of prevailing wages pursuant to Labor Code Section 1770 et. seq. Section 2.15 Owner Obligations. In consideration for the City entering into this Agreement, and as an inducement for the City to obligate itself to carry out the covenants and conditions set forth in this Agreement, and in order to effectuate the premises, purposes and intentions set forth in this Agreement. Owner hereby agrees to the following: 2.15.1 Owner's Obligations. Owner agrees to complete all mitigation measures in the EIR, including the Mitigation Monitoring Program. In particular, Owner agrees to do the following: Owner agrees to complete improvements to the following intersections and/or pay the fair share costs (in the percentages noted) as valued at the time the improvements are made. The estimated deadline for each improvement and the current estimated costs of each improvement are noted below: • Calera Avenue & Alosta Avenue: Restriping, new/widened pavement; signal change. Estimated cast - $60,000. Fair share cost percentage - 100%. Estimated deadline - When new entrance is built. ORANGESRC720657. and location of parking spaces on the Azusa campuses to accommodate the student enrollment; faculty, and staff. Owner agrees to pay to the City of Azusa, beginning with the first utility billing cycle that occurs on or after the Effective Date of this Agreement, a Fiscal Impact fee calculated as follows: o an amount equal to six (6) percent of all charges invoiced by Azusa Light and Water for electricity and water for all such utilities. provided to Owner via utility meters registered in the name of Owner for service to Owner's properties. If on or after the Effective Date of this Agreement, City amends a General Tax as defined by Proposition 218 that existed as of the Effective Date or adopts a new General Tax making such taxes applicable to Owner the Fiscal Impact Fee set forth and required by this subsection shall be reduced by the same amount as Owner remits to City as required by the amended or new General Tax. Furthermore, should Owner cause new retail or commercial development to be constructed and should as a direct result of such construction and operation City receives at least 825,000 or more in new General Taxes or sales taxes then the Fiscal Impact Fee set forth and required by this subsection shall be reduced by the same amount as City receives from these new operations. 2.15.2 Revised Proposal Concerning the Fiscal Impact Fee: Notwithstanding anything herein to the contrary, including the Term of this Agreement, Owner agrees to continue making the Fiscal Impact Fee payment to the City of Azusa for so long as the City's existing Utility Users Tax (UUI') , as set forth in the City's Municipal Code as of the Effective Date of this Agreement, remains in effect, unless any of the following events occur: a) the City Council and its voters amend the UUT so as to require payment by all non -profits in the City; or b) Owner requests that a firm of recognized experts in fiscal impact analysis that is mutually agreeable to Owner and the City perform a fiscal impact analysis of taxes, intergovernmental transfers, in - lieu payments, assessments, license fees and other similar revenues generated by Owner and the result of said analysis demonstrates that such revenues received by the City exceeds the total sum of the Fiscal Impact Fee payments made to the City in the City's previous Fiscal Year (giving Owner credit for the offsets provided in section 2.15.1 above). The fiscal impact analysis contemplated by this subsection shall not be performed prior to one year before the expiration of the Agreement; however, the analysis may be performed within one year of the expiration of the Agreement and every five years thereafter. The expenses incurred in completing the fiscal impact analysis shall be shared equally by Owner and City; or c) Owner sells more than twenty-five percent of the Property which is subject to this Agreement to a for profit entity or individual for the purpose of commercial development and the said purchaser agrees on its behalf and on behalf of its successors not to apply for a property tax exemption. This subsection regarding the Fiscal Impact Fee shall continue in full force and effect past the termination of this Agreement. ORANGE' SRCM657. thereon, other than those uses and improvements provided for or authorized by this Agreement, subject to all of the terms and conditions of this Agreement. Section 2.17 City Cooperation in Providing Notices to Community. Owner may from time to time, request that City include notice and promotion materials prepared by Owner within City's mailings to residents by the City and Azusa Light and Water. City agrees to cooperate with Owner in including Owner's notices and promotional materials in those instances where such materials seek to promote Owner programs and events which are jointly sponsored by at least Owner and City. ARTICLE 3 Entitlement and Permit Processing, Inspections Section 3.1 City Approvals. The City is bound to permit the uses on the Property that are permitted by the Specific Plan and the Applicable Rules. The City agrees to grant and implement the land use and building approvals, including, but not limited to, building plans and permits, specifications, landscape plans, grading plans and permits, use permits and Certificates of Occupancy reasonably necessary or desirable to accomplish the goals, objectives, policies and plans described in the Specific Plan (collectively "City Approvals"). City Approvals shall include any applications, permits and approvals required to complete the infrastructure and improvements necessary to develop the Property in accordance with the Specific Plan (collectively, the "Improvements"), including, without limitation, those related to (i) clearing the Property, (ii) grading the Property, (iii) construction of roads, storm drainage facilities, sewer facilities, and other utility facilities and connections, and (iv) construction of all institutional and residential structures and all structures and facilities accessory thereto, subj ect to the limitations set forth in the Specific Plan and Applicable Rules. Section 3.2 Duty to Grant and Implement. The City's obligation to grant and implement the City Approvals set forth above shall not infringe upon the Citv's right to withhold such City Approvals for failure to conform to the Specific Plan or Applicable Rules. If the City rejects an application for a City Approval, it shall provide, in good faith, a specific list of reasons why the application was rejected, along with a description of specific and reasonable measures ("Measures to Correct") to correct each basis for rejection. Such Measure to Correct shall take into account the economic ability of Owner to implement such Measures to Correct. If Owner resubmits its application incorporating all the Measures to Correct, the City shall approve Owner's application. If Owner deems the City's Measures to Correct to be unreasonable or submitted in bad faith, it may submit such Measures to Correct to binding arbitration pursuant to Article 5 below, and such arbitrators shall have authority to delete any unreasonable or bad faith Measures to Correct from the list. Section 3.3 Processing Obligations. The City hereby agrees that it will accept from the Owner for processing and review all applications for Subsequent Development Approvals, provided that said applications are submitted in accordance with the Applicable Rules. To the fullest extent allowed by law, the City shall process all applications filed in connection with the Development of ORANGOSR020657. the Property is consistent with such approval and provided that issuance of the original approval was not obtained by fraud or deceit by the Owner. Any disapproval by the City shall state in writing the reasons for such disapproval and the suggested actions to be taken in order for approval to be. granted. Section 3.5 State, Federal or Case Law. Where any state, federal or case law allows the City to exercise any discretion or to take any action with respect to that law, the City shall, in an expeditious and timely manner, at the earliest possible time, (i) exercise its discretion in such a way as to be consistent with, and carry out the terms of, this Agreement and (ii) take such other actions as may be necessary to carry out in good faith the terms of this Agreement. Section 3.6 Processing Cooperation. To the extent permitted by law, the City shall cooperate with and actively assist Owner in securing any and all entitlements, authorizations, permits or approvals which may be required by or from any other governmental or quasi -governmental entity in connection with the Development of the Project and the Property. Default Section 4.1 General Provisions. Subject to extensions of time by mutual consent in writing, failure or delay by either Party or Owner Transferee not released from this Agreement to perform any term or provision of this Agreement shall constitute a default. In the event of alleged default or breach of any terms or conditions of this Agreement, the Party alleging such default or breach shall give the other Party or Owner Transferee not less than thirty days notice in writing specifying the nature of the alleged default and the manner in which said default may be cured. During .any such thirty day period, the Party or Owner Transferee charged shall not be considered in default for purposes of termination or institution of legal proceedings. After notice and expiration of the thirty day period, if such default has not been cured or is not being diligently cured in the manner set forth in the notice, the other Party or Owner Transferee to this Agreement may, at its option, institute legal proceedings pursuant to this Agreement or give notice of its intent to terminate this Agreement pm-suant to California Government Code Section 65868 and any regulations of the City implementing said Government Code Section. Following notice of intent to terminate, the matter shall be scheduled for consideration and review in the manner set forth in Government Code Sections.65865. 65867, and 65868 and City regulations implementing said sections by the City within thirty calendar days. Following consideration of the evidence presented in said review before the City, either Party alleging the default by the other Party or Owner Transferee may give written notice of termination of this Agreement to the other Party; provided, however, an Owner Transferee may only give such notice with respect to such portion of the: Property in which such Owner Transferee owns an interest. Evidence of default may also arise in the course of a regularly scheduled Annual Review of this Agreement pursuant to Government Code Section 65865. If a Party or Owner Transferee determines that a Party or Owner Transferee is in default following the completion of the normally scheduled periodic review, said Part), or Owner Transferee may give written notice of termination of this Agreement specifying in said notice the alleeed nature of the default, and potential actions to cure said default where appropriate. If the ORANMSR020657. ARTICLE 5 Arbitration of Disputes Any controversy arising out of this Agreement or its breach, which is not resolved by the parties within thirty days of written notice from one party to the other of such alleged controversy or breach, shall be submitted to binding. arbitration in the City of Los Angeles, Los Angeles County, California (or such other location that may be agreed to by the Parties), in accordance with California Code of Civil Procedure Sections 12380-1294.2. Such arbitration shall be conducted by a single arbitrator, unless the Parties a2ree to a greater number. All notices relating to such arbitration, including any notices under Code of Civil Procedure 1290.4, shall be given as provided in Section 1.10 hereof. NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL, BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESSTHOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE `ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. AT HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE `ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION. City's Initials Owner's Initials ARTICLE 6 Termination Section 6.1 Termination Upon Completion of Development This Agreement shall terminate upon the expiration of the Term or when the Property has been fully developed and all of Owners obligations in connection therewith are satisfied as determined by the City. Upon termination of this Agreement, the City shall record a notice of such termination in a form satisfactory to the City Attorney that the Agreement has been terminated. Section 6.2 Effects Upon Termination on Developer Obligations. Termination of this Agreement shall not affect any of Owner's obligations to comply with the City s General Plan, the Specific Plan, and the terms and conditions of any applicable zoning, or other land use entitlements approved with respect to the Property, nor shall it affect any other covenants of any other development specified in this Agreement to continue after the termination of this Agreement. ORANG215RM0657. Leval Description of the Property LEGAL DESCRIPTION THE akND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, DESCRIBED AS FOLLOWS: PARCEL 1: THAT PORTION OF IAT 10 OF TRACT NO. 3472, IN THE CITY OF AZUSA, COUN'T'Y OF IRS ANGELES, STATE OF CALIFORNIA, AS PER MAP PSCORDED IN BOOK 42 PAGES 11 AND 12 OF'MAPS, IN TIM OFFICE OF THE COUNTY P.£CORDER OF SAID COUNTY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTRWEST CORNER OF SAID IRT 1D, T'ii'R3CE NORM 89° 55' EAST ALONG THE SOUTH LINE T*�2EOF, 645.4,B FEET TO THE MOST SOUTHERLY SOUTHEAST CORNER. OF SAID LOT 10; THENCE NORTH 0" 1S' EAST, ALONG THE MOST SOUTHERLY EAST LINE OF SAID LOT 10, 809.5D FEET TO AN ANGLE POINT IN THE BOUNDARY LINE OF SAID LOT 10; THENCE SOUTH B9' 55" WEST PARALLEL WITH THE APOREMENTIONED SOUTH LINE OF SAID LOT 10, 645.48 FEET TO THE MOST WESTERLY LINE OF SAID LOT 10; THENCE SOUTH 00 15' WEST, ALONG SAID MOST WESTE2LY LINE, 809.50 FEET TO THE POINT OF BEGINNING. PARCEL 2: THAT PORTION OF THE NORTHWEST QUAR= OF SECTION 36, TOWNSHIP NORTH, P.ANGE 1D WEST, S. B. B. & M., ACCORDING TO THE OFFICIAL PLAT OF THE SURVEY OF SAID LAND ON FILE IN THE BUREAU OF LAND VVANAGEMENT, SHOWN AS "NOT A PART OF THIS SUBDIVISION" ON THE MAP OF TRACT 3472, RECORDED IN BOOK 42 PAGE 11 OF MAPS, .IN THE OFFICE OF THE COUNTY PSCOP.DER. ?ARC=- 2A: AN EASEMENT FOR INGRESS AND EGRESS TO AND FROM SAID PARCEL 2, OVER THAT PORTION OF LOT 10 OF TRACT NO. 3472, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK. 42 PAGES 11 AND 12 OF NAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH THAT PORTION OF THE NORTHWEST QUARTER OF SECTION 36, TOWNSHIP 1 NORTH, RANGE 1D WEST, SAN BEP.ISARDIND BASE AND MERIDIAN, IN SAID COUNTY AND STATE, ACCORDING TO THE OFFICIAL, PLAT TFEF—E-OF, DESCRIBED AS A WHOLE AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF THE NORTHWEST QUARTER OF SAID SECTION 36; THENCE ALONG THE WESTERLY LINE OF SAID SECTION 36; NORTH 09 15'. EAST 825.00 FEST; THENCE NORTH 89° 55' EAST 40.00 FEET TO A POINT IN THE NORTH P.LY LINE OF THE LAND DF -SCRIBED IN THE DEED TO AZUSA COLLEGE RECORDED ON DECEMBER 24, 1959, AS INSTRUMETT NO. 2830 IN BOOK D-703 PAGE 175 OF OFFICIAL Continued on next page -2- NO. 250 AS DESCRI:B1 SAID CONDEMNATION; T'EN(. �tT3 560 37' 15° EAST ALONG SAID SOUTHEASTERLY LINE TO THE SOL,i__3I.Y LINE OF THAT CERTAIN 5.00 FOOT STRIP AS DESCRIBED IN THE SECOND PART OF SAID PARCEL 250; THENCE EASTERLY AND NORTHERLY, FOLLOWING ALONG £d�.ST�RI_Y LTNzS or SAID c O FOOT STRIP TO THE SO=:M LY LINE OF THE 5D FOOT STRIP AS DESCRIBED IN THE FIRST PP.P_T OF SAID PARCEL 250; THENCB EASTERLY :ALONG THE SO=T ?LY . LINE OF SAID 50 FOOT STRIP TO TETE SDUTHERLY ALDXG THE SOUTHERLY LINE OF SAID 50 FOOT STRIP TO THE SOUTHERLY LINE OF THE LAND DESCRIBED IN THE Dr's TO 7HE LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, RECORDED MARCH 1, 1933'IN SOOK 11961 PAGE 374 OF SAID OFFICIAL P.ECDRDS; TM;CE EASTERLY ALONG SAID LAST =- IONED SOUTHERLY LINE TO 7Hi_ FASTIZLY BOUNDARY OF SAID LAT 10; THENCE ALONG THE VARIOUS COURSES OF SAID EASTERLY BOUNDARY AS FOLLOWS: SOUTH 17° 53' 000 EAST 189.73 FEET TO AN ANGLE POINT THEREIN AND SOUTH 0° 10' 00" WEST 122.70 FEET TO THE POINT OF BEGINNING. PARCEL 5: THOSE PORTIONS OF LOTS 9 AND 10 OF TRACT NO. 3472, IN TEE COUNTY OF LOS ANGELES, STATE OF CALIFORNLA,' AS PEP. MAP RECORDED IN BOOK 42, PAGES 11 AND 12 OF MAPS, IN THE OFFICE OF THE COUINTY RECORDER OF SAID COUNTY LYING NORTFL.-PLY OF THE FOLLOWING DESCRIBED LINZ : BEGINNING AT .A POINT IN TEL WESTERLY BOUNDARY OF SAID LOT 9, SAID POINT OF BEGINNING BEING THE SOUTHWEST COFINER OF THE LAND DESCRIBED AS THE SECOND PORTION OF PARCEL 442 OF THE FINAL ORDER. OF CONDEKVATION ENTERED IN LOS ANGELES COUNTY SUPEPIOF. COURT, CASE NO. '743427, A CERTIFIED COPY OF WHICH WAS RECORDED OCTOBER 23, 1963 AS INSTP.UKENT 140. 3765 IN BOOK D-2230 PAGE 195 OF SAID OFFICIAL F.ECORDS; THENCE ALONG THE SOUTHERLY LINE OF SECOND PORTION Op LAND, SOUTH 890 52' 450 EAST, 15.00 FEET TO THE SOU_:r_-AST CO:?1=_R OF SAID SECOND PORTION OF LEND; =' CE PIlJNG THE EASTERLY LINE, OF SAID SECOND PORTION OF LAND, NORTH 01 D7' 15" EAST 5.00 FEET TO THE SOUTrT,EKSTERLY LIY. OF THE THIRDLY DESCRIBED PORTION OF PARCEL 1,70. 250 AS DESCP,IBED IN SAID CONDENIINATION THENCE NORTH 5B° 37' 15" EAST ALONG SAID SOUTHF- TERLY LINE TO THE SO==- LY LINE OF THAT CERTAIN. 5.00 FOOT STRIP AS DESCRIBED IN TrIE SECDND PART OF SAID PARCEL 250; THENCE EASTEF.LY AND NORTFERLY FOLLOWING ALONG THE SOUTHERLY LIK3 EASTERLY LINE OF SAID S. Do FOOT, STRIP TO TEL SOUTHERLY LINE OF SAID OF SAID 50 FOOT STRIP AS DESCRIBED IN THE FIRST PART OF SAID PARCEL 250; TEENCE EASTERLY ALONG TEL SOUT=-L-RLY LINE OF SAID 50 FOOT STRIP TD TETE SOUTEERLY LINE OF THE LAND DESCRIBED IN TFI: DEED TO iF5 LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, RBCORI,ED MAF.CH 1, 1933 IN BOOK 11951 PAGE 374 OF SAID OFFICIAL RECORDS',; THENCE EASTERLY ALONG SAID LAST 7=- IONED SOUTTiEPIY LINTS TO THE EASTERLY BOUNDARY OF SAID LOT 10. Continued on next page -4- AiixWriWT B s' PARC : TEAT PICN OF =E VEM HALF OF Tim NJPDH 3D A=— OF Or THE "T [S.LARTr'� OF S=CN 36 713�d. = 1 N>r2'IIi RAMS 10 W -3T, SAN BERLIAR = NE KIDLAN, CCANTY OF IDS nnr r r.. SPATE OF TSA, AO==, TO T 0MCIP.L PLAT TF�M-F DR3M •, AS Fffi,TMS: B33lbbMU AT TH3 IN1 "TICN OF TEE 9O MUjY LIl4E OF THE NOMLY 50.00 r T Or SAID W. SP R;ZF WTIH UM RB-S'=Y LIRE Or MLM- i? AVS, AS MaM= DJ UE =- TD THE CTPY O? ASA, momnmm CN S �� , 17, 1963, AS m tmuvo T NO. 4032 IN BOOK D-2185 PAGE 204, OF F ICLAL RMIMS, IN SAID OFFICS OF TFE O3.IlS!'Y FaMMMR TrlM=- FA3'RTY ALMS SAID MME2 Y 'LITE; •A' DISTANM Dr 193.00 FIST; Ti M S3J =PLY PARDLUM WTIH THE VM=MY LINE O? MID^Lu-T MF TO THE NAY e ERBF OF TSS 1 -r0:7T W= STRIP O? LAND rear =- IN UE TO Tim CITY OF A= RDS CN SM*r I3MH 17, 1963, AS MUMMY= 130. 4034, IN BDOK D-2165 PAM 210 OF .SAID S*T..STr.RLY AlaU Sa-ID LDS TO SAID F7ST- Y LIM OF CALEZi r: AV=E , PS rF—qM= IN SAID FIRST �LSI'IC8ED Dom; == N=IERLY AlaU SA.'ID CAIr". A A%MrLT� 2 TO THE PODQT OF B7rinar Q1. It PARCD, 2: AN a-kS0vZNTr FOR: =722S AM F,72r.3S AND KE all704.AY T U= -T S, OU'PY. � 'I ipT ;:o=aq OF =H VST PIRL? OF = N0:3Zi 30 =S OF ME N=zMSP Qaz tT� OF = 93JIC'T U -F'= Or SFA=- CN 36 Tian I�34a-D 1 NORTH, RMM 10 VE37 SAN B.FRISMnO 2W=IAN Di M<S CITY OF A7-ak, CMgIY OF IIA ANMM, SPP.TB Or CP.LIFMNIA, A=Dnr� TD T -E Or r ICTP.L PIAT Tc KDOE, MSC?-=- AS FOLLOI S : L L TEMr, CCN (C1ZSP'D) .n L 37,IlIlSIlJ, AT A PDDSP IN Tim SOMEMY 7.7TT OF TSS N==-FUY 50.00 FEe:T OF SLID WFC" T KTaT, DISDUr EAS=Y T'r1 Q ]33.OD rn FRIM Tim D�TL'�Pr. ,5r7_TICN OF SAID 2 scumri3RLY LIRE WI'I:3 TrE EPS T- Y LDS O?. (UEPA AV=, AS IFRCYJ= IN =� D TO Tile CTTY Or Ag-Sk, RDa= CN S�.?MVBM 17, 1963, PS D'ST �T NO. 4032 IN BOOK D-2185, PAGE 2D4, OFFICLAL FS=PM, IN SAID Or' CE O? =- CZFJNTY RB=r-M P TrmNCE a. zs SLY ALar, = SJJTrEmuy Lm, O? SAID Yom" r FFaL? TO = NoF=My L=- Or 1 F1?7T WIDE SIitIP OF LAND n=.aM= IN UIE DEID TO Tim CITY OF AMUk, P-ro:,= ON � 17, 1963 AS n== NO. 4034, IN BODK D-2165 PPM 210 Or 6 SAID OFFICIAL RrEMMS; rMMZS Y,E=,,LY A=M SAID Na3M- 2LY L TU A = } PARPIL . = h*-SI^RLY LnE OF hE_SI KALE WHIC:i PASSES T -7=4 =- PODC OF BmnimT Tr E m Na;a-rMZLY ALCW3 SAID LAST N&ZQTICPM. PAPA= =- TO 7rE POIhTP Or BmDWRG 0 - W AgACOME Ea n DESCRIPTION TO CI.^Y OFRAZUSA,FIN THE COUNTYZOFTHE Rk"CBO AUSALOS AN ELES,,DSTATE OF HENRY CALIFOAS CONFIMERNIA,DALTON By pR£CDRDEDNINHE Boor,2 PAGE 106 OF PATENTS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BOUNDED ON THE NORTH BY THE SOUTHERLY LINE OF THE RIGHT-OF-WAY OF THE ATCHISON, SRN;TA ifi RAILWAY, 100 FEET WIDE "FORMERLY IN THE SOUTHERN CALIFORNIA TOPEKA AND BOUNDED ON THE SOUTH BY THE NORTHERLY LINE OF,FOOTHILL BOULEVARD, 44 RAILWAY^; FEET WIDE, AS ESTABLISED BY DEED o CORDEDNDED ITHEW4ED ESTBY THEEASTERLYLINEIN THE pf, OFFICE OF SKID COUNTY RECORDER( B SA LAND AND WATER COMPANY, ASPER SAID MAP RECORDED IN SUBDIVISION NO. 2 OF THE AZUN THE OFFICE OF SA BOOR 43 PAGE 94 OF MISCELLANEOUS RECORDS, IID COUNTY RECORDER; BOUNDED ONIN I. 8 ST BY YRTHE DIVIDINGED IN LIKEOK 0OF PACEL70DOF DEEDS, IN THE OFFICES OF VOSSURG OF AND OF DESCRIB 32 SAID COUNTY R::CORDEA. - EXCEPT THEREFROM THE EASTERLY 37 FEET OF THE ABOVE-DESCRIBED PROPERTY. THE WESTERLY SIDE LINE OF SAID EASTERLY 37 FEET T^cRHINA2"c5 ON THE NORTH IN THE ABOVE TA DESCRIBED SOUTHERLY LINE OF SAID RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SAh NORTHERLY LINE OF FOOTHILL BOULEVARD. FE RAILWAY AND ON THESOUTHIN THE DESCRIBED AS FOLLOWS: ALSO EXCEPT THAT PORTION OF SAID LAND BEGINNING AT A POINT IN THE NORTHERLY -LINE OF SAID FOOTHILL BOULEVARD, DISTANT THEREON NORTH 89 DEGREES 54 -MINUTES SECONDS E LANDS OF57 EVOSSURGT FRO4 TAND HE IMACNEIL, OF THE ABOVE DESCRIBED DIVIDING LINE BETWEEN THE NRTH DEGREES THENCE NORTHERLY PARALLEL HITS SAID DIV�ZDINIWITHO SAIDD NORTHERLYOLIKENOFES 32 SECONDS EAST 50 FEET, THENCE EASTERLY ARALLEL FOOTHILL BOULEVARD, SOUTH S9 DEGREES 54 MINUSES 1D SECONDS BOUI:EAEAST 20 FEET TO A LIN THAT IS PBOULE A WITH AND DISTANT WESTERLY 37 FEET MEASURED AT RIGHT ANGLES FROM SAID DIVIDING LINE; THENCE ALONG SAID LAST MENTIONED PARALLEL LIKE SOUTH 0 TO SAID NORTHERLY LIKE OF FOOTHILL DEGREES 03 MINUTES 32 SECONDS WEST 5D FEET NORTHERLY LINE NORTH 69 D$GREES 54 BOULEVARDF THENCE ALONG SAID LAST MENTIONED MINUTES 10 SECONDS WEST 20 FEET TO THE POINT OF BEGINNING. r��Frnte�� HMIOI AA 92 129636", Xs>: 100111944 TIE er nRcr-urP rrox The land referred to herein is situated in the State of California, County of Los Angeles, described as follows: °LOTS 5, 5, 7, 8 AND 9 OF THE RESUBDIVISION OF LOTS 1 AND 2 IN BLOCK 83 OF AZUSA, IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 18, PAGE 72 OF MISCELLANEOUS RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. End of Legal Description b1 — Det 2. Continued on next page -2- Assumption Ab` Bement desires to assign to Assignee Assignor's right, title, and interest in and to the Development Agreement Propert3; and WHEREAS, Assignee desires to accept such assignment from Assignor and assume the obligations. of Assignor under the Development Agreement and the Existing Development Approvals with respect to the Property; NOW, THEREFORE, in consideration of the foregoing recitals and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. ASSIGNMENT BY ASSIGNOR TO ASSIGNEE. A_ ASSIGNMENT. Assignor hereby assigns and transfers to Assignee Assignor's right, title, and interest in and to the Development Agreement and the Existing Development Approvals with respect to the Property, and Assignee hereby agrees to and does accept such assignment from Assignor. B. ASSUMPTION. Assignee expressly assumes and agrees to keep, perform, and fulfill all the terms, conditions, covenants, and obligations required to be kept, performed, and fulfilled by Assignor under the Development Agreement and the Existing Development Approvals with respect to the Property. 2. EFFECTIVE DATE OF ASSIGNMENT. The execution by the City of the attached receipt for this Agreement shall be considered as conclusive proof of delivery to the City of this Agreement and of the assignment and assumption contained herein. Said assignment and assumption shall be effective upon the recordation of this Aereement in the Official Records of Los Angeles County, California INWITNESS WHEREOF, the parties hereto have executed this Assignment and Assumption Agreement as of the dates set forth next to their signatures below. "ASSIGNOR" AZUSA PACIFIC UNIVERSITY, a California nonprofit corporation, Date: , _ By-. {SIGNATURES CONTINUED ON NEXT PAGEI 642D84.01)LA MMIT B A705"0219a-05IP2� -2- RECEIPT BY CITY The attached ASSIGNMENT AND ASSUMPTION AGREEMENT is received by the City of Azusa on this __day of 0 Mayor, City of Azusa 6MM.otn.A EXH[BIT B A7o5s-=J;-)-osryM4my -4— STATE OF COUNTY OF On and for said state, personally appeared before me, a Notary Public is • , personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the. same in their authorized capacities, and that by their signatures on the instrument, the persons, or the entity upon behalf of which the persons acted, executed the instrument WITNESS my hand and official seal. Notary Public in and for said State EXHIBIT B MW4.DVLk AMSW02,M-05/ppy 3V Deleted ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING THE AZUSA PACIFIC UNIVERSITY SPECIFIC PLAN SP- A AMENDMENT NO. 1 WHEREAS, the City of Azusa City Council approved the Azusa Pacific University Specific Plan SP -7 ("Specific Plan") on September 19, 2005; and WHEREAS, in 2007, APU purchased the existing 14.24 acre Crestview Apartments complex for additional student housing; and WHEREAS, on May 18, 2007, the City of Azusa entered into a Tax and Equity Fiscal Responsibility Act (TEFRA) agreement with APU, requiring APU to amend their Specific Plan to include the Crestview Apartments into the Specific Plan as student housing; and WHEREAS, Section 7.8.2 - Specific Plan Amendments and Minor Modifications, Formal Amendments - of Specific Plan SP -7 requires the Planning Commission and City Council to review all formal Specific Plan amendments for approval; and WHEREAS, on March 16, 2011, the Planning Commission of the City of Azusa ("Planning Commission") conducted a noticed public hearing on the proposed amendment to the Specific Plan at which time all persons wishing to testify in connection with the amendment to the Specific Plan were heard and the amendment was fully studied, discussed and deliberated: and WHEREAS, the Planning Commission carefully considered all pertinent testimony and the staff report presented during the public hearing for the amendment to the Specific Plan and adopted Resolution No. 2011-06 recommending that the City Council approve the proposed amendment to the Specific Plan; and WHEREAS, on May 16, 2011, the City Council conducted a duly noticed public hearing on the proposed amendment to the Specific Plan at which time all persons wishing to testify in connection with the amendment to the Specific Plan were heard, and the proposed amendment and public testimony were fully studied, discussed, and deliberated; and Plan. WHEREAS, the City Council wishes to adopt the proposed amendment to the Specific NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES ORDAIN AS FOLLOWS: SECTION 1. CEOA. Pursuant to the California Environmental Quality Act, a Draft Program Environmental Impact Report (State Clearinghouse Number 2002121092) was prepared for the APU Development Agreement/Specific Plan and circulated for public review between December 3, 2004 and January 16, 2005. The Final EIR was certified by the Azusa City Council on September 19, 2005. The proposed Development Agreement/Specific Plan is in compliance with the requirements of the California Environmental Quality Act (Public Resources Code P:\ I Planning\Entitlements\SP7_APU\SP & DA Amendment N I \CC\APU Specific Plan Amendment No. I BBK Ordinance.doc Section 21000 et seq.), because the proposed Development Agreement/Specific Plan is within the scope of the EIR analysis and does not create any impacts not otherwise analyzed within the EIR. Pursuant to Public Resources Code Section 15162, the City Council has received no evidence indicating that any of the criteria listed therein are satisfied, and therefore subsequent environmental review is not required. A copy of the documents are on file and available for public review at Azusa City Hall, 213 E. Foothill Blvd., Azusa, CA 91702. SECTION 2. !Specific Plan Findings. Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds that Specific Plan SP -7 Amendment No. 1 is consistent with the required criteria of Section 7.8.2 — Formal Amendments, of the APU Specific Plan as follows: 1. Demonstrate that: the proposed amendment meets the goals and objectives of the Specific Plan and General. Plan. The goal of the APU Specific Plan is to provide for aesthetic, cohesive, and quality campus development through a comprehensive development plan, development standards and design guidelines. The proposed Specific Plan Amendment revises the development plan to reflect the inclusion of the Crestview Apartments and revises Section 6.3 Landscape Design Guidelines, making the development plan as comprehensive as possible at this time. The proposed amendment is also consistent with the General Plan in that the addition of the residential property at 801 E. Alosta Avenue to the APU Specific Plan will not change the underlying residential use of the property, which meets General Plan Land Use Goal #1 - providing for an integrated mix of residential and other uses in the City. 2. Ensure that any impacts from the amendment can be satisfactorily mitigated. The proposed amendment could negatively impact the City by removing a tax -generating property from the tax roles. This negative effect is mitigated through an existing Tax Equity and Financial Responsibility Act (TEFRA) agreement which requires APU to pay the City an impact fee equal to the property taxes and fees the City would receive if a non -tax exempt taxpayer owned the Crestview Apartments. In addition, the Redevelopment Department has identified 64 low/moderate income housing units at the Crestview Apartments that would be lost when APU changes,the apartment building to student housing. To mitigate this loss, the TEFRA Agreement requires APU to provide 64 low/moderate income housing units owned or master -leased by APU within the City of Azusa until July 15, 2015. 3. Provide a strikeout/underline copy of the Specific Plan text when changes are proposed and update any Specific Plan exhibits affected by the proposed amendment. The applicant has provided a copy of the proposed Specific Plan text and exhibit changes. A complete, revised Specific Plan document will be produced if the amendment is approved. 4. Update any Specific Plan technical studies and/or provide additional environmental studies deemed necessary by the Economic and Community Development Director and/or Planning Commission. The applicant has provided a traffic impact assessment of the proposed Crestview Apartment inclusion into the APU Specific Plan. The Crestview Apartment complex has approximately 480 dwelling units, with 355 occupants being students. The amount of persons living at the apartment complex is anticipated to increase to 960 student occupants, based on an estimate of two beds per unit. The current student occupants are expected to remain, with the additional 600 student occupants being drawn from those students currently commuting, those students already living in nearby university housing or new enrollment. Any additional traffic impact is assessed based on the increased amount of students to be housed and how they previously impacted traffic patterns. Any new student occupants of the apartments, who currently reside either on -campus or near campus, will not generate any additional traffic or parking demands. Any new student occupants, who previously commuted to the University, will reduce or eliminate their trips, which will therefore reduce traffic and parking demand. The traffic and parking impact of existing and new students was included in the Environmental Impact Report (EIR) for the APU Specific Plan project and is therefore not included in the Crestview Apartments traffic impact assessment. The assessment concludes, and the City Engineer agrees, that the inclusion of the Crestview Apartments in the APU Specific Plan would not increase traffic or parking impacts on the surrounding street system. SECTION 3. Development Code Findings.—Based on the entire record before the City Council and all written and oral evidence presented to. the City Council, the City Council finds that Specific Plan SP -7 Amendment No. I is consistent with the findings required to be made by section 88.51.070(E) of the Azusa Development Code as follows: 1. The proposed amendment to the specific plan is consistent with the goals, policies, and objectives of the general plan and any applicable specific plan, development agreement, owner participation agreement or disposition and development agreement. The proposed amendment to the specific plan is consistent with the General Plan, the APU Specific Plan and the existing Development Agreement. The addition of the residential property at 801 E. Alosta Avenue to the APU Specific Plan will not change the underlying residential use of the property, which meets General Plan Land Use Goal #1 - providing for an integrated mix of residential and other uses in the City. In addition, the proposed amendment is also consistent with the Specific Plan SP7-APU as the Specific Plan sets forth a vision for the campus which calls for 70% of the undergraduate population to be accommodated in University -sponsored housing. The additional housing in the Crestview Apartments will help meet this goal. The amendment to the specific plan is also consistent with the APU Specific Plan Development Agreement in that Section 1.8 of the Development Agreement states that the development agreement may be amended by mutual consent, provided that a major amendment which relates to the term, permitted uses, density, intensity of use, height and size of proposed buildings, or provisions for reservations and dedication of land shall require a public hearing before an amendment may be executed. The May 16, 2011 public hearing fulfilled this requirement. 2. The proposed. amendment to the specific plan will not adversely affect surrounding properties. The proposed: amendment to the specific plan will not adversely affect surrounding properties since it will not change the existing residential use of the property or change the use or structures of any surrounding property. SECTION 4. Severability. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason deemed or held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Azusa hereby declares that they would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof, irrespective of the fact that any one or more section, subsection, subdivision, paragraph, sentence, clause, or phrase would be declared invalid, unconstitutional, or unenforceable. SECTION 5. Summary. A summary of this ordinance shall be published in the manner required by law. PASSED, APPROVED, AND ADOPTED this 16th day of May, 2011. Joseph R. Rocha Mayor ATTEST: Vera Mendoza City Clerk APPROVED AS TO FORM: Sonia R. Carvalho City Attorney ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, APPROVING THE AZUSA PACIFIC UNIVERSITY SP7-APU DEVELOPMENT AGREEMENT AMENDMENT NO. 1 WHEREAS, the City of Azusa ("City") and Azusa Pacific University ("Owner") entered into that certain Development Agreement dated September 19, 2005 ("Development. Agreement"); and WHEREAS, the Development Agreement describes the real property owned by the Owner; and WHEREAS, in 2007, Owner purchased 14.24 acres of real property located within the City including the Crestview Apartment complex for the purpose of adding student housing; and WHEREAS, Owner desires to amend the Development Agreement to reflect changes to the description of real property currently owned by Owner located within the City as set forth in the Development Agreement; and WHEREAS, City and Owner entered into an agreement entitled "TEFRA Agreement" dated as of May 18, 2007, Section III(A)(4) of which provides that Owner must seek and obtain City's approval of any future amendment to its Master Plan or Specific Plan prior to converting any real property owned by the Owner located within the City to an institutional, non-profit and tax exempt use; and WHEREAS, on June 4, 2007, after a duly noticed public hearing, the City's City Council adopted Resolution No. 07-C41 approving the TEFRA Agreement; and WHEREAS, the City and Owner desire to amend the Development Agreement to add a new provision providing that the Owner shall apply to the City for an amendment to the Specific Plan prior to acquiring additional property or selling or converting the use of any property covered by the Development Agreement to an entity or use that would result in the property being removed from the tax rolls; and WHEREAS. on March 16, 2011, the Planning Commission reviewed and studied the amendments to the Development Agreement and recommended approval of the amendment to the City Council; and WHEREAS, on May 16, 2011, the City Council reviewed and studied the amendments to the Development Agreement and found it to comply with the California Environmental Quality Act ("CEQA") as more fully described below; and WHEREAS, the City and Owner believe that the acquisition and operation of the additional property described above and in accordance with the amendments is in the best interests of the City and the health, safety, morals and welfare of its taxpayers and residents and is in accordance with the public purposes set forth in federal, state and local law and regulations. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. Pursuant to California Government Code Section 65868 the City Council hereby approves the amendments to the Development Agreement as set forth in Exhibit "A" attached hereto, entitled "First Amendment to Development Agreement' ("First Amendment'). SECTION 2. Pursuant to California Government Code Section 65867.5 and based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council hereby makes and adopts the following finding: A. The proposed amendment to the Development Agreement is consistent with the General Plan in that the addition of the residential property at 801 E. Alosta Avenue to the APU Specific Plan will not change the underlying residential use of the property, which meets General Plan Land Use Goal # 1 - providing for an integrated mix of residential and other uses in the City. In addition, the proposed amendment is also consistent with the Specific Plan SP7-APU as the Specific Plan sets forth a vision for the campus which calls for 70% of the undergraduate population to be accommodated in University -sponsored housing. The additional housing in the Crestview Apartments will help meet this goal. SECTION 3. Pursuant to the California Environmental Quality Act, a Draft Program Environmental Impact Report (State Clearinghouse Number 2002121092) was prepared for the APU Development Agreement/Specific Plan and circulated for public review between December 3, 2004 and January 16, 2005. The Final EIR was certified by the Azusa City Council on September 19, 2005. The proposed Development Agreement/Specific Plan is in compliance with the requirements of the California Environmental Quality Act (Public Resources Code Section 21000 et seg.), because the proposed Development Agreement/Specific Plan is within the scope of the EIR analysis and does not create any impacts not otherwise analyzed within the EIR. Pursuant to Public Resources Code Section 15162, the City Council has received no evidence indicating that any of the: criteria listed therein are satisfied, and therefore subsequent environmental review is not required. A copy of the documents are on file and available for public review at Azusa City Hall, 213 E. Foothill Blvd., Azusa, CA 91702. SECTION 4. The City Council hereby adopts the SP7-APU Development Agreement Amendment No. 1, attached hereto as Exhibit "A". ATTEST: -2- Joseph R. Rocha Mayor Vera Mendoza City Clerk APPROVED AS TO FORM: Sonia R. Carvalho City Attorney MAYOR -3- Exhibit "A" AZUSA PACIFIC UNIVERSITY SP7-APU DEVELOPMENT AGREEMENT AMENDMENT NO. 1 -4- 0 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT By and between THE CITY OF AZUSA, A California municipal corporation And AZUSA PACIFIC UNIVERSITY A California nonprofit corporation This First Amendment to Development Agreement ("Amendment") is entered into as of 2011, with respect to that certain Development Agreement dated September 19, 2005 ("Development Agreement"), between the City of Azusa, a California municipal corporation ("City") and Azusa Pacific University, a California nonprofit corporation ("Owner"), pursuanttothe authority granted in Section 1.8 of the Development Agreement with reference to the following facts: RECITALS A. In 2007 Owner purchased the 14.24 acre Crestview Apartments complex for additional student housing. Owner desires to amend the Development Agreement to reflect this additional property. The real property currently owned by Owner located within the City is attached as Exhibit "A" and incorporated herein; and B. City and Owner entered into an agreement entitled "TEFRA Agreement" dated as of May 18, 2007 which sets forth the terms and conditions on which the City would provide a public hearing to facilitate tax exempt bond conduit financing for Owner in connection with Owner's real property located in the City. The TEFRA Agreement is attached as Exhibit "B" and incorporated herein; and C. Pursuant to TEFRA Agreement Section III(A)(4), Owner agreed to amend the Development Agreement to add a provision requiring Owner to seek and obtain City's approval of any future amendments to its Master Plan (in this case Specific Plan) prior to converting any real property located in the City owned by Owner to an institutional, non-profit and tax exempt use: and D. On June 4, 2007, after a duly noticed public hearing, City's City Council adopted Resolution No. 07-C41 approving the TEFRA Agreement; and E. Owner and City now desire to amend the Development Agreement, as more particularly set forth herein: 45635.0000012952650.4 THEREFORE, pursuant to the authority contained in the Development Agreement, and in consideration of the mutual promises and covenants contained in this Amendment, City and Owner agree as follows: 1. Recital 4 of the Development Agreement shall be and is hereby amended to incorporate the Crestview Apartments as follows: "Owner is the present Owner of the real property described in Exhibit "A" hereto (the "Property") that is the subject of this Agreement." 2. Exhibit "A" of -the Development Agreement shall be and is hereby amended in its entirety to incorporate all real property owned by Owner located within the City, including the Crestview Apartments, as legally described in Exhibit "A" of this Amendment. 3. The Development Agreement shall be and is hereby modified to add a new provision as follows: "2.15.5. Owner's Obligation Regarding Use of Property: Owner's Obligation Regarding Use of Property: Owner covenants to cause all of the Property that is, as of the date of this Amendment, on the County of Los Angeles, California secured real property tax rolls to remain on said tax rolls for the term of this Agreement. Owner covenants that any property located within the City acquired by Owner subsequent to entering in to this Amendment which, at the time of acquisition is on the County of Los Angeles secured tax rolls, shall remain on said tax rolls for the term of this Agreement. Prior to converting the use of any property covered by this Agreement to an _entity or use that would result in the property being removed from the tax rolls, APU shall apply to City for an amendment to the Specific Plan to allow for such a change in use. 4. All defined teams used in this Amendment shall have the same meanings set forth in the Development Agreement. Except as specifically modified by this Amendment, the Development Agreement shall remain in full force and effect. 4563 5.00000\29526 5 0.4 The parties have executed this Amendment as of the date written above. CITY OF AZUSA Joseph R. Rocha Dated Mayor Francis M. Delach Dated City Manager ATTEST City Clerk APPROVED AS TO FORM: Sonia Carvalho City Attorney AZUSA PACIFIC UNIVERSITY Dated Its: APPROVED AS TO FORM: APU General Counsel 45635.00000\2952650.4 Jil P*107 C, � 0 SCHEDULEDITEM TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: SOMA CARVALHO, CITY ATTORNEY VIA: F.M. DELACH, CITY MANAGERN DATE: MAY 16, 2011 SUBJECT: REPORT ON MEASURES TAKEN TO ALLEVIATE THE CONDITIONS WHICH LED TO THE ADOPTION OF URGENCY ORDINANCE 2011-05 ESTABLISHING A MORATORIUM ON THE ESTABLISHMENT OF TATTOO ESTABLISHMENTS RECOMMENDATIOi J It is recommended that the City Council receive and file this report BACKGROUND On April 11, 2011, the City Council adopted Urgency Ordinance No. 2011-05 ("Interim Ordinance"), enacting a forty-five (45) day moratorium on the establishment of tattoo establishments, pending study and adoption of regulatory and zoning standards in order to protect the public health, safety and welfare. The moratorium was premised on concerns about conflicts, federal appellate court decisions regarding a municipality's ability to regulate tattoo establishments, the potential proliferation of such establishments in the City, and the significant risk of injury to tattoo establishment customers by the improper use and possible unsanitary conditions in such establishments. California Government Code Section, 65858(d) provides that ten days prior to the expiration of an interim ordinance or any extension, the legislative body shall issue a report describing the measures taken to alleviate the condition which led to the adoption of the ordinance. The purpose of this agenda report is to report on those actions. REPORT The City Council directed the Police Department, Economic & Community Development Department, and the City Attorney ("City Staff') to consider and study possible means of regulating tattoo establishments and tattoo technicians, including zoning -based regulations and other regulations. City staff has begun studying the following issues: 1) what zones of the City are most appropriate for tattoo establishments to be located; 2) whether the use prescribed for tattoo establishments should be principal or conditional; and S) what other regulations should be imposed upon the operation of these establishments to protect the public, health, safety and welfare. City staff has quickly surveyed several cities' regulations for adaptability to Azusa. City Staff is in the processing of reviewing these examples to begin drafting new regulations to address concerns which led to the adoption of the moratorium. City Staff needs additional time to review these examples and to consider preparation of an ordinance that may include additional zoning restrictions and business and operation regulations for tattoo establishments. FISCAL IMPACT There is no fiscal impact associated with this item. SCHEDULED ITEM TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: SONIA CARVALHO, CITY ATTORNEY VIA: F.M. DELACH, CITY MANAGER DATE: MAY 16, 2011 t SUBJECT: CONSIDERATION OF AN URGENCY ORDINANCE EXTENDING THE MORATORIUM ON TATTOO ESTABLISHMENTS IN THE CITY RECOMMENDATION If the City Council desires to continue the moratorium on tattoo establishments, the City Council should adopt the following ordinance: AN INTERIM URGENCY ORDINANCE OF THE CITY OF AZUSA EXTENDING THE MORATORIUM ON THE ESTABLISHMENT OF TATTOO PARLORS PURSUANT TO GOVERNMENT CODE SECTION 65858 BACKGROUND On April 11, 2011, the City Council adopted Urgency Ordinance No. 2011-05 ("Interim Ordinance"), enacting; a forty-five (45) day moratorium on the establishment of tattoo establishments, pending study and adoption of regulatory and zoning standards in order to protect the public health, safety and welfare. The moratorium was premised on concerns about conflicts federal appellate court decisions regarding a municipality's ability to regulate tattoo establishments, The potential proliferation of such establishments in the City, and the significant risk of injury to tattoo establishment customers by the improper use and possible unsanitary conditions in such establishments. The moratorium was intended to provide the Police and Planning Departments and the City Attorney sufficient time and opportunity to study the appropriate level of tattoo establishments in the City. ANALYSIS Pursuant to Government Code Section 65858, the moratorium may be extended for ten (10) months and fifteen (1S) days by a four-fifths vote of the City Council. The extension must be supported by legislative findings that there is a current and immediate threat to the public health, safety, and welfare and that the approval of any applicable entitlement for use that is the subject of the moratorium extension would result in a threat to the public health, safety, and welfare. On May 16, 2011, the City Council issued a report pursuant to Government Code Section 65858 reflecting the steps the City is taking in order to alleviate the conditions that led up to the adoption of Urgency Ordinance No. 2011-05. City Staff has not concluded its research and thus has not yet made any final recommendation to the City Council regarding the form of any regulations to be imposed on tattoo establishments and tattoo technicians. For this reason, it is appropriate to extend the moratorium on tattoo establishments through the adoption of Interim Urgency Ordinance No. 2011-05 for the additional statutory period of ten (10) months and fifteen (15) days pursuant to Government Code Section 65858 to permit City Staff to complete their research and make their recommendations and to allow the City Council to adopt such regulations as it deems appropriate in light of those recommendations. FISCAL IMPACT There is no fiscal impact associated with this item ORDINANCE NO. AN INTEFSM URGENCY ORDINANCE OF THE CITY OF AZUSA EXTENDING THE MORATORIUM ON THE ESTABLISHMENT OF TATTOO PARLORS PURSUANT TO GOVERNMENT CODE SECTION 65858 WHEREAS, on September 9, 2010, the Ninth Circuit Court of Appeals issued a decision in Anderson v. City of Hermosa Beach holding that a municipal prohibition on the establishment of tattoo parlors is forbidden; and WHEREAS, the Ninth Circuit's Anderson holding is at odds with the holdings of various other federal appellate court decisions, thereby creating a likelihood of appeal to the Supreme Court of the United States and, therefore, has put the ability of municipalities to regulate tattoo parlors and establishments in a state of flux; and WHEREAS, there is a significant risk of injury to tattoo parlor customers by the improper use and possible unsanitary condition of the tools used by tattoo parlor technicians to permanently transfer pigmentation onto the skin's surface. Additionally, if tattoo establishments were allowed to operate, they should be located in the appropriate zone in the City of Azusa ("City") and subject to reasonable regulation to protect customers of such establishments; and WHEREAS, although tattoo establishments are permitted in restricted zones in the City and specifically addressed in the Azusa Municipal Code ("AMC"), the City has concerns about the proliferation of such establishments. The City Council has directed staff to study the issue of tattoo establishments and has asked the City Attorney to research legal issues and draft an ordinance banning the issuance of permits or licenses for tattoo establishments in the City while the issue is being studied. There is a likelihood that the City will receive an application for a tattoo parlor before it can properly evaluate where tattoo establishments should be allowed and what regulations should be adopted to protect customers of such establishments; and WHEREAS, to address the apparent conflict in laws, as well as the community, statewide, and federal concerns regarding the establishment of tattoo parlors compelled the City Council to adopt a moratorium on the approval or issuance of any new use permits, variance, building permit, business license, operator's permit, or other applicable entitlement to tattoo establishments in the City by a four-fifths vote on April 11, 2011, pursuant to California Government Code Section 65858 ("Moratorium"). The Moratorium has afforded the City an opportunity to study the potential impacts tattoo establishments may have on the public health, safety, and welfare, what City regulations, if any, should be imposed on such establishments and where such establishments should be located in the City; and WHEREAS, the circumstances and conditions that led to the adoption of the Moratorium have. not been alleviated as of the date of this interim urgency ordinance and it is necessary that the City extend the Moratorium to better study and assess the impact tattoo parlors may have on the public heath, safety, and welfare and potential tattoo establishment regulations; and W:\AGENDAM-16-11\Urgency Ord EXT_ Tattool'ador.DOC I WHEREAS, after providing notice pursuant to California Government Code Section 65090 and a public hearing, the City Council may, by a four-fifths vote, extend the Moratorium for an additional period not to exceed ten (10) months and fifteen (15) days. An extension of the Moratorium is intended to prohibit any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the City Council, planning commission or the planning department is considering or studying or intends to study within a reasonable time. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES ORDAIN AS FOLLOWS: SECTION 1. The recitals set forth above are hereby adopted as the findings of the City Council in connection with the adoption of this ordinance. In addition to the recitals stated above, the City Council hereby finds and determines that the absence of adequate regulation of the operations of tattoo establishments constitutes an immediate threat to the public health, safety and welfare. The adoption of this ordinance is necessary for the immediate protection of the public safety, health and welfare. SECTION 2. The purpose of this urgency ordinance is to extend a moratorium on the approval or issuance of any new use permit, variance, building permit, business license, operator's permit, or other applicable entitlement to tattoo establishments in the City, for the immediate preservation of the public health, safety and welfare. For purposes of this ordinance, the term "tattoo" means an indelible mark or figure viewable on or through skin created by inserting pigment under the surface skin of a human being by pricking with a needle or otherwise. A "tattoo establishment" may include a place where body art is applied or where body piercing service is provided. SECTION 3. During the time this ordinance is in effect, no new operator's permit, use permit, variance, building permit, business license, or other entitlement for the establishment or operation of a tattoo establishment in the City shall be issued or approved, nor shall any existing permit for a tattoo establishment be transferred to a new location. SECTION 4. The requirements of this ordinance shall have no application and no effect upon and shall not be construed as applying to the following: A) any treatment administered in the practice of medicine by a physician licensed to practice in this state, or under the personal supervision of such a physician; or B) the application of permanent make-up or cosmetic reconstruction by a licensed cosmetologist, electrologist, or nurse, as defined in the California Business and Professions Code, who has received additional training in the procedures, practices, and techniques of permanent make-up application and cosmetic reconstruction, including the appropriate sanitary practices. W)AGENDAW-16-1 I Wrgcncy 0rd_EXT TmLooPu1or.D0C SECTION 5. The City Council hereby enacts this interim urgency ordinance by not less than a four-fifths vote, and in light of the findings set forth in Section 1, under the authority granted to it by Article XI, Section 7 of the California Constitution and Section 65858 of the California Government Code, which allows the City to extend an interim urgency ordinance prohibiting land uses which may be in conflict with a zoning proposal that the City Council, planning commission or the planning department is considering or studying or intends to study within a reasonable time. The City Council hereby directs the Police and Planning Department and the City Attorney to continue to consider and study possible means of regulating tattoo establishments and tattoo technicians, including zoning -based regulations and other regulations. SECTION 6. The City Council finds that this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Section 15358 (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Further, the City Council finds that this ordinance is exempt under CEQA pursuant to Section 15061(b)(3) (there exists no possibility that the activity will have a significant adverse effect on the environment) of the CEQA Guidelines because this ordinance will not cause a change in any of the physical conditions within the area affected by the ordinance. SECTION 7. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. The City Council hereby declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof. SECTION 8. This ord.inance shall become effective immediately upon adoption if adopted by at least a four-fifths vote of the City Council and shall remain in effect for ten (10) months and fifteen (15) days from the date of expiration of Interim Urgency Ordinance No. 2011-05 unless extended by the City Council as provided for in Government Code Section 65858. SECTION 9. The City Clerk of the City of Azusa shall certify the passage and adoption of this ordinance and shall cause the same, or a summary thereof, to be published and/or posted in the manner required by law. WAAGENDA105-16-1 RUrgency Ord_EX7_TatlOoPwJor.D0C 3 PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Azusa on this day of 2011, by the following vote: AYES: NAYS: ABSENT: ABSTAfN': Joseph Rocha, Mayor ATTEST: Vera Mendoza, City Clerk APPROVED AS TO 17ORM: Sonia R. Carvalho, City Attorney Best Best & Krieger, LLP W:�AGENDAM-16-111Urgency Ord_EXT_Tatwol)arlor.DOC CITY OF AZUSA MINUTES OF THE CITY COUNCIL REGULAR MEETING MONDAY, MAY 2,2011— 6:32 P.M. The City Council of the CiT� 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 The City Council recessed to Closed Session at 6:34 p.m. to discuss the following: I. CONFERENCE WITH LABOR NEGOTIATOR (Gov. Code Sec. 54957.6) Agency Negotiators: Administrative Services Director -Chief Financial Officer Kreimeier and City Manager Delach Organizations APMA (Azusa Police Management Association) Closed Session Conference wlLabor Negotiator APMA 2. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Gov. Code See. 54956.9 Existing Lit (sem Kimberly Vallejos vs. City of Azusa, Los Angeles Superior Court, Case No. KC058363. Vallejos 3. REAL PROPERTY NEGOTIATIONS (Gov. Code See. 54956.8) Agency Negotiators: City Manager Delach and Assistant City Manager Makshanoff Under Negotiation: Price and Terms of Payment. a. BLOCK 37 -BLOCK BUSTER SITE Address: 150 W. Foothill Boulevard, Azusa, CA91702 Negotiating Parties: Antranik and Houri Kassabian h. DOWNTOWN NORTH A2 & A3 Site Addresses: 858 N. Azusa Avenue:, Azusa, CA 832 N. Azusa Avenue, Azusa. CA 826 N. Azusa Avenue:, Azusa, CA 812 N. Azusa Avenue:. Azusa, CA 830 N. Azusa Avenue, Azusa. CA Negotiating Parties: Lewis Retail Centers 801 N. Alameda Avenue, Azusa, CA 810 N. Alameda Avenue, Azusa, CA 803 N. Dalton Avenue, Azusa, CA 805 N. Dalton Avenue, Azusa, CA 809 N. Dalton Avenue, Azusa, CA 813 N. Dalton Avenue, Azusa, CA Real Property Negotiations Block Buster Site Downtown North A2 & A3 Site The City Council reconvened at 7:30 p.m. City Attorney Carvalho advised that there was no reportable No Reports action taken in Closed Session. Mayor Rocha called the meeting to order. Jasmine Cabrera, Stephanie Del Rio, and Alejandra Diaz De Leon led in the Flag Salute. Invocation was given by Pastor Daniel Simonson of Christbridge Immanuel Church ROLL CALL PRESENT: COUNCILMEMBERS: GONZALES, CARRILLO, MACIAS, HANKS, ROCHA ABSENT: COUNCILNIEMBERS: NONE ALSO PRESENT: City Attorney Carvalho, City Manager Delach, Assistant City Manager Makshanoff, Police Chief Garcia, Director of Public Works Haes, Administrative Services Director -Chief Financial Officer Kreimeier, Director of Economic and Community Development Christiansen. Public Information Officer Quiroz, Assistant Director of Economic and Community Development McNamara, Director of Utilities Morrow' City Engineer Hassel, City Clerk Mendoza, Deputy City Clerk Toscana. - Call to Order Flag Salute Invocation Roll Call Also Present PUBLIC PARTICIPATION Pub Part Ms. Jeri Vogel addressed Council stating that there have been people with signs on Azusa Avenue against 1. Vogel the Waste Management Project and they are from a public relations firm. She expressed her opinion in favor Comments of the project. Mr. Bruce Knoles addressed Council presenting a plastic sign that states "school 25 mph slow down" and B. Knoles suggested like signs be placed in the middle of the streets in the vicinity of schools. Comments Mr. Tom Gonzales of Azusa High School addressed Council requesting support for its Marching Band and T. Gonzales the purchase of new uniforms; the cost is $40,000. He stated that they have been having fundraisers and will Comments be having a Menudo cook -off between local restaurants on Saturday May 21" at AHS from 8 a.m. — I p.m. Ms. Elaine Dominguez addressed Council and announced the 5" Annual Mariachi Festival to be held on E. Dominguez Friday, May 131h at 5:30 p.m. at Gladstone High School; the cost is $15. She provided details about the Comments groups performing, stating that the kids are learning in order to become professional performers who perform at weddings, dances, etc. She requested that the fee for the placement of a street banner be waived. Tickets will be sold at the Azusa Unified School District from Monday through Friday from 8 a.m. — 4 p.m. City Attorney Carvalho responded to Mr. Knoles, who suggested placement of plastic signs in the vicinity of Response to local schools, stating that the signs may be a liability as there are rules/policies of state highways and Questions professionals who advise on signage. City Manager Delach stated that the item would be referred to staff for direction. REPORTS, UPDATES COUNCIL BUSINESS AND ANNOUNCEMENTS -STAFF Rpts, Updates Moved by Councilmember Carrillo, seconded by Councilmember Gonzales and unanimously carried to Cert to Students approve the request for certificates of recognition to two students from Foothill School who prepared a petition requesting a crossing guard at Rockvale and First. Moved by Councilmember Macias, seconded by Councilmember Gonzales and unanimously carried to Waive Banner approve request to waive banner placement fees for the Azusa Unified Mariachi Program Concert. Fees Mariachi Moved by Councilmember Macias, seconded by Councilmember Carrillo and unanimously carried to Sponsor AHS sponsor a donation in the amount of $200 to the Azusa High School Marching Band uniform fund. Marching Band Mayor Pro -Tem Hanks expressed his appreciation to Navy SEALS Team Six, a top military counter- Hanks terrorism unit, who captured and killed Osama Bin Laden, a terrorist. He also thanked the City for coming Comments out to the Third Annual Morman Helping Hand Service Day event on Saturday, April 30i°, and he noted that all will have a chance to take a position on the proposed Materials Recovery Facility during a public hearing. Councilmember Gonzales congratulated the Parks and Recreation Department for the success of the Cinco Gonzales De Mayo Celebration on Sunday, May 1". He announced the AYP Barbeque on Saturday, June 0 at the Comments Azusa Senior Center and wished all a Happy Mother's Day. Councilmember Carrillo wished all a Happy Mother's Day. Carrillo Cmts Councilmember Macias wished all a Happy Mother's Day and announced the Chamber of Commerce Texas Macias Hold um on May 20th, at 6:00 p.m. at the Eagles Club. For additional information call Mercedes Cortez at Comments 626 969-3997. Mayor Rocha thanked staff for the Cinco de Mayo celebration, and announced the following: May 4' the Rocha City Library becomes an official Family Place Library, May 5'h National Day of Prayer at the Centro Comments Esperanza Church, May 8" Mother's Day — he wished all mothers a Happy Mother's Day and asked staff to keep the street flower vendors out of Azusa, May I lu Friends of Azusa City Library re -opening event. May IP Mariachi de Azusa at Gladstone High Gym, May 14' Car Show and Car Wash with proceeds going to families of kids hit by a car on First Street, and May 10 Azusa American Little League Dance. He asked staff for an estimate on cost for playground equipment mesh; as asked all to keep servicemen in prayer. SCHEDULEDITEMS SEWER FUND RATE INCREASE. - City Engineer Hassel addressed the issue stating that this is a request to mail a 45 -day advanced notice of a public hearing to consider a Sewer Fund Rate Increase. The sewer master plan has been completed, the system has been reviewed, there is a need for an increase in the Sewer rates in order to repair many major and minor problems found, fund the 10 -year Sewer Capital Improvement Program (CIP) and to meet the new State mandated requirements with the National Pollution Discharge Elimination System Program. The rate in place will end 2013, the proposed increase is 1% in addition to the existing 4%, and there will be discount rates for low income residents. He asked that the mailing be approved in order to combine noticing with refuse rate public hearing notice which will be a savings of $3,000. He responded to questions posed by Councilmembers regarding age of sewer system and street sweeping cost savings. 05/02/11 PAGE TWO Sched Items Sewer Fund Rate — Notice A Moved by Councilmember Macias, seconded by Mayor Pro -Tem Hanks and unanimously carried to Sewer Rate authorize staff to print and mail a 45 -day advanced notice of public hearing to be held June 20, 2011 io Notice approved consider the Sewer fund rate increase. The CONSENT CALEN➢BAR consisting of Items D-1 through D-5 was approved- by motion of Consent Councilmember Gonzales, seconded by Mayor Pro -Tem Hanks and unanimously carried. Calendar 1. The minutes of the regular meeting of April 18, 2011, and the special meetings of March 16' and Min appvd April 11N. 2011, were approved as written. Approved 2. HUMAN RESOURCES ACTION ITEMS. Human Res Human Resources Action Items were approved as follows: Action Items Promotion: J. Poulos to Police Officer effective May 19; 2011. 3. The City Treasurer's Report as of March 31, 2011, was received and filed. Treas Rpt 4. Approval was given for the Reimbursement Agreement for the 2011 Tour of California, Stage 7 in Reimbrse Agmt substantial form subject to any additional changes made by Bre City Attorney and City Manager. AMGEN TOUR 5. The following resolution was adopted and entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA ALLOWING CERTAIN Res. I I -C32 CLAIMS AND DEMANDS AND SPECIFYING THE FUNDS OUT OF WHICH THE SAME ARE Warrants - TO BE PAID. - SPECIAL CALL ITEM None, Spec Call None. THE CITY COUNCIL CONVENED JOINTLY WITH THE REDEVELOPMENT AGENCY AT Convene Jointly 8:08 P.M. TO DISCUSS THE FOLLOWING: with CRA JOINT CITY/AGENCY AGENDA ITEM Joint Item LOAN AGREEMENT AND BUDGET AMENDMENT FOR SUPPLEMENTAL EDUCATIONAL Loan Agmt REVENUE AUGMENTATION FUND (SERAF) PAYMENT SERAF Director of Economic and Community Development Christiansen addressed the issue stating that the K. Christiansen Redevelopment Agency of the City of Azusa is obligated to pay $513,030 to Los Angeles County for deposit Comments into the SERAF Fund by May 10, 2011 and it is being presented for approval. . Director Hanks offered a Resolution entitled: A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA REQUESTING A Res. l l -R20 LOAN FROM THE CITY OF AZUSA FOR PURPOSES OF THE MERGED AND RANCH CENTER Requesting REDEVELOPMENT PROJECT AREAS. Loan from City Moved by Director Hanks, 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 Hanks offered a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA AUTHORIZING LOANS FOR Res. 11-C33 PURPOSES OF THE MERGED AND RANCH CENTER REDEVELOPMENT PROJECT AREAS. Authorizing Loan to Agency Moved by Mayor Pro -Tem Hanks, seconded by Councilmember Gonzales to waive further reading and adopt. Resolution passed and adopted by the following vote of the Council: AYES: COUNCILMEMSERS: GONZALES, CARRILLO, MACIAS, HANKS, ROCHA NOES: COUNCILM EMBERS: NONE. ABSENT: COUNCILMEMBERS: NONE Mayor Pro -Tem Hanks offered a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING Res. 11-04 APPROPRIATION AMENDMENTS FOR FISCAL YEAR 2010/11 PURSUANT TO SECTION 2-450 OF Approving THE AZUSA MUNICIPAL MODE. Appropriation Amendment 05/02/11 PAGE THREE Moved by Mayor Pro -Tem Hanks, seconded by Councilmember 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 Director Hanks offered a Resolution entitled: A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA APPROVING Res.]] -P,21 APPROPRIATION AMENDMENTS FOR FISCAL YEAR 2010/11 PURSUANT TO SECTION 2-450 OF Approving THE AZUSA MUNICIPAL CODE. Appropriation Amendment Moved by Director Hanks, 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 THE CITY COUNCIL RECESSED AND THE REDEVELOPMENT AGENCY CONTINUED AT Cncl Recess 8:14 P.M. THE REDEVELOPMENT AGENC17 ADJOURNED AND AZUSA PUBLIC FINANCING CRA & APFA AUTHORITY CONVENED AT 8:15. THE CITY COUNCIL RECONVENED AT 8:16 P.M. Convened Cncl Rcnd It was consensus of Councilmembers to adjourn. Adjourn TIME OF ADJOURNMENT: 8:16 P.M. CITY CLERK NEXT RESOLUTION NO. 2011-C35. NEXT ORDINANCE NO. 2011-06. 05/02/11 PAGE FOUR 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: MAY 16, 2011 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 On May 10; 2011, the Personnel. Board confirmed the following Department Head recommendations regarding the following Personnel Action requests. A. MERIT INCREASE AND/OR REGULAR APPOINTMENT: DEPARTMENT NAME . ,.. CLASSIFICATION ACTION/EFF RANGE/STEP RFS Ramon Arevalo From: Park Maintenance "DATE . BASE MO SALARY RFS Adrian Martinez Recreation Coordinator Merit Increase 4151/3 To: Park Maintenance 05/03/2011 $3,655.49 B. FLEXIBLE STAFFING PROMOTION: The following flexible staffing promotional appointments have been requested by department head(s) pursuant to the Rules of the Civil Service System, DEPARTMENT 'NAME CLASSIFICATION FROMlTO EFFECTIVE DATE RANGE/STEP BASE MO. SALARY RFS Ramon Arevalo From: Park Maintenance 04/17/2011 4163/5 Worker I $4.404.60 To: Park Maintenance Worker II FISCAL IMPACT There is no fiscal impact, as positions listed are funded in approved department budgets. CONSENT CALENDAR TO: THE HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: JOE JACOBS, DIRECTOR OF RECREATION AND FAMILY SERVICES VIA: F. M. DELACH, CITY MANAGER DATE: MAY 16, 2011 SUBJECT: NOTICE OF COMPLETION OF PICNIC SHELTER INSTALLATION AT SLAUSON PARK (CIP PROJECT #601332-10) RECOMMENDATION: It is recommended that City Council approve the Notice of Completion of the picnic shelter installation at Slauson Park in the amount of $57,273.00, and authorize staff to:file the Notice of Completion with the Los Angeles County Clerk, BACKGROUND: The Picnic Shelter Installation Project was approved as part of the adopted FY 2010-11 CDBG Program. City Council authorized solicitation of bids at their meeting of September 20, 2010 and later approved award of contract on November 1, 2010. Project construction commenced on March 9, 2011, and was completed on Friday, April 15, 2011. FISCAL IMPACT: The budget for this project was $57,300 and held in CDBG account 18-80-000-910-7130 specifically for this purpose. The project came in under budget. Attachment — Notice of Completion 11-042 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: F NAME Azusa City Clerk STREET ADDRESS 213 E. Foothill Blvd. CITY, STATE & Azusa, CA 91702 ZIP CODE NOTICE OF COMPLETION Notice pursuant to Civil Code Section 3093, must be filed within 10 days after completion. (See reverse side for Complete requirements.) Notice is hereby given that: 1. 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 City of Azusa 3. The full address of the owner is 213 E. Foothill Blvd., Azusa, CA 91702 4. The nature of the interest or estate of the owner is: In fee. (MOTHER THAN FEE. STRIKE AIN FEFOANO INSERT, FOR E% I -E, APURCHASER UNDER CONTRACT OF PURCHASEe OR NF,SSEE¢) 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 6. The full names and full addresses of the predecessors in interest of the undersigned, if the property Avas transferred subsequent to the commencement of the work or improvements herein referred to: NAMES - ADDRESSES 7. A work of improvement on the property hereinafter described was completed on April 15, 2011. 8. The name of the contractor, if any, for such work of improvement was Creative Contractor Corporation. 9. The property on which said work of improvement was completed is in the City of Azusa., County of Los Angeles, State of CA; and is described as follows: a public park (Slauson Park). 10. The street address of said property is 501 E. 5" Street., Azusa, CA. Joe Rocha, Mayor Dated: Mav 16, 2011 (SIGNANRF, OF OWNER OR COPSORATE OFFICER OF OW NA M IN PNAGWH 2 OR HIS AGEOm VERIFICATION I, the undersigned, say: I am the the declarant of the foregoing notice of completion; (APRF.SIDEM OF., AMANAGER Or., APARTNER OF., AOKYR Oia, 1'1 L') 1 have read said notice of completion and know the contents thereof; the same is true of my own knowledge. I declare under penalty of perjury that the foregoing is We and correct. Executed on at (CITY) (STATE) (PERSONAL SIGNATURE OF THE: INDIVTDUAL WO IS SWEARING THAT THE CONTENTS OF THE NOTICE OF C LF,TION ARE TRUE) 3 0 CONSENT ITEM TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: TITO HAES, ASSISTANT CITY MANAGER/PUBLIC WORKS DIRECTOR VIA: F.M. DELACH, CITY MANAGER, DATE: MAY 16, 2011 SUBJECT: CIP #66111I) -PAVEMENT MANAGEMENT PROGRAM —AUTHORIZATION TO AWARD CONTRACT TO ALL AMERICAN ASPHALT INC. RECOMMENDATION It is recommended that the City Council authorize staff to award CIP #66111D, Pavement Management Program, to All American Asphalt Inc. BACKGROUND On March 21, 2011, the City Council authorized staff to solicit bids for the Pavement Management Program. As part of this year's program, Barranca Avenue from the Southerly City Limit to the Northerly City Limit is included to be repaved and there are several streets included to be slurry sealed. Attached is a detailed list of street sections to be addressed this year. Bids were opened on May 5, 2011 at 10:00 am. A total of three bids were received. Following is a list of bids received. No. Company Location Total Bid w/ Alternate Total Bid w/o Alternate 1 All American Asphalt, Inc. Corona, CA $477,000.00 $358,000.00 2 Pavement Coatings Co. Mira Loma, CA $489,354.05 $357,173.90 3 Sully Miller Contracting, Inc. Brea, CA $499,450.00 $375,150.00 All American Asphalt Inc. was the low bidder with a bid of $477.000. FISCAL IMPACT The actual cost for CIP #66111D is $524,700 which is based on the bid amount plus a 10% allowance for potential change orders. The FY 2010-11 annual budget provided $500,000 in Metro Flex funds for the CIP. Pending approval of an Agreement between the cities of Azusa and Glendora, the City of Glendora will contribute $130,900 towards the project. This amount is based on the bid alternate amount plus a 10% allowance for potential change orders to the project to perform the work on Barranca Avenue within the City of Glendora. The total project cost for the City of Azusa shall be $393,800. Attachment: Pavement/Slurry Street Locations PAVEMENT LOCATIONS COLD IN-PLACE RECYCLING Barranca from Southerly City Limit to Northerly City Limit Type II Slurry Seal Alosta Avenue from Foothill Boulevard to Big Dalton Wash Alosta Avenue from Big Dalton Wash to Citrus Avenue. Ranburn Ave from Armstead to Alford Alford from Ranburn to Galanto Ave Galatea from Ranburn to Galanto Ave Citrus Edge from Ranburn to Galanto Ave Armstead from Citrus Ave to Galanto Ave Fondale from Fairvale to Galanto Ave Nearfield St from Citrus Ave.to Fairvale Ave Gaillard St from westerly culdesac to Galanto Ave Ghent from westerly culdesac to Grantland Ave Ghent from Fairvale to Galanto Ave Grantland from Gailard to Gladstone Frontage Rd Ranger Dr from Gaillard to northerly culdesac Calera Ave from Gaillard to northerly culdesac Fairvale Ave from Gladstone St to Armstead Gladstone frontage road from Galanto to westerly culdesac San Gabriel Cyn from Shady Oaks Court to northerly City limits Tyge II Slurry Seal(including rut re air and cracks Leton Ave from Newburgh to Azusa Newburgh Ave from Azusa Ave to Donna Beth Payson Ave from Azusa Ave to Donna Beth Alameda Ave from culdesac n/o Payson to Kirkwall Rd. Kirkwall Rd from Alameda Ave to easterly culdesac Grandin Ave from Payson Ave to northerly culdesac Renwick Rd from Homerest to easterly culdesac Kirkwall Rd from Homerest to easterly culdesac Payson Ave from Homerest to Rue De Valle Rue De Valle from Payson Ave to Orkney Mary Ann Court from Sally Lee to westerly culdesac Sally Lee from Renwick Rd to Orkney Suzzana Marie Ct from Sally Lee to westerly culdesac Cindy Lou Ct from Sally Lee to easterly culdesac n CONSENT ITEM TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: TITO HAES, ASSISTANT CITY MANAGER/DIRECTOR OF PUBLIC WORKS VIA: F. M. DEL.ACH, CITY MANAGERA* DATE: MAY 16, 2.011 SUBJECT: APPROVAL OF A COOPERATION AND REIMBURSEMENT' AGREEMENT WITH TETE CITY OF GLENDORA FOR THE RECONSTRUCTION OF BARRANCA AVENUE FROM THE NORTHERLY CITY LIMIT OF AZUSA TO HOLLYVALE STREET. RECOMMENDATION: Staff recommends that the City Council authorize staff to enter into a Cooperation and Reimbursement Agreement with the City of Glendora for the reconstruction of Barranca Avenue from the northerly city limit of Azusa to Hollyvale Street. BACKGROUND: As part of the City of Azusa's Pavement Management Program, Barranca Avenue, within the City Limits, is scheduled to be reconstructed because it is aged and deteriorated. In order to achieve an economies of scale and maintain consistency to the road, the City of Glendora was approached regarding reconstructing Barranca Avenue within Glendora City Limits as a part this project. Pursuant to the proposed Agreement, the City of Glendora will contribute a not to exceed amount of $130,900 to fund their portion of the Project. The City of Glendora is scheduled to present the Agreement to their City Council on June 141i. In order to prevent delaying the project, staff requests approval of the Agreement. Should the City of Glendora fail to approve the Agreement, the scope of work within the City of Glendora will be removed from the Project. FISCAL IMPACT: Should the Agreement be approved by both cities, the City of Glendora will provide $130,900 to cover the portion of work within their City Limits. Attachment: Cooperation and Reimbursement Agreement with the City of Azusa and Glendora This Cooperation and Reimbursement Agreement ("Agreement') is made this 16`h day of May, 2011, by and between the City of Azusa, a municipal corporation ("Azusa") and the City of Glendora, a municipal corporation ("Glendora"). Azusa and Glendora are sometimes individually referred to herein as "Party" and collectively as "Parties." RECITALS This Agreement is made with respect to the following: A. Barranca Avenue is a street that is aged and deteriorating requiring reconstruction. B. The City of Azusa owns the west half of Barranca Avenue from the northerly city limits of Azusa south to Hollyvale Street. C. The City of Glendora owns the east half of Barranca Avenue from the northerly city limits of Azusa south to Hollyvale Street. D. The City of Azusa has a CIP project to reconstruct the west half of Barranca Avenue. Given the cost benefit of the completing the entire street at one time. The City of Glendora will contribute funds to complete the east half of Barranca Avenue. E. Reconstruction of Barranca Avenue will be from the northerly border of the City of Azusa south to Hollyvale Street. F. Method of reconstruction is cold -in-place recycling to a depth of 6 inches. Visible appurtenant items such as water valves, manholes, traffic signal loops will be adjusted or replaced to the new grade of the roadway. G. The City of Azusa shall undertake the reconstruction of Barranca Avenue from the northerly city limit of the City of Azusa south to Hollyvale Street ("Location") located in the City of Azusa and in the City of Glendora. Included in the project shall be the reconstruction of the east half of Barranca Avenue. H. In order to address the reconstruction of the roadway that is the City of Glendora's responsibility, the Parties have agreed to cooperate among themselves to make improvements to the Location, with Azusa acting as the lead agency for the design of the improvements and acting as the lead agency for the construction of the improvements. The Parties have agreed to implement those improvements more particularly described in Exhibit A attached hereto and incorporated herein by this reference ("Project"). I. The Parties have agreed to share the total costs of the Project as set forth herein, total cost is $477,265.72 based on the low bidders bid received on May 4, 2011 for the design and construction of the Project. J. The City of Glendora has agreed to contribute an amount to the Project of a not to exceed amount of $130,900 to the construction of the project. AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, the Parties agree as follows: SECTION 1 CITY OF GLENDORA OBLIGATIONS: 1.1 The City of Glendora shall contribute and pay to Azusa a not to exceed amount of $130,900 for the Project. The City of Glendora's contribution shall be payable within 30 days of Azusa providing City of Glendora with an accounting of the construction costs, which shall occur when Azusa receives the Construction Contract. SECTION 2 AZUSA OBLIGATIONS: 2.1 Azusa shall serve as lead agency for design and construction of the Project. Azusa shall construct the Project by contract in accordance with the Approved Plans and Specifications. 2.2 Azusa shall also be the lead agency for the Project with respect to CEQA. In this regard, nothing set forth in this Agreement shall be construed to compromise Azusa's independent and objective determination, as the lead agency, concerning satisfaction and compliance with the requirements of CEQA with respect to the Project. 2.3 Upon completion of the Approved Plans and Specifications, Azusa shall issue a Request for Proposals for construction of the Project pursuant to the California Uniform Public Construction Cost Accounting Act ("CUPCCAA") and the Azusa Municipal Code. Azusa shall advertise, award, administer and construct the Project in accordance with CUPCCAA, the Azusa Municipal Code and in accordance with the Approved Plans and Specifications, to the lowest responsible bidder ("Construction Contract"). Azusa shall commence the process of awarding the Construction Contract within 60 days of completion of the Approved Plans and Specifications. 2.4 The Construction Contract shall include provisions reasonably acceptable to the Parties providing that (i) the contractor and all subcontractors for the Project shall defend, indemnify and hold the Parties harmless from all claims related to the work of the Construction Contract and (ii) the contractor and all subcontractors for the Project shall carry insurance naming the Parties as additional insureds. 2.5 Upon Azusa's award of the Construction Contract, Azusa shall have the Project constructed in a timely and professional manner and in accordance with the Construction Contract and shall provide all requisite inspections of the Project. Azusa shall notify the Parties of the completion of construction of the Project, and the Parties shall promptly inspect the Project for approval and acceptance, which approval and acceptance shall not be unreasonably withheld, conditioned or delayed, provided the Project conforms to the Approved Plans and Specifications. The Parties shall state in writing their approval and acceptance or the reasons for disapproval based upon the final Approved Plans and Specifications within ten (10) business days of Azusa notifying the Parties of the completion of construction of the Project. Upon receipt of any disapproval, Azusa shall promptly have the Project revised for subsequent inspection by the Parties for conformance with the final Approved Plans and Specifications. A Party may submit field changes to the Approved Plans and Specifications for the other Parties' approval (which shall not be unreasonably withheld, conditioned or delayed), provided all costs associated with such field changes shall be borne by the Party requesting such change. 2.6 Azusa shall pay the remaining Project costs, after the other Party has contributed its respective financial obligation, consisting of a financial contribution by City of Glendora of a not to exceed amount of $130,900. Azusa's proportionate share of Project costs shall be the remainder of the awarded bid price. SECTION 3 3.1 Incorporation of Recitals. The parties agree that the Recitals constitute the factual basis upon which the Parties have entered into this Agreement. The Parties each acknowledge the accuracy of the Recitals and agree that the Recitals are incorporated into this Agreement as though fully set forth at length. 3.2 Cooperation. The Parties shall provide any assistance requested by each other with respect to the implementation and administration of the Project. The Parties shall cooperate with one another relative to any other action necessary to ensure each Party retains the authority to perform the functions required by, or to achieve the objectives of, the Agreement. In this regard, the Parties shall waive all permit fees associated with the Project. Parties shall grant each other any necessary licenses to access the Project site at no charge. 3.3 Term. The term of this Agreement shall commence on the date that this Agreement is approved by the Parties and shall terminate when all work required by each Party has been completed to the other Parties' reasonable satisfaction as evidenced by acceptance and approval of the Project, and the Parties have satisfied all of their obligations under this Agreement. 3.4 Remedies Upon Default. An event of default shall be deemed to exist upon the occurrence of all three of the following: (i) A Party has, without legal justification or excuse, breached any one or more of its obligations under this Agreement; and (ii) A, nondefaulting Party has sent written notice to the Party claimed to be in default, specifying the default and what actions the nondefaulting Party asserts should be taken to remedy the default; and (iii) The Parry claimed to be in default has not, within ten (10) days following receipt of the written notice described above, either corrected the default or taken actions, reasonably satisfactory to the nondefaulting Parties, to remedy the default within a reasonable period of time, but in no event longer than thirty (30) days after receipt of the written notice described above. Following an event of default, the nondefaulting Parties may exercise any and all remedies available to it pursuant to this Agreement, or at law or in equity, including, without limitation, instituting an action for damages, injunctive relief, or specific performance. 3.5 Nonwaiver of Rights or Remedies. The failure of a Party to exercise any one or more of its rights or remedies under this Agreement shall not constitute a waiver of that Party's right to enforce that right or seek that remedy in the future. No course of conduct or act of forbearance on any one or more occasions by any party to this Agreement shall preclude that party from asserting any right or remedy available to it in the future. No course of conduct or act of forbearance on any one or more occasions shall be deemed to be an implied modification of the terms of this Agreement. 3.6 Assign abili . This Agreement may not be assigned by any Party without the express written consent of the other Parties, which consent shall not be unreasonably withheld or delayed. Any attempted assignment of this Agreement not in compliance with the terms of this Agreement shall be null and void and.shall confer no rights or benefits upon the assignee. 3.7 No Oral Modifications. This Agreement represents the entire understanding of the Parties and supersedes all other prior or contemporaneous written or oral agreements pertaining to the subject matter of this Agreement. This Agreement may be modified, but only by a writing signed by all Parties. 3.8 Binding Upon Successors. This Agreement and each of its terms shall be binding upon the Parties and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns. 3.9 Indemnification. The Parties shall require that every contract include a provision that contractors shall indemnify and hold harmless the Parties from all claims, lawsuits, judgments, and causes of action arising out of contractors' negligence or delay relating to the scope of work under the applicable contract in connection with the Project. The contracts shall also require the contractor to promptly notify the Party of any such claim or action, cooperate fully with the Parties, at the contractor's costs, in the defense of such claim, and be responsible for its actual legal fees and costs, including actual attorneys' fees, which may be incurred in defense of such action or proceeding. 3.10 Jurisdiction and Venue. Any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of Los Angeles, California. The Parties each consent to the personal jurisdiction of the court in any such action or proceeding. This Agreement shall be governed by and construed under and in accordance with the laws of the State of California, without giving effect to the conflict of laws rules thereof. 3.11 Attorneys' Fees. In the event that any action or proceeding, including arbitration, is commenced by one or more Parties against one or more other Parties to establish the validity of this Agreement or to enforce any one or more of its terms, the prevailing party in any such action or proceeding shall be entitled to recover from the other, in addition to all other legal and equitable remedies available to it, its reasonable attorneys' fees and costs. 3.12 Time is of the Essence. Except as otherwise expressly stated, time is of the essence in the performance of every act required pursuant to this Agreement. 3.13 Covenant of Further Assurances. The Parties shall take all other actions and execute all other documents which are reasonably necessary to effectuate this Agreement. 3.14 Interpretation. The Parties agree that this Agreement is the product of mutual negotiations and is an arms -length transaction. Each party has negotiated this Agreement with the advice and assistance of legal counsel of its own choosing. It is further agreed that this Agreement is a product of mutual drafting efforts by the Parties and, accordingly, the rule that ambiguities in a document shall be construed against the drafter of the document shall have no application to this Agreement. In construing and interpreting this Agreement, the finder of fact shall give effect to the mutual intention of the Parties, notwithstanding such ambiguity, and may refer to the facts and circumstances under which this Agreement is made and such other extraneous evidence as may assist the finder of fact in ascertaining the intent of the Parties. 3.15 Headings. The headings of each Section of this Agreement are for the purposes of convenience only and shall not be construed to either expand or limit the express terms and language of each Section. 3.16 Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the Parties agree that they would have executed this Agreement notwithstanding the invalidity of such term or provision. The invalid term or provision may be severed from the Agreement and the remainder of the Agreement may be enforced in its entirety. 3.17 Representations of Authority. Each party signing this Agreement on behalf of a Party which is not a natural person hereby represents and warrants to the other Parties that all necessary legal prerequisites to that party's execution of this Agreement have been satisfied and that he or she has been authorized to sign this Agreement and bind the Party on whose behalf he or she signs. 3.18 Notices. Notices required under this Agreement shall be sent to the following: If to Azusa: City of Azusa 213 East Foothill Boulevard Azusa, CA 91702-1395 Attention: Tito Haes, Assistant City Manager/ Director of Public Works Facsimile No. (626) 334-5464 With a copy to: Best Best & Krieger LLP 5 Park Plaza, Suite 1500 Irvine, California 92614 Attention: Sonia Carvalho, Esq. If to City of Glendora: City of Glendora 116 E. Foothill Blvd. Glendora, CA 91741 Attention: Dave Davies, Public Works Director With a copy to: City of Glendora 116 E. Foothill Blvd. Glendora, CA 91741 Attention: Jerry Burke, City Engineer Notices given pursuant to this Agreement shall be deemed received as follows: (i) If sent by United States Mail - five (5) calendar days after deposit into the United States Mail, first class postage prepaid. (ii) If' by facsimile - upon transmission and actual receipt by the receiving party. (iii) Ifby express courier service or hand delivery - on the date of receipt by the receiving party. 3.19 Days. Unless otherwise specified to the contrary, "days" in this Agreement shall mean calendar, not business, days. , Dated: ATTEST: IN Vera Mendoza, City Clerk CITY OF AZUSA, a municipal corporation C Joseph R. Rocha Mayor APPROVED AS TO FORM: City Attorney Dated:. May_, 2011 CITY OF GLENDORA R -A EXHIBIT A Project shall reconstruct Barranca Avenue from the northerly city limit of the City of Azusa south to Hollyvale Street. Method of reconstruction is cold -in-place recycling of the asphalt to a depth of 6 inches. Visible appurtenant items such as water valves, manholes, traffic signal loops will be adjusted or replaced to the new grade of the roadway. Also, included is the replacement of the traffic striping. CONSENTITEM TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: TITO HAES, ASSISTANT CITY MANAGER/PUBLIC WORKS DIRECTOR VIA: F. M. DELACH, CITY MANAGER DATE: MAY 16,20 11 SUBJECT: CIP #661111 — FOOTHILL CROSSWALKS PROJECT — AUTHORIZATION TO AWARD CONTRACT TO ANCHOR CONSTRUCTION AND ENGINEERING, INC. AND APPROVE A BUDGET AMENDMENT IN THE AMOUNT OF $49,265.72 TO BE FUNDED FROM PROP C. RECOMMENDATION: It is recommended that the City Council authorize staff to award CIP #66111I, Foothill Boulevard Crosswalks Project to Anchor Construction and Engineering, Incorporated and to approve a budget amendment in the amount of $49,265.72 to be funded from Prop C. BACKGROUND: The intersections of Foothill Boulevard/Dalton Avenue, Foothill Boulevard/Azusa Avenue and Foothill Boulevard/San Gabriel Avenue have been deteriorating since their last full construction in 1997. Based on the type of deterioration, the crosswalks at these locations will require full reconstruction. Also, to bring the ramps at all four comers of each intersection into compliance with the American Disability Association requirements, the ramps will be reconstructed. Bids were opened on May 4, 2011 at 2:00 pm. Following is a list of bids received. 1 Anchor Construction Engineering, Inc. La Verne. CA $220, 241.56 2 TSR Construction and Inspection. Rancho Cucamonga, CA $234, 104.00 3 Kormx, Inc. West Covina, CA $241, 038.00 4 MCI Azusa. CA $269, 967.85 5 Freeway Electric Inc. Riverside, CA $326, 026.00 6 JDC Inc. Rancho Cucamonga, CA $399, 867.00 7 Kalban Inc. Sun Valley, CA $399, 873.00 8 Gentry Brothers Inc. Irwindale, CA $469, 522.00 A total of eight bids were received with Anchor Construction and Engineering, Incorporated being the low bidder with a bid of $220,241.26. FISCAL IMPACT: The actual cost for CIP #6611 LI is $242,265.72, which is based on the bid amount plus a 10% allowance for potential change orders. The FY 2010-11 annual budget provided $160,000 in Surface Transportation Program Local (STPL) funds for this CIP. As such, a budget amendment of $49,265.72 is required to complete this project. Because of the limitations and amount of work involved with federally funded projects, staff recommends a budget amendment to fund the project with Prop C funds. It is recommended that the STPL funds be rolled over and await a larger project where the resources will be used more efficiently. The remainder, $33,000, will be funded by APU pursuant to an Agreement between the City and APU. -2- CONSENT ITEM TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: TITO HAES, ASSISTANT CITY MANA. GGERIDIRECTOR OF PUBLIC WORKS VIA: F. M. DEL.ACH, CITY MANAGER f V�) DATE: MAY 16, 2,011 / I SUBJECT: APPROVAL OF A COOPERATION AND REIMBURSEMENT AGREEMENT WITH AZUSA PACIFIC UNIVERSITY (APU) FOR THE INSTALLATION OF ELECTRICAL CONDUITS UNDER NEW CROSSWALKS AT THE INTERSECTIONS FOOTHILL BOULEVARD AND SAN GABRIEL AVENUE, AZUSA AVENUE AND DALTON AVENUE. RECOMMENDATION: Staff requests that the City Council authorize staff to enter into a Cooperation and Reimbursement Agreement with Azusa Pacific University for the installation of new electrical duct banks under the proposed reconstructed crosswalks at the intersections of Foothill Boulevard and San Gabriel Avenue, Azusa Avenue and Dalton Avenue. BACKGROUND: On March 21, 2011, the City Council approved entering into an agreement with APU for the installation of new electrical conduit under the proposed reconstructed crosswalks at the intersections of Foothill Boulevard and San Gabriel Avenue, Azusa Avenue, and Dalton Avenue. At that time, staff estimated the cost of the additional work at $20,000. Staff stated that should this amount not be sufficient to pay for the additional work, staff would bring this item back to the Council for further consideration. Staff opened the bids on May 4, 2011. The actual cost for the work will be $33,000 based on the low bidder's price for this line item. This requires a change to the MOU to reflect the actual cost. Therefore, APU will contribute an additional $13,000 to accomplish this important part of the project. FISCAL IMPACT: APU is providing a not; to exceed amount of $33,000 to fund the costs associated with the electrical duct banks for APU's future use. Attachment: Cooperation and Reimbursement Agreement with the City of Azusa and APU. FOOTHILL CROSSWALKS COOPERATION AND REIMBURSEMENT AGREEMENT This Cooperation and Reimbursement Agreement ("Agreement") is made this 16`h day of May, 2011, by and between the City of Azusa, a municipal corporation ("Azusa") and Azusa Pacific University, a California religious corporation ("Azusa Pacific"). Azusa and Azusa Pacific University are sometimes individually referred to herein as "Party" and collectively as "Parties." RECITALS This Agreement is made with respect to the following: A. The Specific Plan for the Azusa Pacific University (APU) requires additional electrical capacity from the City of Azusa Light and Water (ALW) Department to meet future development needs at the West Campus according to APU's expansion master plan. B. The City of Azusa has a CIP project to remove and replace the concrete crosswalks at the intersections along Foothill Boulevard at San Gabriel Avenue, Azusa Avenue and Dalton Avenue. C. APU requires additional electric capacity in the form of new underground electric distribution facilities to be extended from Angeleno Avenue east to just west of Rockvale Avenue along the Foothill Boulevard corridor. D. Installation of the electrical duct banks shall cross the proposed work at a future date. Installing the electrical duct banks can avoid future crosswalk replacement. Therefore, a portion of said project will be constructed while the concrete crosswalks are removed and replaced. E. The City of Azusa shall undertake the reconstruction of the certain existing public improvements at the intersections of Foothill Boulevard at San Gabriel Avenue, Azusa Avenue and Dalton Avenue ("Location") located in the City of Azusa. Included in the project shall be construction of the electrical duct banks that APU will require for future development. F. In order to address the conduit work that is APU's responsibility, the Parties have agreed to cooperate among themselves to make improvements to the Location, with Azusa acting as the lead agency for the design of the improvements and acting as the lead agency for the construction of the improvements. The Parties have agreed to implement those improvements more particularly described in Exhibit A attached hereto and incorporated herein by this reference ("Project"). G. The parties have already prepared and executed an MOU for APU's agreed to contribution of $20,000 to the project. Said MOU was approved at the March 21, 2011 City Council Meeting. H. The Parties have agreed to share the total costs of the Project as set forth herein, total cost is $242,265.72 based on the low bidders bid received on May 4, 2011 for the design and construction of the Project. I. APU has agreed to contribute an additional amount to the Project of a not to exceed amount of $13,000 to the construction of the project. AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, the Parties agree as follows: SECTION 1 AZUSA PACIFIC OBLIGATIONS: 1.1 Azusa Pacific University shall contribute and pay to Azusa a not to exceed amount of $13,000 for the Project. Azusa Pacific's contribution shall be payable within 30 days of Azusa providing Azusa Pacific University with an accounting of the construction costs, which shall occur when Azusa receives the Construction Contract. SECTION 2 AZUSA OBLIGATIONS: 2.1 Azusa shall serve as lead agency for design and construction of the Project. Azusa shall construct the Project by contract in accordance with the Approved Plans and Specifications. 2.2 Azusa shall also be the lead agency for the Project with respect to CEQA. In this regard, nothing set forth in this Agreement shall be construed to compromise Azusa's independent and objective determination, as the lead agency, concerning satisfaction and compliance with the requirements of CEQA with respect to the Project. 2.3 Upon completion of the Approved Plans and Specifications, Azusa shall issue a Request for Proposals for construction of the Project pursuant to the California Uniform Public Construction Cost Accounting Act ("CUPCCAA") and the Azusa Municipal Code. Azusa shall advertise, award, administer and construct the Project in accordance with CUPCCAA, the Azusa Municipal Code and in accordance with the Approved Plans and Specifications, to the lowest responsible bidder ("Construction Contract"). Azusa shall commence the process of awarding the Construction Contract within 60 days of completion of the Approved Plans and Specifications. 2.4 The Construction Contract shall include provisions reasonably acceptable to the Parties providing that (i) the contractor and all subcontractors for the Project shall defend, indemnify and hold the Parties harmless from all claims related to the work of the Construction Contract and (ii) the contractor and all subcontractors for the Project shall carry insurance naming the Parties as additional insureds. l 2.5 Upon Azusa's award of the Construction Contract, Azusa shall have the Project constructed in a timely and professional manner and in accordance with the Construction Contract and shall provide all requisite inspections of the Project. Azusa shall notify the Parties of the completion of construction of the Project, and the Parties shall promptly inspect the Project for approval and acceptance, which approval and acceptance shall not be unreasonably withheld, conditioned or delayed, provided the Project conforms to the Approved Plans and Specifications. The Parties shall state in writing their approval and acceptance or the reasons for disapproval based upon the final Approved Plans and Specifications within ten (10) business days of Azusa notifying the Parties of the completion of construction of the Project. Upon receipt of any disapproval, Azusa shall promptly have the Project revised for subsequent inspection by the Parties for conformance with the final Approved Plans and Specifications. A Party may submit field changes to the Approved Plans and Specifications for the other Parties' approval (which shall not be unreasonably withheld, conditioned or delayed), provided all costs associated with such field changes shall be home by the Party requesting such change. 2.6 Azusa shall pay the remaining Project costs, after the other Party has contributed its respective financial obligation, consisting of a financial contribution by Azusa Pacific University of a not to exceed amount of $13,000. Azusa's proportionate share of Project costs shall be the remainder of the awarded bid price. SECTION 3 3.1 Incorporation of Recitals. The parties agree that the Recitals constitute the factual basis upon which the Parties have entered into this Agreement. The Parties each acknowledge the accuracy of the Recitals and agree that the Recitals are incorporated into this Agreement as though fully set forth at length. 3.2 Cooperation. The Parties shall provide any assistance requested by each other with respect to the implementation and administration of the Project. The Parties shall cooperate with one another relative to any other action necessary to ensure each Party retains the authority to perform the functions required by, or to achieve the objectives of, the Agreement. In this regard, the Parties shall waive all permit fees associated with the Project. Parties shall grant each other any necessary licenses to access the Project site at no charge. 3.3. Term. The term of this Agreement shall commence on the date that this Agreement is approved by the Parties and shall terminate when all work required by each Party has been completed to the other Parties' reasonable satisfaction as evidenced by acceptance and approval of the Project, and the Parties have satisfied all of their obligations under this Agreement. 3.4 Remedies Upon Default. An event of default shall be deemed to exist upon the occurrence of all three of the following: (i) A Party has, without legal justification or excuse, breached any one or more of its obligations under this Agreement; and i (ii) A. nondefaulting Party has sent written notice to the Party claimed to be in default, specifying the default and what actions the nondefaulting Party asserts should be taken to remedy the default; and (iii) The Party claimed to be in default has not, within ten (10) days following receipt of the written notice described above, either corrected the default or taken actions, reasonably satisfactory to the nondefaulting Parties, to remedy the default within a reasonable period of time, but in no event longer than thirty (30) days after receipt of the written notice described above. Following an event of default, the nondefaulting Parties may exercise any and all remedies available to it pursuant to this Agreement, or at law or in equity, including, without limitation, instituting an action for damages, injunctive relief, or specific performance. 3.5 Nonwaiver of Rights or Remedies. The failure of a Party to exercise any one or more of its rights or remedies under this Agreement shall not constitute a waiver of that Party's right to enforce that right or seek that remedy in the future. No course of conduct or act of forbearance on any one or more occasions by any party to this Agreement shall preclude that party from asserting arty right or remedy available to it in the future. No course of conduct or act of forbearance on any one or more occasions shall be deemed to be an implied modification of the terms of this Agreement. 3.6 Assignabili . This Agreement may not be assigned by any Party without the express written consent of the other Parties, which consent shall not be unreasonably withheld or delayed. Any attempted assignment of this Agreement not in compliance with the terms of this Agreement shall be: null and void and shall confer no rights or benefits upon the assignee. 3.7 No Oral Modifications. This Agreement represents the entire understanding of the Parties and supersedes all other prior or contemporaneous written or oral agreements pertaining to the subject matter of this Agreement. This Agreement may be modified, but only by a writing signed by all Parties. 3.8 Binding Unon Successors. This Agreement and each of its terms shall be binding upon the Parties and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns. 3.9 Indemnification. The Parties shall require that every contract include a provision that contractors shall indemnify and hold harmless the Parties from all claims, lawsuits, judgments, and causes of action arising out -of contractors' negligence or delay relating to the scope of work under the applicable contract in connection with the Project. The contracts shall also require the contractor to promptly notify the Party of any such claim or action, cooperate fully with the Parties, at the contractor's costs, in the defense of such claim, and be responsible for its actual legal fees and costs, including actual attorneys' fees, which may be incurred in defense of such action or proceeding. 3.10 Jurisdiction and Venue. Any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of Los Angeles, California. The Parties each consent to the personal jurisdiction of the court in any such action or proceeding. This Agreement shall be governed by and construed under and in accordance with the laws of the State of California, without giving effect to the conflict of laws rules thereof. 3.11 Attorneys' Fees. In the event that any action or proceeding, including arbitration, is commenced by one or more Parties against one or more other Parties to establish the validity of this Agreement or to enforce any one or more of its terms, the prevailing party in any such action or proceeding shall be entitled to recover from the other, in addition to all other legal and equitable remedies available to it, its reasonable attorneys' fees and costs. 3.12 Time is of the Essence. Except as otherwise expressly stated, time is of the essence in the performance of every act required pursuant to this Agreement. 3.13 Covenant of Further Assurances. The Parties shall take all other actions and execute all other documents which are reasonably necessary to effectuate this Agreement. 3.14 Interpretation. The Parties agree that this Agreement is the product of mutual negotiations and is an arms -length transaction. Each party has negotiated this Agreement with the advice and assistance of legal counsel of its own choosing. It is further agreed that this Agreement is a product of mutual drafting efforts by the Parties and, accordingly, the rule that ambiguities in a document shall be construed against the drafter of the document shall have no application to this Agreement. In construing and interpreting this Agreement, the finder of fact shall give effect to the mutual intention of the Parties, notwithstanding such ambiguity, and may refer to the facts and circumstances under which this Agreement is made and such other extraneous evidence as may assist the finder of fact in ascertaining the intent of the Parties. 3.15 Headings. The headings of each Section of this Agreement are for the purposes of convenience only and shall not be construed to either expand or limit the express terms and language of each Section. 3.16 Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the Parties agree that they would have executed this Agreement notwithstanding the invalidity of such term or provision. The invalid term or provision may be severed from the Agreement and the remainder of the Agreement may be enforced in its entirety. 3.17 Representations of Authority. Each party signing this Agreement on behalf of a Party which is not a natural person hereby represents and warrants to the other Parties that all necessary legal prerequisites to that party's execution of this Agreement have been -satisfied and that he or she has been authorized to sign this Agreement and bind the Party on whose behalf he or she signs. 3.18 Notices. Notices required under this Agreement shall be sent to the following If to Azusa: City of Azusa 213 East Foothill Boulevard Azusa, CA 91702-1395 Attention: Tito Haes, Assistant City Manager/ Director of Public Works Facsimile No. (626) 334-5464 I Ar With a copy to: Best Best & Krieger LLP 5 Park Plaza, Suite 1500 Irvine, California 92614 Attention: Sonia Carvalho, Esq. If to Azusa Pacific: Azusa Pacific University 901 East Alosta Avenue Azusa, CA 91702-7000 Attention: Mark S. Dickerson, General Counsel With a copy to: Azusa Pacific University 901 E. Alosta Avenue Azusa, CA 91702-7000 Attention: James Christl, Facilities Management Department Notices given pursuant to this Agreement shall be deemed received as follows: (i) If sent by United States Mail - five (5) calendar days after deposit into the United States Mail, first class postage prepaid. (ii) If by facsimile - upon transmission and actual receipt by the receiving per. (iii) If by express courier service or hand delivery - on the date of receipt by the receiving party. 3.19 Days. Unless otherwise specified to the contrary, "days" in this Agreement shall mean calendar, not business, days. Dated: CITY OF AZUSA, a municipal corporation By: Joseph R. Rocha Mayor ATTEST: Vera Mendoza City Clerk APPROVED AS TO FORM: City Attorney t Dated: May_, 2011 AZUSA PACIFIC UNIVERSITY ED EXHIBIT A Project includes removal and replacement of the existing concrete crosswalks at the intersections along Foothill Boulevard at San Gabriel Avenue, Azusa Avenue and Dalton Avenue. The ADA ramps will be reconstructed to meet current ADA standards at each intersection and minor striping work. CITY OF AZUSA MINUTES OF THE REDEVELOPMENT AGENCY REGULAR MEETING MONDAY, MAY 2, 2011 —8:08 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. ROLL CALL PRESENT: DIRECTORS: GONZALES, CARRILLO, MACIAS, HANKS, ROCHA ABSENT: DIRECTORS: NONE ALSO PRESENT: General Counsel Carvalho, Executive Director Delach, Assistant Executive Director Makshanoff, Department Heads, Secretary Mendoza, Deputy Secretary Toscano. Call to Order Roll Call Also Present THE CITY COUNCIL CONVENED JOINTLY WITH THE REDEVELOPMENT AGENCY AT Convene Jointly 8:08 P.M. TO DISCUSS THE FOLLOWING: with CRA JOINT CITY/AGENCY AGENDA ITEM Joint Item LOAN AGREEMENT AND BUDGET AMENDMENT FOR SUPPLEMENTAL EDUCATIONAL Loan Agmt SERAF REVENUE AUGMENTATION FUND (SERAF) PAYMENT Director of Economic and Community Development Christiansen addressed the issue stating that the K. Christiansen Redevelopment Agency of the City of Azusa is obligated to pay $513,030 to Los Angeles County for Comments deposit into the SERAF Fund by May l0. 2011 and it is being presented for approval. Director Hanks offered a Resolution entitled: A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA REQUESTING Res: 1 I -R20 A LOAN FROM THE CIT' OF AZUSA FOR PURPOSES OFTHE MERGED AND RANCH CENTER Requesting Loan REDEVELOPMENT PROJECT AREAS. from City Moved by Director Hank., seconded by Director Gonzales to waive furtherreading 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 Hanks offered a Resolution entitled A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA AUTHORIZING LOANS FOR Res.]] -C33 PURPOSES OF THE MERGED AND RANCH CENTER REDEVELOPMENT PROJECT AREAS. Authorizing Loan to Agency Moved by Mayor Pro -Tem Hanks, seconded by Councilmember 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 Mayor Pro -Tem Hanks offered a Resolution entitled A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING Res. 11-C34 APPROPRIATION AMENDMENTS FOR FISCAL YEAR 2010/11 PURSUANT TO SECTION 2-450 Approving OF THE AZUSA MUNICIPAL CODE. Appropriation Amendment Moved by Mayor Pro -Tem Hanks, seconded by Councilmember 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 Director Hanks offered a Resolution entitled: A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA APPROVING Res. I 1-R21 APPROPRIATION AMENDMENTS FOR FISCAL YEAR 2010/11 PURSUANT TO SECTION 2450 Approving OF THE AZUSA MUNICIPAL CODE. Appropriation Amendment Moved by Director Hanks, seconded by Director Gonzales to waive furtherreading 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 THE CITY COUNCIL RECESSED AND THE REDEVELOPMENT AGENCY CONTINUED AT 8:14 P.M. AGENCY SCHEDULED ITEMS THIRD EXCLUSIVE NEGOTIATION AGREEMENT BETWEEN THE REDEVELOPMENT Cncl Recess CRA Convened Agency Sched 3rd ENA Lewis AGENCY OF THE CITY OF AZUSA AND LEWIS INVESTMENT COMPANY, LLC FOR THE Downtown No. DOWNTOWN NORTH REDEVELOPMENT PROJECT. Director of Economic and Community Development Christiansen addressed the item stating that itwould K. Christiansen be a nine month with the possibility of up to three 90 day extensions based on Lewis meeting certain major Comments milestones, which he detailed. Moved by Director Carrillo, seconded by Director Hanks and unanimously carried to authorize the Third ENA Executive Director, with the concurrence of the City Attorney, to negotiate and enter into a Third w/Lewis Invest Exclusive Negotiation Agreement with Lewis Investment Company, LLC for the development of a portion Approved of the Downtown North Redevelopment Project based on the proposed contract terms enumerated in the - staff report. The CONSENT CALENDAR consisting of items G-1 through G-3 was approved by motion of Director Consent Cal. Gonzales. seconded by Director Carrillo and unanimously carried. Approved I. Minutes of the regular meeting of April 18, 2011, were approved as written. Min appvd 2. The Agency Treasurer's Report as of March 31, 2011 was received and filed. Treas Rpt 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. II -R22 ALLOWING CERTAIN CLAIMS AND DEMANDS TO BE PAID OUT OF 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: 8:15 P.M. SECRETARY NEXT RESOLUTION NO. 11-R23. a AGENCY AGENDA ITEM TO: HONORABLE CHAIRPERSON AND MEMBERS OF THE AGENCY BOARD FROM: KURT C:HRISTIANSEN, DIRECTOR OF ECONOMIC AND COMMUNITY DEVELOPMENT VIA: F.M. DELACH, EXECUTIVE DIRECTORX* lJ DATE: MAY 16. 2011 SUBJECT: EXCLUSIVE NEGOTIATION AGREEMENT (229 S. AZUSA AVENUE) BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA AND KAL PACIFIC & ASSOCIATES, INC. FOR THE DEVELOPMENT OF A HOTEL ON AGENCY PROPERTY AT 229 SOUTH AZUSA AVENUE (THE FORMER ENTERPRISE CAR RENTAL SITE) RECOMMENDATION It is recommended that the Agency Board authorize the Executive Director to enter into an Exclusive Negotiation Agreement (229 S. Azusa Avenue) ("ENA") with Kal Pacific & Associates, Inc. for the development of a hotel on the former Enterprise Car Rental site (Assessor Parcel Numbers 8614-014-056, 057 and 058). BACKGROUND The property, formerly owned by Lillie M. Rogers (Trustee of the Lillie M. Rogers Trust), is located at 229 S. Azusa Avenue ("Site") and is situated within the Merged Central Business District and West End Redevelopment Project Area. A former car dealership and Enterprise Car Rental facility, it has been improved with office, showroom and car servicing spaces and surface parking. The subject property is an "L" shaped site made up of three parcels totaling 108,665 square feet, or 2.49 acres zoned for both residential and commercial uses (see Attachment 1). It is a comer site adjacent to the freeway off -ramp with excellent exposure and accessibility to a main thoroughfare. The property has been vacant since late August 2009. Immediately following the Agency's acquisition of the Site, staff began reaching out to potential developers to explore redevelopment opportunities. Some of the land uses considered include hotels, car dealerships, big -box retail, mixed use commercial/residential, supermarkets, home improvement, etc. As a result of this outreach effort, staff began discussions with Kal Pacific & Associates, Inc. ("Kal Pacific") of Temecula, California for the possible development of a hotel and restaurant on the Site. Kal Pacific has been developing commercial projects for 25 years and includes the following subsidiaries: KP Associates Architects, Kal Pacific Commercial Development Group and Kal Pacific General Contracting. Kai Pacific will serve as the developer for the proposed hotel project and anticipates assigning the ENA to a single purpose corporation or LLC which will be made up of equity partners along with a separate LLC made up of South West Hospitality Management, Inc. Kal Pacific, Inc. and Swoboda Hospitality Specialists, LLC that will serve as managing partners. EXCLUSIVE NEGOTIATION AGREEMENT The ENA proposes that the Agency and the Kal Pacific negotiate diligently and in good faith towards the goal of producing a mutually acceptable Disposition and Development Agreement ("DDA"). The attached ENA document includes a Schedule of Performance and incorporates the following other major provisions: 1. Development Concept: A 100-200 room hotel with a possible restaurant. The ENA specifies that, prior to adoption of a DDA, Kal Pacific shall secure a franchise agreement with one of the following hotel chains: Courtyard by Marriott, Hampton Inn, Hilton Garden Inn. or Holiday Inn Express. At this point, the Project is confined to the three Agency parcels shown on Attachment 1. The L-shaped parcel adjacent to the Valero Gas Station is also owned by the Agency and is encumbered by existing easements. Kai Pacific is exploring the potential of incorporating the Valero Gas Station into the project as a restaurant pad. If this occurs, this fourth Agency -parcel would also be included in the sale/lease. 2. Term: The Term of the ENA is 240 -days subject to a 30 -day extension at the Executive Director's discretion. 3. Feasibility Study: During the initial 90 -day period of the term of the ENA, Kal Pacific will commission, at his sole cost, a professional study to determine the feasibility of the proposed Project. It is envisioned that such a study will assess, among other things, local and regional market demand, price sensitivity, rack rates, construction costs, operating costs, optimal number of rooms, amenities, projected employment, etc. Kai Pacific shall provide the Agency with a copy of the completed feasibility study. 4. Go/No Go Decision Point: Within 10 days after the end of the initial 90 -day period of the term of the ENA (or 10 days after delivery of the Feasibility Study to the Agency, whichever is earlier), either party may terminate the ENA if the completed feasibility study does not support the construction of a hotel of the quality specified in the ENA. 5. Developer Deposit: A refundable $15,000 deposit to insure that Kal Pacific does not default during the Term of the ENA. 6. Refund of Developer Deposit: Following completion of the Feasibility Study, if the decision is made to terminate the ENA the Agency will refund the entire $15,000 Developer Deposit. If the parties choose to proceed towards drafting a DDA, then the Agency will only refund a portion of the Developer Deposit up to a maximum of $9,000 to cover the cost of the Feasibility Study. The remaining balance of the Developer Deposit would be refunded upon final execution of a DDA. If the Developer defaults on any provision of the ENA, the Agency keeps the entire $15,000. 7. Disposition of Agency Property: During the negotiation period, Kal Pacific will determine if it will acquire the Site from the Agency or enter into a multi-year lease - purchase agreement. 8. Entitlements: During the term of the ENA, Kai Pacific will process entitlements for construction of the project. 9. Finance Plan: Following the Agency's receipt and acceptance of the Feasibility Study, Kal Pacific shall prepare a Finance Plan including a proforma with details relating to the construction and operation of the Project (including a 15 -year cash flow projection). If Developer proposes to purchase the Property from the Agency, the Finance Plan must include an analysis of residual land value. If the Developer proposes a ground lease of the Property, the Finance Plan must provide applicable market data to support a proposed lease amount. FISCAL IMPACT All expenses incurred by the Developer during the term of this ENA for consultants and other professional planning/engineering services retained by the Developer will be the sole responsibility of the Developer. The Developer is also responsible for paying all costs for the City/Agency to process any CEQA documentation. The Agency will incur some staff costs associated with administering the ENA. The extent of other financial terms and conditions of the proposed hotel development will be determined as part of the DDA negotiations process. The development will ultimately result in land sale proceeds (or lease revenue) to the Agency. In addition, the hotel improvements will increase the Agency's annual tax increment and the City will realize additional Transient Occupancy Tax (TOT) revenue. Attachments 1. Description of Enterprise Site 2. Exclusive Negotiation Agreement (229 S. Azusa Avenue) ATTACHMENT 1 ENTERPRISE SITE DESCRIPTION d ;I}P. ATTACHMENT 2 EXCLUSIVE NEGOTIATION AGREEMENT (229 S. AZUSA AVENUE) [See attached behind this page] RESOLUTION NO. A RESOLUTION OF THE GOVERNING BOARD OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, CALIFORNIA, APPROVING THAT CERTAIN EXCLUSIVE NEGOTIATION AGREEMENT (229 S. AZUSA AVENUE)BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA AND KAL PACIFIC & ASSOCIATES, INC. WHEREAS, pursuant to the California Community Redevelopment Law (Health & Safety Code Sections 33000, et seq.) ("CRL"), the City Council of the City of Azusa ("City') ("City Council") approved and adopted a Redevelopment Plan ("Redevelopment Plan") for the redevelopment Project Area known as the Merged Central Business District and West End Redevelopment Project Area ("Project Area"); and WHEREAS, the Governing Board (`Board") of the Redevelopment Agency of the City of Azusa ("Agency") is engaged in activities to implement the Redevelopment Plan for the Project Area pursuant to the provisions of the CRL; and WHEREAS, pursuant to Health and Safety Code Section 33490, the Agency has adopted an implementation plan for the Project Area ("Implementation Plan") for the Project Area; and WHEREAS, the Agency owns that certain real property located within the Project Area generally located at 229 S. Azusa Avenue, in the City of Azusa, California ("Property"); and WHEREAS, Ka1.Pacific & Associates, Inc. ("Developer") desires to negotiate with the Agency for potential acquisition or lease of the Property for the purpose of developing a 100- to 200 -room hotel complex and restaurant ("Project") consistent with the Redevelopment Plan and the Implementation Plan, which is still in the conceptual stage and subject to changes and modifications, and Agency agrees to negotiate with Developer for Developer's potential acquisition or lease of the Property; and WHEREAS, Agency and Developer have come to terms regarding that certain Exclusive Negotiation Agreement (229 S. Azusa Avenue) which is attached hereto as Exhibit "A" and incorporated herein by reference, in order to, among other things, establish a specific, limited period of time for Agency and Developer to negotiate regarding the potential sale or lease of the Property from Agency to Developer and the potential redevelopment of the Project on the Property by Developer; and WHEREAS, Agency staff has determined the Agency's approval of the Agreement is exempt from the California Environmental Quality Act ("CEQA"), pursuant to State CEQA Guidelines Section 15061(b)(3), because it can be seen with certainty that there is no possibility that the Board's approval of the Exclusive Negotiation Agreement (229 S. Azusa Avenue) may have a significant effect on the environment. 45636.06001\5953629.1 NOW, THEREFORE, BE IT RESOLVED by the Governing Board of the Redevelopment Agency of the City of Azusa as follows: Section 1. The recitals set forth above are true and correct and are incorporated into this Resolution by this reference. Section 2. The Board hereby finds and determines that it can be seen with certainty that there is no possibility that the adoption of this Resolution and the Exclusive Negotiation Agreement (229 S. Azusa Avenue) may have a significant effect on the environment. Thus, the adoption of this Resolution is exempt from the requirements of CEQA pursuant to Section 15061(b)(3) of the State CEQA Guidelines. Section 3. The Board hereby approves the Exclusive Negotiation Agreement (229 S. Azusa. Avenue), attached hereto and incorporated herein by reference, together with non - substantive changes and amendments as may be approved by the Executive Director and the Agency Counsel. Section 4. The Board hereby authorizes and directs the Executive Director and the Agency Counsel to take any action and execute any documents necessary to implement the Excusive Negotiation Agreement (229 S. Azusa Avenue). Section 5. The Board hereby authorizes and directs the Agency Secretary to file a Notice of Exemption with the Los Angeles County Recorder's Office on the Agency's behalf within five (5) days from the adoption of this Resolution. Section 6. The Agency Secretary shall certify to the passage and adoption of this resolution and the sante shall thereupon take effect and be in force immediately upon its adoption. APPROVED AND ADOPTED this 16th day of May, 2011. Chairperson of the Redevelopment Agency of the City of Azusa ATTEST: Agency Secretary APPROVED AS TO FORM: BEST BEST & KRIEG:ER LLP Agency Counsel 45636.0600155953629.1 CERTIFICATION I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Redevelopment Agency of the City of Azusa at a regular meeting held on the 16th day of May, 2011. AYES: NOES: ABSTAIN: ABSENT: Agency Secretary 45636.0600115953629.1 EXHIBIT "A" EXCLUSIVE NEGOTIATION AGREEMENT (229 S. AZUSA AVENUE) [See attached behind this page] 45636.06001\5953629.1 THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA EXCLUSIVE NEGOTIATION AGREEMENT (229 S. Azusa Avenue) THIS EXCLUSIVE NEGOTIATION AGREEMENT (229 S. Azusa Avenue), is dated as of %Y1 l , 2011, for reference purposes only (this "Agreemenf"), and is entered into by and be een the REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, a public body corporate and politic ("Agency"), and KAL PACIFIC & ASSOCIATES, INC., a California corporation ("Developer"), to provide a specified period of time for the Developer to complete a feasibility study for the development of Property, as defined below, and obtain development ,entitlements and for the Developer and the Agency to attempt to negotiate a future DDA (as defined in Recital E, below). Agency and Developer are sometimes referred to in this Agreement, individually, as a "Party" and, collectively, as the "Parties." This Agreement is entered into by the Parties with reference to the following recited facts (each, a "Recital"): RECITALS A. The City of Azusa, California (the "City"), adopted the Redevelopment Plan for the Merged Central Business District and West End Redevelopment Project (the "Redevelopment Plan") covering that certain geographic area within the City specified in the Redevelopment Plan (the "Project Area"); B. Agency is the owner of certain real property located within the Project Area generally located at 229 S. Azusa Avenue in the City of Azusa and more specifically described in the legal descriptions attached to this Agreement as Exhibit "A" and incorporated herein by reference (the "Property"); C. Agency has adopted an implementation plan for the Redevelopment Plan, pursuant to Health & Safety Code Section 33490 or 33352 (the "Implementation Plan") and will comply therewith as applicable; and D. The intent of both Agency and Developer in entering into this Agreement is to establish a specific, limited period of time for Developer to: (I) conduct a study on the Property to determine whether it is feasible to develop the Property as a 100- to 200 -room hotel complex and restaurant consistent with the Redevelopment Plan and the Implementation Plan ("Project"); and, thereafter, (2) exclusively negotiate with Agency regarding a future agreement between them governing the potential sale [or lease] of the Property from Agency to Developer and the potential redevelopment of the Project on the Property by Developer, all subject to mutually agreeable terms, conditions, covenants, restrictions and agreements to be negotiated and documented in the future (this future agreement is referred to in this Agreement as a "DDA") in accordance with a Schedule of Performance attached to this Agreement as Exhibit `B" and incorporated herein by reference. 45636.0600 1 L59272 77.3 NOW, THEREFORE, IN VIEW OF THE GOALS AND OBJECTIVES OF THE AGENCY AND THE PROMISES OF AGENCY AND DEVELOPER SET FORTH IN THIS AGREEMENT, AGENCY AND DEVELOPER AGREE, AS FOLLOWS: 1. Incorporation of Recitals. The Recitals of fact set forth above are true and correct and are incorporated into this Agreement, in their entirety, by this reference. 2. Deposit. Within five (5) days of the Effective Date, defined below, Developer shall pay to Agency a deposit in the amount of Fifteen Thousand Dollars ($15,000.00) in immediately available funds (the "Deposit') to ensure that Developer will proceed diligently and in good faith to fulfill its obligations under this Agreement during the Negotiation Period and as part of the consideration for Agency's agreement not to negotiate with other persons during the Negotiation Period, pursuant to this Agreement. The Deposit shall be refundable to Developer in whole if Developer or Agency determines that, based on the Feasibility Study, the Project is not feasible and terminates the Agreement within ten (10) days after Developer delivers the Feasibility Study to Agency as further described in Section 4(a)(i) below. If the Project is deemed feasible based on the Feasibility Study, the Deposit shall be refundable in part to reimburse Developer for the cost of the Feasibility Study in an amount not to exceed Nine Thousand Dollars ($9,000.00) as set forth in Section 4(a)(ii). The remainder of the Deposit shall be refunded to Developer upon execution of the DDA by both Developer and Agency. 3. Term of Agreement. (a) Effective Date. The rights and duties of Agency and Developer established by this Agreement shall commence on the first date on which all of the following have occurred ("Effective Date"): (1) the authorized representative(s) of Developer have signed three (3) originals of this Agreement and delivered such signed originals of this Agreement to Agency; (2) Agency governing body has approved this Agreement; and (3) the authorized representative(s) of Agency have signed this Agreement and delivered one (1) signed original of this Agreement to Developer. Agency shall give written notice to Developer of the Effective Date within seven (7) days following the occurrence of the Effective Date. This Agreement shall continue in effect for the period of two hundred forty (240) consecutive calendar days immediately following the Effective Date (the "Negotiation Period"), subject to the limitations of Section 3(b). (b) Extension of Negotiation Period. The Negotiation Period may be extended at the sole and absolute discretion of Agency's Executive Director for up to an additional thirty (30) calendar days, in the aggregate, if the milestones numbered 1 through 10, set forth in the Schedule of Performance, are met. If the Negotiation Period is extended pursuant to this Section 3(b), the Executive Director may also modify the deadlines for any remaining actions to be taken by either Agency or Developer, within such extended Negotiation Period. Notwithstanding the immediately preceding sentence, Section 7 or any other part of this Agreement, in no event (including any Unavoidable Delay(s)), shall the Negotiation Period exceed two hundred seventy (270) consecutive calendar days. (c) Expiration of End of Negotiation Period, This Agreement shall automatically expire and be of no further force or effect at the end of the Negotiation Period. 45636.0600115927277.3 (d) Termination. Notwithstanding any other term, condition, covenant, restriction or agreement contained in this Agreement, this Agreement shall automatically expire and be of no further force or effect on the earlier to occur of either: (1) upon the expiration or earlier termination of the Negotiation Period; or (2) the signature of a separate future DDA by both Agency and Developer, in their respective sole and absolute discretion. 4. Obligations of Developer. During the Negotiation Period, Developer shall proceed diligently and in good faith to do all of the following in accordance with the Schedule of Performance: (a) Feasibility Study. Within ninety (90) days following the Effective Date, commission and complete, at Developer's sole cost and expense, and provide Agency with a copy of, a feasibility study to determine the feasibility of development of the proposed Project on the Property ("Feasibility Study"). The Feasibility Study shall be the sole property of Developer and shall consider, among other things, local and regional market demand, price sensitivity, rack rates, construction costs, operating costs, optimal number of rooms, amenities, and projected employment. (i) Early Termination and Refund of Deposit. Within ten (10) days of Developer's submission of the Feasibility Study to Agency, which submission shall occur no later than ninety (90) days following the Effective Date, Agency or Developer may terminate this Agreement if either Party determines, in its sole and absolute discretion, that the development of the Project is not supported by the Feasibility Study. Notice of such termination shall be delivered in writing to the other Party as set forth in Section 17. Upon such termination, Agency shall return the Deposit in its entirety to the Developer. At such time, Developer shall deliver to Agency an executed assignment in a form reasonably acceptable to Agency of Developer's ownership of the Feasibility Study, free of liens and encumbrances, and Developer shall use good faith, commercially reasonable efforts to deliver to Agency an estoppel certificate in a form reasonably acceptable to Agency from each person or entity which prepared the Feasibility Study, releasing Agency from any responsibility or liability for paying any costs or fees for the Feasibility Study. In addition to delivery of such executed assignment, Developer shall transfer all original versions of the Feasibility Study and any related documents to Agency. (ii) Acceptance of Feasibilh); Study, Reimbursement of Cost. if the Agreement is not terminated as set forth in 4(a)(i), Developer shall provide written documentation of the cost of the Feasibility Study satisfactory to Agency, and Agency shall reimburse Developer for such cost in an amount not to exceed Nine Thousand Dollars ($9,000.00). At such time, Developer shall deliver to Agency an executed assignment in a form reasonably acceptable to Agency of Developer's ownership of the Feasibility Study, free of liens and encumbrances, and Developer shall use good faith, commercially reasonable efforts to deliver to Agency an estoppel certificate in a form reasonably acceptable to Agency from each person or entity which prepared the Feasibility Study, releasing Agency from any responsibility or liability for paying any costs or fees for the Feasibility Study. In addition to delivery of such executed assignment; Developer shall transfer all original versions of the Feasibility Study and any related documents to Agency. 3 95636.0600115927277.3 (b) Submittals to Agency. In accordance with the Schedule of Performance, Developer shall develop and present to Agency staff, for review, all of the following: (i) Proof of Contract. Within thirty (30) days of receipt of Agency's receipt of the Feasibility Study, provide proof of a contractual relationship, to Agency's reasonable satisfaction„ between Developer and the relevant hotel company with regard to the development of the Project as one of the following: Courtyard by Marriott, Hampton Inn, Hilton Garden Inn, or Holiday Inn Express, (ii) Conceptual Site Plan. Within forty-five (45) days of Agency's receipt of the Feasibility Study, complete and submit for Agency review a conceptual site plan for the Project. Agency shall review the site plan within ten (10) days of receipt of the site plan; (ii) Project Schedule. Within forty-five (45) days of Agency's receipt of the Feasibility Study, submit a proposed time schedule for commencement and completion of the Project, including demolition, construction phasing, completion and opening; (iv) . Project Financing Plan. Within forty-five (45) days of Agency's receipt of the Feasibility Study, submit a proposed financing plan identifying financing sources for all private and public improvements proposed for the Project, by phase, if applicable. If Developer proposes to purchase the Property from Agency, the proposed financing plan shall include an analysis of residual land value, and if the Developer proposes a ground lease of the Property, the proposed financing plan shall include applicable market data to support the anticipated lease rate. The proposed financing plan shall include a written financial pro-forma in reasonable form and substance regarding the anticipated costs and returns related to development, operation, sale and lease (as applicable) of the Project, including a fifteen (15)-year cash flow projection; (v) Complete Development Plan. Within thirty (30) days of Agency's approval of the conceptual site plan for the Project, as set forth in Section 4(b)(ii), submit a complete conceptual development plan for the Project that describes and depicts both: (1) the location and orientation of proposed buildings; and (2) the architecture and elevations of the proposed buildings; (vi) Project Entitlements. Within thirty (30) days of Agency's receipt of approval of the conceptual site plan for the Project, as set forth in Section 4(b)(ii), submit to the City Planning Department a complete Development Application, as applicable, a complete Tentative Parcel Map or Tentative Tract Map application, as appropriate, including, entering into a reimbursement agreement with the City to deposit funds into a City account to pay for the services of an environmental consultant to be retained by the City to conduct and prepare any technical studies or reports requested by City or Agency staff for evaluation of the proposed Project pursuant to the California Environmental Quality Act, Public Resources Code Sections 21000, et seq. ("CEQA"). Whether or not any application or other information is "required," "necessary," "complete" or "final" shall be determined by City or Agency staff:: and (vii) Development Entity and Project Financing. Within thirty (30) days of Agency's receipt of approval of the conceptual site plan for the Project, as set forth in 4 45636.060OM927277.3 Section 4(b)(ii), submit to Agency, in form and substance, acceptable to Agency, written documentation of the entity responsible for development of the Project and unconditional and irrevocable letters of commitment from appropriate lenders and other sources of financing to sufficiently fund the Project. 5. Negotiation of DDA. During the first ninety (90) days of the Negotiation Period, Developer shall proceed diligently and in good faith to develop and submit to Agency all of the documents and information set forth in Section 4(a). For the next one hundred thirty (130) days, by the two hundred twentieth (220th) day of the Negotiation Period, if applicable, Developer shall proceed diligently and in good faith to develop and submit to Agency all of the documents and information set forth in Section 4(b) and both Agency and Developer shall proceed diligently and in good faith to negotiate and document the potential terms, conditions, covenants, restrictions and agreements of a future DDA between them. Agency and Developer shall generally cooperate with each other and supply such documents and information as may be reasonably requested by the other to facilitate the conduct of the negotiations. Both Agency and Developer shall exercise reasonable efforts to complete discussions relating to the terms, conditions, covenants, restrictions or agreements of a future DDA all as may be mutually acceptable to both Agency and Developer in their respective sole and absolute discretion. The exact terms and conditions of a future DDA, if any, shall be determined during the course of these negotiations. Nothing in this Agreement shall be interpreted or construed to be a representation or agreement by either Agency or Developer that a mutually acceptable future DDA will be produced from negotiations under this Agreement. Nothing in this Agreement shall impose any obligation on either Party to agree to a definitive DDA in the future. Nothing in this Agreement shall be interpreted or construed to be a guaranty, warranty or representation that any proposed DDA that may be negotiated by Agency staff and Developer will be approved by the Agency governing body. Developer acknowledges and agrees that Agency's consideration of any future DDA is subject to the sole and absolute discretion of the Agency governing body and any and all legally required public hearings, public meetings, notices, factual findings and other determinations required by law. 6. Restrictions Against Change in Ownership, Management and Control of Developer and Assignment of Agreement. (a) Agency Reliance on Developer Qualifications. The qualifications and identity of Developer and its principals are of particular concern to Agency. Developer's qualifications and identity are the reason that Agency has entered into this Agreement with Developer. During the Negotiation Period, no voluntary or involuntary successor -in -interest of Developer shall acquire any rights or powers under this Agreement, except as expressly provided in Sections 6(c). (b) Notice to Agency of Organisational Changes. Developer shall promptly notify Agency in writing of any and all changes whatsoever in the identity of the business entities or individuals either comprising or in Control (as defined in Section 6(d)) of Developer, as well as any and all changes in the interest or the degree of Control of Developer by any such person, of which information Developer or any of its shareholders, partners, members, directors, managers or officers are notified or may otherwise have knowledge or information. Upon the occurrence of any significant or material change (more than 10%), whether voluntary or 5 45636.06001\5927277.3 involuntary, in ownership, management or Control of Developer (other than such changes occasioned by the death or incapacity of any individual) that has not been approved by Agency, prior to the time of such change, Agency may terminate this Agreement, without liability to Developer or any other person, by sending written notice of termination to Developer, referencing this Section 6(b). (c) . Developer Assignment. Developer may only assign its rights under this Agreement to a single purpose corporation or limited liability company ("Assignee") formed prior to the expiration of the Negotiation Period, subject to all of the following conditions: (i) Assignee shall be formed consisting of equity partners and a Managing Partner, which shall be a single purpose corporation or limited liability company consisting of Southwest Hospitality Management, LLC, Swoboda Hospitality Specialists LLC, and Developer; (ii) Managing Partner shall maintain a. majority interest in the Assignee, and such majority interest and the membership of the Managing Partner shall not be changed without the Agency's prior written consent; and (iii) Assignee expressly assumes all of the obligations of Developer under this Agreement in a written assumption agreement reasonably satisfactory to Agency. Notwithstanding any assignment of this Agreement, Developer, shall, at all times, be responsible and obligated directly to Agency for performance of Developer's obligations under this Agreement. (d) Definitions of Affiliate and Control. For the purposes of this Agreement, the term "Affiliate" means any person, directly or indirectly, controlling or controlled by or under common control with Developer, whether by direct or indirect ownership of equity interests, by contract, or otherwise. For the purposes of this agreement, "Control" means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity; whether by ownership of equity interests, by contract, or otherwise. 7. Unavoidable Delay. The time period for performance of any action to be taken by either Agency or Developer pursuant to this Agreement shall be extended by the number of days by which an Unavoidable Delay(s) actually delays such performance, subject to the Iimitations set forth in this Section 7 and Sections 3(b)and 3(c). For the purposes of this Agreement "Unavoidable Delay" means delay in either Party performing any obligation under this Agreement, except payment of money, arising from or on account of any cause whatsoever beyond the Party's reasonable control, including strikes, labor troubles or other union activities, casualty, third -party legal actions related to Agency's approval of this Agreement or the pursuit of the activities contemplated by this Agreement, war, acts of terrorism or riots. Unavoidable Delay shall not include delay caused by a Party's financial condition, illiquidity, or insolvency. Any Party claiming Unavoidable Delay shall notify the other Party: (a) within ten (10) days after such Party knows of any such Unavoidable Delay; and (b) within five (5) days after such Unavoidable Delay ceases to exist. To be effective, any notice of an Unavoidable Delay must describe the Unavoidable Delay in reasonable detail. The Parry seeking to be excused shall exercise its best efforts to cure the condition causing the Unavoidable Delay, within a reasonable time. Each Party expressly agrees that adverse changes in economic conditions, of either Party specifically or the economy generally, or changes in market conditions or demand shall not operate to excuse or delay the performance of each and every of each Parry's obligations and covenants arising under this Agreement. Both Parties expressly assume the risk of such adverse economic or market changes, whether or not foreseeable as of the Effective Date of this Aereement. 6 45636.0600115927277.3 8. Developer Obligations to Review Draft Agreements and Attend Meetings. (a) Project Design and Planning. During the Negotiation Period, Developer shall also keep Agency staff advised on the progress of Developer in performing its obligations under this Agreement, on a regular basis or as requested by Agency staff, including, without limitation, having one or more of Developer's employees or consultants who are knowledgeable regarding this Agreement, the design and planning of the Project and the progress of negotiation of a future DDA, such that such person(s) can meaningfully respond to Agency governing body or Agency staff questions regarding the progress of the design and planning of the Project or the negotiation of a future DDA, attend both: (1) meetings with Agency staff, as reasonably scheduled by Agency staff, and (2) meetings of Agency governing body, when reasonably requested to do so by Agency staff. (b) DDA. During Negotiation Period, Developer shall diligently review and comment on drafts of a DDA prepared by Agency's legal counsel and, if the terms and conditions of such a DDA are agreed upon between Agency staff and Developer within the time period set forth in Section 5, submit the DDA signed by the authorized representative(s) of Developer to Agency Executive Director for submission to the Agency governing body for review and approval or disapproval prior to the expiration of the Negotiation Period. Any future DDA shall consist of terms, conditions, covenants, restrictions and agreements acceptable to both Developer and Agency governing body, in their respective sole and absolute discretion. (c) CEQA Documents. During the Negotiation Period, Developer shall diligently review and comment on draft environmental review documents relating to the Project prepared by the City's or the Agency's environmental consultant. 9. Developer to Pay All Costs and Expenses. All fees or expenses of engineers, architects, financial consultants, legal, planning or other consultants or contractors, retained by Developer for any study, analysis, evaluation, report, schedule, estimate, environmental review, planning or design activities, drawings, specifications or other activity or matter relating to the Property or the Project or negotiation or documentation of a future DDA that may be undertaken by Developer during the Negotiation Period, pursuant to or in reliance upon this Agreement or in Developer's discretion, regarding any matter relating to this Agreement, a future DDA, the Property or the Project, shall be the sole responsibility of and undertaken at the sole cost and expense of Developer, except as provided in Section 4(a)(ii), and no such activity or matter shall be deemed to be undertaken for the benefit of, at the expense of or in reliance upon Agency. Developer shall also pay all fees, charges and costs, make all deposits and provide all bonds or other security associated with the submission to and processing by the City or Agency of any and all applications and other documents and information to be submitted to the City or Agency by Developer pursuant to this Agreement or otherwise associated with the Project or the Property. Agency shall not be obligated to pay, reimburse or refund any expenses, fees, charges or costs incurred by Developer in pursuit of any study, analysis, evaluation, report, schedule, estimate, environmental review, planning and/or design activities, drawings, specifications or other activity or matter relating to this Agreement, the Property, the Project or negotiation or documentation of a future DDA that may be undertaken by Developer during the Negotiation Period, whether or not this Agreement is, eventually, terminated or extended or a DDA is entered into between Agency and Developer, in the future, except as provided in Section 4(a)(ii). '7 45636.06001\5927277.3 10. Agency Not To Negotiate With Others. (a) Negotiation. During the Negotiation Period, the Agency governing body and Agency staff shall not negotiate with any other person regarding the sale[, lease] or redevelopment of the Property, except as may be provided for in the Redevelopment Plan. The term "negotiate," as used in this Agreement, means and refers to engaging, in any discussions with a person other than Developer, regardless of how initiated, with respect to that person's redevelopment of the Property to the total or partial exclusion of Developer from redeveloping the Property, without Developer's written consent, subject to the provisions of Section 10(b). Notwithstanding the preceding provisions of this Section 10(a), Agency shall have the right to receive and retain unsolicited offers regarding redevelopment of the Property from persons other than Developer, but shall not negotiate with the proponent of any such offer during the Negotiation Period. Nothing in this Agreement shall prevent or prohibit Agency from discussing or disclosing the fact that Agency is a Party to this Agreement. (b) Redevelopment Plan Implementation. Notwithstanding any other provision of this Agreement (including Section 10(a)), implementation of the Redevelopment Plan shall be and remain in the sole and exclusive purview and discretion of Agency. Nothing in this Agreement shall limit, prevent, restrict or inhibit Agency from providing any information in its possession or control that would customarily be furnished to persons requesting information' from Agency concerning Agency's activities, goals, matters of a similar nature relating to implementation of the Redevelopment Plan or as required by law to be disclosed, upon request or otherwise. It. Acknowledgments and Reservations. (a) No Project Commitment. Agency and Developer agree that, if this Agreement expires or is terminated for any reason, or a future DDA is not approved and signed by both Agency and Developer, for any reason, neither Agency nor Developer shall be under any obligation, nor have any liability to each other or any other person regarding the sale or other disposition of the Property or the redevelopment of the Project or the Property. (b) No Agency Offer or Acceptance. Developer acknowledges and agrees that no provision of this .Agreement shall be deemed to be an offer by Agency, nor an acceptance by Agency of any offer or proposal from Developer, for Agency to convey any estate or interest in the Property to Developer or for Agency to provide any financial or other assistance to Developer for redevelopment of the Project or the Property. (c) No Conveyance. Developer acknowledges and agrees that Developer has not acquired, nor will acquire, by virtue of the terms of this Agreement, any legal or equitable interest in real or personal property from Agency. (d) Development Standards. Certain development standards and design controls for the Project may be established between Developer and Agency, but Agency and Developer understand and agree that the Project and the redevelopment of the Property must conform to all Agency, City and other applicable governmental development, land use and architectural regulations .and standards. Drawings, plans and specifications for the Project shall 8 45636.0600 1 15 9272 7 7.3 be subject to the approval of Agency and the City, through the standard development application and design review processes for redevelopment projects within the Project Area. Nothing in this Agreement shall be considered approval of any plans or specifications for the Project or of the Project itself by either Agency or the City. The Parties enter into this Agreement further acknowledging and intending that a complete and definitive future DDA may not be entered into between them, if at all, prior to review of the Project in accordance with CEQA by either the City or Agency. (e) No City or Agency Approval. Nothing in this Agreement, nor any comments provided by Agency staff, nor any failure of Agency staff to provide comments to any submittal under or pursuant to this Agreement shall: (1) modify or replace any land use entitlement process of either the City or Agency applicable to the Project, (2) limit the police power land use jurisdiction of either the City or Agency relative to the Project, (3) constitute an approval of all or any portion of the Project by the City or Agency pursuant to the police power land use jurisdiction of either the City or Agency or (4) constitute any approval of all or any portion of a future DDA with Developer by the City or Agency. (f) Agency Due Diligence. Agency reserves the right to reasonably obtain further information, data and commitments to ascertain the ability and capacity of Developer to purchase, lease, develop and operate the Property or the Project. Developer acknowledges that it may be requested to make certain financial disclosures to Agency, its staff, legal counsel or other consultants, as part of the financial due diligence investigations of Agency relating to the potential sale of the Property and redevelopment of the Project on the Property by Developer and that any such disclosures may become public records. Agency shall maintain the confidentiality of financial information of Developer to the extent allowed by law, as determined by the City Attorney for the City of Azusa, California. (g) Required City and Agency Approval. Agency shall not be deemed to be a Party to any agreement for the acquisition of; lease of or disposition of real or personal property, financial commitments to Developer or development of the Project on the Property or elsewhere, until the terms and conditions of a complete future DDA are considered and approved by both the City Council and the Agency governing body, in their respective sole and absolute discretion, following any required public hearing(s), determinations, findings or other procedures. Developer expressly acknowledges and agrees that Agency will not be bound by any statement, promise or representation made by Agency staff or representatives during the course of negotiations of a future DDA and that Agency shall only be legally bound upon the approval of a complete DDA in the future by both the City Council and the Agency governing body, in their respective sole and absolute discretion, in accordance with law. (h) No Intent to be Bound. Further efforts by either Party to perform due diligence, arrange or obtain financing, or carry out other acts in contemplation of the possible acquisition, transfer or development of the Property or the Project shall not be deemed evidence of intent by either Party to be bound by any terms, conditions, covenants, restrictions or agreements relating to acquisition, transfer or development of the Property or the Project. 12. Nondiscrimination. Developer covenants by and for itself, himself or herself, its, his or her heirs, executors, administrators, and assigns, and all persons claiming under or 9 456360600 1 \5927277.3 through it, him or her, and this Agreement is made and accepted upon and subject to the following conditions: (a) Standards. That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property nor shall Developer, itself, himself or herself, or any person claiming under or through it, him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, subtenants, sublessees, or vendees in the Property. (b) Interpretation. Notwithstanding Section 12(a), with respect to familial status, Section 12(a) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in Section 12(a) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 5 1.1 I, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to Section 12(a). 13. LIMITATION ON REMEDIES AND DAMAGES. (a) LIQUIDATED DAMAGES. THE DEVELOPER AND THE AGENCY ACKNOWLEDGE THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN THE AMOUNT OF DAMAGES THAT WOULD BE SUFFERED BY THE DEVELOPER UPON THE BREACH OF THIS AGREEMENT BY THE AGENCY. HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL DAMAGES THE DEVELOPER WOULD SUFFER UPON THE BREACH OF THIS AGREEMENT BY THE AGENCY, THE DEVELOPER AND THE AGENCY AGREE THAT A REASONABLE ESTIMATE OF THE DEVELOPER'S DAMAGES IN SUCH EVENT IS FIFTEEN THOUSAND DOLLARS ($15,000.00) ("LIQUIDATED DAMAGES AMOUNT"). THEREFORE, UPON 'THE BREACH OF THIS AGREEMENT BY THE AGENCY, THE AGENCY SHALL PAY THE LIQUIDATED DAMAGES AMOUNT TO THE DEVELOPER AND THIS AGREEMENT SHALL TERMINATE. RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT SHALL BE THE DEVELOPER'S SOLE AND EXCLUSIVE REMEDY ARISING FROM ANY BREACH OF THIS AGREEMENT BY THE AGENCY EXCEPT FOR THOSE DAMAGES THAT DEVELOPER MAY SUFFER ARISING OUT OF OR RELATED TO THE, AGENCY'S FRAUD OR WILLFUL MISCONDUCT. (b) DEVELOPER WAIVER AND RELEASE. AGENCY AND DEVELOPER EACH ACKNOWLEDGE AND AGREE THAT AGENCY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT, IF IT WERE TO BE LIABLE TO THE DEVELOPER FOR ANY MONETARY DAMAGES, MONETARY RECOVERY OR ANY REMEDY IN THE EVENT OF A DEFAULT OF THIS AGREEMENT BY THE AGENCY, OTHER THAN' TERMINATION OF THIS AGREEMENT AND PAYMENT OF THE LIQUIDATED DAMAGES AMOUNT. ACCORDINGLY, AGENCY AND DEVELOPER 10 45636.0600115927277.3 AGREE THAT THE DEVELOPER'S SOLE AND EXCLUSIVE RIGHT AND REMEDY DURING A DEFAULT OF THIS AGREEMENT BY THE AGENCY IS TO TERMINATE THIS AGREEMENT AND RECEIVE THE LIQUIDATED DAMAGES AMOUNT. THE DEVELOPER WAIVES ANY RIGHT TO PURSUE ANY REMEDY, OTHER THAN TERMINATION OF THIS AGREEMENT, AND TO RECOVER ANY AMOUNTS, OTHER THAN THE LIQUIDATED DAMAGES AMOUNT, FROM THE AGENCY AS A RESULT OF ANY DEFAULT OF THIS AGREEMENT BY THE AGENCY. (c) DEVELOPER 1542 ACKNOWLEDGMENT. THE DEVELOPER ACKNOWLEDGES THAT IT IS AWARE OF THE MEANING AND LEGAL EFFECT OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN' HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. (d) DEVELOPER 1542 WAIVER. CALIFORNIA CIVIL CODE SECTION 1542 NOTWITHSTANDING, IT IS THE INTENTION OF THE DEVELOPER TO BE BOUND BY THE LIMITATION ON DAMAGES AND REMEDIES SET FORTH IN THIS SECTION 13, AND THE DEVELOPER HEREBY WAIVES AND RELEASES ANY AND ALL CLAIMS AGAINST THE AGENCY FOR MONETARY DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE RELIEF RELATED TO ANY DEFAULT OR BREACH OF THIS AGREEMENT, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 13, WHETHER OR NOT ANY SUCH RELEASED CLAIMS WERE KNOWN OR UNKNOWN TO THE DEVELOPER AS OF THE EFFECTIVE DATE OF THIS AGREEMENT. THE DEVELOPER SPECIFICALLY WAIVES THE BENEFITS OF CALIFORNIA CIVIL CODE SECTION' 1542 AND ALL OTHER STATUTES AND JUDICIAL DECISIONS (WHETHER STATE OR FEDERAL) OF SIMILAR EFFECT WITH REGARD TO THE LIMITATIONS ON DAMAGES OR REMEDIES AND WAIVERS AND RELEASES OF ANY SUCH DAMAGES OR REMEDIES CONTAINED IN THIS SECTION 13. Initials of Authorized Agency Representative 14. Default; Breach; Remedy. Initials of Authorized Developer Representative (a) Default. Failure or delay by either Party to perform any material term or provision of this Agreement shall constitute a default under this Agreement. If the Party who is claimed to be in default by the other Party cures, corrects or remedies the alleged default within fifteen (15) calendar days after receipt of a written "Notice of Default" (as defined in Section 14(b)), such Party shall not be in default under this Agreement. The notice and cure period provided in the immediately preceding sentence shall not, under any circumstances, extend the I1 45636.0600 )15927277.3 Negotiation Period. if there are less than fifteen (15) days remaining in the Negotiation Period, the cure period allowed pursuant to this Section 14(a) shall be automatically reduced to the number of days remaining in the Negotiation Period. (b) Notice of Default. The Party claiming that a default has occurred shall give written notice of default ("Notice of Default") to the Party claimed to be in default, stating, with reasonable specificity, the nature of the alleged default and the actions necessary to cure such allege default. However, the injured Party shall have no right to exercise any remedy for a default under this Agreement, without first delivering such written Notice of Default.. ' (c) No Waiver. Any failure or delay by a Party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. (d) Breach; Termination. If a default of either Party remains uncured for more than fifteen (15) calendar days following such Party's receipt of written notice of such default, a "breach" of this Agreement by the defaulting Party shall have occurred, except as otherwise provided in Section 14(a) during the last fifteen (15) calendar days of the Negotiation Period. In the event of a breach of this Agreement, the sole and exclusive remedy of the Party who is not in breach, shall be to terminate this Agreement by serving written notice of termination on the Part' in breach and, in the case of a breach by Agency, Developer shall also be entitled to receive the Liquidated Damages Amount and the recovery of any damages (collectively, "Fraud Ilamages") arising out of or related to the Agency's fraud or willful misconduct (collectively, "Fraudulent Conduct"). Likewise, the Agency may recover Fraud Damages against Developer arising out of or related to Developer's Fraudulent Conduct. Upon receipt by the breaching Party of a written notice of termination (and in the case of a breach by the Agency, receipt by the Developer of the entire Liquidated Damages Amount), neither Party shall have any further rights against or obligation to the other Party unless the other Party is held by a court of competent jurisdiction to be guilty of Fraudulent Conduct, in which case the non - defaulting Party shall be! entitled to Fraud Damages arising out of or related to such Fraudulent Conduct. The failure of Developer to timely make the deposit of funds required under this Agreement or to timely submit any item described in Section 4 shall be considered a "material" default under this Agreement by Developer. 15. Indemnification. (a) Agency Indemnification. Agency shall defend, indemnify, assume all responsibility for, and hold Developer and its officers., employees, contractors, agents, and representatives harmless from, all claims, demands, damages, defense costs or liability of any kind or nature (including attorneys' fees and costs) and for any damages to property or injuries to persons, including accidental death, which may be caused by or arise out of the Agency's performance or failure to perform its obligations pursuant to this Agreement or Agency's ownership or operation of the Property, whether such activities or performance thereof be by the Agency or by anyone employed or contracted with by the Agency and whether such damage shall accrue or be discovered before or after termination of this Agreement. Agency shall not be liable for property damage or bodily injury occasioned by the negligence of, willful misconduct 12 45636.06001'5927277.3 of, or breach of this Agreement by Developer or its officers, employees, contractors, agents, or representatives. (b) Developer Indemnification. Developer shall defend; indemnify, assume all responsibility for, and hold Agency and City, and their respective officers, employees, contractors, agents, and representatives harmless from, all claims, demands, damages, defense costs or liability of any kind or nature (including attorneys' fees and costs) and for any damages to property or injuries to persons, including accidental death, in connection with or arising from Developer's performance or nonperformance of its obligations under this Agreement, and the entry upon the Property by Developer and its consultants and contractors, whether such activities or performance thereof be by the Developer or by anyone employed by or contracted with the Developer and whether such damage shall accrue or be discovered before or after expiration or termination of this Agreement. Developer shall not be liable for property damage or bodily injury occasioned by the negligence of, willful misconduct of, or breach of this Agreement by Agency or City, or their respective officers, employees, contractors, agents, or representatives. 16. Compliance with Law. Developer acknowledges that any future DDA, if approved by the Agency governing body, will require Developer (among other things) to carry out the development of the Project in conformity with all applicable laws, including all applicable building, planning and zoning laws, environmental laws, safety laws and federal and state labor and wage laws. 17. Notice. All notices required under this Agreement shall be presented in person, by nationally recognized overnight (one business day) delivery service (i.e., Federal Express, United Parcel Service, etc.) or by first class certified or registered United States mail, with postage prepaid and return receipt requested, to the address for the Party set forth in this Section 17. Notice shall be deemed received by United States Postal Service delivery as of the third (3rd) business day after deposit with the United States Postal Service, addressed as required by this Section 17. Notice by personal service or nationally recognized overnight delivery service shall be effective upon delivery. Either Party may change its address for receipt of notices by notifying the other Party in writing. Rejection, other refusal to accept or the inability to deliver a notice because of a changed address of which no notice was given or other action by the Party to whom the notice is transmitted, shall be deemed receipt of the notice. To Developer: Kai Pacific & Associates, Inc. 31045 Temecula Parkway #201 Temecula. CA 92590 To Agency: Redevelopment Agency of the g y City of Azusa 213 East Foothill Boulevard Azusa, CA 91702 Attn: Executive Director 18. Warrant' Against Payment of Consideration for Agreement. Developer represents and warrants that: (a) Developer has not employed or retained any person to solicit or 13 95636.0600 115 9-2727 7.3 secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees of Developer and third persons to whom fees are paid for professional services related to planning, design or construction of the Project or documentation of this Agreement; and (b) no gratuities, in the form of entertainment, gifts or otherwise have been or will be given by Developer or any of its agents, employees or representatives to any elected or appointed official or employee of either the City or Agency in an attempt to secure this Agreement or favorable terms or conditions for this Agreement. Breach of the representations or warranties of this Section I8 shall entitle Agency to terminate this Agreement, on two (2) clays' notice to Developer: Upon any such termination of this Agreement by Agency, Developer shall immediately refund any payments made to or on behalf of Developer by the City or Agency pursuant to this Agreement or otherwise related to the Project or the Property, prior to the date of any such termination. 19. Press Releases. During the Negotiation Period, Developer agrees to obtain the approval of Agency Executive Director or his or her designee or successor in function of any press release(s) Developer may propose relating to the Property, the Project or negotiation of a future DDA, prior to publication. 20. Counterpart Originals. This Agreement may be signed by Agency and Developer in multiple counterpart originals, all of which together shall constitute a single agreement. 21. No Third -Party Beneficiaries. Nothing in this Agreement is intended to benefit any person or entity other than Agency or Developer. 22. Governing Law. Agency and Developer acknowledge and agree that this Agreement was negotiated, entered into and is to be fully performed in the City of Azusa, California. Agency and Developer agree that this Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California, without application of conflicts or choice of laws principles. 23. Waivers. No waiver of any breach or default of any term or condition contained in this Agreement shall be deemed a waiver of any preceding or succeeding breach or default of such term or condition, or of any other term or condition contained in this Agreement. No extension of the time for performance of any obligation or act, no waiver of any term or condition of this Agreement, nor any modification of this Agreement shall be enforceable against Agency or Developer, unless made in writing and executed by the Party against whom such extension, waiver or modification is sought to be enforced. 24. Principles of Interpretation. No inference in favor of or against any Party shall be drawn from the fact that such Party has drafted any part of this Agreement. The Parties have both participated substantially in the negotiation, drafting, and revision of this Agreement, with advice from legal and other counsel and advisers of their own selection. A word, term or phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English grammar, which shall govern all language in this Agreement. The words "include" and "including" in this Agreement shall be construed to be followed by the words: "without limitation." Each collective noun in this Agreement shall be 14 45636.06001 \5927277.3 interpreted as if followed by the words "(or any part of it)," except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document, as modified from time to time (excepting any modification that violates this Agreement), and includes all exhibits, schedules, addenda and riders to such document. The word "or" in this Agreement includes the word "and." Every reference to a law, statute, regulation, order, form or similar governmental requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded, from time to time. Headings at the beginning of each section and sub -section of this Agreement are solely for the convenience of reference of Agency and Developer and are not a part of this Agreement. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. Unless otherwise indicated, all references to sections are to this Agreement. All exhibits referred to in this Agreement are attached to this Agreement, unless otherwise specified. If the date on which Agency or Developer is required to take any action pursuant to the terms of this Agreement is not a business day of Agency, the action shall be taken on the next succeeding business day of Agency. 25. Attorneys' Fees. If either Party hereto files any action or brings any action or proceeding against the other arising out of this Agreement, then the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, its reasonable attorneys' fees as fixed by the court, in such action or proceeding or in a separate action or proceeding brought to recover such attorneys' fees. For the purposes hereof the words "reasonable attorneys' fees" mean and include, in the case of Agency, salaries and expenses of the lawyers employed by Agency (allocated on an hourly basis) who may provide legal services to Agency in connection with the representation of Agency in any such matter. 26. Termination as a Result in Change of Law. Developer acknowledges that on January 10, 2011 Governor Jerry Brown proposed legislation to eliminate Redevelopment Agencies and the related funding source. As such, Developer and Agency agree that if there is a change in the law, that in the Agency's reasonable discretion, prevents the Agency or its successor from performing Agency's obligations hereunder, the Agency may terminate this Agreement by delivery of written notice to Developer. Termination of this Agreement pursuant to this Section shall not be a default under this Agreement and Developer shall not be entitled to damages as a result of this termination. This is intended to constitute a present, binding, unconditional obligation of the Agency. [Signatures on the following page] 15 45636.0600 1\5927277.3 SIGNATURE PAGE TO EXCLUSIVE NEGOTIATION AGREEMENT (229 S. Azusa Avenue) IN WITNESS WHEREOF, Agency and Developer have signed this Exclusive Negotiation Agreement (229 S. Azusa Avenue) by and through the signatures of their authorized representatives set forth below: AGENCY: REDEVELOPMENT AGENCY OF THE CITY OF AZUSA Executive Director ATTEST: DEVELOPER: KAL PACIFIC & ASSOCIATES, INC., a Calcorporation Name: Its: By: By: Agency Secretary Name: APPROVED AS TO FORM: M Agency Counsel Ib. 95636.0600115927277.3 Its: EXHIBIT "A" TO EXCLUSIVE NEGOTIATION AGREEMENT (229 S. Azusa Avenue) Property Legal Description [APYs: 8614-014-056, 8614-014-057, 8614-014-058] All that certain real property situated in the County of Los Angeles, State of California, described as follows: Parcel 1: Those portions of Lots 20 and 21 of Tract No. 13641, in the City of Azusa, County of Los Angeles, State of Califomia, as shown on Map recorded in Book 328, Pages 18 and 19 of Maps, in the Office of the County Recorder of said County, and that portion of Lot 4 of Tract No. 13426, in the City of Azusa, County of Los Angeles, State of Califomia, as shown on Map recorded in Book 268, Page 40 of Maps, in the Office of the County Recorder of said County, included within the following described boundaries: Beginning at the Southwesterly corner of said Lot 20; thence along the Westerly line of said Lot 20, and the Westerly line of said Lot 21, North 00006'21" East 61.81 feet to the Easterly terminus of that course bearing and distance of North 73023'08" West, 12,52 feet, in the Northerly line of Parcel 16 of the highway right-of-way relinquished (REL -709) to the City of Azusa by Resolution of the California_ Highway Commission, a Certified Copy of which resolution Is recorded in Book R3279, Page 904 Official Records, in said Office, and as shown on Map recorded in Book 7, Pages 91 to 98 inclusive of State Highway Maps, In said Office; thence along the Easterly prolongation of last said course, South 73023'08" East, 130.05 feet to the Easterly line of said Lot 20; thence South 89054'12" East 10.08 feet to the centerline of that alley, 20.00 feet wide, as shown on the Map of said Tract No. 13641; thence continuing South 89054'12" East, 10.08 feet to the Westerly line of said Lot 4; thence South 89053'22" East, 138.17 feet; thence South 75021'18" East, 27.89 feet to the Westerly line of the Easterly 10.00 feet of said Lot 4; thence along last said Westerly line South 00006'38" West 17.81 feet to the Southerly line of said Lot 4; thence along said Southerly line North 89054'50" West 165.00 feet to said Westerly line of said Lot 4; thence along a line perpendicular to said centerline, North 89053'39" West, 10.08 feet to said centerline; thence continuing North 89053'39" West, 10.08 feet to the Southeasterly corner of said Lot 20; thence along the Southerly line of said Lot 20, North 89054'50" East 124.69 feet to the Point of Beginning, together with that vacated portion of San Gabriel Avenue, Parcel 2 Exhibit "A" 45636.06001%5927277.3 parts 01 said land lying more than 500 Feet below the surface thereof for any and all purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances or minerals from said lands, but without, howeverr the rttght to use either the surface of said lama or any portion of said land within 500 feet of the surface for any purpose or purposes whatsoever, as excepted and reserved by Carl F. Crandall and Sandra L. Crandall, In deed recorded September 12, 1986 as Instrument No. 86- 1206502, together wfth that vacated portion of San Gabriel Avenue. Parcel 7: Lot 16 of Tract 13641, in the City of Azusa, County of Los Angeles, State of California, as per Map recorded In Book 328, Pages 18 and 19 or Maps, in the Office of the County Recorder of said County. Except all oil, hydrocarbon substances and minerals of every kind and charaCh!r lying more than 500 feet below the surface of said land, together with the right to drill into, through, and to use and occupy all Parts a; said land lying more than 500 feet below the surface thereof to, - any and all purposes incidental to the exploration for and production of o4f, gas, hyclrocarbon substances or minerals from said lands but wlMOut, however, the right to use either the surface of said land or any portion of said land within 5,00 feet of the surface for any purpose or purposes whatsoever, as excepted and reserved by Edger Reynolds, 3r., and Connie L Reynolds, by deed recorded May 16, 1986 as Instrument No. 86- 609667, together with that vacated portion of San Gabriel Avenue. Parcel 8: Lot 8, Tract 13426, in the City of Azusa, County of Los Angeles, State of California, as per Map recorded In Book 268, Page 40 of Maps, in the Office of the County Recorder of said County. Except the East 10 Feet conveyed to the State of California by deed reCOrded May 19, 1964 as Instrument NO. 4944, Offlctal Reviras That portion of that certain alley, 20 feet wide, shown ulion and dedicated by the Map or Tract 13426, in the Clty of Azusa, County of Los Angeles, State of California, as per Map recorded in Book 268, Page 40 of Maps, In the Ofiiaa of the County Recorder of said County, which lies between the Westerly prolongation of the Northerly line of Lot 4 of said tract and of the Northerly fine of the Southerty 5 feet of Lot 11 of said tract. Except ali oil, hydrocarbons substances and minerals of every kind and character lying more than 500 feet below the surface of said land, together with the right to drill Into, through and to use and Occupy all Parts of said land lying more than 500 feet below the surface thereof' for any and all purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances or minerals from said lands but without, however, the fight to use either the surface of said land or any other portion of said land within 500 feet of the surface for any purpose or purposes whatsoever, as excepted and reserved by the Azusa Agriculture Water Company, a Corporation, in deed recorded March 13, 1987 as lnstrurm!nt No. 87.382036, Official Records. Assessor's Pa l Awmbe,: 7614-014-036, 8614-014-057, 6614-OL4_0" Exhibit "A" 45636 060085927277.3 EXHIBIT "B" TO EXCLUSIVE NEGOTIATION AGREEMENT (229 S. Azusa Avenue) Schedule of Performance `, Milestone Descn tion: Scti¢dule` 1 Developer Deposit Payment of S 15,000 deposit to Agency Within 5 days of Effective e Date 2 Feasibility Study Submittal of a completed feasibility study Within 90 days of Effective to the Agency Date 3 Go/No Go Decision Last date that either Developer or Agency Within 10 days of submission Point may cancel the ENA with a full refund of of the Feasibility Study to the Developer Deposit. Agency 4 1 Hotel Franchise Developer submits proof of contractual Within 30 days of receipt of relationship between Developer and Feasibility Study applicable hotel chain 5 Conceptual Site Developer shall submit a conceptual site Within 45 days of receipt of Plan plan for the Property Feasibility Stud 6 Approval of Site The Agency shall approve the Site Plan Within 10 days of receipt of Plan Conceptual Site Plan 7 Proposed Timeline Developer shall submit a proposed time Within 45 days of receipt of schedule including demolition, construction Feasibility Study phasing, completion and opening. 8 Finance Plan Developer shall submit its Finance Plan to Within 45 days of receipt of the Agency Feasibility Stud 9 Design Plan and Based on the approved Site Plan, Developer Within 30 days of approval of Entitlement shall submit a complete conceptual Site Plan. Application and development plan for the Project on the CEQA. Property that describes and depicts: (1) the location and placement of proposed buildings and (2) the architecture and elevations of the proposed buildings. Developer shall also file an application for required City entitlements and CEQA. i0 Development Entity Developer shall submit documentation of Within 30 days of submitting and Financing development entity for the project and a Finance Pian letter identifying lenders and proof of ability to obtain Project financing. DDA Complete negotiations and final draft of Within 220 days of Effective Disposition and Development Agreement Date d12Draft Redevelopment Present development proposal and DDA to Within 240 days of Effective Agency/City Agency and City Council for approval Date Council Hearing I Exhibit `B" 45636.0600115927277.3 F WARRANT REGISTER NO. 14 WARRANTS DATED 4/01/11 THROUGH 4/15/11 FOR REDEVELOPMENT AGENCY MEETING OF 5/16/11 RESOLUTION NO. dW FISC YEAR 2010-11 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 lYEDEVELOPMENT 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 -REDEVELOPMENT ADMINISTRATION FUND 80 -125 -CBD CAPITAL PROJECTS FUND 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 82 -135 -WED DEBT SERVICE FUND 82 -165 -MERGED PROJECT TAX ALLOCATION BONDS 82 -185 -RANCH CENTER DEBT SERVICE FUND TOTAL ALL FUNDS: S 3,298 60 975.33 130.41 36.88 $ 4,441.22 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 Chairman 2011. 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 2011. AYES: AGENCY _MEMBERS: NOES: AGENCY MEMBERS: ABSTAIN: AGENCY ;MEMBERS: ABSENT: AGENCY ;MEMBERS: Secretary City of Azusa HP 9000 05/10/11 O P E N H 0 L D D B LISTING By Fe san/Ehtity Nacre paqe 1 I0 NM 10, 2011, 3:13 FM ---req: RUBY -------leg: CL JL --- loc: BI-= --- jcb: 815974 #J4076 --- pgn: CFAOO <1.34> xpt id: CFTLTR02 SELECT HIND Codes: 80-82 ; ick Issue Rtes: 040111-041511 PE ID PE Name ACNP NUMBER / JCB NNBER Invoice NiuTber Le=pticn St Disc. Ant. Dist. Dirt. V00270 ATHQS SERVICES 8010125000-6815/505800-6815 364722000022811 SVC/624N SN GAB PD 0.00 175.33 PEID UID,: d: 0.00 Paid: 175.33 'Ibtal: 175.33 V01305 AZLEA CITY BVIPL0 8000000000-3035 040511 PR7/11 ED 0.00 350.00 PEID U4)a;d: 0.00 Paid: 350.00 Total: 350.00 V10604 AZIISA ME= WN 8000000000-3020 2618/1101007 PY#07/11 PJ 0.00 35.00 PEID LVd: 0.00 Paid: 35.00 Tbtal: 35.00 V12477 V12477 C.T.& F. INC C.T.& F. IM 8010165624-2745 8010165624-7170/661106-7170 7 7 Ckntsacts Pbl Cb FD 0.00 TARGET INTERSECT FD 0.00 -14.49 144.90 PEID d: 0.00 d: 130.41 Total: 130.41 V06783 V06783 V06783 CTTISIREEP C3TISIREET CITISIREcI 8000000000-3010 8000000000-3010 8000000000-3010 2315/1101007 1310/1101007 2310/1101007 PY#07/11 PD 0.00 PY#07/11 PD 0.00 PY#07/11 PD 0.00 125.08 267.00 586.83 PEID ih . : 0.00 Paid: 978.91 Total: 978.91 V08010 DUKE'S LANDSCAPI 8010125000-6625 5926 CLEAN UP/813N RA PD 0.00 800.00 PEID Id: 0.00 d: 800.00 Tota].: 800.00 V10322 V10322 V10322 M & T BANK M & T HANK M & T BANK 8000000000-3010 8000000000-3010 8000000000-2727 032911 032911 032911 ICNA 457 FR06 11 RV 0.00 I6vA 457 DEFERRE PD 0.00 PARS -EXCESS AFRI RV 0.00 369.17 369.17 460.00 •ct 0 City of Azusa HP 9000 05/10/11 O P E N H O L D , NAY 10, 2011, 3:13 HSI ---req: RUBY -------leg: GL JL --- loc: D B LISTING By PET � Eltity Nam BI -TECH --- jcb: 815974 #34076 --- pgn: CHA00 a1.34> rpt id: Pace 2 Cd 'IR02 SECFC-T FUSD C7des: 80-82 ; Check Issue Dates: 040111-041511 PE ID PE Narre ACOM TI' NUMBER / JOB NCMBER Invoice NLrrber Dwcripticn St Disc. Airt. Dist. Ant. PEID d: 0.00 Thtal: 369.17 369.17 Reversed: 829.17 V06652 V06652 V06652 OFFICE WX CSIIIR 8010110000-6530 OFFICE MX C33M 8010110000-6530; OF" -CE AK CUUR. 8110155000-6625/505300-6625 226835 226835 292340 S10E505A HP ICNE FO . 0.00 F14533 P MAFLEX FD 0.00 S10E653AN#140 HP FD 0.00 111.60 x2.87 36.88 PES Urpmaid: 0.00 Paid: 201.35 Total: 201.35 V11644 SAN G�PRIFr VALL 8010110000-6230 2677 ICSC CSNF/BSI PD 0.00 700.00 FEED 0.00 Paid: 700.00 Total: 700.00 V10053 SP1)NaAFD II3SURAN 8000000000-3044 1221/1101007 PY#07/11 PD 0.00 132.64 PEID d: 0.00 Paid: 'Ibtal: 132.64 132.64 V06107 V06107 U.S. BqE OMP P 8010110000-6625 U.S. BANK CIRP P 8010110000-6625 033111 032911 CA SEC OF SIAIE RV 0.00 CA SEC' OF SIA E( PD 0.00 10.00 10.00 PESd: 0.00 Paid: 10.00 1btal: 10.00 Reversed: 10.00 V12065 UVICN 2MY OF C71 8000000000-2727 032911 PARS -EXCESS BFEE FD 0.00 460.00 PEID Ulpmaa : 0.00 Paid: 460.00 'Ibtal: 460.00 V04678 V04678 VERI7AV WTRFtF:RR 8010110000-6915 VERIZCN WIRE ESUS 8010110000-6915 0962481276 0962492571 0962481276 PD 0.00 0962492571 PD 0.00 88.41 10.00 wof Amisa HP 9000 05/10/11 O P E N H O L D D B LISTING By Fessa/Ehtity Nage Page 3 NM 10, 2011, 3:13 EM ---req: RUBY -------leg: GL JL --- loc: BI-7D;%I--- jcab: 815974 W4076---pqn: C11400 <1.34> rpt id: CHEMR02 SE= FUJD Oxles: 80-82 ; Check Issue Dates: 040111-041511 GRAND TOTAL Des=pticn St Disc. Ate. . Dist. Ant. PEID d: 0.00 d: 98.41 Total: 98.41 U�d: 0.00 Paid: 4,441.22 'ibtal: 4,441.22 Reversed: 839.17